John Knox on CPRBlog {Bio}

Death of a Statute: The Kiobel Ruling

On Wednesday, the Supreme Court ended a generation of human rights litigation in the United States by holding, in Kiobel v. Royal Dutch Petroleum, that the Alien Tort Statute (ATS) does not apply to actions occurring in foreign countries. The ATS allows plaintiffs to sue in federal courts for torts committed in violation of international law and, since 1980, plaintiffs have used it for claims of grave human rights violations, such as torture, crimes against humanity, extrajudicial killing, and even genocide, arising in other countries. Now it appears that the federal courts will be closed to such claims.  

In recent years, plaintiffs had brought a series of cases against corporations that accused them of complicity in human rights abuses. Many of those claims were against corporations exploiting natural resources in developing countries. For example, Kiobel arose from Shell’s decades-long presence in the Niger Delta. In the 1990s, in response to protests by the Ogoni people about the environmental harm caused by oil extraction, Nigeria cracked down, destroying villages, arresting dissidents, and, in 1995, executing nine Ogoni leaders, including Ken Saro-Wiwa. Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its human rights abuses.  

In 2010, the Second Circuit rejected their suit on the ground that corporations cannot be responsible for violations of international law. Other circuit courts, including the D.C. and Seventh, disagreed, and the Supreme Court granted certAt oral argument in 2011, however, the justices asked most of their questions about another possible ground of dismissal, based on the presumption against extraterritorial application of federal law. They asked the parties to reargue the case to address that issue. 

This week the Court issued its decision on that ground. By the usual 5-4 majority, the Court said that the presumption against extraterritoriality applied and that the ATS showed no evidence that Congress intended to overcome the presumption.

There are quite a few problems with this interpretation, as bloggers at Opinio Jurishave been pointing out. In no particular order:

Full text

Kiobel Returns!

Remember Kiobel v. Royal Dutch Petroleum, argued before the Supreme Court last term?  It’s back – the Court will hear argument again Monday – and bigger than before. 

A brief recap:  For decades, Shell has extracted oil from the Niger Delta, causing extensive environmental degradation.  The government of Nigeria, with the alleged support of Shell, cracked down on protests by the local residents, the Ogoni tribe, by executing their leader, Ken Saro-Wiwa, and eight others in 1995.  Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law.  They relied on the Alien Tort Statute (ATS), a law enacted by the First Congress in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law. 

In 2010, the Second Circuit put the brakes on their effort by holding that corporations can neverbe liable under the ATS because corporations can never violate international law.  Other circuit courts disagreed, as did many commentators.  So when the Supreme Court issued cert. in 2011, the plaintiffs had reason to be cautiously optimistic that they would prevail. 

But after oral argument in early 2012, the Court surprised everyone by dramatically changing the issue, from corporate liability to extraterritoriality.  Specifically, it set the case for another round of briefing and argument on whether the ATS applies to any suits against any defendant for violations occurring within foreign territory.  As I wrote in March, that raised the stakes for human rights advocates.  Plaintiffs could try to work around a “can’t sue corporations” rule by suing individual corporate officials.  But there may not be many foreign human rights claims of any kind – against corporations, individuals, or governments – that will survive if the rule is “can’t sue for anything that happens in another country.” 

Full text

Planting the Seeds of the Future: The Plant Genetic Resources Treaty

a(broad) perspective

Today’s post is the sixth in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these treaties.  Previous posts are here.

International Treaty on Plant Genetic Resources for Food and Agriculture
Adopted by the Food and Agriculture Organization on November 3, 2001

Entered into Force on June 29, 2004
Number of Parties: 127

Signed by the United States on November 3, 2002
Sent to the Senate on July 7, 2008
Reported favorably by the Senate Foreign Relations Committee on December 14, 2010

As the world’s population continues to grow, global production of food must grow with it. The United Nations Food and Agriculture Organization (FAO) predicts that farmers will have to increase production by at least 70 percent by 2050 to satisfy the demand for food due to the world’s growing population, urbanization, and rising incomes. To meet the food demands of a future global population of 9 billion people, significant advances in plant genetics are needed.

Full text

Preserving the Pristine: Why the United States Should Ratify the Antarctic Liability Annex

a(broad) perspective

Today’s post is second in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these ten treaties.  Previous posts are here.

Annex VI on Liability Arising from Environmental Emergencies to the Protocol on Environmental Protection to the Antarctic Treaty
Adopted and Opened for Signature on June 14, 2005
Entry into Force Pending
Signed by the United States on June 14, 2005
Sent to the Senate on April 2, 2009 

Antarctica is the coldest, driest, highest, most pristine, and least inhabited continent, and it has the largest contained ecosystem on the planet.  Home to whales, seals, penguins, petrels, and many animals and plants found nowhere else on earth, Antarctica also plays an integral role in regulating global environmental processes.  

