Amicus briefs provide an opportunity for “friends of the court” to offer their own insight on some of the most interesting and important legal issues and cases. This month, law students have the chance to weigh in on how the court should rule in Kiobel v Royal Dutch Petroleum by entering the ABA Section of International Law’s Rona R. Mears Student Writing Competition & Scholarship Awards. The winners will receive their award directly from Associate Justice Antonin Scalia during a United States Supreme Court evening reception on Thursday, April 25, 2013 during the ABA International Section Spring 2013 Meeting. The case involves a claim under Alien Tort Statute (ATS), which grants US courts jurisdiction to hear cases involving violations of international law occurring outside the US.
A Brief History of the ATS
Passed by the first Congress in 1787, the ATS grants district courts “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. sec. 1350. The ATS laid largely dormant for 170 years, providing jurisdiction in only one case. After this extended dormancy, the Second Circuit in 1980 decided Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980), finding jurisdiction over claims arising from the torture and killing of 17 year-old Joelito Filartiga in Paraguay. Filartiga is regarded as the foundation for modern ATS cases. Twenty-four years later, the Supreme Court decided Sosa v. Alvarez Machain, 542 U.S. 692 (2004), which arose from the kidnapping of a Mexican physician by agents allegedly hired by the US government. Although it found no ATS jurisdiction over the kidnapping claims, the Sosa Court recognized that the ATS remained a viable jurisdictional basis in cases involving a narrow class of current international norms.
The Claims in Kiobel
In 1956, oil was discovered in Nigeria. For the next 40 years, Dutch, British and Nigerian multinational oil companies, working with a succession of military regimes, extracted and sold billions of dollars worth of Nigerian oil. The money went mostly into the pockets of foreign oil companies and oil company-friendly government officials.
The oil business caused significant environmental damage. In the 1990s, residents, mostly subsistence farmers, protested the environmental fouling, including the resulting agricultural yield reductions that threatened their survival. Government officials, allegedly aided by the oil companies, reacted to the protests with “massive scorched earth operations,” and massacred nearly a thousand residents.
One protestor was Nigeria-born, Scotland-educated Dr. Barinem Kiobel. Dr. Kiobel, himself a government official, objected to using violence to suppress peaceful protests. Dr. Kiobel and other protest leaders were arrested, charged with murdering several local elders. The protestors were summarily tried without basic due process protections, convicted, and hanged. Allegedly, the oil companies were heavily involved in the prosecution, including by bribing witnesses to give false testimony.
The protestors’ families sued the oil companies for their role in the atrocities, including asserting claims under the ATS.
Kiobel in the Supreme Court
In Kiobel, the Second Circuit held there was no ATS jurisdiction over claims against the oil companies because international law does not recognize corporate liability. Other circuits have held otherwise.
The Supreme Court initially agreed to hear Kiobel to decide whether the ATS encompasses claims against corporations. Six days after oral argument on that issue, the Court re-set the case for additional argument on whether the ATS provides jurisdiction over international law violations not involving U.S. citizens occurring outside the U.S. The Court heard the second argument in October 2012.
The Kiobel decision will almost certainly touch the question of what role U.S. civil courts serve in enforcing universal human rights, including the right to be free from torture and killing. Defendants argued that ATS jurisdiction effectively ends at our shores. As a fallback, they argued that corporations, at least, are immune from accountability for ATS claims. Plaintiffs urged reading the ATS consistently, they claimed, with the Sosa Court’s view: the ATS provides jurisdiction to address a narrow class of international law violations, such as torture and killing, wherever they occur to and by whomever. During oral argument, Justices expressed concerns with both sides’ arguments. The request for additional briefing and argument on extraterritoriality suggests that some Justices – perhaps a majority – are skeptical that the ATS provides jurisdiction over human rights cases arising entirely abroad.
A decision is expected in 2013.
[To learn more about the Kiobel v. Royal Dutch Petroleum case, go to the Westlaw Insider. Future blog posts will address the legal issues of corporate liability and extraterritoriality in more detail.]
Author Mark Chalos is a partner with Lieff Cabraser Heimann & Bernstein, LLP, in its Nashville, TN office. He represents individuals and businesses who have suffered losses due to fraud and other economic wrongs, as well as individuals who have suffered catastrophic personal injuries. Mr. Chalos has tried jury and bench trials in federal and state court and has served in leadership positions in a number of multidistrict litigations. Mr. Chalos is co-author of the new West publication, Litigating International Torts in US Courts, published in 2012. He has also published a number of articles in legal journals, including an article in the national peer-reviewed publication, TRIAL, regarding holding foreign companies accountable in US courts. He is a frequent speaker nationwide at legal seminars regarding complex civil litigation.