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Apr 25

Tort Claims Act: Extra-territorial Application of US Law

The United States Supreme Court recently issued an opinion regarding the US Alien Tort Claims Act.

Kiobel v. Royal Dutch Petroleum (No. 10-1491, April 17, 2013). In this case, Nigerian nationals residing in the United States attempted to sue Shell Oil Company for violations of the “Laws of Nations” in Nigeria. Specifically, these Nigerian nationals lived in the Ogoni land region, a site where there has been devastating environmental damage from the oil production carried out by Shell and it’s subsidiaries. See article at www.unep.org In addition to the horrendous environmental degradation in Ogoni land, the native population were faced with an actual deprivation of farm and fishing lands with no compensation from the government or from Shell. This sparked a large and well-publicized political uprising in Ogoni land, which was in turn violently suppressed by the Nigerian government. Justice Roberts explains that “throughout the early 1990′s, the complaint alleges, Nigerian military and police forces attacked Ogoni villages, beating, raping, killing, and arresting residents and destroying or looting property. Petitioners further alleged that responses (Shell) aided and abetted these atrocities by, among other things, providing the Nigerian forces with food, transportation, and compensation, as well as by allowing the Nigerian military to use respondents’ property as a staging ground for attacks.” After these attacks, the Nigerians obtained political asylum in the United States. They then filed suit against Shell in US District court asserting jurisdiction under the Alien Tort Statute. The ATS provides, in full, that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U. S. C. §1350. According to petitioners, respondents violated the law of nations by aiding and abetting the Nigerian Government in committing (1) extrajudicial killings; (2) crimes against humanity; (3) torture and cruel treatment; (4) arbitrary arrest and detention; (5) violations of the rights to life, liberty, security, and association; (6) forced exile; and (7) property destruction. The District Court dismissed the first, fifth, sixth, and seventh claims, reasoning that the facts alleged to support those claims did not give rise to a violation of the law of nations. The Court ruled that the Alien Torts Claim act does not grant US jurisdiction over torts which take place in a foreign sovereign’s territory when the action complained of is not illegal in that territory. The Court held that in order for an action within a foreign country to be found illegal under US law, Congress must specifically state in the the law that the law has extraterritorial application. The ATS “allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” However, that does not imply that the ATS grants US Courts jurisdiction over acts committed in a foreign sovereigns territories. That only occurs when the specific statute has direct authorization for such by Congress (for example 18 U. S. C. §1091(e) provides jurisdiction over the offense of genocide “regardless of where the offense is committed” if the alleged offender is, among other things, “present in the United States”). Thus, “where transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished for them by the United States.” The Court’s decision here places an end to speculative assertions of US law in foreign territories. For a full briefing of how this ruling might affect your business, please contact Norris Echetebu Law.