Though largely isolated from human contact, Antarctica is still vulnerable to degradation from human activities.  For example, emissions of chemicals have caused a “hole” in the ozone layer over the southern pole, and emissions of greenhouse gases contribute to significant warming of the region.  More directly, the unmatched opportunities for scientific research, commercial fishing, and tourism have all taken a toll on this unique environment.  In addition to the 40 scientific stations on the continent, nearly 50,000 tourists visit every year. The increased tourism has increased the likelihood of marine accidents.  In recent years, several ships have run aground, leaking fuel oil into the ocean.

Full text

A New Twist in the Kiobel Case

Last week, the Supreme Court heard oral argument in Kiobel v Royal Dutch Petroleum, the case asking whether corporations can be liable in federal court for violations of international human rights law.  In the decision under review, the Second Circuit – unlike every other circuit court to consider the question – had held that they could never be liable.  So one might think that a logical way for the petitioners to begin their oral argument would be to give an example or two where international law had recognized corporate liability.  And, in fact, Justice “Swing Vote” Kennedy hit the attorney for the petitioners with that very question before he had completed his opening statement. 

It wasn’t a good sign when the attorney didn’t come up with any examples.  (He might have pointed out that after World War II, the Allies broke up IG Farben because of its contributions to Nazi crimes – as Richard Posner noted in his opinion for the Seventh Circuit.)  As a result, a general feeling after the oral argument was that the Supreme Court would probably affirm the Second Circuit by a 5-4 margin, with Kennedy in the majority.

But on Monday, the Court threw a spanner in the works, upset the apple cart, and stuck a spoke in the wheels of those expectations.  More specifically, it scheduled the case for rehearing next term, asking the parties to address “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, 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.” 

Full text

Can Corporations Violate Human Rights? In Kiobel v. Royal Dutch Petroleum, the Supreme Court May Say Yes ... or No

On February 28, the Supreme Court will hear argument in Kiobel v Royal Dutch Petroleum, a case with far-reaching implications for efforts to hold corporations accountable when they commit or are complicit in abuses of human rights. 

For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta.  The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them.  Most infamously, in 1995 it executed the author Ken Saro-Wiwa, together with eight other leaders of the protests.     

Esther Kiobel, the widow of one of the executed men, as well as other affected Ogoni, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law.  The plaintiffs relied on the Alien Tort Statute (ATS), a law enacted by the First Congress, in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law.  In 2004, in Sosa v Alvarez-Machain, the Supreme Court affirmed that the ATS still provides jurisdiction for international tort claims, but it cautioned federal courts not to recognize claims “for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms” familiar when the law was enacted.  As an example of such a historical paradigm, the Court cited the long-standing prohibition against piracy. 

Full text

Reclaiming Global Environmental Leadership

For more than a century, the United States took the lead in organizing responses to international environmental problems.  The long list of environmental agreements spearheaded by the United States extends from early treaties with Canada and Mexico on boundary waters and migratory birds to global agreements restricting trade in endangered species and protecting against ozone depletion.  In the last two decades, however, U.S. environmental leadership has faltered. 

The best-known example is the lack of an effective response to climate change, underscored by the U.S. decision not to join the Kyoto Protocol.  But the attention climate change receives should not obscure the fact that the United States has also failed to join a large and growing number of treaties directed at other environmental threats, including marine pollution, the loss of biological diversity, persistent organic pollutants, and trade in toxic substances. 

Today CPR publishes Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  My co-authors and I show the importance of ten treaties and urge the Obama Administration and Congress to work together to ratify them.  Unlike the Kyoto Protocol, these treaties do not generally raise difficult partisan issues.  They were all negotiated with substantial U.S. input, and they all provide clear benefits to the United States – or they would if only the United States belonged to them. 

Full text

In Chevron versus Ecuador, the Decisions (and the Ironies) Multiply

If environmental cases had their own Olympics, the dispute between Chevron and Ecuador would be a contender for multiple gold medals.  It seems to have a shot not only at winning the award for the largest damages, but also for running the longest and appearing in the most courtrooms. 

To recap:  Residents of the Amazon have been trying for nearly 20 years to receive compensation for massive environmental damage Chevron’s predecessor, Texaco, allegedly caused in Ecuador in what’s been called the “Rainforest Chernobyl.” In February, their efforts culminated in an $8.6 billion judgment by an Ecuadorian court against Chevron.  Chevron attacked the decision on several fronts, including by appealing to a higher Ecuadorian court and by suing the plaintiffs in U.S. federal court to stop them from enforcing the judgment.   

