Kendra Rychlick is a William Sampson Fellow externing in PILA. Kendra is currently a J.D. student at the University of Washington School of Law in Seattle.
In April 2013 the United States Supreme Court ruled to limit the jurisdiction of the Alien Tort Statute (ATS) in the case Kiobel v Royal Dutch Petroleum Co. The ATS has been used to bring claims in US federal courts against individuals and corporations for violations of human rights and international law. This ruling limits the ability of human rights activists and others to launch proceedings in US courts relating to international human rights law violations.
The ATS was enacted by the first congress of the United States in 1789 but was infrequently used until recent years. The statute came to prominence in the late 20th century with the rise of human rights litigation. The ATS was first used to litigate an international human rights abuse case in 1980 - Filartiga v Pena-Irala. In 1980 a New York court upheld this ATS claim of torture occurring in Paraguay and human rights activists saw a new vehicle for holding non-state actors accountable for international law violations.
The development of the ATS was an exciting prospect for human rights activists planning international law claims in US federal courts. Forum shopping into these courts was ideal, with benefits including higher awards (such as punitive damages), civil trial juries, and the possibility of class action litigation. All of these factors contributed to an environment which was more receptive to human rights success and the ATS subsequently was used to bring many claims against corporations for violations of international law. For more information, see Donald Earl Childress III, The Alien Tort Statute, Federalism, and the Next Wave of Transnational Litigation, 100 Geo. L.J. 709, 723 (2012).
The Kiobel plaintiffs are a group from the Ogoni region in Nigeria, currently living in the United States as political asylum seekers. They alleged that during the 1990s, Dutch, British and Nigerian oil corporations aided and abetted the government of Nigeria to carry out human rights violations in the Ogoni region. The complaint alleged that after local residents became concerned with and protested the oil corporations’ environmentally harmful activities, the corporations enlisted the Nigerian government to repress the protests. The repression was allegedly very violent and the military used murder, rape, looting and pillaging against the locals. The complaint further alleged that the named corporations assisted the local military and police forces by providing food, transportation, and compensation while these atrocities were taking place, as well as allowing the perpetrators to use company land as staging grounds for attacks.
In a 9-0 decision the Supreme Court ruled in favour of the oil corporations. The majority opinion held that the presumption against extraterritoriality must apply, unless specifically indicated by legislature, which it does not in the ATS. This means that cases can no longer be brought under the ATS for incidents that happen outside of US territory and the issue of the complaint must touch and concern the United States in a significant way. As such these companies which have only offices in the United States did not count as within ATS jurisdiction, because the human rights abuses did not occur on U.S. territory. The court appears concerned about infringing on the sovereignty of other nations which is a valid concern, however the effect of the judgment is that many international corporations may be able to slip through the cracks of accountability.
While much of the commentary since the decision was handed down in April has said that this ruling effectively ends ATS litigation, others believe the situation is not so dire for the future of international human rights litigation in the United States. In a concurring opinion Justice Breyer deliberately left the ATS open to situations similar to the original Filartiga case and in situations where an individual perpetrator can be served with process in the United States. This is because of a substantial national interest in preventing the U.S. from becoming a safe harbour for such perpetrators. However, the ruling of Kiobel does significantly restrict the ability of human rights activist and lawyers to use the ATS to bring international claims against corporations and diminishes hope for corporate human rights accountability. In the future, human rights advocates will need to get creative when bringing trans-national human rights abuse cases against corporations in the United States.
Click here to read an article about the case on the Supreme Court of the United States Blog.
The PILA Bulletin has reported previously on the Kiobel litigation. Click here to read a March 2012 article about the litigation.
Click here to read an August 2011 PILA Bulletin article about related litigation filed in the London High Court by Ogoni-based activists against the oil company Shell.
In the past week thousands of Ogonis have protests about the Nigerian government's failure to implement a 2011 United Nations Environmental Programme report which supports the locals' claims about the environmental impact of the oil companies' actions. Click here for more information.