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April 19, 2013 by John Knox

Death of a Statute: The Kiobel Ruling

On Wednesday, the Supreme Court ended a generation of human rights litigation in the United States by holding, in Kiobel v. Royal Dutch Petroleum, that the Alien Tort Statute (ATS) does not apply to actions occurring in foreign countries. The ATS allows plaintiffs to sue in federal courts for torts committed in violation of international law and, since 1980, plaintiffs have used it for claims of grave human rights violations, such as torture, crimes against humanity, extrajudicial killing, and even genocide, arising in other countries. Now it appears that the federal courts will be closed to such claims.  

In recent years, plaintiffs had brought a series of cases against corporations that accused them of complicity in human rights abuses. Many of those claims were against corporations exploiting natural resources in developing countries. For example, Kiobel arose from Shell’s decades-long presence in the Niger Delta. In the 1990s, in response to protests by the Ogoni people about the environmental harm caused by oil extraction, Nigeria cracked down, destroying villages, arresting dissidents, and, in 1995, executing nine Ogoni leaders, including Ken Saro-Wiwa. Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U …

Sept. 28, 2012 by John Knox
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Remember Kiobel v. Royal Dutch Petroleum, argued before the Supreme Court last term?  It’s back – the Court will hear argument again Monday – and bigger than before. 

A brief recap:  For decades, Shell has extracted oil from the Niger Delta, causing extensive environmental degradation.  The government of Nigeria, with the alleged support of Shell, cracked down on protests by the local residents, the Ogoni tribe, by executing their leader, Ken Saro-Wiwa, and eight others in 1995.  Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law.  They relied on the Alien Tort Statute (ATS), a law enacted by the First Congress in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of …

July 26, 2012 by John Knox
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a(broad) perspective

Today’s post is the sixth in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these treaties.  Previous posts are here.

International Treaty on Plant Genetic Resources for Food and Agriculture Adopted by the Food and Agriculture Organization on November 3, 2001

Entered into Force on June 29, 2004 Number of Parties: 127

Signed by the United States on November 3, 2002 Sent to the Senate on July 7, 2008 Reported favorably by the Senate Foreign Relations Committee on December 14, 2010

As the world’s population continues to grow, global production of food must grow with it. The United Nations Food and Agriculture Organization (FAO) predicts that farmers will have to increase production by at least 70 percent by 2050 to …

April 11, 2012 by John Knox
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a(broad) perspective

Today’s post is second in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these ten treaties.  Previous posts are here.

Annex VI on Liability Arising from Environmental Emergencies to the Protocol on Environmental Protection to the Antarctic Treaty Adopted and Opened for Signature on June 14, 2005 Entry into Force Pending Signed by the United States on June 14, 2005 Sent to the Senate on April 2, 2009 

Antarctica is the coldest, driest, highest, most pristine, and least inhabited continent, and it has the largest contained ecosystem on the planet.  Home to whales, seals, penguins, petrels, and many animals and plants found nowhere else on earth, Antarctica also plays an integral role in regulating global environmental processes.  

Though largely isolated from …

March 7, 2012 by John Knox
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Last week, the Supreme Court heard oral argument in Kiobel v Royal Dutch Petroleum, the case asking whether corporations can be liable in federal court for violations of international human rights law.  In the decision under review, the Second Circuit – unlike every other circuit court to consider the question – had held that they could never be liable.  So one might think that a logical way for the petitioners to begin their oral argument would be to give an example or two where international law had recognized corporate liability.  And, in fact, Justice “Swing Vote” Kennedy hit the attorney for the petitioners with that very question before he had completed his opening statement. 

It wasn’t a good sign when the attorney didn’t come up with any examples.  (He might have pointed out that after World War II, the Allies broke up IG Farben because of its …

Feb. 23, 2012 by John Knox
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On February 28, the Supreme Court will hear argument in Kiobel v Royal Dutch Petroleum, a case with far-reaching implications for efforts to hold corporations accountable when they commit or are complicit in abuses of human rights. 

