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In the 1990s, the Movement for the Survival of the Ogoni People (MOSOP) began protesting the negative effects of oil drilling in Nigeria’s Ogoni region. In 1994, Ken Saro-Wiwa, Barinem Kiobel and other MOSOP members were arrested by Nigerian authorities, put on trial in a special military court and executed. In 2002, Barinem Kiobel’s wife, Esther, and eleven others from the Ogoni region filed a lawsuit in U.S. court against Shell Oil, which operates in the area. The lawsuit alleged that the Nigerian military, aided and abetted by Shell, undertook a campaign of “torture, extrajudicial executions, prolonged arbitrary detention, and indiscriminate killings constituting crimes against humanity” against them and MOSOP. The case was brought under the United States’ Alien Tort Statute.
The U.S. court originally dismissed the Kiobel lawsuit for lack of jurisdiction. In 2010, the Second Circuit Court of Appeals, in a controversial decision, affirmed the dismissal and held that corporations cannot be held liable under customary international law. Because the Alien Tort Statute relies on customary international law, the Second Circuit ruled that Shell (and, by implication, other corporations) cannot be sued under the Statute even when the allegations concern grave human rights violations. One of the three judges issued an opinion saying that the ruling dealt a “substantial blow to international law and its undertaking to protect fundamental human rights.” On October 17, 2011, the U.S. Supreme Court announced that it would hear the case.
CCIJ, along with several other human rights organizations and scholars, filed an amicus curiae (“friend of the court”) brief with the U.S. Supreme Court. CCIJ and the other amici argued that the Second Circuit’s interpretation of international law is incorrect. In particular, we argue that the court entirely failed to examine the practice of countries around the world, a required step in analyzing international law. A survey of global practice shows that corporations are routinely subjected to liability in every corner of the globe.
The court heard arguments on February 28, 2012. Only a few days later, in a rare move, the Court postponed its review of the case and asked for the parties to submit additional arguments about whether the Alien Tort Statute can even apply to events that occurred outside the United States and, if so, “under what circumstances.” No longer is corporate liability the only issue; now at stake is the extraterritorial application of the Alien Tort Statute to any defendant.
CCIJ joined other human rights organizations in submitting a new amicus brief. CCIJ and the other amici argued that international law permits national courts to exercise jurisdiction over matters outside their borders, and that many states have in fact asserted extraterritorial jurisdiction in civil lawsuits.
On April 17, 2013, the Supreme Court issued its ruling. The court was unanimous in dismissing the plaintiffs’ lawsuit against Shell, and a majority of the justices held that there is a presumption that the Alien Tort Statute does not apply extraterritorially. Chief Justice Roberts, for the majority, wrote, “And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence [in the United States] suffices.” This language appears to severely limit application of the ATS to abuses committed overseas but seems to indicate that corporations could be sued under the ATS in certain circumstances. Lower courts will now have to determine when ATS cases “touch and concern” the United States with “sufficient force.”
The Torture Victim Protection Act (TVPA), while not applicable to corporations, is still available to survivors to bring civil lawsuits in the United States against individual defendants for torture and extrajudicial killing.
Three related lawsuits, commonly known as Wiwa v. Shell, were settled in 2009 on the eve of trial. The settlement totaled $15.5 million and included compensation for the plaintiffs and a trust to benefit the Ogoni people.