Royal Dutch Petroleum Research Articles

Transnational Human Rights Litigation and Territorialised Knowledge: Kiobel and the ‘Politics of Space’

In Kiobel v Royal Dutch Petroleum, Dutch and British private corporations were accused of having aided and abetted the violation of the human rights of individuals in Nigeria. A lawsuit, however, was brought in the United States, relying on the Alien Tort Statute—part of a Judiciary Act from 1789. In its final decision on the case, the US Supreme Court focused strongly on ‘territory’. This use of a spatial category calls for closer scrutiny of how the making of legal arguments presupposes ‘spatial knowledge’, especially in the field of transnational human rights litigation. Space is hardly a neutral category. What is at stake is normativity on a global scale with the domestic courtroom turned into a site of spatial contestation. This paper explores the construction of ‘the transnational’ as space, which implicates a ‘politics of space’ at work underneath the exposed surface of legal argumentation. The ‘Kiobel situation' is addressed as a case belonging to a broader picture, including the following contested elements of space: a particular spatial condition of modern nation-state territoriality; the production of ‘counter-space’, eventually undermining the spatial regime of inter-state society; and the state not accepting its withering away. How are normative boundaries between the involved jurisdictional spaces drawn? How does the ‘politics of space’ work underneath or beyond the plain moments of judicial decision-making? How territorialised is the legal knowledge at work and how does territoriality work in legal arguments?

The Impact of the 'Ruggie Framework' and the United Nations Guiding Principles on Business and Human Rights on Transnational Human Rights Litigation

This paper explores the impact of the Ruggie 'Protect, Respect and Remedy' framework and UN Guiding Principles on Business and Human Rights on transnational human rights litigation. It considers the impact to date, and the possible impact the Ruggie Framework and UN Guiding Principles could have on a widely predicted increase in the number of state law negligence claims against transnational corporations in the US after the decision of the Supreme Court in Kiobel v. Royal Dutch Petroleum limiting the jurisdictional reach of the US Alien Tort Statute 1789.

THE ALIEN TORT STATUTE AFTER KIOBEL: THE POSSIBILITY FOR UNLAWFUL ASSERTIONS OF UNIVERSAL CIVIL JURISDICITON STILL REMAINS

AbstractThe jurisdictional reach of causes of action brought under the Alien Tort Statute 17891 (ATS) was considered by the Supreme Court of the United States in Kiobel v Royal Dutch Petroleum.2 The claimants in this decision sought to bring an action before a US District Court asserting universal civil jurisdiction over the conduct of foreign corporations performed against non-US nationals in the territory of a foreign State. Although the Supreme Court dismissed the particular claim on the basis of a domestic canon of statutory interpretation (the presumption against extraterritoriality), the narrowness of its reasoning left open the possibility for actions to continue being brought under the ATS which assert universal civil jurisdiction over the harm caused by individuals rather than corporations. Moreover, this position was specifically endorsed by a four-member minority of the Supreme Court in the Concurring Opinion of Justice Breyer. This paper argues that the reasoning of Justice Breyer is unconvincing and goes on to suggest that assertions of civil jurisdiction made under the universal principle are unlawful in international law as they fail to find a legal basis in either customary or conventional international law.

CORPORATE HUMAN RIGHTS ACCOUNTABILITY: THE OBJECTIONS OF WESTERN GOVERNMENTS TO THE ALIEN TORT STATUTE

AbstractThe almost two decade-long bonanza of civil litigation concerning gross human rights violations committed by corporations under the US Alien Tort Statute 1789 was scaled back by the US Supreme Court in Kiobel v Royal Dutch Petroleum in April 2013. The court restricted the territorial reach of human rights claims against transnational corporations by holding that the presumption against extra-territoriality applied to the Act. Thus Shell, the Dutch/British defendant, and the role it played in the brutal suppression by the Nigerian military of the Ogoni peoples' protest movement against the environmental devastation caused by oil exploration, lay outside the territorial scope of the Act. Legal accountability must lie in a State with a stronger connection with the dispute. While this article briefly engages with the Supreme Court decision, its main focus is on the attitude of Western governments to the corporate human rights litigation under the ATS as articulated in their amicus briefs. In these briefs they objected to the statute's excessive extraterritoriality and horizontal application of human rights to artificial non-State actors. In these two respects corporate ATS litigation created significant inroads into the conventional State-centric approach to human rights and thus provided an opportunity for more effective human rights enjoyment. This article tests the validity of the objections of Western governments to corporate human rights obligations under the ATS against the norms of public international law and against the substantive demands arising out of the shortfalls of the international human rights enforcement.

