Liesbeth Enneking*
Multinational corporations,
human rights violations
and a 1789 US statute:
A brief exploration of the case of
Kiobel v. Shell
Abstract
Currently pending before the US Supreme Court is the case of Kiobel v. Shell, a civil procedure against the multinational oil company
Shell for its alleged complicity in human rights violations perpetrated in Nigeria in the 1990s. The claims are brought on the basis
of a 1789 US federal statute that has over the past 20 years provided
victims of human rights abuses perpetrated anywhere in the world
with a way to obtain civil redress through the US federal judicial
system. This note provides an exploration of some of the main legal
and socio-political issues raised by the Kiobel case.
1.Introduction
In October 2011, the US Supreme Court announced that it
would hear arguments in the case of Kiobel v. Shell, a civil liability lawsuit against the multinational oil company Shell for its
alleged complicity in human rights violations perpetrated by
the Nigerian military regime in the mid-1990s.1 The Supreme
Court’s judgment in this case, which is expected sometime in
2013, will be of great significance for the rapidly evolving and
increasingly significant field of business and human rights,
which has over the past decade generated not only legal developments, but also socio-political debate, corporate innovation
and scholarly research in societies around the world. In June
2012, a group of legal scholars from four Dutch universities
filed an amicus curiae brief in support of plaintiffs/petitioners
in the Kiobel case.2 This brief, which was co-authored by the
author of this note, was drafted with a view to providing a response to questions posed by the Supreme Court with respect
to the viability of similar cases being brought before courts in
other countries, such as the Netherlands.3
This note provides a brief exploration of the legal and sociopolitical background against which the Kiobel case is set, and
describes the main controversies that the Supreme Court intends to resolve on the basis of this case. A link to the Dutch
legal scholars’ amicus brief in support of plaintiffs/petitioners
in the Kiobel case will be posted on the NIPR website.
2.
Civil remedies for victims of human rights violations in the Niger Delta?
The Kiobel case concerns civil claims against several corporate
members of the multinational Shell group for their alleged involvement in human rights violations perpetrated in Nigeria
in the 1990s. In response to ongoing opposition by local activists against the environmental degradation caused by oil ex-
traction activities in the Ogoniland region of the Niger Delta,
the Nigerian military government in 1994-95 cracked down
hard on the protestors. A number of the activist leaders were
arrested and hanged, after having been convicted of murder
by a special military tribunal in a procedure that was widely
perceived as violating international fair trial standards. These
events resulted not only in international outrage, but also in a
number of civil claims being pursued by the victims or their
next of kin against Netherlands-based Royal Dutch Petroleum
Company and UK-based Shell Transport and Trading Company. In these claims it was alleged that these two holding
companies had, through their Nigerian subsidiary Shell Petroleum Development Company of Nigeria, aided and abetted
the Nigerian government in committing human rights abuses
directed at the plaintiffs by, inter alia, providing the Nigerian
military forces with logistical support, weapons, food and
monetary compensation.4
Between 1996 and 2004, a number of related actions seeking
damages and relief in relation to the alleged human rights violations perpetrated against residents of the Ogoni region in the
1990s were brought before US federal courts by two different
groups of plaintiffs.5 In June 2009, Shell agreed to an out-ofcourt settlement with respect to the claims filed by one of these
groups, led by Ken Wiwa, son of the late Ogoni activist and
author/producer Ken Saro-Wiwa. The settlement sum of $15.5
million was meant to provide the ten plaintiffs involved with
compensation and to cover a portion of their legal costs; in
addition, a trust was established that is intended to benefit the
Ogoni people.6 This settlement did not pertain to the claims
brought by the Kiobel group of plaintiffs, which, as will be
discussed further below, continued to be litigated and in 2011
made their way up to the US Supreme Court.
3.
An old US federal statute put to new use
All four of the actions against Shell were brought on the basis
of the Alien Tort Statute (ATS), a somewhat obscure 1789 US
statute that essentially allows US (federal) district courts to
exercise subject-matter jurisdiction7 over civil claims brought
1
2
Kiobel v. Royal Dutch Petroleum Co., 132 S.Ct. 472 (US 2011).
