magnify
Home Jurisdiction Archive for category "Alien Tort Statute"

The Road Less Traveled: How Corporate Directors Could be Held Individually Liable in Sweden for Corporate Atrocity Crimes Abroad

Published on November 13, 2018        Author:  and

On 18 October 2018, the Swedish Government authorized the Swedish Prosecution Authority to proceed to prosecution in a case regarding activities of two corporate directors within Swedish oil company Lundin Oil, and later within Lundin Petroleum, in Sudan (now South Sudan) between 1998 and 2003. The company’s chief executive and chairman could be charged with aiding and abetting gross crimes against international law in accordance with Chapter 22, Section 6 of the Swedish Penal Code. Charges of such kind carry a sentence of up to ten years or life imprisonment. The case has the potential of furthering accountability of corporate actors for their involvement in international crimes abroad.

Lundin’s alleged involvement in international crimes in South Sudan

Sudan was ravaged by a non-international armed conflict which lasted from 1983 until 2005, between the Government of Sudan and the Sudanese People’s Liberation Army (SPLA) – as well as a variety of other armed groups. Meanwhile, beginning with the signing of contracts in 1997, Lundin formed a consortium which carried out oil exploration and production in an oil concession area located south of Bentiu on the West Bank of the White Nile in Western Upper Nile/Unity State called Block 5A in the southern part of the country. According to a report by the European Commission on Oil in Sudan (ECOS), the oil exploration brought exacerbated conditions while setting off a battle for control of the disputed region, leading to thousands of deaths and the forced displacement of local populations – with the Nuer people being the most affected. Additionally, reported crimes against civilians by the Sudanese army as well as associated militias of both parties, include indiscriminate attacks, unlawful killing, rape, enslavement, torture, pillage and the recruitment of child soldiers. The consortium’s interaction with local counterparts has come under criminal investigation after the ECOS report was submitted to Swedish prosecutors in 2010. The long time span of the investigation is at least in part due to on-going conflict in the region in 2013, when the International Office of the Prosecutor had scheduled its visit to South Sudan. Furthermore, the case came with some political connotations since Carl Bildt, former Minister of Foreign Affairs of Sweden, had served as a member of the Board of Directors of Lundin from 2000 to 2006.

In the United States, a case comprised of a similar set of facts was brought by the Presbyterian Church of Sudan against the Republic of Sudan and Talisman Energy Inc., a Canadian oil company, which commenced its activities in the area one year after Lundin. The Court of Appeals for the Second Circuit held in a judgment of 2 October 2009 that the claimants had failed to establish that Talisman “acted with the purpose to support the Government’s offences”. Under the Alien Tort Claims Act (ATCA) the plaintiffs needed to show that “Talisman acted with the – purpose – (one could argue that such mens rea standard had been set unreasonably high) to advance the Government’s human rights abuses”. On 15 April 2010, the plaintiffs petitioned for a writ of certiorari to the Supreme Court, supported by an amicus curiae submitted by Earth Rights International on 20 May 2010, asking to revert the decision of the Second Circuit. On October 2010 the Supreme Court declined to grant certiorari and respectively to hear the appeal in this case. In contrast to the rather broad universal and extraterritorial jurisdiction provided for in the Swedish Penal Code, the Supreme Court decision in Kiobel v. Royal Dutch Petroleum, Co. remarkably restricted the application of the ACTA in cases involving allegations of abuse – outside – the United States by finding that presumptively it does not apply extraterritorially. Read the rest of this entry…

Print Friendly, PDF & Email
 

Access to Remedy Under the UNGPs: Vedanta and the Expansion of Parent Company Liability

Published on October 31, 2017        Author: 

On Friday, 13 October 2017 the UK Court of Appeal handed down its long anticipated decision in Lungowe and others v. Vedanta Resources Plc and Konkola Copper Mines Plc [2017] EWCA Civ 1528 (“Vedanta”). The appeal was brought by UK-based Vedanta Resources Plc (“Vedanta Resources”) and its Zambian subsidiary Konkola Copper Mines (“KCM”), against a decision dismissing certain jurisdictional challenges brought by each of Vedanta Resources and KCM.

The underlying claim was brought by a group of Zambian Villagers alleging that harmful effluent from the appellants’ Zambian copper mining operations had been discharged into the local environment, including waterways that were of critical importance to the livelihood of the claimants, and to their physical, economic and social wellbeing. Rejecting the appeal, the Court of Appeal found that the claim could proceed against the appellants in the UK.