Multinational Enterprisess Liability for the Acts of Offshore Subsidiaries: The Aftermath of Kiobel and Daimler

Multinational enterprises (MNEs) play significant role with worldwide subsidiaries in the global economy. MNEs generally dominate agreements with their offshore subsidiaries to promote their global operation. How to hold MNEs liable for the tortious acts of their offshore subsidiaries is a pressing issue. National courts, international norms and MNEs’ internal code of conduct cannot legally and effectively hold MNEs liable for offshore subsidiaries’ tortious acts. After the Supreme Court case Filartiga v. Pena-Irala in 1980, the U.S. Alien Tort Statue (ATS) rose to provide a mechanism to hold MNEs liable for offshore tortious acts. Suits filed under the ATS have caused conflict in United States courts in the past, including those related to the issue of corporate ATS liability. The Supreme Court in Kiobel v. Royal Dutch Petroleum Co. in 2013 asserted that the ATS could only apply to violations occurring within the territory of the United States. Half a year later, with facts similar to those in Kiobel, the Supreme Court in Daimler AG v. Bauman in January 2014 asserted that ATS litigation should also satisfy the strict general jurisdiction requirement. And thus many cases are filtered out of United States courts due to ATS territorial limitation and jurisdictional limitation. Barriers to post-Daimler litigating under the ATS to hold MNEs liable for the tortious acts of offshore subsidiaries are difficult to pass through. These barriers could include the principle of presumption against extraterritorial application, the limitation of personal jurisdiction, and international comity, among other barriers. The United States seems to have closed the door for transnational litigation to hold MNEs liable for the tortious acts of offshore subsidiaries. Even though United States courts are returning to their original position prior to the rise of ATS litigation, several strategies to impose liability on MNEs for the acts of offshore subsidiaries after Kiobel and Daimler might achieve success, including the correct application of the ATS, litigation in state courts or under state law, the expansion of the piercing the corporate veil doctrine and obtainment of consent from parties.

Transnational Human Rights Litigation and the Production of Normative Space

In Kiobel v. Royal Dutch Petroleum, a transnational human rights litigation lawsuit on abusive corporate conduct in Nigeria, the U.S. Supreme Court was turned (or turned itself) into a site of a struggle for normative space. In addition to the parties directly involved, a multiplicity of actors intervened into the case by means of amicus curiae briefs. In this paper, Kiobel is understood as a site of a “politics of space” and a microcosm of global normativity. The amicus briefs in Kiobel represent various types of actors in world society — like governments, private corporations, or human rights NGOs. The aim of this paper is to provide an explorative spatial analysis of the geographical knowledge at work in the interventions by these actors. In so doing, Kiobel is taken as a point of observation — a “microcosm of global governance” — in order to contribute to a debate on the boundaries between transnational relations, international politics and law, and critical geography and the politics of space.

Universal Jurisdiction, the Alien Tort Statute, and Transnational Public Law Litigation after Kiobel

The Alien Tort Statute, enacted in 1789 as part of the first Judiciary Act, provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations. . . .” Although the statute lay dormant until the 1980s, the ATS has since become the font of transnational public law litigation in American courts. This litigation, frequently involving largely foreign parties and events, has become a form of civil-side universal jurisdiction. Like more traditional forms of universal jurisdiction, it allows American courts to hear human rights claims based on the enormity of the offense, even when the claims lack any significant ties to the United States. But unlike traditional universal jurisdiction, which is overwhelmingly a criminal phenomenon, the ATS places control over initiation and conduct of the litigation in private hands and engages the exceptional machinery of American civil justice.The Supreme Court sharply limited ATS suits last year in Kiobel v. Royal Dutch Petroleum Co. This article defends the Court’s rejection of universal jurisdiction in Kiobel and assesses the future of human rights litigation in American courts. I make three main sets of arguments. First, I submit that the the scope of human rights litigation under the ATS is best viewed not as a sui generis problem of foreign relations law, as most lawyers and scholars have treated it, but within the more traditional federal courts framework of implied rights of action and federal common law. Kiobel’s concerns about extraterritorial application of the ATS fit comfortably within this framework, and they suggest that the Court will be extremely cautious about expanding the scope of ATS litigation in future cases. Second, I contend that scholarly exploration of the ATS’s terse text and limited history has reached the point of diminishing returns. The Framers of the First Judiciary Act could not have anticipated what ATS litigation would become, and they left us very few useful clues to answer, for example, whether aiders-and-abettors of human rights violations should be liable. The best hope for adequate answers to such questions lies with Congress, and the article proposes a number of reforms that should be addressed in a new statute amending or replacing the ATS. Third, I place the ATS in the context of broader debates about enforcement of international human rights. In this context, we confront two crucial questions of institutional design: reliance on supranational or national institutions, and public or private control of enforcement. I suggest that this debate, too, can be usefully informed by domestic debates about regulatory enforcement. But the international context affords a unique middle option, which is decentralized public enforcement of international human rights by national governments.