Brief of Professor Alex-Geert Castermans (Leiden University), Professor Cees
van Dam (Utrecht University), Dr. Liesbeth Enneking (Utrecht University), Dr.
Nicola Jägers (Tilburg University), Professor Menno Kamminga (Maastricht University), as amici curiae in support of the petitioners, No. 10-1491, filed 13 June
2012, available at <www.nipr-online.eu>.
3See Esther Kiobel et al. v. Royal Dutch Petroleum Co. et al., 2012 WL 628670 (US
4
2012) (oral argument), at 3-8.
See, for a brief overview of the factual background of this case, for instance:
Esther Kiobel et al. v. Royal Dutch Petroleum et al., 621 F.3d 111 (2nd Cir. 2010),
at 123. See also Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2nd Cir. 2000),
5
at 92-93.
See, for a brief overview of the procedural history of the different claims, for
instance: Esther Kiobel, et al. v. Royal Dutch Petroleum Company et al., 2009 WL
3817590 (SDNY), at 1; Esther Kiobel et al. v. Royal Dutch Petroleum Company et
6
al., 02 Civ. 7618 (SDNY 21 June 2010), at 2-6.
For more information and further references see, for instance, the business-
humanrights.org website: <www.business-humanrights.org/Categories/
Lawlawsuits/Lawsuitsregulatoryaction/LawsuitsSelectedcases/Shelllaw7
suitreNigeria>.
Subject-matter jurisdiction pertains to the authority of particular courts
to adjudicate cases relating to a particular subject matter; it should be dis-
tinguished from personal jurisdiction, which pertains to the authority of
courts to hear claims and make binding decisions with respect to particular
*
Dr. L.F.H. Enneking is a postdoctoral research fellow at Utrecht University’s
Molengraaff Institute for Private Law.
396
parties. The subject-matter jurisdiction of US federal courts is essentially
limited to those issues of law that relate to powers expressly or implicitly
granted by the US Constitution to the federal (court) system.
2012 Afl. 3 NiPR
L. Enneking
by non-US citizens8 for violations of the law of nations perpetrated abroad.9 This statute, which lay dormant for nearly two
centuries following its enactment, was ‘rediscovered’ in the
1980s as providing a way to address and obtain redress for international human rights violations perpetrated anywhere in
the world through the US federal judicial system. It has been
hailed by human rights activists as a much-needed accountability mechanism for human rights violations perpetrated in
developing societies where victims’ chances of obtaining (enforceable) remedies may be compromised by poorly functioning legal systems, corruption and/or favouritism.10
Although initially the Alien Tort Statute primarily generated
tort claims aimed at (foreign) public officials as human rights
violators, it soon became a basis also for tort claims alleging
wrongdoing by private individuals (sometimes even in the absence of any state involvement), and subsequently for claims
against corporate actors. In 1997, a US district court for the
first time assumed subject-matter jurisdiction over an ATSbased civil claim against a corporate actor in the case of Doe
v. Unocal, which pertained to the alleged involvement of USbased multinational Unocal (now part of Chevron) in human
rights violations perpetrated by the Burmese military regime
in the course of a gas pipeline project in Burma.11 Since the late
1990s, dozens of ATS-based civil claims have been brought
against a score of multinational corporations that have found
themselves subject to the exercise of personal jurisdiction by
US federal courts.12 High-profile examples include the claims
against a large group of multinationals including General Motors, IBM and DaimlerChrysler for their alleged involvement
in human rights violations perpetrated by the South African
Apartheid regime.13
4.
trade interests and the international competitiveness of the
multinationals (potentially) involved seem to play an increasingly prominent role in this context.17
On the other hand, however, states around the world, and
Western societies in particular, are dealing with increasing
international pressure to provide remedies to victims of corporate human rights abuses, where necessary through (transnational) civil procedures. The UN has played a particularly
pivotal role in this context, through its Secretary-General’s
Special Representative on Business and Human Rights, John
Ruggie. Ruggie has developed a policy framework on business and human rights that sets out the obligations of states
and the responsibilities of business enterprises when it comes
to preventing and remedying international human rights violations (directly or indirectly) perpetrated by corporate actors
operating around the world.18 It is this dynamic and highly
politicized context that frames the recent developments in the
Kiobel case.
