The Kiobel precedent and its effects on universal jurisdiction and the business & human rights agenda: a continuation to “a human rights forum in peril?”

Abstract

The United States Supreme Court issued on 17 April 2013 an important precedent that served as a culmination to the well-known case brought by Esther Kiobel and other Nigerian plaintiffs against the oil giant Shell, Kiobel et al. v. Royal Dutch Petroleum et al.1 This case, on which large hopes were deposited by human rights activists worldwide to become a beacon of hope in relation to the involvement of corporations on human rights abuses, saw the plaintiffs file a civil case before U.S. federal courts under the Alien Tort Statute (ATS) for the alleged aiding & abetting by Shell of the Nigerian military in the commission of crimes against humanity, torture and arbitrary arrest and detention. This statute, passed in 1789 as part of the First Judiciary Act, sets forth that U.S. district courts have “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”2 The issue of corporate responsibility for human rights violations, including their participation through aiding and abetting, saw lower courts divided