The alien tort statute of 1789 and international human rights violations: Kiobel v. royal dutch petroleum co.

Kiobel v. Royal Dutch Petroleum Co. involves an action under the Alien Tort Statute (ATS). The case was brought in the United States, Southern District of New York, by the widow of Dr. Barinem Kiobel, a Nigerian activist and member of the Ogoni tribe, and others for human rights violations committed in the Niger River Delta. Defendants include Royal Dutch Petroleum, Shell Transport and Trading Co., and Shell Petroleum Development Company of Nigeria. Although the human rights violations including murder and torture were allegedly committed by the Nigerian military government, it is claimed that the Royal Dutch Petroleum defendants aided and abetted the Nigerian military in the human rights violations. The plaintiffs had engaged in protests about the environmental damage caused by the Royal Dutch Petroleum defendants in the area of the Niger Delta and the plight of the Ogoni people in Ogoniland. At the trial level, the court decided that certain claims involving violations of the Law of Nations could be heard by the court. However, the case was appealed to the U.S. Supreme Court, which decided that there is a presumption against extraterritoriality in the application of the ATS, and that “mere presence” of a defendant corporation in the United States is insufficient for a court to assume jurisdiction. However, the question remains: What corporate presence would serve as a sufficient basis for a court to assume jurisdiction under the ATS? Given the possibility that corporations could, and perhaps in the future will, be found liable for human rights violations occurring in foreign locales even after Kiobel, prudent risk management behooves corporations and their counsel to monitor whether human rights violations are occurring in connection with their operations, even when those human rights violations are committed by foreign governments or their agents.

A Critique of Jim Aune's Rhetoric, Legal Argumentation, and Historical Materialism

In this particular essay, we provide readers with an ideological critique of Professor Jim Aune's work on legal argumentation and historical materialism. We extend his work on history, ideology, and materiality, and we apply some of his ideas in a critique of the recent U.S. Supreme Court decision, Kiobel v. Royal Dutch Petroleum Company (2013). We argue that Professor Aune would have perhaps enjoyed witnessing some of the moral and ideological contradictions that surfaced in the debates about Kiobel, as various arguers talked about the importance of controlling the “extraterritorial” usages of the Alien Tort Statute (ATS) and the need to keep open some forums for the protection of ‘foreigners” who get involved in human rights controversies.

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

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

Lessons from Kiobel V Royal Dutch Petroleum Company: Developing Homegrown Lawyering Strategies Around Corporate Accountability

In April 2013, the United States Supreme Court handed down the long-awaited judgment in Kiobel v Royal Dutch Petroleum Company, a case alleging corporate exploitation of communities in an oil-rich area of Nigeria. The case examined the Alien Tort Statute (ATS), an old statute allowing non-US citizens to bring claims in US courts for violations of the law of nations. In its judgment, the court limited the application of the ATS.This article explores the holding and reasoning of Kiobel in light of previous ATS jurisprudence, and set against the geopolitical considerations of international human rights frameworks within the US, with a particular focus on what this case means for South Africa and the region. The article queries the continuing need for countries in the Global South, including South Africa, to rely on foreign courts for corporate accountability, particularly given robust domestic legal frameworks that are under-utilised. South Africa, in particular, is best placed to begin the regional dialogue regarding law reform and corporate accountability. Local lawyers and law students must be encouraged to develop creative lawyering strategies in the area of corporate accountability. Finally, the article highlights the need to support communities and individuals most affected by corporate abuse to construct and share their narratives as part of their broader quest for meaningful political and economic justice.