5.
The claims in the Kiobel case were brought before a New York
federal court in 2002 by Esther Kiobel – a US resident and the
wife of Dr. Barinem Kiobel who was one of the Ogoni leaders
that had been executed by the Nigerian military – and a number of other (former) Ogoni residents against the Netherlandsbased Royal Dutch Petroleum Company, the UK-based Shell
Transport and Trading Company, and the Nigeria-based Shell
8
The worldwide advance of foreign direct liability
claims
These ATS-based civil claims against corporate actors evidence a growing reliance on transnational tort litigation before
Western society courts in order to address and seek redress
for harm caused to people and the planet in (mostly developing) host countries as a result of the local activities of multinational corporations there. This tendency is not confined to the
US; similar claims have been brought before courts in other
Western societies such as the UK, Australia, Canada and the
Netherlands. In the absence of an ATS equivalent anywhere
outside the US, these claims have typically been based on general principles of tort law and the tort of negligence in particular.14 Recent examples include the civil claims pursued in the
UK against Trafigura for its involvement in the Probo Koala
toxic waste dumping incident in the Ivory Coast, and the tort
claims against Royal Dutch Shell and its Nigerian subsidiary
relating to oil spills in the Niger Delta that are currently pending before the The Hague District Court in the Netherlands.15
Notwithstanding the growing incidence of this type of litigation also outside the US, the vast majority of these transnational civil liability claims against multinational corporations
(which may be referred to as ‘foreign direct liability claims’)
have so far been pursued before US federal courts on the basis
of the Alien Tort Statute. In recent years, however, a number
of these courts have started to slowly close the door to ATSbased foreign direct liability claims.16 The reason for this more
restrictive attitude, it seems, are concerns over the potentially
far-reaching legal and socio-political implications of these
cases. One of the main issues raised in this respect lies in the
seemingly extraterritorial nature of these cases, which often
pertain to foreign actors and activities undertaken in distant
host countries. At the same time, considerations relating to
the potential impacts of these cases on international relations,
NiPR 2012 Afl. 3
Proceedings in the Kiobel case
The ATS only pertains to claims made by ‘aliens’, meaning that US citizens
cannot file claims under this statute. See, with further references: L.F.H. En-
neking, Foreign Direct Liability and Beyond – Exploring the Role of Tort Law in
Promoting International Corporate Social Responsibility and Accountability, The
Hague: Eleven International Publishing 2012 (hereinafter: Enneking 2012),
9
p. 78 (footnote 7).
28 United States Code § 1350. This statute, which has famously been re-
ferred to as a ‘legal Lohengrin’, since ‘no one seems to know whence it
came’ (or, more particularly: what exactly the 1789 framers had in mind
when they enacted it), provides: ‘The district courts shall have original ju-
risdiction of any civil action by an alien for a tort only, committed in viola-
tion of the law of nations or a treaty of the United States’. See for quote: IIT
v. Vencap, Ltd., 519 F.2d 1001 (2nd Cir. 1975) (Friendly, J., at 1015).
10 See in more detail, for example: Enneking 2012, pp. 77-87, 277-278 (supra
note 8).
11 Doe v. Unocal Corp., 963 F.Supp. 880 (CD Cal. 1997), aff’d in part and rev’d
in part by Doe I v. Unocal Corp., 395 F3d 932 (9th Cir. 2002). See, for a more
detailed description of this case: Enneking 2012, pp. 96-98 (supra note 8).
12 See, in more detail: Enneking 2012, pp. 79-83 (supra note 8). It should be
noted that only a handful of these cases have made it to trial so far, as by far
the majority have either been dismissed at the pre-trial stage or settled out
of court.
