Kiobel Case: ECCHR supports victims of corporate abuse before US Supreme Court
1 July 2013 - In April 2013 the United States Supreme Court issued judgment in the Kiobel case in favor of oil company Shell. The case concerns Shell’s responsibility for its Nigerian subsidiary’s involvement in crimes committed by Nigerian security forces. The claim is based on the Alien Tort Claims Act (ATCA), a national law which establishes liability under civil law for breaches of international law. In this case, the Court was expected to determine whether the ATCA could also be applied to corporations.
In 2011 ECCHR, in cooperation with its partner organizations, submitted two amicus curiae briefs to the proceedings in this case. Together with the other signatories of the brief, we argued that there is a general, internationally recognized legal principle according to which corporations can be held liable under national laws for human rights violations. The submission referred to a host of court cases and decisions in which corporations were held either criminally or civilly liable under national laws for violating human rights. Based on this general legal principle, the authors of the brief argued that the application of the ATCA in court proceedings against corporations would be in accordance with international practice.
In its decision the court refrained from directly addressing the issue of corporate liability, focusing instead on the question of the jurisdiction of US courts. The Supreme Court found that the ATCA only applies when the corporate activities in question have a connection with the USA above and beyond the mere existence of a corporate presence in the country.
ECCHR and other human rights organizations involved in the case consider the decision to be unsatisfactory since it failed to confirm the ACTA’s international dimension and because the parent company Shell has not been held accountable for the human rights violations of its Nigerian subsidiary. The decision does not, however, exclude the possibility of claims being taken under the ATCA in the future since the Court did not define in detail what would constitute a territorial connection to the United States.
The proceedings in Kiobel are a continuation of the high-profile case taken against Shell by relatives of environmental activist Ken Saro Wiwa after the firm’s alleged involvement in Wiwa’s execution. In the Kiobel case, the claimants argue that oil company Shell, through its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC) provided transport, accommodation and food for Nigerian security forces, and thus aided and abetted the crimes committed by the forces, which include torture and extra-judicial executions.