Reframing the Kiobel Case: Political Recognition and State Jurisdiction

Abstract

This paper examines, through the lens of political recognition, the U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum Co, which upholds the territoriality principle regarding the reach of the Alien Tort Statute. Political recognition refers to political processes through which historically marginalized identities are acknowledged and respected within the transnational space. Using this political notion, this paper adopts a transnational approach in which the analyses of human rights law and domestic transnational adjudicative processes are integrated. It argues, that the territoriality principle constitutes an instance of Ogonis’ political misrecognition, that is, an instance in which law condones the socio-economic marginalizing processes that the Ogonis and indigenous populations in general are facing. It does so by sidelining Ogonis’ struggles from the judicial decision making process and denying them compensation for harms they suffered. This use of territoriality contrasts with the evolutions in the human rights field, in which territoriality has been deployed to empower indigenous groups and to guarantee them control over their lands and natural resources. In this context, the paper claims that political recognition invites us to re-conceptualize the ATS scope of application and the concept of state jurisdiction in a way that is responsive to indigenous communities’ plight. This leads us to adopt the principle of universal jurisdiction on which US Supreme Court relied prior to Kiobel. Part One of the paper examines Ogonis’ struggles for political recognition and the ways this was translated into legal actions. Part Two describes the evolutions within the human rights field. Part Three discusses the territoriality argument deployed by the U.S. Supreme Court and concludes that political recognition mandates the adoption of universal jurisdiction.