Royal Dutch Petroleum Research Articles

The Alien Tort Statute of 1789 is no longer available to foreigners toclaim for wrongdoings on foreign soil

The Alien Tort Statute (“ATS”) of 1789 was part of the first law to be enacted by the First Congress of the USA. Its original purpose was primarily to remedy harms suffered by aliens at the hands of US citizens. For two centuries it remained dormant. Then it became a vehicle to advance human rights. Sosa v Humberto Alvarez-Machain 542 US 692 (2004) was the first of four ATS cases decided by the Supreme Court of the United States (SCOTUS). Kiobel v Royal Dutch Petroleum Co 569 US 108 (2013) followed and with it, the court limited the application of the ATS. It coined the term “touch and concern” whereby only those with a nexus with the US could pursue grievances. It also enforced the principle of extraterritoriality. Jesner v Arab Bank, PLC 584 US ___ (2018); 138 S Ct 1386 (2018) brought further clarity by imposing clear limits on which parties may be defendants in ATS cases. Nestlé USA, Inc v John Doe I; Cargill, Inc v John Doe I 593 US ___ (2021); 141 S Ct 1931 (2021) precluded future cases of human rights abuses against corporations when allegations can only be made that general corporate decision-making occurred in the US. In future, plaintiffs will have to establish a strong domestic nexus with the US for a claim under the ATS to be successful. Eventually the statute lost its attractiveness for foreign plaintiffs wanting to settle in US courts human rights scores committed in foreign places. Yet some aggrieved Namibians tried to pursue a case against Germany in an attempt to extricate monetary compensation from the former colonial power as restitutional compensation on the basis of the provisions in the ATS. Their attempts failed. Compensation for German atrocities committed during the colonial era in German South West Africa was pursued by the Namibian government outside of the courts. This article illustrates that, at the hand of decisions by the highest court in the US involving particular groups of foreigners, legal avenues using the ATS as a basis have now been closed.

The Future of International Corporate Human Rights Litigation: A Transatlantic Comparison

Imposing legal liability on corporations for their involvement in human rights violations remains problematic. In the United States, civil liability in such circumstances developed in a series of Alien Tort Statute cases. This evolution came to an abrupt end with the cases of Kiobel v. Royal Dutch Petroleum and Jesner v. Arab Bank. As corporate human rights litigation declined in the United States, courts in Europe were presented with their first civil cases, and plaintiffs had some successes. Legal remedies for corporate human rights violations also made it onto the agenda of policy makers at the European Union and national European governments with laws requiring companies to conduct human rights due diligence throughout their operations. Against this background, this article investigates the current state and potential future development of corporate human rights litigation in the United States and Europe. It seeks to answer the following questions: Is the United States losing its prominent place as a preferred forum for human rights litigation against corporate defendants, as recent Supreme Court decisions suggest? What made the U.S. courts attractive in the first place? Is Europe taking over this role, and if so, should the United States be concerned about these developments? Are recent doctrinal and legislative trends in Europe transferable to the U.S. legal system and suitable to fill the gaps left by Kiobel and Jesner? Finally, what do these shifts on both sides of the Atlantic mean for victims of human rights violations and their prospects of effectively pursuing their rights?

Parent Company Direct Liability for Overseas Human Rights Violations: Lessons from the UK Supreme Court

Human rights violations are perpetrated by corporate actors with troubling frequency. In most cases, plaintiffs do not have access to remedy. For 30 years, the United States has been a beacon of hope, its courts adjudicating human rights claims against corporate defendants under the Alien Tort Statute. Then, in Kiobel v. Royal Dutch Petroleum, the Supreme Court closed the door on human rights plaintiffs. This Article charts the rise of the United Kingdom as a venue to bring suit. The U.K. Supreme Court, in a far-reaching judgment from 2019, upheld a decision to allow plaintiffs to sue a London-headquartered parent company for grave environmental damage and harm to local communities’ livelihoods that occurred through the operations of the company’s Zambian subsidiary. The dichotomy in approaches between the U.S. and the U.K. courts has prompted consideration of the following: is there anything that can be drawn from the U.K. litigation to improve access to remedy in the U.S. courts for victims of human rights violations by corporate actors? The article concludes that the argument used in the U.K. case law to attribute liability directly to parent companies should be taken up in the U.S.

