In the first case of its new term, the U.S. Supreme Court seemed skeptical Monday of allowing foreign plaintiffs a broad right to sue in American courts against overseas corporations accused of aiding in human rights atrocities. But in oral arguments in one of the court’s biggest human rights cases in years, some justices suggested they might not close U.S. courts to claims brought against individuals or involving U.S. companies.
The court heard rearguments on Kiobel v. Royal Dutch Petroleum, in which 12 Nigerian plaintiffs accused the Anglo-Dutch oil company of complicity in a violent crackdown on protesters by military ruler Sani Abacha from 1992 to 1995.
The justices are considering how a 1789 law known as the Alien Tort Statute, should be applied. That law, which remained obscure for nearly two centuries, has been used since the 1980s to bring international human rights cases in U.S. courts.
The Supreme Court heard arguments in February over whether the Alien Tort Statute could apply to corporations and expanded the case to consider whether the law could be invoked in similar cases against anyone.
Justice Anthony Kennedy, often a swing vote, asked lawyer Paul Hoffman, who represents the widow of Nigerian victim Barinem Kiobel, whether there was a connection between events in Nigeria and matters “that commenced in the United States or that are closely related to the United States.”
Kennedy expressed concern that if U.S. courts were to assert jurisdiction, this could expose U.S. corporations to similar lawsuits in other countries.
Hoffman countered: “It is possible the plaintiffs could have sued in other places. They sued here because this is where they live.”
But Justice Samuel Alito, who had in February questioned whether the case had anything to do with the United States, made a similar point on Monday, after Hoffman acknowledged that British and Dutch courts were fair and could hear claims such as those of the Nigerian plaintiffs.
Kathleen Sullivan, a lawyer arguing for Royal Dutch Petroleum, echoed Alito’s concern.
“This case has nothing to do with the United States,” she said. “We fear that if we say the United States can be open” to such claims “other nations might see fit to do the same to us.”
But several justices questioned whether Royal Dutch Petroleum’s position, supported by other companies including Coca-Cola Co and mining giant Rio Tinto Plc, might rule out using U.S. courts for other types of crimes, including piracy.
Justice Sonia Sotomayor said that piracy would have “without question” been considered a violation of international norms in 1789.
In the past two decades more than 150 Alien Tort Statute lawsuits, accusing U.S. and foreign corporations of wrongdoing in more than 60 foreign countries, have been filed in U.S. courts, according to the U.S. Chamber of Commerce. Companies tend to settle the claims to avoid expense and publicity.
Esther Kiobel, 48, who brought the case in 2002 and whose husband Barinem was among those executed under the Abacha government, was among 20 protesters outside the court.
“This will be the right place to bring Shell to justice,” said Kiobel, who is now a U.S. citizen.
The Kiobel case is the first high-profile case for the court in its new nine-month term. It will next week hear a challenge to affirmative action at the University of Texas at Austin, and is considered likely to review cases involving same sex marriage and voting rights.
Of the cases so far in the new term, “Kiobel raises perhaps the largest question of them all: the relationship between America and the world,” said Douglas Kmiec, a law professor at Pepperdine University in Malibu, California, and former U.S. ambassador to Malta.
A decision is expected by June.
The case is Kiobel v. Royal Dutch Petroleum Co, U.S. Supreme Court, No. 10-1491.
(Reporting by Jonathan Stempel; Additional reporting by Ian Simpson; Editing by Eddie Evans and Cynthia Osterman)
Source: OgoniNews
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