Kiobel v. Royal Dutch Petroleum Co.

Facts

The plaintiffs in Kiobel were citizens of Nigeria who claimed that Dutch, British, and Nigerian oil-exploration corporations aided and abetted the Nigerian government during the 1990s in committing violations of customary international law. The plaintiffs claimed that Royal Dutch Shell compelled its Nigerian subsidiary, in cooperation with the Nigerian government, to brutally crush peaceful resistance to aggressive oil development in the Ogoni Niger River Delta. Plaintiffs sought damages under the ATS. The defendants moved to dismiss based on a two-pronged argument. First, they argued that customary international law itself provides the rules by which to decide whether conduct violates the law of nations where non-state actors are alleged to have committed the wrong in question. Second, they contended that no norm has ever existed between nations that imposes liability upon corporate actors. On September 29, 2006, the district court dismissed the plaintiffs' claims for aiding and abetting property destruction; forced exile; extrajudicial killing; and violation of the rights to life, liberty, security, and association. It reasoned that customary international law did not define those violations with sufficient particularity. The court denied the defendants' motion to dismiss with respect to the remaining claims of aiding and abetting arbitrary arrest and detention; crimes against humanity; and torture or cruel, inhuman, and degrading treatment. The district court then certified its entire order for interlocutory appeal to the Second Circuit based on the serious nature of the questions at issue.

In a 2–1 decision issued on September 17, 2010, the U.S. Court of Appeals for the Second Circuit held that corporations cannot be held liable for violations of customary international law, finding that: (1) under both U.S. Supreme Court and Second Circuit precedents over the previous 30 years that address ATS suits alleging violations of customary international law, the scope of liability is determined by customary international law itself; (2) under Supreme Court precedent, the ATS requires courts to apply norms of international law—and not domestic law—to the scope of defendants' liabilities. Such norms must be "specific, universal and obligatory"; and (3) under international law, "corporate liability is not a discernible—much less a universally recognized—norm of customary international law", that the court could apply to the ATS, and that the plaintiffs' ATS claims should indeed be dismissed for lack of subject matter jurisdiction.

Briefing and oral argument

Kiobel petitioned the Supreme Court for review of the Second Circuit's decision, and this was granted on October 17, 2011. Oral arguments were held on February 28, 2012, with Kathleen Sullivan arguing for Shell and Deputy Solicitor General Edwin Kneedler arguing as a friend to Kiobel. The arguments received considerable attention in the legal community.

Unexpectedly, the Supreme Court announced on March 5, 2012, that it would hold additional argument on the case during the October 2012 term, and directed the parties to file new briefs on the question "Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." Reargument of the case occurred on October 1, 2012 with Sullivan reappearing for Shell and the United States Solicitor General Donald Verrilli now arguing as a friend to Kiobel.

Opinion of the Court

The Court, in an opinion joined by five justices, held that the presumption against extraterritoriality applies to claims under the ATS, and nothing in the statute rebuts that presumption. The presumption against extraterritoriality is a canon of statutory interpretation that provides that when a statute gives no clear indication of an extraterritorial application, it has none. Writing for the Court, Chief Justice Roberts observed that while the presumption applies to merits questions, and that the ATS is strictly jurisdictional, the canon should nevertheless apply to the ATS because of the danger of judicial interference in foreign policy.

The Court further reasons that nothing in the text, history or purposes of the ATS rebuts the presumption. The common law transitory torts doctrine, which holds that causes based on a transitory action arising abroad may be considered as happening domestically, does not help rebut the presumption because that is not the only necessary meaning of the statute’s text. The Court also disregards a 1795 opinion by George Washington's Attorney General William Bradford, stating that “there can be no doubt” of tort liability for American citizens who had been plundering inside Sierra Leone. Because General Bradford’s wording “defies a definitive reading” the opinion does not counter the presumption. Finally, the Court found it would be implausible to suppose that the First Congress wanted to make the United States a “uniquely hospitable forum for the enforcement of international norms.”

The opinion nevertheless did not completely eliminate Federal court jurisdiction over ATS claims arising out of overseas conduct, since the presumption against extraterritoriality can be displaced when claims "touch and concern the territory of the United States...with sufficient force."

Concurrences

Justice Kennedy separately wrote a one-paragraph concurrence noting that the presumption against extraterritorial application “may require some further elaboration and explanation.”

Justice Alito, joined by Justice Thomas, agreed that the ATS does not apply extraterritorially and argued that the statute should only be read to apply to the international law violations that had been identified by William Blackstone in 1769: violation of safe conducts, infringement of the rights of ambassadors, and piracy.

Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, concurred with the judgment but rejected the Court’s reasoning. The four justices do not believe that the presumption against extraterritoriality applies to the ATS. Instead, the concurrence sees ATS jurisdiction as limited to when the tort occurs on American soil, the defendant is an American national, or when there is an important American national interest, such as not providing safe harbor to hostis humani generis, or the common enemy of mankind.

Breyer first attacks the majority’s view that the presumption is not rebutted. He notes that while the majority sees the ATS as applying to piracy on the high seas, piracy necessarily occurs aboard a ship and so is considered to occur within the territory of the ship’s flag state. Breyer then outlines the long history of an international duty to not provide safe harbor to hostis humani generis, or the common enemy of mankind. He then reviews thirty years of U.S. Court of Appeals cases holding for extraterritorial application of the ATS. The concurrence takes issue with the majority’s characterization of the ATS as “uniquely hospitable” noting that many countries permit extraterritorial suits, citing Dutch, English, International Court of Justice, and European Commission sources. The Court’s concern regarding unwarranted judicial interference in the conduct of foreign affairs is rejected by Breyer, noting US obligations under the Convention Against Torture, the third Geneva Convention, the International Convention for the Protection of All Persons from Enforced Disappearance, and several other treaties. Ultimately, however, the concurrence agrees with the Court’s judgment because the mere corporate presence of a foreign defendant who did not directly engage in committing atrocities abroad does not invoke a national interest in denying safe harbor to a common enemy of mankind.