The Betrayal of Human Rights and the Urgency of Universal Corporate Accountability: Reflections on a

1. INTRODUCTION

The universalism at the heart of International Human Rights Law (IHRL) is, in aspiration at least, well known and much vaunted. However, the concept of universalism (quite apart from critiques of its insufficient inclusivity in both theory and practice1) suffers from a key and problematic imbalance: the concept recognizes individual and group claims to the universal enjoyment of human rights (albeit in limited fashion), but scarcely at all the imposition of meaningful corresponding obligations to honour human rights and be held accountable for their violation. This imbalance is especially troubling in the contemporary neo-liberal world order in which powerful ‘private actors’—transnational corporations (TNCs)2 —violate individual and group rights, often extensively, but with relative impunity because the state, especially the industrialized state, now often tends to diminish its historically assumed role as human rights duty-bearer par excellence to favour realpolitik corporate agendas that typically are beyond the capacity of the vast majority of human rights claimants to influence, let alone countermand.3

Human rights observance and accountability is, in any case, extremely precarious. As Douzinas puts it, the ‘age of human rights’ has been marked by ‘more violations of [human rights] principles than any of the previous and less “enlightened” epochs’.4 Thus, while human rights principles are celebrated as a globally triumphant meta-ethic5—the ‘world-wide secular religion’ (Wiesel6); ‘the essential … touchstone, the creed of humanity that surely sums up all other creeds directing human behavior’ (Gordimer7)—the last almost 75 years reveal unprecedented levels of human brutality and precarity8 and unevenly imposed risk and vulnerability9—painfully marked, it must be emphasized, by massacres, genocides and ethnic cleansings, unprecedented levels of excoriating poverty and stark inequalities between the Global North and Global South (due in no small measure to the historically rapacious colonial empires of the North). Meanwhile, messianic terrorism and climate-related instabilities (actual and projected) intensify pressures upon even the most widely recognized human rights,10 as the state increasingly imposes security measures on its own populations in response,11 while systematic and systemically produced inequalities in the foundations of world order generate food insecurity and mass privation.12

The state, it is clear, is often complicit in one or more of these radical and uneven impositions of suffering. But it is also clear that the international human rights system’s design is itself a contributory factor, providing the state with easily manipulated levels of obligation turning on the nature of the rights at stake, the identities of the alleged violator and claimed victim (including, but not limited to, their nationalities), the place of violation and other such variables. Typically, these considerations are said to be neutral as between plaintiffs and defendants. In reality, however, they tend to serve more the interests of the rich and powerful than they do the ‘ordinary’ person—often, indeed, to the harsh detriment of vast numbers of people.

That these manipulable levels of state obligation can be, and often are, used to block human rights accountability for extraterritorial violations of human rights comes, therefore, as no surprise—a matter of pivotal importance in a globalized world order dominated by state/market interests. It is incontrovertible that the state, with diverse bases of power at its disposal, can not only impact significantly the rights of individuals and groups far beyond its territorial borders but also, via agile doctrinal manoeuvring, can escape legal responsibility beyond those limits, both for itself and for favoured others who, but for that manoeuvring, should be held accountable for human rights violations abroad. Unsurprisingly, in academic circles, in a growing number of national and international decision-making bodies and elsewhere in the worldwide struggle for global justice, the conviction is mounting that the logics limiting responsibility for extraterritorial human rights abuses are no longer apt—that they are, indeed, subversive of the quintessential claim that human rights are universal in character and to be treated as such whenever and wherever they are threatened or denied. Increasingly, it is being asked why national citizenship should have anything to do with limiting the enjoyment of universalhuman rights.13 The question is acute: since when and by whom has it been determined that citizen’srights are the equivalent of, or substitute for, human rights?

Of course, the mounting conviction that human rights require more meaningful forms of accountability if they are to deliver on their promise of universalism faces complex forces of resistance, reflecting in part the rights-violating realities of contemporary globalization. In the contemporary international legal order there is a strong case for—indeed, an urgent necessity for—a fundamental reassessment of the conjunctions and dynamics of power among and between individuals, states, intergovernmental institutions and—crucially for present purposes—transnational corporate actors of large scale. It is a task, both theoretical and practical, that domestic courts and the international community must not be allowed to evade, particularly in this challenging age of globalized and globalizing power. The ongoing influence of TNCs and their interests in the operation of the world economy and the international legal order should now be of deep concern to anyone concerned about the poorer, disadvantaged inhabitants of our planet.

