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Supreme court blocks Nigerian activists from suing Shell over alleged torture

Nigerians had hoped to use US Alien Tort Statute to sue Royal Dutch Petroleum over the deaths of nine protesters in the 1990s

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The supreme court has blocked a group of Nigerians from suing the oil giant Shell in US court for allegedly aiding in torture and murder in a ruling that human rights experts warned could limit the ability to bring such cases in the US.

In a unanimous ruling, the justices stopped a case filed by Nigerian activists now living in the US who allege that in the 1990s Royal Dutch Petroleum was complicit in the the torture and murder of protesters at the company’s Shell Oil operations in the Ogoni region.

The unanimous decision affirmed a lower court ruling that the Alien Tort Statute (ATS), written in 1789, cannot be used to sue foreign entities for alleged violations of international law on foreign soil. “Nothing in the ATS’s text evinces a clear indication of extraterritorial reach,” the court found.

Esther Kiobel, the lead plaintiff in the case, is the wife of the late Dr Barinem Kiobel, one of a group of Nigerian environmental activists known as the Ogoni Nine, who protested against the devastating impact of Shell’s operations in the Niger Delta. In 1995 the Ogoni Nine were tortured and hanged by the Nigerian military junta.

The Center for Constitutional Rights (CCR) said it was “deeply troubled by the supreme court’s decision to undercut 30 years of jurisprudence to limit US courts’ ability to hear cases on human rights violations committed outside the United States“.

“The US with this case is withdrawing from the world from the path that international law has taken,” said Peter Weiss, vice-president of the CCR, said. He said it was “in the national interest” for the US to promote human rights around the world.

Peter Rees, Shell’s legal director, said: “In our view, the court has reached the right decision. Shell remains firmly committed to supporting fundamental human rights in line with the legitimate role of business, and I want to make clear that we deny, in the strongest possible terms, the allegations made by the plaintiffs in this tragic case. Today’s decision doesn’t weaken the human rights of people around the world; it makes it clear that the Alien Tort Statute does not provide a means for claims to be brought in the US which have nothing to do with the US.

“But we’ve always maintained this case has nothing to do with the United States. The Alien Tort Statute is an 18th Century law designed for an entirely different purpose and certainly not for application where there is no connection with the United States. We appreciate the opportunity to have been heard in this case, and we are pleased that the court has now clarified this area of the law.”

The US Chamber of Commerce praised the decision. “The US supreme court‘s decision today ensures that trial lawyers cannot continue to use the American judicial system to expose global businesses to frivolous and costly lawsuits,” said president Thomas Donohue. “Today’s decision helps to ensure that America will continue to be an attractive place to do business and removes barriers for companies looking to do business throughout the world.”

The ATS has been a popular vehicle for human rights cases since 1980 when Joelito Filártiga, son of a Paraguayan opposition figure who was tortured and killed by Paraguayan police, sued his father’s torturer in the US courts. Filártiga was denied justice at home but sued in the US when he learned his father’s torturer was living in New York. A US court held that torturers, like pirates, had become “hostis humani generis” – enemies of all mankind.

Marco Simons, legal director of EarthRights, a human rights nonprofit, said the ruling left many questions unanswered. EarthRights is currently leading a case against banana giant Chiquita Brands for allegedly funding terrorists in Columbia. As a US company Simons said the new ruling would not affect the case Chiquita.

“It’s clear in other areas of the law that any foreign company doing business in the US has to abide by US standards. For the ATS there is now a two tier system,” he said. Simons said he expected Congress would have to address the imbalance and that the ruling was likely to lead to more not less litigation.

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