13 See, for a more detailed outline of the so-called Apartheid litigation: Enneking 2012, pp. 100-102 (supra note 8). For a list of relevant cases and further
references see also the business-humanrights.org website: <www.businesshumanrights.org/Categories/Lawlawsuits/Lawsuitsregulatoryaction/
LawsuitsSelectedcases>.
14 See, in more detail: Enneking 2012, pp. 87-91, 168-175 (supra note 8).
15 See, for more detailed outlines of these cases: Enneking 2012, pp. 102-107
(supra note 8).
16 For more detail, see Enneking 2012, pp. 121-123 (supra note 8).
17 See, for a sketch of the positions of proponents and opponents of ATS-based
foreign direct liability cases: Enneking 2012, pp. 275-284 (supra note 8).
18 See the business-humanrights.org website for more information about the
Special Representative’s mandate and about the ‘Protect, Respect and Remedy’ policy framework on business and human rights, <www.business-
humanrights.org/SpecialRepPortal/Home>.
397
Multinational corporations, human rights violations and a 1789 US statute: A brief exploration of the case of Kiobel v. Shell
Petroleum Development Company of Nigeria for their alleged
involvement in the 1994-95 human rights violations.19 In September 2006, the New York District Court seized of the matter partly granted and partly denied a motion to dismiss all
claims brought by the defendants, holding that (only) a number of the plaintiffs’ claims were actionable under the ATS.20 It
did so with reference to the 2004 case of Sosa v. Alvarez-Machain, in which the Supreme Court had (for the first and – so far
– only time) dealt with the question of subject-matter jurisdiction under the Alien Tort Statute.21 However, while providing
some clarification with respect to the interpretation and contemporary application of the Alien Tort Statute, the Supreme
Court judgment in Sosa had at the same time left many issues
relating to the scope of subject-matter jurisdiction under the
statute unresolved.22 Questions remained, for instance, as to
whether claims for aiding and abetting violations of customary international law and/or claims against corporate actors
would be actionable under the Alien Tort Statute.23
Apart from the issue of subject-matter jurisdiction under the
Alien Tort Statute, the New York District Court in the Kiobel case also considered the issue of personal jurisdiction (in
separate judgments). The court’s personal jurisdiction over
the holding companies Royal Dutch Petroleum Company and
Shell Transport and Trading Company (based in the Netherlands and the UK, respectively) remained undisputed in the
Kiobel case. The Second Circuit Court of Appeals had in 2000
already held in the Wiwa case that personal jurisdiction could
be assumed over these two companies since they could be said
to be ‘doing business’ in New York through the New Yorkbased investor relation office of one of their subsidiaries that
acted as their agent.24 However, the claims against the Nigeria-based defendant Shell Petroleum Development Company
of Nigeria (SPDC) were dismissed in March 2008 for lack of
personal jurisdiction.25 This dismissal was confirmed in June
2010, as the court held that the plaintiffs had not shown the
requisite ‘direct business relationship’ to exist between this
Nigerian Shell subsidiary and the US.26
6.