The Vedanta litigation is a critical avenue for the claimants to pursue effective remedy as envisioned by the UN Guiding Principles on Business and Human Rights (“UNGPs”) and represents a significant development in the emerging doctrine of parent liability. Read the rest of this entry…

Print Friendly, PDF & Email
 

The Role of the European Convention on Human Rights in the Wake of Kiobel

Published on July 25, 2013        Author: 

Jodie KirshnerJodie Adams Kirshner is the University Lecturer in Corporate Law at the University of Cambridge and a fellow of Peterhouse College, Cambridge. Her research concerns cross-border and comparative issues in corporate law. She contributed to an amicus brief to the U.S. Supreme Court in Kiobel in support of petitioners.

SCOTUSThe decision of the U.S. Supreme Court (photo credit) in Kiobel v. Royal Dutch Petroleum has generated concerns that a governance gap will emerge for corporations that commit human rights violations abroad. As American courts become less open to extraterritorial claims, however, recognition of the global context gains importance. The current climate presents opportunities for other judicial systems to step forward. Kiobel gives the European Court of Human Rights the occasion to interpret the European Convention on Human Rights to require the right to an extraterritorial forum and counterbalance the shift that has occurred in the United States.

Article 6 of the European Convention on Human Rights offers a potential pathway to jurisdiction over extraterritorial corporate human rights claims. The European Court of Human Rights (ECHR) has already interpreted Article 6 of the Convention broadly, and some national courts that are signatories to the Convention have suggested that the article could support extraterritorial jurisdiction. Article 6 guarantees the right to a fair trial. Subsection 1 states, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . .”

The ECHR has encouraged an expansive reading of Article 6. In Delcourt v. Belgium (1970), 1 Eur. Ct. H.R. 355 (1993), the Court stated that “in a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 (1) would not correspond to the aim and purpose of that provision.” It has also maintained that rights under the Convention must be “practical and effective and not theoretical and illusory.” (See, e.g., Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Artico v. Italy, 3 Eur. H.R. Rep. 1, para. 33 (1980); Mehmet Eren v. Turkey, Eur. Ct. H.R. App. No. 32347/02, 50 (2008).).

The ECHR (photo credit), furthermore, has held that, though the text does not expressly include one, the Convention encompasses a right of access to court. Read the rest of this entry…

Print Friendly, PDF & Email
 

Kiobel: The US steals the headlines in first round of supplemental briefs on universal civil jurisdiction under the Alien Tort Statute

Published on June 26, 2012        Author: 

In an earlier post, I considered the US Supreme Court’s re-argument order in the case of Kiobel v Royal Dutch Petroleum (“Kiobel”). The order concerned whether US federal courts may rely on the Alien Tort Statute (“ATS”) to exercise jurisdiction over human rights abuses which have no connection to the US, i.e. abuses committed by non-US entities against non-US victims on non-US territory.  In short, is universal civil jurisdiction permissible under the ATS?

Earlier this month, the petitioners, a group of 12 Nigerian victims of crimes against humanity, filed their supplemental opening brief on this issue. Nine amicus briefs in support of the petitioners and four amicus briefs in support of neither party were also filed with the US Supreme Court.

In this post, I discuss the amicus brief filed by the US government. The US brief raises a number of interesting issues, in particular the extent to which theUS government has changed its position in respect of the permissibility and limits of universal civil jurisdiction under the ATS, particularly in comparison with US briefs submitted in earlier ATS cases, as well as the failure of the State Department to sign the brief. After considering these issues, I offer a critique of the US brief, focusing in particular on the failure of theUS to substantiate its assertion that universal civil jurisdiction does not violate international law. I conclude by analysing the submissions put forward in other supplemental briefs in support of this assertion.

The US Supplemental Brief – A Change of Position?

The headline development from this round of filings is undoubtedly the new position set out by the US government in its supplemental brief. Contrary to its earlier support of the petitioners, the US now argues that the Supreme Court should not allow the human rights claims in Kiobel to proceed. Read the rest of this entry…

Print Friendly, PDF & Email
 

Kiobel: Universal Civil Jurisdiction under international Law

Published on April 26, 2012        Author: 

 Barrie Sander has law degrees from Cambridge and Leiden, and from September 2012 will be a PhD candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

In an earlier post, I considered the question of corporate liability under international law in light of the case of Kiobel v Royal Dutch Petroleum (“Kiobel”), which is currently before the US Supreme Court.  Kiobel, a case brought under the Alien Tort Statute (“ATS”), concerns claims that various Shell entities (“the respondents”) planned, conspired and facilitated extrajudicial executions, torture and crimes against humanity by Nigeria in the Niger Delta between 1992 and 1995.

