Kiobel v Shell: US Supreme Court on corporate accountability for foreign human rights abuses

18 April 2013 by

shell460US Supreme Court : Kiobel et al v. Royal Dutch Petroleum Co et al – Read Judgment 

In a long-awaited judgment, the United States Supreme Court has decided unanimously that there was no jurisdiction for a US federal court to hear a claim by a group of Nigerians alleging that the respondents assisted the Nigerian government to kill, rape, beat and arrest individuals who protested against Shell’s environmental practices. 

The judgment has already attracted a lot of commentary, from those claiming it is undermines US leadership on human rights to those who argue it is sensible or a mixed bag.  The claimants, who resided in the United States, filed suit against the respondents (Dutch, British and Nigerian corporations) in federal court under the Alien Tort Statute (the “ATS”).

Opinion of the Court

The opinion of the Court (or majority judgment) was delivered by Chief Justice Roberts and joined by Scalia, Kennedy, Thomas and Alito.  The opinion focused on the fact that the presumption against extraterritoriality – namely that when a statute gives no clear indication of an extraterritorial application, it has none – applies to claims under the ATS and that there was nothing in the ATS to suggest that this presumption should be rebutted.  Substantial case law was quoted to support this presumption, which served to protect against unintended clashes between the laws of the US and those of other nations which could result in international discord.

Much importance was attached to the fact that when Congress enacted the ATS, only three principal offenses against the law of nations had been identified: violation of safe conduct, infringement of the rights of ambassadors and piracy.

With respect to the first two, it was noted that they have no obvious extraterritorial application.  With respect to the third, Chief Justice Roberts took  great pains to distinguish it, stating that piracy took place on the high seas, beyond the territorial jurisdiction of the United States or of any other jurisdiction, and that it did not therefore raise the same issues or concerns. Pirates were “fair game” wherever found, by any nation.  It referred to Doe v Exxon Mobile Corp. 654 F. 3d 11 and to the objections listed therein to extraterritorial applications of the ATS by a number of countries, including the UK.

He also expressed concern that allowing this application would imply that other countries could haul American citizens into their courts for violations of the laws of nations.  The opinion concluded by noting that all the relevant conduct took place outside the US, and that even where the claims touched and concerned the territory of the US, they must do so with “sufficient force to displace the presumption against extraterritorial application”.  Corporations were often present in many countries and it would be overreaching to suggest that mere corporate presence sufficed. 

Justice Kennedy provided a concurring opinion, as did Justices Alito and Thomas.

Partly dissenting opinion 

Justice Breyer provided the other opinion, to which Ginsburg, Sotomayor and Kagan joined, in which he concurred with the judgment of the Court but dissented with its reasoning.  In particular, he took issue with the presumption against extraterritoriality that formed the cornerstone of the majority opinion.  He stated that he would find jurisdiction under ATS where:

  1. the alleged tort occurred on American soil,
  2. the defendant was an American national, or
  3. the defendant’s conduct substantially and adversely affected an important American national interest, which included a distinct interest in preventing the US from becoming a safe harbour for a torturer or other common enemy of mankind.

He returned to the Supreme Court’s judgment in Sosa v. Alvarez-Machain 542 U.S. 2004 where the Court had held that ATS provided today’s federal courts with the power to fashion a cause of action for a modest number of claims, essentially those that rested on a “norm of international character accepted by the civilized world and defined with a specificity comparable to the features of those three ’18th-century paradigms'” listed above.   He asked, Who are today’s pirates?, and went on to answer his own question that they were torturers and perpetrators of genocide.

He also critiqued the reasoning of the majority judgment, noting in particular that the ATS had been created with “foreign matters in mind” and that the attempt to dismiss piracy was fundamentally flawed.  He pointed out that piracy did not occur on the water but on ships, which would fall within the jurisdiction of the nation whose flag they flew.  Permitting the US courts to take jurisdiction over such matters would therefore raise the same direct foreign policy consequences.  Crucially, he stated that Congress must have intended the statute’s jurisdictional reach to match its underlying substantive grasp.

However, he ultimately did not find jurisdiction.  He noted that the defendants were two foreign corporations with very limited links to the US: they were traded on the NYSE and had an office in New York.  The plaintiffs were not American nationals, and the alleged conduct took place abroad.  He also considered it relevant that the plaintiffs were not alleging that the defendants had directly engaged in torture or genocide, but that they had helped others to do so.


Whilst this is discouraging for those with an interest in corporate accountability in the United States, United Kingdom or elsewhere – all of whom have been eagerly awaiting this judgment – much like in the Pandora legend, there is a ray of hope.  The opinion of Justices Breyer, Ginsburg, Sotomayor and Kagan suggests that the door may not be completely closed and that there may yet be scope to use the ATS to protect victims of human rights abuses.

This tug-of-war between corporations and victims of human rights violations abroad is one which is also playing out here in the UK  – for example,  Chandler v Cape plc [2012] EWCA Civ 525 (25 April 2012) involved a claim for asbestiosis contracted as a consequence of poor working conditions in South Africa and where the Court permitted a case to be brought against the parent company in the UK.  Similarly, with respect to the claims against Anglo American for silicosis suffered by miners in South Africa, which claimants are also attempting to bring in the UK: Vava & Ors v Anglo American South Africa Ltd [2012] EWHC 1969 (QB) (16 July 2012).  It remains to be seen whether the Court will find jurisdiction in this case, and other cases involving similar causes of actions are awaiting the outcome, including that of Sindla Sigadla and Ors v. Anglo American South Africa Ltd and Ors.

In addition, whilst it does not relate to corporate accountability, it should be noted that the European Court of Human Rights did find in Al-Skeini that there may be instances when the European Convention on Human Rights may apply outside the its member states.  This is part and parcel of what human rights lawyers are hoping – despite Kiobel – is a trend, that courts are starting to recognise that, in an increasingly global world, rejecting any extraterritorial application of such laws means that defendants are effectively being given a free pass.  If nothing else, it is to be hoped that Kiobel will prompt movement on the long-touted multi-jurisdictional treaty governing the actions of multinational corporations.

In summary, whilst Kiobel has been a setback for those seeking stronger accountability of multinationals operating abroad, the decision does not mean that corporations are immune from liability, and ways will continue to be sought to that end.

Wessen Jazrawi is an Associate in the Human Rights and Environmental Practice at Hausfeld & Co LLP

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:


  1. Andrew says:

    The assertion of jurisdiction over a foreign citizen (personal or corporate) in respect of actions in a third country is arrogant, and that is the long and the short of it. The fact that the plaintiffs are residents of the country where it is suggested jurisdiction should lie is irrelevant.

  2. There are at least two elements to jurisdiction in play in this blog, that should be teased out. The first is the power of courts to exercise their jurisdiction over extra-territorial actions of their citizens and people/private entities that are not their citizens (what is in play re ATS and Kiobel). The second is the jurisdiction of courts over the actions of state agents/officers acting outside the normal territory of the state (viz the Al Skeini judgment). Whilst both touch on extraterritoriality, they are different matters altogether. By implying that Al Skeini brings hope where Kiobel undermines it, the blog conflates complex questions.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: