Wiwa v. Royal Dutch Petroleum Co.: a new standard for the enforcement of international law in U.S. courts?

• Author: Fellmeth, Aaron Xavier

The traditional reluctance of U.S. courts to exercise jurisdiction over human rights violations committed against foreign persons abroad has been partially reversed. The U.S. Court of Appeals for the Second Circuit issued its opinion in the case Wiwa v. Royal Dutch Petroleum Company on September 14, 2000, affirming jurisdiction of U.S. courts over a case involving a foreign corporation alleged to have committed torture in Nigeria.(1) The decision reversed the district court's previous dismissal of the case on grounds of forum non conveniens.(2) On March 26, 2001, the U.S. Supreme Court denied certiorari, allowing the case to stand as law within the circuit. The case is consequential not only in its positive pronouncement of the law, but also insofar as it may mark a sea change in the judicial attitude toward international human rights law in the influential Second Circuit.

The Wiwa case, like an increasing number of human rights cases, was brought before the court under the 1789 Alien Tort Claims Act (ATCA),(3) as supplemented by the 1991 Torture Victim Protection Act (TVPA).(4) The laws allow foreign nationals to bring suit in U.S. federal court for a tort committed in violation of international law or U.S. treaties.(5)

The ACTA and TVPA laws do not guarantee that U.S. courts will hear a case. Forum non conveniens must also be considered. The analysis of forum non conveniens commonly applied in federal courts calls for the court to weigh several factors in its decision about the appropriateness of the venue chosen by the plaintiff. If the U.S. court is inconvenient for both the parties involved and the court itself, then the balance of equities may favor deferring to an alternative forum. Factors considered in the decision of forum non conveniens include both the convenience to the parties to the litigation ("private interests") and the convenience of the courts and the governments of affected states to hear the case ("public interests").(6) The specific private interests weighed in the court's decision are the relative ease of access to germane evidence, the ability to compel the testimony of witnesses, the costs of gathering evidence and testimony, and "all other practical problems that make trial of a case easy, expeditious and inexpensive."(7) The consideration of public interests include the relative court congestion, the fairness of burdening citizens in the forum court with jury duty unrelated to that locale, and the consideration of other conflicts of law. The "local interest in having localized controversies decided at home" and the desire for courts to avoid applying unfamiliar foreign laws are also influential factors.(8)

As federal courts have heard more cases brought by foreign nationals for violations of international law committed abroad, pressure has mounted to define clear, manageable, and equitable rules for determining the propriety of the plaintiff's chosen venue. Notwithstanding the ATCA and the TVPA, this pressure tends to push U.S. courts toward declining jurisdiction for foreign violations of international law. Most private factors weigh against U.S. jurisdiction over such violations. Evidence and witnesses tend to be located in loco delicti. U.S. courts have no power to compel testimony from foreign witnesses, and often the locus delicti is a distant country requiring burdensome and expensive travel for witnesses. In addition, witnesses and testimony may require costly and time-consuming translation. Moreover, the public interest factors traditionally considered discourage acceptance of jurisdiction in such cases. The caseloads of federal courts are notoriously heavy, the United States has not generally been considered to have a significant interest in deciding cases involving foreign conduct by foreign individuals, and U.S. jurors have not been considered to have a great personal stake in such conduct in any case.(9) While, as a general rule, the plaintiff's choice of forum is given substantial deference, that deference is reduced for residents of foreign countries.(10) The discussion below will offer two lines of cases involving multinational oil companies (Texaco and Unocal) as examples of how forum non conveniens has sometimes offered powerful protection of alleged human rights abusers who sought to disrupt a plaintiff's use of the ATCA and TVPA.

Wiwa shifted the traditional balance imposed by most federal courts in ATCA and TVPA cases. The crux of the Second Circuit's holding was that, when a federal court is confronted with litigation involving foreign parties over human rights violations occurring in a foreign country, the court must carefully weigh "the interests of the United States in furnishing a forum to litigate claims of violations of the international standards of the law of human rights" among the factors involved in a determination of forum non conveniens.(11) In so holding, the court created two innovations in that circuit, one theoretical and the other practical. First, the court raised the status of international human rights law in federal jurisprudence by emphasizing the interests of the United States in vindicating human rights in foreign countries. Second, the court altered the balance of forum non conveniens to make it easier for a claimant to assert a claim based on a foreign human rights violation against a foreign defendant in spite of the availability of an alternative forum. The authority of the Wiwa decision outside of the Second Circuit remains open to consideration, as the Supreme Court declined certiorari in the case. Nonetheless, Wiwa stands as the Second Circuit's authoritative pronouncement on the place of international human rights law in forum non conveniens analysis in its own jurisdiction.(12) Whether it will be rejected or accepted as a persuasive precedent by other circuits will be consequential to the future of human rights law in the United States.

Wiwa v. Royal Dutch Petroleum Co. was brought by three Nigerian emigres and an anonymous plaintiff who alleged that the defendants, Royal Dutch Petroleum Company ("Royal Dutch") and Shell Transport and Trading Co, PLC ("Shell Transport"), had participated in grave human rights abuses against themselves or their relatives in Nigeria. Royal Dutch, a Netherlands corporation, and Shell Transport, a United Kingdom company, together control the Royal Dutch/Shell Group, a multinational corporate conglomerate with a wholly owned subsidiary in Nigeria ("Shell Nigeria"). Shell Nigeria, in turn, engages in oil exploration and extraction in Nigeria, particularly in the Ogoni region.

The political situation in the Ogoni region, although not discussed in great detail in the case itself, sets the stage for the importance of the case to the development of international human rights law. Even before Nigerian independence, Shell had been extracting oil from the Ogoni region through a concession, first from the British and then from the Nigerian government. Shell Nigeria owns some sixty percent of the commercially viable oil bearing land in Nigeria. Throughout the mineral extraction activity, the native inhabitants of the Ogoni region protested, claiming that the resulting air and water pollution poisoned and dislocated the local population, killed wildlife and plant life, and caused acid rain.(13) Moreover, the Nigerian government did not share the profits with the people on whose land Shell Nigeria had been granted drilling rights. Although most of the protests were peaceful, the Nigerian government repeatedly sent police and military troops to suppress the protests by wounding and killing local villagers and arresting the leaders.(14)

The most prominent of these leaders were the playwright Ken Saro-Wiwa and John Kpuinen, the President and the youth wing leader, respectively, of the Movement for the Survival of the Ogoni People ("MSOP"). The Nigerian government began by seizing Saro-Wiwa's passport when he attempted to attend a U.N. conference on human rights. Saro-Wiwa and Kpuinen were repeatedly arrested by Nigerian police, detained, intimidated, and tortured because of their roles in the MSOP. These tactics failed to quiet the protest activity, however, and the Nigerian government took more violent measures. In 1995, Saro-Wiwa, Kpuinen, and several other Ogoni leaders were arrested, tried before a "special military tribunal" on fabricated charges of murder of four Ogoni leaders, and hanged. The trial suffered from numerous procedural irregularities, including the denial of legal representation and medical attention to the defendants and, most notably, the state's complete failure to present any evidence against Wiwa or Kpuinen. These murders resulted in the suspension of Nigeria from the British Commonwealth.(15) The Wiwa plaintiffs themselves, including Saro-Wiwa's brother and mother, and other Ogoni villagers, were also beaten, shot, and illegally detained.

The gravamen of the Wiwa complaint was that Shell Nigeria, under the direction of Royal Dutch and Shell Transport, "instigated, orchestrated, planned, and facilitated" inter alia summary executions; crimes against humanity; torture; cruel, inhuman, and degrading treatment; arbitrary arrest and detention; and violations of the right to peaceful assembly and association by the Nigerian government in order to silence the protests against Shell Nigeria's oil exploration and extraction activities in the Ogoni region. While Shell had denied throughout the early 1990s that it was at all complicit in the repression in the Ogoni region and had specifically denied that it had paid money to the Nigerian police or had any links with the military, it suddenly admitted in 1996 that it had purchased weapons for the Nigerian police who guard...