621 F.3d 111 (2nd Cir. 2010), 06-4800-cv, Kiobel v. Royal Dutch Petroleum Co.

Docket Nº:06-4800-cv, 06-4876-cv.
Citation:621 F.3d 111
Opinion Judge:JOS
Party Name:Esther KIOBEL, individually and on behalf of her late husband, Dr. Barinem Kiobel, Bishop Augustine Numene John-Miller, Charles Baridorn Wiwa, Israel Pyakene Nwidor, Kendricks Dorle Nwikpo, Anthony B. Kote-Witah, Victor B. Wifa, Dumle J. Kunenu, Benson Magnus Ikari, Legbara Tony Idigima, Pius Nwinee, Kpobari Tusima, individually and on behalf of hi
Attorney:Paul L. Hoffman, Schonbrun DeSimone Seplow Harris & Hoffman, LLP, Venice, CA (Stephen A. Whinston, Carey R. D'Avino, Keino R. Robinson, Berger & Montague, P.C., Philadelphia, PA, on the brief), for Plaintiffs-Appellants-Cross-Appellees. Rowan D. Wilson (Rory O. Millson, Thomas G. Rafferty, Michae...
Judge Panel:Before: JACOBS, Chief Judge, LEVAL, and CABRANES, Circuit Judges. Judge LEVAL concurs only in the judgment of the Court dismissing the complaint and files a separate opinion. LEVAL, Circuit Judge, concurring only in the judgment:
Case Date:September 17, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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621 F.3d 111 (2nd Cir. 2010)

Esther KIOBEL, individually and on behalf of her late husband, Dr. Barinem Kiobel, Bishop Augustine Numene John-Miller, Charles Baridorn Wiwa, Israel Pyakene Nwidor, Kendricks Dorle Nwikpo, Anthony B. Kote-Witah, Victor B. Wifa, Dumle J. Kunenu, Benson Magnus Ikari, Legbara Tony Idigima, Pius Nwinee, Kpobari Tusima, individually and on behalf of his late father, Clement Tusima, Plaintiffs-Appellants-Cross-Appellees,

v.

ROYAL DUTCH PETROLEUM CO., Shell Transport and Trading Company PLC, Defendants-Appellees-Cross-Appellants,

Shell Petroleum Development Company Of Nigeria, Ltd., Defendant.

Nos. 06-4800-cv, 06-4876-cv.

United States Court of Appeals, Second Circuit.

September 17, 2010

Argued: Jan. 12, 2009.

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Paul L. Hoffman, Schonbrun DeSimone Seplow Harris & Hoffman, LLP, Venice, CA (Stephen A. Whinston, Carey R. D'Avino, Keino R. Robinson, Berger & Montague, P.C., Philadelphia, PA, on the brief), for Plaintiffs-Appellants-Cross-Appellees.

Rowan D. Wilson (Rory O. Millson, Thomas G. Rafferty, Michael T. Reynolds, on the brief), Cravath, Swaine & Moore LLP, New York, NY, for Defendants-Appellees-Cross-Appellants.

Jeffrey J. Keyes, Briggs and Morgan, P.A., Minneapolis, MN (Mark Girouard, Halleland Lewis Nilan & Johnson, Minneapolis, MN, on the brief), for amici curiae International Law Professors in support of Plaintiffs-Appellants.

Naomi Roht-Arriaza, San Francisco, CA, for amici curiae International Law Scholars Cherif Bassiouni, et al. in support of Plaintiffs-Appellants.

Judith Brown Chomsky (Jennifer M. Green, on the brief), Center for Constitutional Rights, New York, NY (Marcos Simons, Richard Herz, Earthrights International, Washington, DC, on the brief), for amici curiae Wiwa Plaintiffs in support of Plaintiffs-Appellants.

William Aceves, California Western School of Law, San Diego, CA, for amici curiae International Law Scholars in support of Plaintiffs-Appellants.

Before: JACOBS, Chief Judge, LEVAL, and CABRANES, Circuit Judges.

Judge LEVAL concurs only in the judgment of the Court dismissing the complaint and files a separate opinion.