Rise and Fall of Universal Civil Jurisdiction

Universal jurisdiction today is largely understood only in the criminal context. To the extent that its civil version is separately recognized, it is argued that it suffered the same misfortune as the Alien Tort Statute in the wake of the US Supreme Court decision in Kiobel v. Royal Dutch Petroleum in 2013. The article examines why universal civil jurisdiction declined relative to its criminal counterpart, juxtaposing its decline with the late twentieth century rise of international criminal mechanisms to enforce global accountability. In carving out a separate history for universal civil jurisdiction, which has all been subsumed in existing international criminal histories, the article highlights the distinctive and complementary role that international civil liability can play in enforcing international human rights.

“A Work of Mourning: Criticism after Nasser Hussain”

This article recalls and recounts Nasser Hussain’s unique manner of thinking. Focusing on several texts that reflect the extraordinary range of his curiosity and erudition – the book The Jurisprudence of Emergency: Colonialism and the Rule of Law (2003), and two articles, “Hyperlegality” (2007), and “The Sound of Terror: Phenomenology of a Drone Strike” (2013), as well as a co-authored Amici Curiae brief in support of the petitioners in the case of Kiobel v. Royal Dutch Petroleum Co. (2011) – the article discusses three areas where Hussain’s work makes the greatest impact: history, jurisprudence, and critique.

ARAYA V. NEVSUN RESOURCES: REMEDIES FOR VICTIMS OF HUMAN RIGHTS VIOLATIONS COMMITTED BY CANADIAN MINING COMPANIES ABROAD

In November 2017, the British Columbia Court of Appeal (BCCA) published its decision in the case Araya v. Nevsun Resources, dismissing the appeal filed by Nevsun, and allowing the lawsuit to move forward to the merits stage of the procedure. This decision was ground-breaking since the plaintiffs were suing Nevsun Resources, a Canadian mining company, for its alleged complicity in the use of forced labor, slavery, torture, inhuman or degrading treatment, and crimes against humanity at the Bisha Mine in Eritrea, a mine belonging to Nevsun. In its decision, the BCCA rejected the three main arguments put forward by Nevsun to get the case dismissed: (1) the forum non conveniens doctrine; (2) the Act of State doctrine and (3) the lack of private law cause of action against corporations for the violations of customary international law principles. In this context, this article offers an analysis of the most significant cases brought before Canadian Courts in regard to Canadian mining companies’ corporate social responsibility. It also relies on two influential cases from the U.S. Supreme Court: Kiobel v. Royal Dutch Petroleum and Jesner v. Arab Bank. Finally, it looks at the common challenges faced by foreign victims when they seek to bring lawsuits against transnational corporations and it briefly suggests that common law courts should adopt a new duty of care to address businesses’ corporate liability for violations of human rights.

The Shadow of Kiobel and Jesner: An Examination of the Alien Tort Statute and Bringing It Back into the Light