Controversy in the courts
Both parties in the Kiobel case appealed against the New
York District Court’s 2006 decision. This led to a decision by
the Second Circuit Court of Appeals in September 2010 that
turned out to be highly significant for the future of ATS-based
foreign direct liability claims, as it addressed, for the first time,
the issue of corporate liability under the Alien Tort Statute. As
already mentioned, this was one of the issues relating to the
scope of liability under the Alien Tort Statute that had been left
unanswered by the Supreme Court’s 2004 decision in the Sosa
case. The Supreme Court had however in that case stated in a
footnote, somewhat cryptically:
‘A related consideration is whether international law extends the scope of
liability for a violation of a given norm to the perpetrator being sued, if
the defendant is a private actor such as a corporation or an individual.’27
In a majority opinion, the Court of Appeals held that civil
claims against corporate actors do not fall within the scope of
the subject-matter jurisdiction granted by the Alien Tort Statute, meaning that corporate actors cannot be held liable at all
under this statute for their involvement in international human rights violations.28 The majority considered, first of all,
that the scope of liability for violations of norms of customary
international law under the Alien Tort Statute, including the
matter of corporate liability, is governed by customary international law rather than by domestic law. It then considered
that there are no specific, universal and obligatory norms of
398
customary international law that hold corporations liable for
violations of the law of nations, including international human rights violations. This led the majority to conclude that
‘corporate liability has not attained a discernable, much less
universal, acceptance among nations of the world in their relations inter se, and it cannot, as a result, form the basis of a suit
under the ATS’.29
The Appeals Court’s decision was not unanimous, as one of
the judges on the three-judge panel concurred only with the
dismissal of the complaint, but not with the majority opinion
itself. In a separate opinion, he asserted, inter alia, that whereas customary international law establishes worldwide norms
prohibiting certain universally condemned heinous acts, it
leaves the enforcement of those norms – including through
civil remedies – to individual nations, meaning that international law would not preclude corporate liability under the
Alien Tort Statute.30 At the same time, Appeals Courts in a
number of other circuits clearly indicated in subsequent rulings in ATS-based foreign direct liability cases that they reject
the Second Circuit’s reading of corporate liability under the
Alien Tort Statute.31 Still, the September 2010 decision deliv19 See, for a brief overview of the factual background of this case, for instance:
Esther Kiobel et al. v. Royal Dutch Petroleum et al., 621 F.3d 111 (2nd Cir. 2010),
at 123.
20 Esther Kiobel et al. v. Royal Dutch Petroleum Company et al., 456 F.Supp.2d 457
(SDNY 2006).
21 Sosa v. Alvarez-Machain, 542 US 692 (2004).
22 The Supreme Court held, inter alia, that the Alien Tort Statute is essentially
jurisdictional in nature, but does authorize US federal courts to recognize
new causes of action in common law based on violations of the law of nations, albeit only for a very limited class of universally recognized, binding
and sufficiently specific international norms in existence today. See, in more
detail: Enneking 2012, pp. 83-85 (supra note 8).
23 Although the Supreme Court’s judgment confirmed that under the Alien
Tort Statute civil claims could be based directly on ‘primary’ violations of
standards of conduct resulting from certain norms of customary interna-
tional law, it remained silent on whether ‘secondary’ issues such as these,
pertaining to the scope of liability under the statute, should also be determined on the basis of customary international law, or rather on the basis of
domestic (federal) law. This is a highly relevant matter, not only since the
applicable standards could be very different depending on the source of
law from which they are derived, but also since the application of domestic
legal principles would bring choice-of-law issues into the picture that have
so far been avoided in ATS-based transnational civil cases due to the direct
reliance on norms of customary international law in this context. For more
detail, see, for instance: Enneking 2012, pp. 152-157 (supra note 8).
24 Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2nd Cir. 2000). Furthermore,
the Court of Appeals in its judgment reversed the District Court’s decision
to grant defendants’ motion to dismiss on grounds of forum non conveniens
in favour of trial of the case in an alternative (English or Dutch) forum.
25 Esther Kiobel et al. v. Royal Dutch Petroleum Company et al., Ken Wiwa et al.
v. Shell Petroleum Development Company of Nigeria Limited, 2008 WL 591869
(SDNY), motion for reconsideration granted and motion to dismiss upon
reconsideration denied in Esther Kiobel, et al. v. Royal Dutch Petroleum Com-
pany et al., 2009 WL 3817590 (SDNY).
26 Esther Kiobel et al. v. Royal Dutch Petroleum Company et al., 02 Civ. 7618
(SDNY 21 June 2010).
27 Sosa v. Alvarez-Machain, 542 US 692 (2004), at 732, footnote 20. See, in more
detail: Enneking 2012, pp. 121-122 (supra note 8).
28 Esther Kiobel et al. v. Royal Dutch Petroleum et al., 621 F.3d 111 (2nd Cir. 2010),
reh. denied by 2011 WL 338048 (2nd Cir. 2011) and reh. en banc denied by
2011 WL 338151 (2nd Cir. 2011).
29 Esther Kiobel et al. v. Royal Dutch Petroleum et al., 621 F.3d 111 (2nd Cir. 2010),
at 148-149.
