Surprising Kiobel Update

The Supreme Court surprised many followers of the Kiobel v. Dutch Petroleum case earlier this week when it expanded the scope of the case and called for new arguments and briefs. The Order asks the parties to answer “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.”

As reported last week, the outcome of this case could have serious ramifications on environmental and human rights claims brought under the Alien Tort Statute (ATS). The Alien Tort Statute (ATS), enacted in the Judiciary Act of 1789, simply states, “The district courts shall have original 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.” This short phrase has served as a powerful human rights tool since 1980 when the Second Circuit held in Filártiga v. Peña-Irala that the statute granted federal courts subject matter jurisdiction, even between two non-citizen parties, because “[t]he Alien Tort Statute is the law of nations, which has always been part of the federal common law.” 630 F.2d 876, 885 (2d Cir. 1980).

Now the future of all human rights cases under this statute is threatened by a case from the same circuit that granted it broad power in the first place. In Kiobel, Nigerian victims attempted to sue Royal Dutch Petroleum, a Dutch company, for the torture and extrajudicial killing by the Nigerian government of environmental and human rights activists protesting oil exploration in the Niger Delta. The Second Circuit held the ATS did not cover corporations. The Supreme Court heard arguments last Tuesday, February 27, on whether corporations could be sued as a private party under the Alien Torts Statute.  Observers speculated the Court appeared to side with Royal Dutch Petroleum after Justice Kennedy opened the arguments with a quote from Chevron’s Amici Curiae brief, “No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.”

Then on Monday, March 5, the Court pushed this aside to ask whether the ATS can be used by any party, whether or not that party is a corporation. The Court touched on this question in Sosa v. Alvarez-Machain, when it reasoned the ATS granted subject matter jurisdiction over common law causes of action for a very limited number of violations under the law of nations.  542 U.S. 692, 715, 719-20 (2004). By including the language “under what circumstances” in its order, the Court may also address the specific circumstances under which a party may be sued. The appellant-plaintiffs did not directly tie the oil company to the torture and killings. Instead, they contended Dutch Petroleum aided and abetted the Nigerian government. Many believed the Court would consider this issue in Rio-Tinto, currently pending petition for certiorari.

As it stands, the Court will hear the new Kiobel arguments in October, which means it may decide the case in the same term as it reconsiders its other controversial case on corporate rights and liability: Citizens United.

Written by: Kate Wright, GIELR Staff