Last week, Chevron suffered setbacks in both courts.  On Tuesday, the Ecuadorian appellate court affirmed the judgment.  If Chevron doesn’t publicly apologize to Ecuador, the award will be doubled, to nearly $18 billion.  Chevron responded by saying that the decision “is another glaring example of the politicization and corruption of Ecuador's judiciary that has plagued this fraudulent case from the start.”  As I’ve noted before, this is ironic.  The plaintiffs originally sued in U.S. federal court, and it was Chevron (still Texaco at the time) that persuaded the court to dismiss the case in favor of the Ecuadorian judicial system.  In response to the plaintiffs’ warnings that Ecuadorian courts were “subject to corrupt influences” and “incapable of acting impartially,” Chevron persuaded Judge Rakoff in the Southern District of New York and, on appeal, the Second Circuit, that Ecuadorian courts would be just fine.  Chevron had argued (among other things) that “because these cases will be the subject of close public and political scrutiny, as confirmed by the Republic’s involvement in the litigation, there is little chance of undue influence being applied.” Oh well, Chevron might add today, we were mistaken about that.  Oops. 

Full text

Does the Radiation from Japan Violate International Law When It Crosses International Boundaries?

Friday, the first traces of the plume of radioactive gas from the damaged Japanese reactors were reported to reach California. The cornerstone of international environmental law is often said to be the “prevention principle,” which says that states have “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States.”  Does that mean that the transboundary radiation has put Japan in violation of international law? 

In a word, No.

Although the quoted language, from the 1992 Rio Declaration, sounds as if any transboundary damage would violate international law, almost no one interprets the prevention principle so strictly. To be an obligation under customary international law, the principle would have to reflect states’ customary practice, and states don’t prevent all transboundary pollution. Last year, in a case between Argentina and Uruguay, the International Court of Justice characterized the principle this way: “A State is . . . obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.”  

So the ICJ believes that a state is only required to prevent “significant” transboundary harm. That seems more likely to reflect state practice, although you might question whether states comply even with this lower standard, given the amount of transboundary pollution that still occurs. If the ICJ is right, Japan hasn’t failed to comply with the principle, since the radiation that has crossed the Atlantic is at low levels not expected to cause any significant harm. Even at higher levels, the transboundary radiation wouldn’t violate international law as long as Japan has done all it can to prevent it from occurring – a condition that the regulatory failures described in Rebecca’s post below may call into question. (Whether or not Japan has complied with the prevention principle, international law may impose liability for transboundary harm, but that’s an issue for another post.) 

The obligation to prevent harm isn’t the only relevant international obligation, though. It’s also generally thought that states facing environmental emergencies with potential transboundary effects have an obligation to notify their neighbors and keep them informed. In this latter respect, Japan may be more open to criticism, for issuing general statements that do not provide other countries much detail about the problem. On Thursday, China urged Japan to be more forthcoming, a message that will likely grow louder as fears of radiation increase among the people of China and other nearby countries.

Full text

Who Wanted Ecuador to Try the Biggest Environmental Case in History? That Would be the Defendant, Chevron

On Monday, Valentine’s Day, a judge in Ecuador sent Chevron the opposite of a valentine: it ordered the giant oil company to pay $8.6 billion in damages and cleanup costs for harm caused by exploration and drilling by Texaco (acquired by Chevron in 2001) in a giant tract of rain forest near the headwaters of the Amazon River. The plaintiffs brought the class action on behalf of 30,000 indigenous residents of the region, who have long claimed that by dumping billions of gallons of toxic sludge into local waterways between 1964 and 1990, Texaco destroyed the local environment and caused hundreds of deaths by cancer.   

The award is the latest chapter in one of the longest-running environmental cases ever, but it’s certain not to end the dispute: Chevron immediately called the decision “illegitimate and unenforceable” and appealed on Thursday. Attorneys for the plaintiffs suggested that they might appeal too, since the award was far below the $27.3 billion recommended by an independent expert. That’s a lot of money even by Chevron’s standards – it only earned $19 billion in profit last year. (Ecuador’s GDP, by way of comparison, is $61.5 billion.)   

A couple of interesting points about the case: First, it’s a lesson in being careful what you wish for. The case ended up in an Ecuadorian court only because Texaco fought for years to put it there. Way back in 1993, the plaintiffs first brought their case to U.S. federal court in the Southern District of New York, near Texaco’s headquarters. From the beginning, Texaco argued that the suit should be dismissed on the basis of forum non conveniens, the judge-made doctrine that allows courts to dismiss cases within their jurisdiction on the ground that another forum would be better suited to decide the case. After all, Texaco argued, the events in question occurred in Ecuador.

Full text