What We Don't Talk About When We Talk About Extraterritoriality: Kiobel and the Conflict of Laws

In Filartiga v. Pena Irala, a federal appeals court thirty-four years ago famously asserted universal jurisdiction over the death of a Paraguayan by torture inflicted in Paraguay at the hands of a Paraguayan official. Under Filartiga, international human rights litigation, with occasional success, had become an established feature of American justice when, in 2013, in Kiobel v. Royal Dutch Petroleum Co., the Supreme Court put a stop to it. Far more compelling critiques of Kiobel than this paper’s merely technical, doctrinal, and interest-analytical ones undoubtedly will be made. This paper simply brings to bear perspectives from the law of conflict of laws on the question whether the unanimous decision in Kiobel was unavoidable, as the reluctantly concurring minority apparently believed. Three lines of argument are advanced. First, the Kiobel Court’s extension of “comity” to courts of corrupt countries or courts of home countries of corrupt companies, cannot be justified, as the Court supposed, by unsupported hypotheses about Filartiga’s dangers. The feared risks of harm to our foreign relations and of retaliatory tort suits abroad are not materializing and remain wholly speculative. Instead, there is increasing admiration and emulation of Filartiga abroad. Second, the Court’s perception that every element of Kiobel was foreign, although widely shared, was equally unreal. Properly understood, Kiobel’s facts invoked postulates reflected in Supreme Court cases on the place of trial and the law applied. These established principles might have helped at least the liberal Justices to see that an outcome furthering the rule of law was not foreclosed. Finally, Kiobel was wrongly decided even if the Court were right about the facts. The facts of Filartiga may more appropriately be seen as “foreign” than the facts of Kiobel. Although the author of the minority concurrence in Kiobel suggested a possible national interest in adjudicating Kiobel, none of the Justices in Kiobel saw the fundamental national interest in all Filartiga litigation.

The Implications of the Kiobel v. Royal Dutch Petroleum Case for the Exercise of Extraterritorial Jurisdiction

In the last few decades the Alien Tort Statute has proven a useful tool in the struggle to impose legal obligations on transnational corporations conducting their activities in developing countries. However, its usefulness has recently been significantly reduced, as its application to conduct occurring outside of the United States has been seriously challenged by the Supreme Court decision in the Kiobel case. This decision was founded on the basis of the presumption against extraterritoriality; a U.S. law provision which entails that domestic legislation does not normally apply outside of the United States' territory. This article argues that the principles of international law, rather than the presumption against extraterritoriality, would have constituted better guidance for assessing the legitimacy of the exercise of extraterritorial jurisdiction. It contends that based on these principles, the exercise of extraterritorial civil jurisdiction is legitimate when the alleged perpetrator is an American national. In addition, even where both parties are foreign, universal civil jurisdiction can be legitimately exercised when the alleged perpetrator is present on U.S. territory, provided it is limited to the same category of particularly heinous crimes of universal concern as those giving rise to universal criminal jurisdiction.

The Competitive Advantage of Corporate Criminal Responsibility for International Crimes: Atrocity, Commerce, and Accountability after Kiobel

In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel v. Royal Dutch Petroleum Co. that allegations like these could not give rise to civil liability under the aegis of the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned with impunity. For the U.S. Supreme Court, doing without corporate criminal responsibility would create a significant and highly undesirable regulatory gap. Since then, the American fiction that corporations are people for the purposes of criminal law has taken hold, such that the concept is now relatively ubiquitous globally. Even jurisdictions that bravely held out for decades on philosophical grounds have recently adopted corporate criminal liability. Switzerland is one such case.In this paper, I argue that coupling corporate criminal liability with international crimes in national systems, as in this new Swiss case, is the next obvious “discovery” in corporate responsibility. In addition, at least one international court has now adopted corporate criminal liability for international crimes. These moves promise to transcend several of the doctrinal and conceptual problems that plagued the ATS. First, this reframing will move this field beyond polarized debates about the scope of complicity within ATS litigation, which did not fully capture the nuanced meaning of accomplice liability in the criminal law. Second, it will bypass the cumbersome debate about corporate responsibility for international crimes as a matter of international law, which would not arise in criminal trials. Third, while trading the private right to sue under the ATS for prosecutorial discretion in a criminal context is certainly a massive loss, prosecutorial discretion also has its upsides, which we should now explore in greater depth. Finally, reframing ATS cases in international criminal law (principally enforced in national courts) offers corporate guilt and retribution as a justification for accountability, thereby answering many of the criticisms scholars leveled against the ATS process. Corporate criminal liability (in conjunction with individual criminal responsibility of corporate officers for international crimes) always had certain competitive advantages over the ATS, that the Swiss investigation confirms as legally plausible. So, regardless of whether this particular investigation ever results in a trial or conviction, it announces an uncharted set of relationships between commerce, atrocity and international criminal law waiting to be mapped. As I show, by simultaneously mimicking and transcending the ATS, corporate criminal liability for international crimes offers human rights advocates a fresh platform for justice, while also contributing very new perspectives to scholarly debates about the propriety and efficacy of ATS litigation. All in all, the rise of corporate criminal liability for international crimes offers new ideas about the importance of corporate accountability globally, which understandably, never figured within the relatively narrow framing required for the ATS or the business and human rights discourse more broadly.