The Alien Tort Statute (“ATS”) was enacted in 1789 and seemed fated to go down as a curious historical footnote. Invoked only a handful of times over the ensuing two centuries, the ATS had new life breathed into it in 1980 with the case of Filartiga v. Pena-Irala. The ATS became a vehicle for victims of human rights violations seeking redress in U.S. courts. But while Filartiga represented a small window of opportunity opening for human rights activists, this utility would prove short-lived as the Supreme Court quickly began to curtail the applicability of the ATS: opening the window wider with the case of Sosa v. Alvarez-Machain, then slamming it closed in Kiobel v. Royal Dutch Petroleum Co., and finally bolting the lock and throwing away the key recently in Jesner v. Arab Bank, PLC. This constant chipping away at the ATS has sharply limited the circumstances in which it can be invoked, rendering it virtually toothless. This Note argues that the Court’s interpretations of the ATS post-Sosa is both flawed and at odds with its underlying intent. It will contrast the workable standard laid out by the Sosa Court with the subsequent brittle constructions of the Kiobel and Jesner Courts. This Note posits that the standard imposed by the Court in Sosa is best interpreted using Justice Breyer’s concurrence from Kiobel and Justice Sotomayor’s dissent in Jesner and calls for the adoption of a synthesis of these as the best interpretation of the ATS going forward. Specifically, this hybrid test interprets the first prong of Sosa through Justice Sotomayor’s Jesner dissent and relies on customary international law to inform courts as to what recognized norms are. It interprets the second prong of Sosa through Justice Breyer’s Kiobel concurrence and allows courts to use their discretion in determining whether enforcement of these norms is appropriate, viz, does it concern distinct American interests. It will show that this hybrid test is an appropriately constrained interpretation of the ATS based on its text, history, and intent, and also apply this hybrid test to two current cases to demonstrate its viability and applicability in practice.

Brief of International Law Scholars as Amici Curiae in Support of Petitioners, Jesner v. Arab Bank, PLC

This amicus brief was filed with the U.S. Supreme Court on behalf of international law scholars in Jesner v. Arab Bank, PLC. Relying on its earlier decision in Kiobel v. Royal Dutch Petroleum Co., the Second Circuit held that claims under the Alien Tort Statute could never be brought against corporations. The amicus brief argues that the Second Circuit’s decision in Kiobel fundamentally misunderstood how international law works. Customary international law establishes human rights norms that prohibit certain conduct. Some of these norms apply to all actors, and some apply only to certain actors. Customary international law, however, does not provide the means of enforcing those norms. The enforcement of human rights norms is instead left to states, which may act collectively through treaties or separately by providing for liability under their domestic laws. The Second Circuit’s misunderstanding of international law led it to make two significant errors. First, the Second Circuit framed the question as whether there is a general “norm of corporate liability under customary international law.” That question makes no sense, because customary international law leaves the question whether to impose liability to the decision of states. The proper question under customary international law is instead the one the Supreme Court framed in Sosa: “whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued.” Second, the Second Circuit confused limits on particular mechanisms for enforcing customary international law norms with limits on the substantive applicability of the norms themselves. International criminal tribunals generally have been given jurisdiction only over natural persons because many nations have concerns about imposing criminal liability on corporations. In concluding suppression conventions, like the Genocide Convention and the Torture Convention, nations have similarly limited their obligations to prosecute or extradite to natural persons. But these limitations on particular enforcement mechanisms are not limitations on the underlying norms themselves. This is confirmed by the widespread practice of states providing both criminal and civil liability for human rights violations, including corporate violations, in their domestic laws.

Kiobel and Extraterritoriality: Here, (Not) There, (Not Even) Everywhere

The Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. was relentlessly, and unexpectedly, local in character. Notwithstanding the global outlook suggested by the Alien Tort Statute (ATS), which governs civil actions by “an alien” for torts contrary to “the law of nations or a treaty of the United States,” the Court invoked the presumption against extraterritoriality to limit the statute’s reach. This Article, based on remarks delivered at the University of Oklahoma Law School, puts a heavy emphasis on territoriality — not, it should be stressed, as a matter of normative preference, but purely as a reflection of the Court’s recent cases. It is accordingly inconsistent with some of the more expansive readings of the ATS, though it stops short of Justice Alito’s prescription. If future cases are to depart substantially from territoriality, the better path is not to explore what Kiobel left unresolved, but to revisit what it purported to settle.

