Kiobel, the ATS, and human rights litigation in U.S. courts.

Author:Wilson, Elizabeth A.
Position:Alien Tort Statute - International Law in a Multipolar World

This panel was convened at 9:00 am, Friday, April 5, by its moderator, Roger Alford of Notre Dame Law School, who introduced the panelists: John B. Bellinger of Arnold & Porter LLP; Lori Damrosch of Columbia Law School; Samuel Estreicher of New York University School of Law; David Scheffer of Northwestern University; and Elizabeth Wilson of Seton Hall University. *


Ogoni is the land The people, Ogoni --Ken Saro-Wiwa

Though the Kiobel case will be decided on recondite issues of statutory interpretation and international law, the roots of the case lie in the long struggle of a disenfranchised indigenous group in Nigeria, the Ogoni, against a corrupt and exploitative central Nigerian government and against a variety of entities belonging to the multinational corporation that I will refer to here as Royal Dutch/Shell, or more briefly as Shell. I want to talk about the history of this struggle, as a reminder of the flesh and blood issues that are at stake in Alien Tort Statute (ATS) litigation.

In the late 1950s, vast oil reserves were discovered in Nigeria, the great majority of which are located in the Niger Delta region, where Ogoniland is situated in the region known as Rivers State. (1) Home to close to six million inhabitants, the densely populated Niger Delta is a huge and ancient floodplain that sustains a rich, fragile, and bio-diverse ecosystem. Besides the Ogoni, a number of other indigenous peoples inhabit the Niger Delta; for millennia, the majority have made their living from fishing and agriculture. Most of the groups inhabiting the Niger Delta do not belong to the ethnic groups that have dominated Nigerian politics for the last 40 years; indeed, for much of that time Niger Delta groups have been excluded from Nigerian politics by design.

The Ogoni's root complaint has long been that Ogoniland contributes significantly to Nigeria's oil wealth, but receives nothing in return but despoliation of their lands, degradation of their health and culture, and threats to their very existence. Shell's own estimates are that Ogoniland produced 634 million barrels of oil, valued at US$5.2 billion. (2) During the critical years 1993-1995, the United States imported between 9,618 thousand barrels of oil per month (January 1994) to 32,143 thousand barrels per month (August 1994). (3) The history of the Niger Delta since the oil reserves were discovered makes Nigeria a prime example of the "resource curse." Since the time it was discovered in the Niger Delta, oil has been central to the Nigerian economy, particularly since the 1970s when the revenues from oil increased exponentially and the oil industry was effectively nationalized. From the beginning, oil extraction was not conducted with the care that would have been taken in more developed countries with majority-white populations. Oil in Nigeria comes with a high percentage of associated gas, which has been flared off in close proximity to villages, creating acid rain and causing numerous health and environmental problems. Pipelines have been maintained inadequately, which in turn...

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