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U.S. Supreme Court decision for Shell takes the wind off the sail of rights protection law

By Emeka Ugwuonye, Esquire on 18/04/2013

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The case involved a joint subsidiary of the Royal Dutch Petroleum Company, based in the Netherlands, and the Shell Transport and Trading Company, based in England. The subsidiary, incorporated in Nigeria, was accused of aiding and abetting in atrocities by Nigerian military and police forces against Ogoni villagers.

In a country like Nigeria, characterised by weak laws and feeble dysfunctional institutions, coupled with corrupt and conniving governments, victims of serious human rights violations have come to depend on a rare United States jurisdictional statute to bring actions in the U.S. Courts against rights violators. The statute in question is known as the Alien Tort Statute (ATS), passed in 1789 (28 U. S. C. §1350) by the U.S. First Congress as part of the Judiciary Act of 1789.

Being only a jurisdictional statute, the ATS merely vests in the United States District Courts (equivalent of the Nigerian Federal High Courts) jurisdiction to trial cases involving serious torts in violation of law of nations which occurred overseas. Almost from inception the ATS’ potential for overreaching the territoriality principles of international law was recognised. Hence the difficult evolution of the statute as it got applied by the American courts. To understand the position of the law, one must go to the 2004 Supreme Court decision in Sosa v. Álvarez-Machain, which left the door open to some claims under the law, as long as they involved violations of international norms with “definite content and acceptance among civilised nations.”

First, there is the exhaustion doctrine built into the ATS right from the beginning. That doctrine requires that before the U.S. District Court could exercise jurisdiction in this type of cases, the plaintiff must have exhausted any alternative remedy in the foreign country where the tort occurred. But this requirement could be easily met if the Plaintiff were to state in the Complaint that there is no adequate remedy in the foreign country or that the courts of the foreign country are inept, corrupt and dysfunctional and that generally there is no adequate remedy in the foreign country, or that there is no reasonable access to the foreign country’s courts, or that cases in the foreign country are unduly delayed, etc.

Second, there is the due process requirement under Rule 4, U.S. Federal Rules of Civil Procedure, which required that there be some nexus between the defendants in these cases and a United States location to actually confer personal jurisdiction to the US courts. The exhaustion doctrine and the nexus requirement were the only obstacles in the way of a foreigner seeking to sue in America for torts committed overseas.

With such an easy access to the American justice, the ATS became the beacon of hope to victims of human right violations overseas, who would otherwise not get justice in their home countries. There are several reasons why the American courts are considered far superior to courts in, say, Nigeria. First, in America, the plaintiff can go against a powerful defendant without fear of intimidation or harassment during the course of the case. Second, the American judges are not as amenable to corrupt influences as Nigerian judges could be. Third, the American judiciary is far more independent of the executive arm of government than is the case in Nigeria. Fourth, American courts award damages that reflect more accurately the injury than the Nigerian courts would. Indeed, Nigerian judges are grossly unable to make any meaningful value connection between the loss suffered by the plaintiff and the damages awarded against the defendant. Fifth, it is much easier to enforce judgment in American than in Nigeria. And in the particular case of judgments against foreign corporations, it is much easier to seek to enforce in the US where the defendants would have significant assets. Sixth, the American civil procedure and court rules are far more easily predictable than Nigeria’s. Seventh, American laws and rules of evidence are far more developed and consistent with world practices than the Nigerian rules, which are long overdue for upgrades and reforms that have failed to come. Eight, the American use of contingency fee system for attorneys fees makes it much easier for a poor person to sue a powerful corporation in American courts without having to worry about paying his lawyers upfront.

It is logical that Nigerians would try to take advantage of the opportunities with the American courts in these cases. Two Nigerian cases come readily to mind. The first is the case known as M.K.O. Abiola, et al. v. General Abdulsalami Abubakar, et al. (This author was counsel for the defendant in the case; and the case went all the way to the United States Supreme Court (certiorari denied)). The second case is the present one, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491. In both cases, Nigerian plaintiffs saw in America opportunities for access to justice, which they lacked in Nigeria.

It is in the foregoing context that Nigerians must appreciate the profound implications of the decision of the U.S. Supreme Court in Kiobel. The judgment reverberates around the world. The human rights community is taking it as a serious blow. According to Elisa Massimino, President of Human Rights First, “This decision so severely limited a law that has for decades been a beacon of hope for victims of gross human rights violations. This decision cuts a hole into the web of accountability. Human rights abusers may be rejoicing today, but this is a major setback for their victims.”
But how did the U.S. Supreme Court get to this unanimous verdict on this issue? As would appear from the majority opinions, the Court based its conclusion on several factors: that the defendants were citizens of other nations; that they had only a minimal presence in the United States; that the conduct at issue took place abroad; and that the defendants were not accused of committing abuses directly but only of helping other foreigners to do so.

Rationalising this decision the Court was of the view that “The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign.”

The twist in this case was that Shell relied primarily on a canon of statutory interpretation known as the presumption against extraterritorial application. That canon provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none,” Morrison v. National Australia Bank Ltd., 561 U. S. (2010) and reflects the “presumption that United States law governs domestically but does not rule the world,” Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 454 (2007).

According to the Court, this presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (Aramco). As this Court has explained: “For us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.” Benz v. Compania Naviera Hidalgo, S. A., 353 U.S. 138, 147 (1957).

The Court went on to hold that “The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.”

Has this Court decision completely destroyed the ATS? To estimate the full impact of this judgment, a close look should be had on some of the pronouncements of the Justices. Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Kennedy wrote a concurrence stating that the majority had been “careful to leave open a number of significant questions.” In a second concurrence, Justice Alito and Justice Thomas, proposed an answer to one of those unanswered questions, drawing on the Sosa decision. They said that lawsuits under the law should be barred unless there was domestic conduct that violated international norms that were both specific and widely accepted. The Supreme Court heard two arguments in the case before rendering a decision. In February 2012, it considered whether corporations may be sued under the law. Six days later, it set the case down for reargument on the broader question decided Wednesday.

Chief Justice Roberts was of the opinion that United States law did not govern the world and that allowing certain type of cases to be heard in American courts would interfere with the nation’s foreign policy. He said Canada, Germany, Switzerland and the United Kingdom had all objected to some claims under the 1789 law. (Nigerian similarly objected in the M. K. O. Abiola case). Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Breyer’s concurrence.

Justice Breyer said he “would not invoke the presumption against extraterritoriality.” Instead he opined that suits under the ATS should be allowed in one of three settings: when the conduct at issue took place in the United States; when the defendant is an American citizen; or when “the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

In the end, Nigerian masses definitely have reasons to feel disappointed with this judgment. Without massive tort reform in Nigeria, the victims of serious rights violations committed by the multinational corporations, as seen in the area of environmental devastations in the Niger Delta, have lost their best hope for justice. What the U.S. Supreme Court ought to have considered was how the Niger Delta militants would receive its decision. They would feel vindicated in some way, as this decision strengthens their argument that the only way to seek justice for the destruction of their lands is via the bullets and bombs and the kidnapping of the workers of the foreign oil companies. One would have hoped that the situation would be different today.

Emeka Ugwuonye, Esquire, whose photo appears alongside this piece, is a U.S.-based lawyer admitted to practice before the Supreme Court of the United States.

Source News Express

Posted 18/04/2013 3:18:46 PM


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