30 See the separate opinion by Judge Leval (ibid. at 149-188).
31 See, for further references: Enneking 2012, p. 124 (supra note 8).
2012 Afl. 3 NiPR
L. Enneking
ered a painful blow to those propagating ATS-based civil litigation as a way to hold corporate actors accountable before US
federal courts for their involvement in international human
rights violations perpetrated abroad, and has led commentators to query whether the end of the statute (or at least corporate ATS claims) may be near.32
7.The Kiobel case before the Supreme Court
The plaintiffs in the Kiobel case petitioned the US Supreme
Court, and in October 2011 the Supreme Court announced
that it would hear their appeal against the Second Circuit
Court of Appeals’ decision on the issue of corporate liability
under the Alien Tort Statute.33 Oral arguments were heard
in February 2012. In an unexpected and somewhat unusual
turn of events, the Supreme Court in March 2012 instructed
the parties to the Kiobel case to file supplemental briefs on a
second question, namely whether the Alien Tort Statute allows US federal courts to hear lawsuits alleging international
human rights violations that occur outside of the territory of
the US.34 This particular question relating to the issue of extraterritoriality had not specifically been addressed in the Kiobel
case before, but is highly relevant in this particular case due to
its so-called ‘foreign cubed’ nature, meaning that it involves
foreign claimants, foreign defendants and conduct occurring
outside the US.
As noted in the introduction, one of the questions that was
raised by the Supreme Court Justices during the oral hearing
in February 2012 in relation to the extraterritoriality issue was
whether ATS-like civil litigation could also be brought before
courts in other countries, even where it involves parties foreign to and activities undertaken outside the forum.35 It is this
particular issue that the Dutch law professors’ amicus brief
sought to address. In the brief, it is argued that Dutch courts
would recognize claims similar to those pursued by the plaintiffs/petitioners in the Kiobel case and that they may, under
certain circumstances, assume jurisdiction even over foreign
cubed foreign direct liability claims.36 Reference is made in this
respect, inter alia, to a couple of recent cases in which Dutch
courts have assumed jurisdiction over transnational civil liability claims that had only very limited connections to the
Dutch legal order. These include claims brought before the
The Hague District Court by Nigerian farmers and the Dutch
NGO Milieudefensie against Nigeria-based Shell Petroleum
Development Company of Nigeria in relation to oil pollution
damage caused in Nigeria, as well as claims brought before
the The Hague District Court by a Palestinian doctor against
a number of Libyan defendants in relation to his unlawful imprisonment and torture in Libya.37
The Dutch law professors’ amicus brief was also meant to
bridge a gap in an amicus brief that had been filed jointly by
the Dutch and UK governments in support of the defendants/
respondents in February 2012.38 In this brief, the governments
strongly opposed the exercise of jurisdiction by US federal
courts on the basis of the Alien Tort Statute in cases such as the
Kiobel case, arguing, inter alia, that this would be contrary to
established rules of international law. The governments’ February 2012 brief did not however mention the fact that similar
cases may under certain circumstances be brought before both
Dutch and English courts.39 In a second brief, filed in support
of neither party in June 2012 (simultaneously with the Dutch
law professors’ brief), the Dutch and UK governments maintained (and elaborated further) their position that the exercise
of jurisdiction under the Alien Tort Statute in cases such as the
Kiobel case would violate international law for lack of a sufficiently close connection to the forum state and would interfere
with the sovereignty of other states.40
NiPR 2012 Afl. 3
8.