For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta.  The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them.  Most infamously, in 1995 it executed the author Ken Saro-Wiwa, together with eight other leaders of the protests.     

Esther Kiobel, the widow of one of the executed men, as well as other affected Ogoni, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law.  The plaintiffs relied on the Alien Tort Statute (ATS), a law …

Jan. 20, 2012 by John Knox
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For more than a century, the United States took the lead in organizing responses to international environmental problems.  The long list of environmental agreements spearheaded by the United States extends from early treaties with Canada and Mexico on boundary waters and migratory birds to global agreements restricting trade in endangered species and protecting against ozone depletion.  In the last two decades, however, U.S. environmental leadership has faltered. 

The best-known example is the lack of an effective response to climate change, underscored by the U.S. decision not to join the Kyoto Protocol.  But the attention climate change receives should not obscure the fact that the United States has also failed to join a large and growing number of treaties directed at other environmental threats, including marine pollution, the loss of biological diversity, persistent organic pollutants, and trade in toxic substances. 

Today CPR publishes Reclaiming Global Environmental …

Jan. 9, 2012 by John Knox
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If environmental cases had their own Olympics, the dispute between Chevron and Ecuador would be a contender for multiple gold medals.  It seems to have a shot not only at winning the award for the largest damages, but also for running the longest and appearing in the most courtrooms. 

To recap:  Residents of the Amazon have been trying for nearly 20 years to receive compensation for massive environmental damage Chevron’s predecessor, Texaco, allegedly caused in Ecuador in what’s been called the “Rainforest Chernobyl.” In February, their efforts culminated in an $8.6 billion judgment by an Ecuadorian court against Chevron.  Chevron attacked the decision on several fronts, including by appealing to a higher Ecuadorian court and by suing the plaintiffs in U.S. federal court to stop them from enforcing the judgment.   

Last week, Chevron suffered setbacks in both courts.  On Tuesday, the Ecuadorian appellate …

March 22, 2011 by John Knox
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Friday, the first traces of the plume of radioactive gas from the damaged Japanese reactors were reported to reach California. The cornerstone of international environmental law is often said to be the “prevention principle,” which says that states have “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States.”  Does that mean that the transboundary radiation has put Japan in violation of international law? 

In a word, No.

Although the quoted language, from the 1992 Rio Declaration, sounds as if any transboundary damage would violate international law, almost no one interprets the prevention principle so strictly. To be an obligation under customary international law, the principle would have to reflect states’ customary practice, and states don’t prevent all transboundary pollution. Last year, in a case between Argentina and Uruguay, the International Court of Justice characterized …

Feb. 18, 2011 by John Knox
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On Monday, Valentine’s Day, a judge in Ecuador sent Chevron the opposite of a valentine: it ordered the giant oil company to pay $8.6 billion in damages and cleanup costs for harm caused by exploration and drilling by Texaco (acquired by Chevron in 2001) in a giant tract of rain forest near the headwaters of the Amazon River. The plaintiffs brought the class action on behalf of 30,000 indigenous residents of the region, who have long claimed that by dumping billions of gallons of toxic sludge into local waterways between 1964 and 1990, Texaco destroyed the local environment and caused hundreds of deaths by cancer.   

The award is the latest chapter in one of the longest-running environmental cases ever, but it’s certain not to end the dispute: Chevron immediately called the decision “illegitimate and unenforceable” and appealed on Thursday. Attorneys for the plaintiffs …

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More on CPR's Work & Scholars.
April 19, 2013

Death of a Statute: The Kiobel Ruling

Sept. 28, 2012

<i>Kiobel</i> Returns!

July 26, 2012

Planting the Seeds of the Future: The Plant Genetic Resources Treaty

April 11, 2012

Preserving the Pristine: Why the United States Should Ratify the Antarctic Liability Annex

March 7, 2012

A New Twist in the <i>Kiobel</i> Case

Feb. 23, 2012

Can Corporations Violate Human Rights? In <i>Kiobel v. Royal Dutch Petroleum</i>, the Supreme Court May Say Yes ... or No

Jan. 20, 2012

Reclaiming Global Environmental Leadership