Kiobel v. Royal Dutch Petroleum

PETITIONER:Esther Kiobel, et al.
RESPONDENT:Royal Dutch Petroleum, et al.
LOCATION: Ogoniland, Nigeria

DOCKET NO.: 10-1491
DECIDED BY: Roberts Court (2010-2016)

CITATION: 569 US (2013)
GRANTED: Oct 17, 2011
ARGUED: Feb 28, 2012
REARGUED: Oct 01, 2012
DECIDED: Apr 17, 2013

Donald B. Verrilli, Jr. – Solicitor General, Department of Justice, for the United States as amicus curiae supporting the respondent (reargument)
Edwin S. Kneedler – Deputy Solicitor General, Department of Justice, for the United States as amicus curiae, supporting the petitioners (argument)
Kathleen M. Sullivan – for the respondents (argument and reargument)
Paul L. Hoffman – for the petitioners (argument and reargument)
Paul Hoffman – on behalf of the petitioners

Facts of the case

The Shell Petroleum Development Company of Nigeria, Ltd., one of the respondents, operated oil production facilities in the Ogoniland region of Nigeria. Esther Kiobel and the other petitioners were Nigerian nationals who alleged that they, or their relatives, were killed, tortured, unlawfully detained, deprived of their property, and forced into exile by the Nigerian government. The petitioners maintain that the respondents, including the Shell Petroleum Development Company were complicit with the Nigerian government’s human rights abuses.

The petitioners filed a putative class action against the respondents, under the Alien Tort Statute in the United States District Court for the Southern District of New York. The District Court dismissed claims against the corporate defendants in part and certified its order for interlocutory appeal.

Both parties cross-appealed to the U.S. Court of Appeals for the Second Circuit. The respondents argued that the law of nations does not attach civil liability to corporations under any circumstances. The petitioners argued that the liability should attach to corporate actors, just as it would to private actors. On September 17, 2010, the Second Circuit affirmed dismissal of the lawsuit with the majority holding that the Alien Tort Statute does not confer jurisdiction over suits against corporations. On February 4, 2011, the Second Circuit denied the petitioners’ request for panel rehearing and for rehearingen banc. The petitioners filed a second petition for rehearingen banc and a motion to recall the mandate, which the Second Circuit denied.

Following oral argument, the Court set the case for reargument in the 2012 Term to address whether and when the Alien Tort Statute allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.


1. Under the Alien Tort Statute, are corporations immune from tort liability for violations of the law of nations, such as torture, extrajudicial executions, or genocide?

2. Upon reargument, does the Alien Tort Statute allow courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States?

Media for Kiobel v. Royal Dutch Petroleum

Audio Transcription for Oral Argument – February 28, 2012 in Kiobel v. Royal Dutch Petroleum
Audio Transcription for Oral Reargument – October 01, 2012 in Kiobel v. Royal Dutch Petroleum

Audio Transcription for Opinion Announcement – April 17, 2013 in Kiobel v. Royal Dutch Petroleum

Elena Kagan:

I have the opinion for the Court in Case No. 10-1491, Kiobel and others versus Royal Dutch Petroleum Company and others.

The plaintiffs in this case are from Ogoniland located in the Niger Delta Area of Nigeria.

The defendants are Dutch, English and Nigerian oil companies that engaged in oil exploration in Ogoniland.

The plaintiffs protested those activities because of their adverse environmental effects.

They alleged that the companies then enlisted the Nigerian Government to suppress those protest that, as a result, members of the Nigerian Army and police forces violently attacked, beat and murdered Ogoni villagers.

The plaintiffs were eventually granted political asylum in the United States and they sued the companies in federal court for atrocities relating to the events in Ogoniland.

The question is whether the US courts can hear a case such as this brought by foreign plaintiffs against foreign defendants over events that occurred on foreign soil.

The plaintiffs say they can bring their suit under one of the oldest laws on the books, the Alien Tort Statute or ATS.

It was passed in 1789 during the very first session of Congress.

It is one sentence long and provides “The District Court shall have original jurisdiction of any civil action by an alien for a tort only committed in violation of the law of nations or treaty of the United States.”

The issue is whether that statute applies to conduct that occurred entirely outside the United States.

Now, when Congress passes a statute, we normally assume that the statute governs only conduct here in the United States, not conduct in other countries.

The reason is simple.

First, it’s just a matter of common sense that when Congress passes a law, it is passing a law that applies in the United States and not some other country unless the law tells us otherwise.

Second, regulating conduct abroad risks serious foreign policy consequences and courts are and should be reluctant to invite such consequences unless that is what Congress clearly intended.

Now, we see no reason to treat the ATS any differently.

Like any other statute, we assumed that it applies only to conduct here at home unless we determine that Congress intended for it to reach conduct abroad.

And the text of the ATS, that one sentence, provides no indication of such reach, the mere fact that the statute mentions aliens or the law of nation is not enough.

Violations of the law of nations affecting aliens do not necessarily occur abroad, they can happen right here at home.

In fact, there were two notorious episodes just before passage of the ATS that show just that.

In one, in 1784, a French adventurer assaulted a French diplomat in Philadelphia.

The French filed a formal protest with the continental Congress and threatened to leave United States.

The potential lack of a judicial remedy for the diplomat precipitated a serious crisis.

In the other episode, in 1787, a New York constable rated the Dutch Ambassador’s home in New York and arrested one of his servants.

The constable was arrested intern but Secretary of Foreign Affairs, John Jay, told the Dutch not to expect much because there was no law on the books that would allow a lawsuit for such a violation.

That changed when the ATS was passed two years later.

This contemporaneous examples fall within the precise terms of the ATS but do not involve any conduct occurring abroad.

Justice Story wrote in 1822 that no nation has ever yet pretended to be the custos morum of the whole world, the guardian of morals of the whole world.

It is implausible to suppose that the very first congress wanted their fledgling republic, still struggling to gain international recognition, to be the first such country and to open their new courts to suits by foreign plaintiffs against foreign defendants for wrongs occurring entirely on foreign soil.

Now, in modern times, when lower courts have undertaken to apply the ATS to such conduct abroad, affected foreign countries have vigorously protested what they have viewed as an infringement by the United States under sovereignty, country such as Canada, Germany, Indonesia, South Africa, Switzerland and the United Kingdom.

Elena Kagan:

And keep in mind that if we say we can entertain suits by foreign plaintiffs against foreign defendants for conduct on foreign soil, there is no reason another country might not do the same to us that is, assert jurisdiction to hear a case by a US citizen against another US citizen for events occurring in the United States.

Now, for all these reasons and others set forth in an opinion we have filed with the clerk, the plaintiffs cannot proceed with this suit.

All members of the Court agree with that judgment.

Justice Kennedy has filed a concurring opinion.

Justice Alito has also filed a concurring opinion in which Justice Thomas has joined.

Justice Breyer has filed an opinion concurring in the judgment in which Justices Ginsburg, Sotomayor and Kagan have joined.