An Argument Against The Extension Of ATS Jurisdiction In The Case Of Kiobel v Royal Dutch Petroleum

 In 1993, Royal Dutch Petroleum (engaged in the oil exploration of Nigeria) partnered with the Nigerian government to quell the protests of the Ogani people (a class of citizens protesting the detrimental environmental effects of the exploration). Royal Dutch Petroleum proceeded to supply Nigerian soldiers with food, supplies, shelter, and salaries in a collaborative effort to cease the Ogani oppositions and push forward with oil production.  The Nigerian soldiers charged with this task, then began to beat, murder, rape, torture, and unlawfully arrest any peaceful protesters in their paths.  –Or so claims Esther Kiobel.  Cue the Alien Tort Claims Act of 1789, and we have a full-blown United States Supreme Court case on our hands.

            Esther Kiobel brought a case against Royal Dutch Petroleum (RDP) in 2002 for specific violations of international law under the Alien Tort Statute, as a representative of the class of Nigerian citizens living in the Ogani region of Nigeria. In 2006, the case was heard by the District court and half of the petitioner’s allegations were dismissed on the grounds that they did not violate specific norms mentioned in international law. The remaining allegations were allowed to let stand. However, the District court recognized the monumental impact a decision on this case would have, and decided it was more then District court could handle. The entire case was then certified for interlocutory appeal and was heard in the second district appeals court. The appeals court then dismissed the entire case due to lack of subject matter jurisdiction. It was the court’s opinion that the Alien Tort Statute (ATS) never served as a basis for corporate liability. Esther Kiobel then petitioned the U.S. Supreme Court via writ ceritori, and to the surprise of many, the Supreme Court accepted and heard the case in 2012. (www.law.cornell.edu)

            Now, the nation watches anxiously as the Supreme Court makes a decision on this hot-topic case. Some believe the Court should accept jurisdiction in order to punish all those involved in the heinous crimes committed against humanity. However, if the United States Federal Court was to accept jurisdiction over the Kiobel v Royal Dutch Petroleum case as an extension of the Alien Tort Statute, the repercussions would be severely detrimental the functionality of the American court system, as well as to the nation as a whole.

            This case regards violations of international law that occurred on foreign soil, were conducted by foreign actors, and by which incriminate a foreign government. It therefore seems reasonable that Justice Alito asked the petitioners in the first oral argument of the case, “What business does a case like this have in the courts of the United States?”  The answer, it would seem, is no business at all. Furthermore, it would be dangerous to assume that it does. If jurisdiction over this case were accepted, the case would become a precedent for many more cases to follow. It would essentially open a Pandora’s box of suits brought by foreign citizens for violations occurring on foreign soil.  As is evident from the congested state of our current court system, the U.S. Federal courts do not have the capacity to accept a massive influx of foreign cases. Because our courts (district courts especially) are already less than ideally effective, United States citizens would lose their right to a speedy trial if the system were to be flooded and clogged with the cases of non-citizens.  

            Under ATS, courts can apply federal law to an international law violation. However because these violations occurred in Nigeria, this would mean applying United States federal law to a foreign nation that has its own government in place (talk about stepping on some toes). America is not a global police force and only extreme hubris could fool us into thinking it could be. Additionally, there are far-reaching laws set in place specifically to prevent any one country from assuming such a role. As mentioned in the Sosa v Alvarez case of 2006, International law expressly prohibits universal civil jurisdiction. The U.S. itself would therefore violate international law in the process of passing judgment on international law norm violations.  Historically America has not extended its hand into the jurisdiction of foreign nations, as all U.S. law is assumed not to apply extraterritorially. Accepting jurisdiction of the Kiobel v RDP case would be detrimental, as it would negate that presumption.

            The ATS was enacted with the intention of helping settle international disputes. However, in this particular case ATS is more likely to spark international friction than quell it. The Nigerian government has made it very clear that it does not want United States involvement in the issue, as they fear it may hinder their reconciliation with the people of the Ogani region. Kristin Myles, who represents Unocal and filed an amicus brief in support of RDP, warns that if a corporation is found responsible for the actions of a foreign country’s military, this will inevitably implicate and threaten the sovereignty of the host nation.  Thankfully, the Obama administration agrees. In its second amicus brief on the matter the government stated, “adjudication of the suit would necessarily entail a determination about whether the Nigerian Government or its agents have transgressed limits imposed by international law.”  The fear being that such a determination would cause friction between the U.S. and Nigerian governments. Not only would the U.S. be in Nigeria’s dog-house, but conflicts with observing nations would ultimately ensue if American federal courts accept global jurisdiction and begins stepping on the toes of other foreign governments.

            In conclusion, Jurisdiction the the Kiobel v Royal Dutch Petroleum should not be accepted by the U.S. supreme court because it would be detrimental to our nation if this case could be used as a precedent reference in court. To avoid an overwhelmed court system, universal jurisdiction, international law violations, and international strife, the U.S. Supreme Court must dismiss the Kiobel case.