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international law

Kiobel v. Royal Dutch Petroleum (10-1491)

in
Oral argument: 
October 1, 2012
Court below: 
United States Court of Appeals for the Second Circuit

Petitioner Esther Kiobel, representing a group of individuals from the Ogoni region in Nigeria, filed a class action lawsuit against Respondents, the Royal Dutch Petroleum Co., Shell Transport and Trading Company PLC, and Shell Petroleum Development Company of Nigeria, LTD (“Royal Dutch”) under the Alien Tort Statute (“ATS”). The ATS grants jurisdiction to some federal courts for certain violations of international law. Petitioners allege that Royal Dutch aided the Nigerian government in committing various acts of violence against protestors of the oil exploration projects in the Ogoni region.  Petitioners claim that they have standing to sue under the ATS because the history, text, and purpose of the statute support the application of the ATS to actions in foreign countries. Petitioner also contends that previous court decisions interpreted the ATS to extend beyond U.S. territory. In response, Royal Dutch argues that the ATS is not an exception to the presumption that U.S. law does not apply extraterritorially, and should not be applicable to actions outside of the U.S. The Court's decision in this case will clarify the reach of the U.S. federal courts' jurisdiction over certain extraterritorial tort claims. 

Questions Presented: 

Whether the issue of corporate civil tort liability under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.

Issue(s)

Whether an American federal court can hear a claim under the Alien Tort statute, when that claim arose out of conduct in a foreign country.

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Written by: 
Claire Holton-Basaldua
Dean Caruvana
Edited by: 
Jenny Liu
Additional Resources: 

Kiobel v. Royal Dutch Petroleum (10-1491)

in

Oral argument: Feb. 28, 2012

Appealed from: United States Court of Appeals for the Second Circuit (Sep. 17, 2010)

ALIEN TORT STATUTE, CORPORATIONS, INTERNATIONAL LAW, TORT LIABILITY

Petitioners Esther Kiobel and others, on behalf of a class of residents of the Ogoni region in Nigeria, assert that Respondent Royal Dutch Petroleum Company is liable under the Alien Tort Statute (“ATS”) of aiding and abetting the Nigerian government in conducting arbitrary arrests and detentions, crimes against humanity, and torture. On appeal, the Second Circuit raised the question of subject matter jurisdiction, and held that the ATS does not provide a cause of action against corporations for these three alleged violations of international law. The parties now disagree over whether the question of corporate liability is jurisdictional or substantive, and whether corporations can be held liable for the alleged violations under the ATS. The Supreme Court’s decision in this case may affect the interests of American corporations with overseas operations, and may have an impact on the United States government’s relationships with foreign nations.

Most favored nation

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Definition

A clause frequently included in bilateral investment treaties ("BITs") which provides that a host state shall treat all of its trading partners equally. Under such a clause, if the host state lowers a tariff for one trading partner, it must lower it for all trading partners.

Bilateral investment treaty

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Bilateral investment treaties (or, BITs) are international agreements establishing the terms and conditions for private investment by nationals and companies of one state in another state. 

Self determination (international law)

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Self-determination denotes the legal right of people to decide their own destiny in the international order.  Self-determination is a core principle of international law, arising from customary international law, but also recognized as a general principle of law, and enshrined in a number of international treaties.  For instance, self-determination is protected in the United Nations Charter and the International Covenant on Civil and Political Rights as a right of “all peoples.” 

uti possidetis juris

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uti possidetis juris (UPJ) is a principle of customary international law that serves to preserve the boundaries of colonies emerging as States.  Originally applied to establish the boundaries of decolonized territories in Latin America, UPJ has become a rule of wider application, notably in Africa.  The policy behind the principle has been explained by the International Court of Justice in the Frontier Dispute (Burkina Faso/Mali) Case: 

international crimes

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The following is a non-exhaustive list of crimes under international criminal law

Multilateral treaties

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Treaties between a large number of states, usually (though not always) denoting participation by a majority of the world's states.  Multilateral treaties cover practically every substantive field of international law, from human rights to inter-state agreements on matters such as trade or transportation.  Examples of early successful multilateral treaties include the International Telegraph Convention (1865) and the

opinio juris (international law)

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In customary international law, opinio juris is the second element (along with state practice) necessary to establish a legally binding custom.  Opinio juris denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question.  See ICJ Statute, Article 38(1)(b) (the custom to be applied must be "accepted as law").  

Customary international law

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Customary international law refers to international obligations arising from established state practice, as opposed to obligations arising from formal written international treaties.  According to Article 38(1)(b) of the ICJ Statute, customary international law is one of the sources of international law.  Customary international law can be established by showing (1) state practice and (2) [[wex:opinio juris (inter

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