Unshackling Foreign Corporations: Kiobel’s Unexpected Legacy

The Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum Co. disfavors American corporations. While largely unshackling foreign corporations from the risk of being haled before an American court to answer for human rights abuses abroad, the decision keeps American corporations constrained by human rights law. This inconsistency exists because application of the Alien Tort Statute (ATS), as announced in Kiobel, turns on whether a corporation’s actions “touch and concern” the United States. American corporations are simply far more likely to satisfy that standard than foreign corporations.

The Paradox of Kiobel in Europe

One of the most striking features of Chief Justice John Roberts’s majority opinion in the U.S. Supreme Court’s judgment in Kiobel v. Royal Dutch Petroleum Co. is how it pays homage to foreign governments’ opposition to the extraterritorial application of the Alien Tort Statute (ATS), as voiced most prominently from European foreign ministries. “[F]oreign policy concerns” and the overarching goal to avoid diplomatic tensions with foreign sovereigns are themes heavily informing the Roberts opinion. The majority found the presumption against extraterritoriality applicable to the ATS in large part due to fear of “unwarranted judicial interference in the conduct of [U.S.] foreign policy” if the Court allowed the ATS to “reach conduct occurring in the territory of a foreign sovereign.” In that light, the Kiobel judgment can be understood primarily as a decision prohibiting the overreach of U.S. law and protecting jurisdictional prerogatives of lex loci delicti and state of incorporation alike.

Reviving Human Rights Litigation After Kiobel

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that “the presumption against extraterritoriality applies to claims under the [Alien Tort Statute (ATS)], and that nothing in the statute rebuts that presumption.” The Court preserved the possibility that claims arising from conduct outside the United States might be actionable under the ATS “where the claims touch and concern the territory of the United States ... with sufficient force to displace the presumption against extraterritorial application.” However, the Court’s decision apparently sounds the death knell for “foreign-cubed” human rights claims under the ATS—that is, cases in which foreign defendants committed human rights abuses against foreign plaintiffs in foreign countries.

Waving Not Drowning: Kiobel Outside the United States

Access to an effective remedy is part of the third pillar of the United Nations Guiding Principles on Business and Human Rights (Guiding Principles). It should require states to provide access to judicial remedies for human rights violations, even those that have occurred outside the territory of the state by a corporation domiciled in that state, especially where claimants “cannot access [their] home State courts regardless of the merits of the claim.” While the decision of the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum Co. may seem to overwhelm or even drown some of the expectations of such remedies within the United States, the case law in the rest of the world is unlikely to be greatly affected by the ruling due to the jurisdictional and legal system foundations of other states. This article will examine the main case law and judicial remedies sought across the world, with a special emphasis on Europe, where the majority of large non-U.S. transnational corporations have their headquarters.

Kiobel and the Surprising Death of Universal Jurisdiction Under the Alien Tort Statute

The U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. has not ended future debate about the scope and impact of the Alien Tort Statute (ATS). But the Kiobel Court did resolve at least one issue with surprising unanimity: both the opinion for the Court by Chief Justice John Roberts and the main concurring opinion by Justice Stephen Breyer refused to interpret the ATS as authorizing universal jurisdiction. All nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that the ATS excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law.

Kiobel and the Weakening of Precedent: A Long Walk for a Short Drink

Kiobel v. Royal Dutch Petroleum Co. marks the second time in nine years that the Supreme Court has ruled unanimously that the Alien Tort Statute (ATS) does not provide jurisdiction in a high-profile human rights case, a sequence that might suggest an end to the gilded age of human rights litigation that began with Filártiga v. Peña-Irala. On closer analysis, however, Kiobel, like Sosa v. Alvarez-Machain before it, adopts a rhetoric of caution without foreclosing litigation that fits the Filártiga model. To the contrary, Sosa and Kiobel invite considerably more ATS litigation than they resolve or bar and therefore confirm Justice Antonin Scalia’s memorable encapsulation of the Court’s “Never Say Never Jurisprudence.” All four of the opinions in Kiobel confirm that multiple significant issues remain for future resolution, but it is unrealistic to expect answers on the basis of the Court’s decision because what is law in Kiobel isnt clear and what is clear in Kiobel isn’t law.