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Supreme Court Preview: Kiobel v. Royal Dutch Petroleum

Next week, the Supreme Court will once again hear arguments in Kiobel v. Royal Dutch Petroleum, a case that could severely curtail efforts to hold perpetrators of human rights violations accountable in U.S. courts.

Published: September 27, 2012

Next week, the Supreme Court will once again hear arguments in Kiobel v. Royal Dutch Petroleum, a case that could severely curtail efforts to hold perpetrators of human rights violations accountable in U.S. courts. The case is held over from the previous term, when the issue before the Court was whether corporations could be held liable for such violations. After the February 2012 oral argument, the Court broadened the ambit of the case, directing parties to also address whether federal courts had jurisdiction over violations committed on foreign soil regardless of whether the perpetrator was a corporation or an individual. 

Kiobel stems from complaints brought by 12 Nigerian plaintiffs against Royal Dutch Petroleum and Shell under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, a 1789 law that allows aliens to sue for violations of the law of nations in U.S. courts. While plaintiffs are Nigerian citizens, they are legal residents of the United States, having received political asylum here before the case was filed. They claim that the defendant corporations aided and abetted the Nigerian government in violating their human rights, including torture, arbitrary detention and extrajudicial killings.

While Kiobel was pending before the district court, the Supreme Court decided Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), finding that alien tort claims must be based on international norms with definite content and acceptance among “civilized nations.” The district court subsequently granted the defendants’ motion to dismiss the complaint with respect to several claims, but allowed others to proceed to trial on the grounds that they met the standard set out in Sosa. Given the recency of the Sosa decision and the lack of clarity about which ATS claims were viable under the new standard, the district court certified its entire order for immediate interlocutory appeal.

In a surprising turn of events, and without the full briefing of parties, the Second Circuit decided the case on the ground that it did not have subject matter jurisdiction. The two-judge majority re-framed the dispute as one concerning whether corporations can ever be held liable under the ATS for human rights violations. It concluded that the issue is governed by customary international law (as opposed to federal common law), and found no customary norm recognizing corporate liability for such violations. Judge Leval disagreed in a vigorous concurrence. He argued that international law is primarily concerned with rules of conduct, and leaves the matter of enforcement (including the issue of corporate liability) up to individual states. Since tort liability is the chosen means of enforcement in the United States, and the ATS does not distinguish between natural persons and corporations, he concluded that corporations could be held liable for violations of the law of nations.

The Supreme Court granted certiorari and heard the case on February 28, 2012. During oral arguments, several justices expressed concern about the extraterritorial reach of the ATS. They questioned whether alien tort claims with little or no connection to the United States had any place before U.S. courts, and whether the adjudication of such claims would create international tension or violate international law. A week later, the Court ordered new arguments on whether the ATS allows courts to recognize a cause of action for violations of the law of nations committed outside the United States. 

In their supplemental brief, petitioners argued that the ATS does not discriminate between violations of the law of nations occurring within and outside U.S. borders. Petitioners cited Sosa for the proposition that the law of nations has always applied to acts beyond U.S. borders (for example, the customary prohibition against piracy). They also sought to demonstrate that the text, history and purpose of the ATS evince Congress’s intention to establish jurisdiction over extraterritorial tort claims.

Petitioners further asserted that such jurisdiction would not violate international law, since no international norm precludes states from providing civil remedies for human rights violations occurring outside their territory. In support of this proposition, The Yale Law School Center for Global Legal Challenges and various human rights organizations have, in their amicus briefs, adduced state practice showing that domestic legal systems around the world allow the exercise of extraterritorial civil jurisdiction to redress rights abuses. Finally, petitioners pointed to well-established doctrines such as forum non conveniens and the doctrine of international comity to address concerns about the appropriateness of asserting federal jurisdiction over transnational claims, including ATS suits.

The respondents countered that the ATS applies only to international law violations committed on U.S. soil or on the high seas. Respondents argued that since federal common law provides the cause of action under the ATS, applying the statute to conduct occurring within the territory of other sovereign nations would project U.S. law onto foreign soil. Given the potential for foreign relations and international law consequences, Congress, and not the courts, is best placed to create an explicit extraterritorial remedy. According to respondents’ interpretation of the text and historical context of the ATS, Congress never intended to apply the statute extraterritorially.  

The United States filed an amicus brief which did not support either party. It argued that courts should recognize alien tort claims for violations of international law occurring outside the U.S. on a case-by-case basis, depending on a range of factors such as whether local remedies have been exhausted, whether an alternative and more appropriate forum exists, and considerations of international comity. This is a departure from the U.S. Department of Justice’s previous position, which was categorically opposed to ATS lawsuits based on conduct of foreign entities in foreign countries. Significantly, however, the United States argued that there was no right of action under the ATS in this case, because the conduct impugned was allegedly perpetrated by a foreign sovereign in its own territory, and aided and abetted by foreign defendants of a third country.

In our view, the ATS provides federal courts jurisdiction over alien tort claims regardless of where the alleged violations occurred. Nothing in the text of the ATS suggests that it should be limited to torts committed on U.S. soil or on the high seas. Indeed, the ATS was passed precisely to provide foreigners with a remedy for conduct by the U.S., including beyond its borders. U.S. conduct can have foreign policy and international law consequences regardless of where it occurs. For example, an American citizen’s assault on a French ambassador would affect American foreign policy interests whether it takes place in Nigeria or Nashville.

The argument that the ATS violates international law is also unconvincing. The substance of the torts in Kiobel concerns violations of international (not national) law. The question here is not whether the U.S. is imposing its national law on other nations, but whether it can provide a remedy for violations of international human rights. As long as defendants are sufficiently connected to the U.S., a court can exercise jurisdiction over them, consistent with international standards.

The fact that the ATS applies extraterritorially does not mean there are no limits on tort claims committed beyond U.S. borders. Plaintiffs in Kiobel pointed to a range of common law doctrines that could be used to manage concerns about whether it would be appropriate for a U.S. court to assert jurisdiction over disputes relating to acts committed in another country. To begin with, courts can dismiss ATS claims on the basis that a foreign court is “the more appropriate and convenient forum for adjudicating the controversy.” Under this doctrine, courts assess whether the foreign court provides an adequate alternative forum, and whether the public and private interests implicated in the case tilt strongly in favor of trial in the foreign court. This doctrine, along with the traditional principles of international comity, enables courts to maintain a judicious balance between providing a federal forum to redress human rights abuses suffered by aliens and respecting the sovereign rights of other nations.

In the first round of oral arguments, Justice Alito asked, “What business does a case like that have in the United States?” He suggested that since the petitioners were foreign citizens and the alleged violations took place overseas their claims had “no connection to the United States whatsoever.” Significantly, however, the U.S. has granted petitioners political asylum, recognizing that they would face a grave threat of persecution if they returned to Nigeria. It would be fanciful to expect petitioners to vindicate their claims of human rights abuses in Nigerian courts. Bringing suit in U.S. courts under the ATS may be the only realistic prospect for redress.

Over the last couple of decades the ATS has provided an important avenue for victims of human rights abuses to vindicate their rights. In Filartiga v. Pena-Irala, a landmark case concerning the torture of Paraguayan citizens in Paraguay, the plaintiffs sought recourse in federal courts under the ATS, since resort to the courts of their own country was likely to be futile. Petitioners in Kiobel are in a similar situation. The Court should not close this option in our already fragile and incomplete system for holding accountable those who torture, kill and arbitrarily imprison innocent civilians.