International human rights, extraterritoriality and
private international law
It is clear that the Supreme Court’s review of the Kiobel case
raises important issues with respect to the interplay between
law and international politics, laying bare the potential field
of tension between the promotion of commercial and trade
interests on the one hand, and the promotion of international
human rights interests on the other. In addition, the second
question that the Supreme Court has now set out to address
with respect to the Alien Tort Statute, relating to the issue of
extraterritoriality, puts forward a number of interesting legal
questions at the plane of intersection between private international law and public international law. Can victims of international human rights violations perpetrated by private actors
seek civil remedies in domestic courts in another country than
the one in which the violations have been committed, even if
the claims have few, fewer or no connections to the state in
which they are brought? To what extent are such claims actually at variance with international legal norms on international jurisdiction and (extra-)territoriality, also considering the
diminishing (or at least changing) role for state sovereignty in
today’s globalizing world? May domestic courts be allowed,
through domestic statutes (or in the future perhaps an inter-
32 See, for example: C.I. Keitner, ‘Keitner on Kiobel and the Future of the
Alien Tort Statute’, Conflict of Laws weblog, 21 September 2010, available at
<http://conflictoflaws.net/2010/keitner-on-kiobel-and-the-future-of-the-
alien-tort-statute/>; T. Childress, ‘Is It the End of the Alien Tort Statute?’,
Conflict of Laws weblog, 17 September 2010, available at <http://conflict
oflaws.net/2010/is-it-the-end-of-the-alien-tort-statute/>.
33See supra note 1.
34 The court order, in which the case is restored to the calendar for reargu-
ment and the parties are directed to file supplemental briefs on the question ‘[w]hether and under what circumstances the Alien Tort Statute,
28 USC §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’, is available at <www.supremecourt.gov/orders/
courtorders/030512zr.pdf>.
35 This is clear from the transcripts of the Kiobel oral hearing by the Supreme
Court on 28 February 2012; see supra note 3.
36See supra note 2.
37 In both instances, jurisdiction was assumed by The Hague District Court;
it did so on the basis of the Dutch rule on the joinder of claims and on
the basis of the Dutch rule on forum necessitatis, respectively. See Akpan et
al. v. Royal Dutch Shell and Shell Petroleum Development Company of Nigeria,
The Hague District Court, 24 February 2010, LJN: BM 1469 and El-Hojouj
v. Unnamed Libyan Officials, The Hague District Court, 21 March 2012, LJN:
BV9748.
38 Brief of the governments of the United Kingdom of Great Britain and Northern Ireland and The Kingdom of the Netherlands as amici curiae in support of
the respondents, No. 10-1491, filed 3 February 2012, available at <http://
sblog.s3.amazonaws.com/wp-content/uploads/2012/02/4587212_1_UKNetherlands-amicus-brief-ISO-respondents-filed-2-3-12-2.pdf>.
39 This has led to criticism of the (Dutch) pot calling the (US) kettle black;
see M.T. Kamminga, ‘De Nederlandse pot verwijt de Amerikaanse ketel’,
Nederlands Juristenblad (87) 2012, p. 1109.
40 Brief of the governments of the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland as amici curiae in support of nei-
ther party, No. 10-1491, filed 13 June 2012. In this brief, reference was made
to some of the ATS-like transnational civil liability cases that have been
brought before Dutch and English courts, but it was contended by the gov-
ernments that their own courts apply jurisdiction-limiting principles that,
unlike those applied by US federal courts in ATS-based transnational civil
cases like the Kiobel case, are consistent with public international law.
399
Multinational corporations, human rights violations and a 1789 US statute: A brief exploration of the case of Kiobel v. Shell
national regime),41 to exercise universal civil jurisdiction over
claims pertaining to violations of international human rights
norms?42
In the particular ATS context of the Kiobel case, the key issue
in this respect could be qualified as one of international prescriptive jurisdiction, which would likely lead to an analysis
of whether the Alien Tort Statute should be interpreted as providing (was meant by its framers to provide) US federal courts
with subject-matter jurisdiction over civil claims relating to
violations of the law of nations perpetrated abroad. However,
it could (and, perhaps, should) also be qualified as an issue
of international adjudicatory jurisdiction and thus lead to the
analysis of another matter altogether, namely whether the exercise of personal jurisdiction by US courts over defendants
that have only limited contacts with the US (in this case: doing
business there through the investor relations office of a subsidiary) is exorbitant and contrary to (public) international law.
