Business Matters

For whom Kiobel tolls

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Last week, on April 17, the US Supreme Court, through Chief Justice John Roberts, issued a unanimous decision in the case of Kiobel et al. v. Royal Dutch Petroleum et al. (No. 10-1491). Although dealing with a case brought by Nigerians invoking an American statute, the US decision is of interest to us Filipinos because it could impact cases, like those involving Marcos human rights violations, that are brought in the United States by Filipinos for acts committed, not in the United States, but in the Philippines.

The petitioners in Kiobel were residents of Ogoniland, a place in the Niger delta area of Nigeria. They had since moved to, and had been granted political asylum in, the United States.

The Nigerians claimed that Royal Dutch Petroleum and the other respondents violated the law of nations by aiding and abetting the Nigerian government in violating their human rights in Nigeria, such as in extrajudicial killings, crimes against humanity, torture and cruel treatment, arbitrary arrest and detention, violations of the rights to life, liberty, security and association, forced exile and property destruction.

These violations, the petitioning Nigerians alleged, were committed by the Nigerian government when its assistance was enlisted by Shell Petroleum Development Co. of Nigeria Ltd. (SPDC), a subsidiary of the respondents, after concerned residents of Ogoniland began protesting the environmental effects of SPDC’s practices in oil exploration and production in that area.

The petitioners invoked the Alien Tort Statute (ATS), part of a broader judiciary law delineating the various federal courts. It provided that “the 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.”

Among the questions that the US Supreme Court wanted to consider were a) whether and, if so, b) under what circumstances US courts may recognize a cause of action for violations of the law of nations, that occurred within the territory of a sovereign other than the United States.

On that narrow issue, the US Supreme Court, throwing out the case, ruled that the ATS contained no indication that the American Congress intended, by that law, to give US courts authority to hear cases for violations of the law of nations occurring outside the United States.

The question that many now ask is whether Kiobel, as it stands, is a bane or a boon. In my view, it is, for us Filipinos, both a bane and a boon.

Kiobel may be considered a bane for the reason that Kiobel may have restricted the utility of the ATS. That law for the past 30 years before Kiobel had been used as the basis for numerous tort suits, especially those involving egregious human rights violations, filed by non-US citizens in the United States for acts committed outside that country. The diminution of the availability of the ATS seems the unfortunate result for all of us on account of solely the failure of a few Nigerians.

As plaintiffs, they were ruled as unable to rebut what is known as the presumption against extraterritoriality, which states that unless there is clear evidence to the contrary, a particular law is presumed to operate only inside that sovereign’s territory.

The US decision could be disheartening in that after examining the text, the history and the purpose of the ATS, the US Supreme Court found no clear indication that the law reaches conduct that occurred outside the United States.

The US Supreme Court also disappointingly reasoned that if it ruled in the affirmative, it might be criticized as having engaged in “unwarranted judicial interference in the conduct of foreign policy”—i.e., dipping its fingers into what are in the hands of the political departments.

Finally, the US Supreme Court appeared afraid that entertaining the Nigerians might provoke other countries to hale Americans into their courts for the latter’s conduct anywhere in the world.

On the other hand, it could be seen, not as a bane, but instead a boon, precisely because the very narrow issue it hinged on left many questions unanswered.

For instance, Kiobel hinted that the ATS may nevertheless be invoked in overseas human rights violations where the claims touch and concern the United States with “sufficient force.” What precisely constituted “sufficient force” to concern the United States was not defined.

It is thus arguable that the human rights violations of the Marcos era in the Philippines, because they had the effect of terrorizing people whole scale, ran counter to the vision of the United States in its former colony (i.e., to make it also a land of the free and home of the brave).

More important, there are many US corporations in the Philippines. Granting for the sake of argument that Kiobel did reduce their exposure to ATS, is it not arguable that they are in fact the face of America and should therefore be exemplars of good behavior? And therefore to be taken to task if they fail?

Clearly, Kiobel is just the first of many surprises to come.

Ricardo J. Romulo is a senior partner of Romulo Mabanta Buenaventura Sayoc & De Los Angeles.

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