In this short space, we cannot hope to capture all the conditions and permutations that bear upon the implementation of universal human rights in domestic and international decision-making settings. We can and do challenge, however, the use and implications of deploying ‘procedural’ issues to exempt powerful corporate actors from accountability for human rights abuses committed beyond a state’s recognized jurisdiction—a use made especially prominent by the 2013 US Supreme Court holding in Kiobel v Royal Dutch Petroleum Co14 pursuant to which, by most interpretations, foreign corporations were largely if not completely accorded immunity from US pursuit of human rights violations against foreign nationals in foreign countries. In so ruling, it seems to many, the Court closed down, prima facie at least, a much favoured strategy of international human rights litigation aimed at establishing extraterritorial human rights accountability.15

Thus we ask, what is the relationship between human rights betrayal and human rights accountability in the post-Kiobel ‘lawscape’? Has the time now arrived for the imposition of mandatory, universal human rights accountability for TNCs? We argue that it has, and not least because human rights themselves are being narrowly reinterpreted in national fora as values dependent for their meaning and realization upon a corporate global order.16 At the same time, however, given the nature of TNC juridical dominance and the ideological hegemony of neo-liberal capitalism, we remain deeply aware of the contingent nature of such a project. We hope, and argue below, that such a project might at least begin to challenge the systemic impunity enjoyed by TNCs relative to human rights abuses. Yet, in light of the inherent contingency of even mandatory universal human rights accountability (explored below), we also urge continuous critical vigilance of those forces that would seek to subvert its realization.

We begin by locating TNCs and extraterritoriality in the contemporary global context. We then consider the doctrine of universal jurisdiction, the background of Alien Tort Claims Act (ATCA) liability, and the salience of Kiobel for the global lawscape of future TNC human rights responsibility. Together with a brief survey of different jurisdictional approaches to extraterritorial TNC human rights accountability, this stocktaking, we believe, points unerringly to the need for direct, effective TNC liability under IHRL. We realize, as just implied, that such liability is not—and cannot be—a foolproof deterrent to TNC human rights violations given the rights-evading mutations of corporate power that have significantly shaped—and continue to shape—international law itself,17 IHRL included.18 However, the establishment of direct corporate accountability for human rights abuses under IHRL would at least mark, we suggest, an important and urgently needed juridical staging post in the advancement of human rights in the contemporary world order.

2. TRANSNATIONAL CORPORATIONS AND EXTRATERRITORIALITY

TNCs—despite, or perhaps even because of, their identification as private sector actors19—possess immense and increasing levels of state-like power in the national and international political economies of the present world order. Propelled by the ideological ascendency of neo-liberalism, TNCs dominate virtually the entire international legal order, influencing key international institutions and gaining inordinate structural control.20 It is well known that the power of some TNCs has, for some time, exceeded the power of many states, and that such power includes a complex interaction with the neo-liberal state, particularly in the Global North, and which in any case is profoundly implicated in the genesis of such extensive degrees of TNC control. Indeed, as Woods rightly points out, state power is indispensible to the conditions of accumulation for capital and that it is the state itself that has provided the ‘conditions enabling global capital to survive and navigate the world’.21

TNCs, then, exercise immense (state-assisted) influence over the material, economic and political lives of millions of human beings, and over the life chances of other species and ecosystems generally—a reality sharply etched in the haunting tragedy of the 1984 Bhopal disaster in India where the negligence of a US company, Union Carbide, resulted in the deaths of thousands of people, the injury of hundreds of thousands of people and animals, and extensive environmental damage—injury exacerbated by state betrayal of the ‘Bhopal-violated’.22 In light of this haunting tragedy and of widespread human and environmental abuse at the hands of TNCs and other corporate actors, the need of individuals, groups and states to be able to assert extraterritorial jurisdiction to hold globally powerful corporate human rights violators to account is now incontrovertible. It is also urgent. As Baxi has observed, there is a pressing need for the tragedy of Bhopal (and of other rights-violating disasters resulting from corporate malfeasance or negligence) to provoke law into responding directly23 and for law to follow a deeply ethical impulse by offering a supportive response to the increasingly vocal social movements emerging from the ashes of such violations. Baxi puts the challenge succinctly and with great poignancy: ‘[T]he continuing movement of the Bhopal-violated beckons a new jurisprudence of human solidarity in a runaway globalizing world.’24 Whether, in domestic courts or elsewhere, IHRL will now develop as Baxi urges—and thereby help to redress the imbalances generated by ‘predatory globalization’ (to borrow from Falk25)—is precisely the question haunting this present reflection.