It seems important to clearly separate these two issues, also
because the basis for personal jurisdiction in ATS-based civil
cases like the Kiobel case is not different from that in other
types of transnational civil claims brought before US federal
or state courts. Although it may differ from domestic regimes
on international jurisdiction elsewhere, this does not necessarily render it contrary to public international law, especially
also considering the possibility of the subsequent dismissal of
the claims on the basis of forum non conveniens. At the same
time, as is evidenced for instance by the examples mentioned
in the Dutch law professors’ amicus brief, domestic regimes on
international jurisdiction in other countries may just as well
lead to the exercise of jurisdiction by courts over civil claims
that have few or in some cases even no connections to the forum state.43
9.
The way forward
The Supreme Court is expected to render its decision on the
two matters pertaining to the scope of liability under the Alien
Tort Statute that are now before it sometime in 2013. If it were
to hold that corporations cannot be held liable under this statute, this would deal a significant blow to the international
human rights movement, which tends to see ATS-based civil
litigation as one of the most promising contemporary avenues
for the enforcement of international human rights norms
against corporate violators. Still, this would leave open the
possibility of filing ATS-based civil claims against individual
corporate officers for their involvement in human rights violations perpetrated in the course of their companies’ activities in
host countries. If, however, the Supreme Court were to hold
that it is not possible at all to bring civil claims before US federal courts in relation to human rights violations perpetrated
outside of the US on the basis of the Alien Tort Statute, this
avenue would be closed off as well.
One way or another, the Supreme Court’s decision in the Kiobel case will have major legal and socio-political implications
both within the US and abroad. A holding in favour of the
400
plaintiffs/petitioners would confirm that US federal courts
provide a venue through which victims of international human rights abuses perpetrated anywhere in the world may
address those violations even if such would not be possible in
their own country, and claim redress for the harm they have
suffered as a result. A holding in favour of the defendants/
respondents, on the other hand, would be a major victory for
those who have persisted that this type of transnational tortbased civil litigation constitutes an impermissible and undesirable form of forum shopping that has adverse impacts on
foreign relations, international trade and the competitiveness
of the corporate actors involved.
If the Alien Tort Statute would be closed off as a way to hold
multinational corporations accountable for their involvement
in international human rights violations perpetrated in developing host countries, this would not necessarily spell the end
to the contemporary socio-legal trend towards foreign direct
liability cases. After all, the possibility of initiating foreign
direct liability claims before courts in other Western societies
(as well as US state courts) remains. Although this more regular type of tort-based litigation may not engender the level
of moral condemnation that ATS-based claims pertaining to
corporate human rights violations do, it does allow for claims
in relation to a broad range of both people-related and planetrelated norm violations resulting from multinational corporations’ transnational activities. Still, just like their ATS-based
counterparts, these non-ATS-based foreign direct liability
cases raise complex and controversial legal and socio-political
issues. These pertain not only to matters of extraterritoriality
and international jurisdiction, but also to matters of choice of
law, the substantive legal basis, and procedural and practical
restrictions, all of which may have a profound impact on the
feasibility of this type of transnational civil litigation.
All in all, it is clear from the developments described here that
on both sides of the Atlantic interesting times lie ahead for the
rule of law not only in the field of business and human rights
(and that of international corporate social responsibility and
accountability more generally), but also in the field of private
international law.
41 The possibility of including a provision on universal civil jurisdiction with
respect to claims relating to international human rights violations has also
been considered in the course of the Hague Conference on Private Interna-
tional Law’s work on a Convention on Jurisdiction and Foreign Judgments
in Civil and Commercial Matters. See, for instance, with further references:
C. Ryngaert, ‘Universal Tort Jurisdiction over Gross Human Rights Violations’, 38 Netherlands Yearbook of International Law 3 (2007), pp. 19-21.
42 See also, with further references: Enneking 2012, pp. 490-493 (supra note 8).
43 Further discussion of the matter of extraterritoriality and international civil
jurisdiction in ‘foreign cubed’ foreign direct liability cases would go be-
yond the limited scope and more descriptive nature of this note, but will be
brought up in forthcoming publications by this author.
2012 Afl. 3 NiPR