Litigation Dilemmas: Lessons from the Marcos Human Rights Class Action

How do activist plaintiffs experience the process of human rights litigation under the Alien Tort Statute (ATS)? Answering this question is key to understanding the impact on transnational legal mobilization ofKiobel v. Royal Dutch Petroleum Co., in which the US Supreme Court sharply limited the scope of the ATS. Yet sociolegal scholars know remarkably little about the experiences of ATS litigants, before or after Kiobel. This article describes how activist litigants in a landmark ATS class action against former Philippine President Ferdinand Marcos faced a series of strategic dilemmas, and how disagreements over how to resolve those dilemmas played into divisions between activists and organizations on the Philippine left. The article develops an analytical framework focused on litigation dilemmas to explain how and why activists who pursue ATS litigation as an opportunity for legal mobilization may also encounter strategic dilemmas that contribute to dissension within a social movement.

Measuring the Economic Effect of Alien Tort Statute Liability

In Kiobel v. Royal Dutch Petroleum Co., the US Supreme Court dramatically restricted the scope of the Alien Tort Statute (ATS), holding that the statute does not permit victims of human rights abuses to sue foreign corporations for violations of international law that took place entirely abroad. We draw on three unique characteristics of the decision to estimate its effect on companies’ valuations. First, we show that extractive industry firms with headquarters abroad experienced larger cumulative abnormal returns following the ruling. By contrast, similar US-based firms—which generally remain subject to ATS liability—did not benefit from the decision. Second, we demonstrate that foreign-based firms benefited both on the final decision date and on the earlier date when the Court slated the case for reargument on the issue of extraterritoriality. Third, we show that this effect varied with the human rights records of host countries: mining firms based abroad with subsidiaries in countries with poor human rights records benefitted most. Although our results cannot resolve debates over the merit of ATS suits, we do show that the Kiobel decision mattered: for foreign firms, it decreased the cost of doing business under regimes with records of human rights violations. (JEL G14, K13, K33, K41, L72)

The forgotten discipline of private international law: lessons from Kiobel v Royal Dutch Petroleum – Part 2

ABSTRACTThe landmark 2013 decision rendered by the US Supreme Court in Kiobel v Royal Dutch Petroleum has received worldwide attention from legal scholars because of its restraining effects on international human rights litigation. One surprising aspect of both the reasoning from the courts and the ensuing debate is the absence of private international legal theory. Instead, contemporary discourse has reconceptualised the private international conflict in either purely domestic or public international terms. In that sense, Kiobel and the debate it brought about are paradigmatic for US law as a whole: the discipline of private international law has been marginalised. This article pursues three objectives. First, it provides an analytical doctrinal account of the Kiobel controversy, using private international doctrine. Second, this account opens up a new middle ground for political compromise, escaping the apparent tertium non datur of human rights protection versus international judicial selfrestraint: courts can exercise responsive deference to both human rights and the principle of non-interference with foreign politics through the application of foreign substantive law. Third, the article emphasises the vital importance of private international law as a discipline comprising notably international jurisdiction and choice of law.

The forgotten discipline of private international law: lessons from Kiobel v Royal Dutch Petroleum – Part 1

ABSTRACTThe landmark 2013 decision rendered by the US Supreme Court in Kiobel v Royal Dutch Petroleum has received worldwide attention from legal scholars because of its restraining effects on international human rights litigation. One surprising aspect of both the reasoning from the courts and the ensuing debate is the absence of private international legal theory. Instead, contemporary discourse has reconceptualised the private international conflict in either purely domestic or public international terms. In that sense, Kiobel and the debate it brought about are paradigmatic for US law as a whole: the discipline of private international law has been marginalised. This article pursues three objectives. First, it provides an analytical doctrinal account of the Kiobel controversy, using private international doctrine. Second, this account opens up a new middle ground for political compromise, escaping the apparent tertium non datur of human rights protection versus international judicial self-restraint: courts can exercise responsive deference to both human rights and the principle of non-interference with foreign politics through the application of foreign substantive law. Third, the article emphasises the vital importance of private international law as a discipline comprising notably international jurisdiction and choice of law.

