Kiobel v. Royal Dutch Petroleum Co
| Decision Date | 17 September 2010 |
| Docket Number | No. 06-4800,06-4876-cv,06-4800 |
| Parties | Esther Kiobel, individually and on behalf of her late husband, Dr. Barinem Kiobel, Bishop Augustine Numene John-Miller , Charles Baridorn Wiwa , Israe l Pyaken e Nwidor, Kendricks Dorle Nwikp o , Anthon y B . Kote-Witah , Vict o r B . Wifa , Dumle J . Kunenu, Bens o n Magn u s Ikari , Legbara To n y Idig ima , Piu s Nwinee, Kpo bari 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. |
| Court | U.S. Court of Appeals — Second Circuit |
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-AppelleesCross-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 PlaintiffsAppellants.
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.
Plaintiffs assert claims for aiding and abetting violations of the law of nations against defendants—all of which are corporations—under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, a statute enacted by the first Congress as part of the Judiciary Act of 1789. We hold, under the precedents of the Supreme Court and our own Court over the past three decades, that in ATS suits alleging violations of customary international law, the scope of liability—who is liable for what—is determined by customary international law itself. Because customary international law consists of only those norms that are specific, universal, and obligatory in the relations of States inter se, andbecause no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS. Accordingly, plaintiffs' ATS claims must be dismissed for lack of subject matter jurisdiction.
The order of the United States District Court for the Southern District of New York (Kimba M. Wood, Judge) is AFFIRMED insofar as it dismissed plaintiffs' claims against the corporate defendants and REVERSED insofar as it declined to dismiss plaintiffs' claims against the corporate defendants.
Judge Leval concurs only in the judgment of the Court dismissing the complaint and files a separate opinion.
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 largely dormant for over 170 years. Judge Friendly called it a "legal Lohengrin"â€2 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, thata 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 verdicts6 —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 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. Thiscase 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 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 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...
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