JOSÉ A. CABRANES, Circuit Judge:

Once again we consider a case brought under the Alien Tort Statute (" ATS" ), 28 U.S.C. § 1350,1 a jurisdictional provision unlike any other in American law and of a kind apparently unknown to any other legal system in the world. Passed by the first Congress in 1789, the ATS laid

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largely dormant for over 170 years. Judge Friendly called it a " legal Lohengrin" -" no one seems to know whence it came." 2 Then, in 1980, the statute was given new life, when our Court first recognized in Filartiga v. Pena-Irala that the ATS provides jurisdiction over (1) tort actions, (2) brought by aliens (only), (3) for violations of the law of nations (also called " customary international law" 3) including, as a general matter, war crimes and crimes against humanity-crimes in which the perpetrator can be called " hostis humani generis, an enemy of all mankind." 4

Since that time, the ATS has given rise to an abundance of litigation in U.S. district courts. For the first fifteen years after Filartiga -that is, from 1980 to the mid-1990s-aliens brought ATS suits in our courts only against notorious foreign individuals; the first ATS case alleging, in effect, that a corporation (or " juridical" person) was an " enemy of all mankind" apparently was brought as recently as 1997.5

Such civil lawsuits, alleging heinous crimes condemned by customary international law, often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances. The resulting complexity and uncertainty-combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts 6-has led many defendants to settle ATS claims prior to trial.7 Thus, our Court has published only nine significant decisions on the ATS since 1980 (seven of the nine coming in the last decade),8 and the Supreme Court in its

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entire history has decided only one ATS case.9

Because appellate review of ATS suits has been so uncommon, there remain a number of unresolved issues lurking in our ATS jurisprudence-issues that we have simply had no occasion to address in the handful of cases we have decided in the thirty years since the revival of the ATS. This case involves one such unresolved issue: Does the jurisdiction granted by the ATS extend to civil actions brought against corporations under the law of nations? 10

Plaintiffs are residents of Nigeria who claim that Dutch, British, and Nigerian corporations engaged in oil exploration and production aided and abetted the Nigerian government in committing violations of the law of nations. They seek damages under the ATS, and thus their suit may proceed only if the ATS provides jurisdiction over tort actions brought against corporations under customary international law.

A legal culture long accustomed to imposing liability on corporations may, at first blush, assume that corporations must be subject to tort liability under the ATS, just as corporations are generally liable in tort under our domestic law (what international law calls " municipal law" ).11 But the

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substantive law that determines our jurisdiction under the ATS is neither the domestic law of the United States nor the domestic law of any other country. By conferring subject matter jurisdiction over a limited number of offenses defined by international law, the ATS requires federal courts to look beyond rules of domestic law-however well-established they may be-to examine the specific and universally accepted rules that the nations of the world treat as binding in their dealings with one another. 12 As Judge Friendly carefully explained, customary international law includes only " those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se. " 13

Our recognition of a norm of liability as a matter of domestic law, therefore, cannot create a norm of customary international law. In other words, the fact that corporations are liable as juridical persons under domestic law does not mean that they are liable under international law (and, therefore, under the ATS). Moreover, the fact that a legal norm is found in most or even all " civilized nations" does not make that norm a part of customary international law. As we explained in Filartiga:

[T]he mere fact that every nation's municipal [ i.e., domestic] law may prohibit theft does not incorporate " the Eighth Commandment, ‘ Thou Shalt not steal’ ... into the law of nations." It is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the [ATS]. 14

Accordingly, absent a relevant treaty of the United States-and none is relied on here-we must ask whether a plaintiff bringing an ATS suit against a corporation has alleged a violation of customary international law.

The singular achievement of international law since the Second World War has come in the area of human rights, where the subjects of customary international law- i.e., those with international rights, duties, and liabilities-now include not merely states, but also individuals. This principle was most famously applied by the International Military Tribunal at Nuremberg. As Justice Robert H. Jackson, chief prosecutor for the United States at Nuremberg, explained:

[The Nurnberg trials] for the first time made explicit and unambiguous what was theretofore, as the Tribunal has declared, implicit in International Law, namely, that to prepare, incite, or wage a war of aggression ... and that to

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persecute, oppress, or do violence to individuals or minorities on political, racial, or religious grounds in connection with such a war, or to exterminate, enslave, or deport civilian populations, is an international crime, and that for the commission of such crimes individuals are responsible.

Robert H. Jackson, Final Report to the President Concerning the Nurnberg War Crimes Trial (1946) (emphasis added), reprinted in 20 Temp. L.Q. 338, 342 (1946).15

From the beginning, however, the principle of individual liability for violations of international law has been limited to natural persons-not " juridical" persons such as corporations-because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an " international crime" has rested solely with the individual men and women who have perpetrated it. As the Nuremberg tribunal unmistakably set forth in explaining the rationale for individual liability for violations of international law: " Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." The Nurnberg Trial (United States v. Goering), 6 F.R.D. 69, 110 (Int'l Military Trib. at Nuremberg 1946) (rejecting the argument that only states could be liable under international law).

After Nuremberg, as new international tribunals have been created, the customary international law of human rights has remained focused not on abstract entities but on the individual men and women who have committed international crimes universally recognized by the nations of the world. This principle has taken its most vivid form in the recent design of the International Criminal Court (" ICC" ). Although there was a proposal at the Rome...

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