Kiobel and Others v. Royal Dutch Petroleum Co. and Others

596Jurisdiction — Extraterritoriality — United States domestic law — Alien Tort Statute 1789 — The law of nations — Causes of action — Application to violations of specific, universal and obligatory international norms only — Violation of safe conduct, infringements of rights of ambassadors, and piracy — Presumption against extraterritorial application of statutes — Rebuttal of presumption against extraterritorial application — Clear congressional intent for extraterritorial application required to rebut presumption — Whether generic terms such as “any” and “every” sufficient to connote intended extraterritorial application — Whether use of term “tort” and transitory tort doctrine rebutting presumption — Comity — Sosa v. Alvarez-Machain — Universal jurisdiction — Whether claims touching and concerning United States with sufficient force to displace presumption — Whether corporate presence alone sufficient — Circumstances for finding of jurisdictionRelationship of international law and municipal law — Jurisdiction — Claims in courts of one State for alleged violations of international law in the territory of another State — Alien Tort Statute 1789 — The law of the United States

The Scope and Limitations of the Presumption against Extraterritoriality

In RJR Nabisco v. European Community, the Supreme Court addressed the extraterritorial application of U.S. law for the third time in six years—in this case examining the geographic scope of the Racketeer Influenced and Corrupt Organizations Act (RICO). The decision consolidates and in certain respects expands upon the test for analyzing extraterritoriality issues that the Court had introduced in Morrison v. National Australia Bank and refined in Kiobel v. Royal Dutch Petroleum. It also provides further evidence of the Court’s continuing quest to identify categorical, territory-based rules governing the application of U.S. statutes in cases involving significant foreign elements. As I will argue, however, like other recent decisions, RJR raises doubt as to the sufficiency of such rules to address the messy and often unpredictable patterns of transnational economic activity.

Business and Human Rights Litigation in U.S. Courts Before and after Kiobel

This Chapter examines the landscape for business and human rights cases in U.S. courts under the Alien Tort Statute (ATS) both before and after the U.S. Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co. It concludes that such cases today face a series of challenges, including personal jurisdiction, the question of corporate liability, the standard for aiding and abetting liability, and satisfying Kiobel’s “touch and concern” test.

Geographical knowledge at work: Human rights litigation and transnational territoriality

In April 2013, the US Supreme Court left a mark on the spatiality of law. In a decision on human rights violations in Nigeria, state territoriality served as a technique to rule out the application of transnational law against private corporations. Paradoxically, the private actor turned out to be the primary beneficiary of this jurisdictional territorialism. Drawing on work in critical geography, the article argues that this was only possible against the background of a certain geographical knowledge as reproduced in the course of legal practice. The corporate production of space consisted of a ‘private use of territoriality’ to resist the extraterritorial application of law and thus transnational state regulation. During a spatial analysis of a number of the 82 amicus curiae briefs to Kiobel v. Royal Dutch Petroleum, the article reveals how the geographical configurations of our contemporary order not only withstand transnational challenges, but are even reproduced transnationally by a multiplicity of state and non-state actors. While international law builds upon and reproduces territoriality as a foundational principle of global normativity, it also provides the means for the doing away with territoriality. In order to demonstrate how legal practice contributes to a critical reproduction of normativity on different scales (national and international, local and global), the article establishes a spatial gaze on transnational relations at work.

Post-<i>Kiobel v. Royal Dutch Petroleum Co.</i>: Is Canada Poised to Become an Alternative Jurisdiction for Extraterritorial Human Rights Litigation?

