Supreme Court still doubtful its role in Kiobel v. Royal Dutch Petroleum

The Supreme Court of the United States on Monday again asked the petitioners??? attorney in Kiobel v. Royal Dutch Petroleum why the human rights case should be heard here in the United States and not any of three other relevant countries.

Justices of the Court last asked Paul L. Hoffman, the attorney representing 12 Nigerian nationals who allege that 3 European oil companies aided the Nigerian government???s torture and killing of protesters in Nigeria, to justify bringing the case in the United States when they last heard arguments in February.

They continued that line of questioning during the opening arguments for the case on the first day of the Court???s October 2012 term. Justice Samuel A. Alito, Jr. asked, ???Why does this case belong in the courts of the United States when it has nothing to do with the United States other than the fact that a subsidiary of the defendant has a big operation here????

Justice Ruth J. Bader Ginsburg said, ???Nigeria is one question, but other potential forums are the U.K. and the Netherlands.???

Hoffman said, ???They sued here because this is where they live.???

In addition, the Alien Tort Statute (ATS) puts the case in the Supreme Court???s jurisdiction, he said.

According to SCOTUSblog, the statute, enacted as part of the Judiciary Act of 1789, ???provides, in relevant part, that foreign citizens may bring civil suits in U.S. district courts for actions ???committed in violation of the law of nations or a treaty of the United States.??????

Hoffman???s argument has put proper interpretation of the ATS at issue in Kiobel.

In the case of Filartiga v. Pena-Irala, the United States Court of Appeals for the Second Circuit ruled that the ATS put in U.S. jurisdiction any violations of laws and treaties to which the United States is a party. In that case, one Paraguayan national tortured another in Paraguay, but the case was litigated in the United States in 1980.

Kathleen M. Sullivan, on behalf of the respondents in the Kiobel case, said that the Torture Victim Protection Act (TVPA) of 1991, which allows for prosecution in the United States of plaintiffs in torture cases where the alleged crime took place abroad, rendered the Filartiga ruling irrelevant to Kiobel.

???We do not believe that you need to address Filartiga because Filartiga is taken care of entirely by the proper body, which is Congress,??? she said. ???Congress, in enacting the TVPA, the Torture Victim Protection Act, covered a situation like Filartiga.???

That would also mean that the ATS does not apply to the Kiobel case, she said.

???This case has nothing to do with the United States. It’s Nigerian plaintiffs suing an English and Dutch company for activity alleged to have aided and abetted the Nigerian government for conduct taking place entirely within Nigeria,??? she said.

Absent clear indication from Congress such as that provided in the TVPA, the ATS does not apply to cases that happened overseas, Sullivan said.

The Court also released an order list of cases on Monday. Neither of the cases that will affect gay marriage rights were on the order list, either among those to be heard or those denied. The Court still has the option to take them up, however. Two cases that are on the list to be heard revisit the health care issue: one dealing with the individual mandate, which the Court upheld last Term, and one challenging the employer mandate.


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