It had been thought that the question of whether corporations may be sued under the ATS would be the central issue before the Supreme Court in Kiobel. However, during oral argument the Justices became preoccupied with the wider issue of the extraterritorial nature of the ATS. In particular, they focussed on the question  whether US federal courts may rely on the ATS to exercise jurisdiction over human rights abuses which have no connection to the US, i.e. abuses committed by non-US entities against non-US victims on non-US territory.  In short, is universal civil jurisdiction permissible under the ATS?  Such was the focus of the Justices on the extraterritorial reach of the ATS that on 5 March 2012, only one week after hearing oral arguments, the Supreme Court ordered briefing and re-argument on:

“[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

Prior to this order, almost all briefing on this issue had been submitted by the respondents and their supporters, who have argued that broad assertions of universal civil jurisdiction by US federal courts may violate international law. In this post I consider some of the counter-arguments that the petitioners and their supporters may seek to raise in response. I suggest that though reliance on the Lotus principle, which would require a rule prohibiting an exercise of jurisdiction (rather than one permitting jurisdiction) may initially seem attractive, that approach is likely to fail. The strongest point that may be put in support of universal civil jurisdiction is that the existence of universal criminal jurisdiction contemplates a degree of civil jurisdiction as well. Read the rest of this entry…

Print Friendly, PDF & Email
 

Kiobel: Corporate Liability under International Law

Published on April 16, 2012        Author: 

Barrie Sander has law degrees from Cambridge and Leiden, and from September 2012 will be a PhD candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

On 28 February 2012, the US Supreme Court heard oral arguments in the case of Kiobel v Royal Dutch Petroleum (“Kiobel”). The case concerns claims brought by a group of 12 Nigerians (“the petitioners”) who allege that various Shell entities (“the respondents”) planned, conspired and facilitated the government of Nigeria’s extrajudicial executions, torture and crimes against humanity in the Ogoni region of the Niger Delta between 1992 and 1995. The case was filed under the Alien Tort Statute (“ATS”), a centuries-old law that has been interpreted by the US Supreme Court to allow foreign victims of human rights abuse to seek civil remedies in US courts.

In the first of two posts on the case, I consider the question of corporate liability under international law. In the second post I will consider the question of the exercise of universal civil jurisdiction by domestic courts under international law.

Read the rest of this entry…

Print Friendly, PDF & Email
 

Canada’s Alien Tort Statute

Published on March 29, 2012        Author: 

Professor René Provost, Faculty of Law and Centre for Human Rights and Legal Pluralism, McGill University

A few days ago, Canada moved to follow the Alien Tort Statute model found in the United States and open the door to file suits in damages against foreign states and others linked to acts of terrorism. The new law provides for both a basis of jurisdiction of Canadian courts and removes the immunity of foreign states in certain circumstances (see also Joanna Harrington’s post).

Bill C-10, an Omnibus criminal law statute, was adopted by the Canadian Parliament last week. The bill generated intense political debate and media attention, but largely for another section which imposed mandatory minimum sentences for a series of criminal acts. The scope of the Bill is well illustrated by its full title: “An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts”. One of the nine distinct sections of the bill which attracted considerably less attention in the mainstream media – and indeed in Parliament itself – is the Justice for Victims of Terrorism Act The law brings Canada into the very small group of states in which it is possible to use domestic courts to seek redress for violations of international law. It is noteworthy that the Act is limited to responsibility for acts of terrorism, and does not cover other violations of international law such as torture and war crimes, despite some earlier calls for a wider ambit.

The first part of the Justice for Victims of Terrorism Act creates a cause of action in Canada for damage or loss which occurred anywhere in relation to a terrorist act, if certain conditions are met. If the plaintiff is a Canadian citizen or permanent resident, no further territorial link is required. The Act opens the door to a suit in damages even for plaintiffs who do not have a nationality or residency link to Canada if there is a “real and substantial connection” to the country. This refers to the standard adopted by the Supreme Court of Canada in Libman v. The Queen, [1985] 2 SCR 178 to establish a territorial basis for criminal prosecution, which was later relied upon in other areas as well. The connection demanded in order to satisfy the “real and substantial” test has been interpreted quite broadly, to include not only any phase of the crime but also its repercussions. As such, the door which is opened by the Act is overall quite broad. Read the rest of this entry…

Print Friendly, PDF & Email