The globalization of business affects the lives of citizens around the globe, both positively and negatively. With multinational corporations transcending national boundaries with their business operations comes the risk of adverse human rights impacts, particularly in regions of the world with high conflict, instability, and low governmental capacity. The risk of human rights violations has led to an increased emphasis on corporate social responsibility measures at industry, national, and international levels. One such protective measure includes statutory grants of jurisdiction to courts to adjudicate claims brought by foreign nationals alleging wrongdoings abroad in the defendant’s home jurisdiction. This measure allows foreign plaintiffs who have suffered abuse at the hands of a multinational corporation in their home jurisdiction to seek justice and compensation from that corporate defendant in the jurisdiction where the corporation’s assets are located and where the system of law is well-equipped to redress the violations. This article first explores the United States’ Alien Tort Statute and the seminal case of Kiobel v. Royal Dutch Petroleum Co. to illustrate the potential scope of extraterritorial human rights litigation in America. Then the article canvasses recent human rights litigation brought by foreign nationals in Canada and concludes with the future of Canadian law in this area.

Reframing the Kiobel Case: Political Recognition and State Jurisdiction

This paper examines, through the lens of political recognition, the U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum Co, which upholds the territoriality principle regarding the reach of the Alien Tort Statute. Political recognition refers to political processes through which historically marginalized identities are acknowledged and respected within the transnational space. Using this political notion, this paper adopts a transnational approach in which the analyses of human rights law and domestic transnational adjudicative processes are integrated. It argues, that the territoriality principle constitutes an instance of Ogonis’ political misrecognition, that is, an instance in which law condones the socio-economic marginalizing processes that the Ogonis and indigenous populations in general are facing. It does so by sidelining Ogonis’ struggles from the judicial decision making process and denying them compensation for harms they suffered. This use of territoriality contrasts with the evolutions in the human rights field, in which territoriality has been deployed to empower indigenous groups and to guarantee them control over their lands and natural resources. In this context, the paper claims that political recognition invites us to re-conceptualize the ATS scope of application and the concept of state jurisdiction in a way that is responsive to indigenous communities’ plight. This leads us to adopt the principle of universal jurisdiction on which US Supreme Court relied prior to Kiobel. Part One of the paper examines Ogonis’ struggles for political recognition and the ways this was translated into legal actions. Part Two describes the evolutions within the human rights field. Part Three discusses the territoriality argument deployed by the U.S. Supreme Court and concludes that political recognition mandates the adoption of universal jurisdiction.

Taking Salience Seriously: The Viability of Ronald Dworkin's Theory of Salience in the Context of Extra-Territorial Corporate Accountability

In his posthumously published article “A New Philosophy for International Law”, Ronald Dworkin argues for the adoption of “salience” as basis for establishing international legal standards. Writing in the context of international law, Dworkin describes salience as follows: “If a significant number of states, encompassing a significant population, has developed an agreed code of practice, either by treaty or by other form of coordination, then other states have at least a prima facie duty to subscribe to that practice as well, with the important proviso that this duty holds only if a more general practice to that effect, expanded in that way, would improve the legitimacy of the subscribing state and the international order as a whole.” Dworkin argues that the limitations of the accepted grounds for establishing international law often fall short especially when addressing problems that necessitate forced collective action such as climate change. Although he makes no reference to multi-national corporations, many of the challenges brought out by Dworkin apply to multi-national corporations. The challenges are particularly daunting in the context of multinationals operating in the developing world where corporate governance structures provide nations in the developing world with limited voice and power. Dworkin’s doctrine of salience is well-suited for application in the context of transnational corporations. Dworkin’s salience seems to reflect what can take place and what is taking place in the development of this area of the law. In addition, salience presents a means for enabling the mutual development of coherent and referential international standards concerning the judicial management of extra-territorial corporate accountability. The need that salience can address is well demonstrated in the recent United States Supreme Court case of Kiobel v. Royal Dutch Petroleum Co. This paper shows how Dworkin’s theory of salience offers a useful theoretical construct for developing a global approach to extra-territorial corporate jurisdiction and liability that can secure benefits and justice for nations in developing world.