The contemporary globalized world challenges multiple, settled assumptions of the existing Westphalian international legal order—among them, to significant degree, an almost sacred commitment to the core Westphalian principle of state-territorial sovereignty which, among other things, assumes that any particular state is capable of controlling the activities of entities operating from within its jurisdictional boundaries. The problem is, however, that the contemporary realities of globalization directly refute this assumption. Multiple powerful corporate entities are quite simply capable of operating across borders in ways that transcend the regulatory control of any one state. The fundamental discrepancy between the transnational nature of these powerful entities and the territorially limited assumptions of the traditional state-centric international human rights system has therefore provoked a growing number of scholars and others to argue that the discrepancy presents a profound impediment to effective human rights accountability in the corporate sector. Indeed, as Dine points out, multiple studies now suggest that TNCs should be subject to direct human rights and environmental duties—that is, ‘they should have responsibilities towards the planet and to stakeholders other than shareholders’.26 We share this conviction.

Despite the cogency of such arguments, however, and despite the egregious nature of some of the corporate human rights violations inspiring them, TNCs are at present under no direct, formally binding human rights obligations under international law except insofar as a TNC act might constitute an international crime. Nor does international law explicitly impose obligations on home states to regulate the extraterritorial conduct of TNCs headquartered within their territory. Under IHRL, the obligation of the state is to respect, protect and fulfil the human rights of individuals within its territorial jurisdiction; and though the obligation to protect includes the obligation to exercise due diligence to prevent or mitigate the acts of private actors (including corporations) from violating the human rights of individuals, this obligation, too, is limited by territorial jurisdictional limits. In short, but for some essentially voluntarist and self-monitoring standards for TNCs and other business enterprises which sometimes are held out as solutions,27 there is in IHRL an almost complete absence of any effective way of holding corporations directly accountable for human rights abuses, or of preventing such abuses or even of ensuring redress for the victims of such abuses.

This lack of a clear, direct international law obligation to regulate the overseas activities of TNCs and other business enterprises is at least partially responsible for a collection of alternative legal strategies and standards intent upon corporate good behaviour: the due diligence requirements of export credit agencies, corporate and securities disclosure regulations, whistle-blowing laws, contractual duties, tort and criminal laws, sanctions legislation, and the like. However, none of these options are directed specifically at the problem of transnational corporate accountability for human rights abuse; and in any case, as we shall see, the extraterritorial dimension of state responsibility to protect human rights, even deploying such alternative strategies, remains abundantly contested—and unsatisfying.

Straightforwardly put, the current situation is this: the regulation of TNCs (as well as other business enterprises) operating abroad is left largely to the legal systems of the states in which they operate, not the law of their ‘home’ state or siège social. Highly problematic, however, is the plain fact that the states in which TNCs operate are frequently developing states which, for lack of effective administrative, judicial and policing institutions and mechanisms or because of a widespread culture of corruption (frequently encouraged by TNC management), are commonly unable to regulate TNC conduct effectively or are unwilling to do so. Also problematic are complex ‘conditionality’ packages issued by international financial institutions such as the International Monetary Fund (IMF) and World Bank and favouring a trading partner from the Global North in a way that effectively lowers human rights and environmental protection standards. Indeed, the few countries in the Global South that have attempted to reject neo-liberal strictures have been effectively forced by Western funding bodies to relent.28 Further, the IMF and World Bank have most pressured precisely those marginalized societies where poverty is most rife—insisting upon such ‘structural adjustments’ as deregulation, privatization and the removal of protective policies difficult if not impossible for the affected populations to endure.29 Structural patterns and practices such as these raise troubling questions about the degree to which the IMF, World Bank and also the World Trade Organisation (WTO) and other international trade organizations have become ‘midwives’ to the neo-liberal order of power30 (the WTO rules having been extensively influenced by corporations and thus described by some as a formalization of global corporate power31).

In short, there exists at present a severe accountability gap when it comes to holding corporate entities legally responsible for human rights abuses they commit or facilitate. Leaving TNC regulation to the legal systems of states in which TNCs operate is no guarantee of human rights protection whatsoever or even of respect for basic human rights standards. Mainstream strategies remain overwhelmingly voluntaristic and over-friendly to corporate interests;32 and globally, no adequate accountability structure yet exists.

What is more, the accountability gap is compounded by the sheer complexity and elusiveness of the transnational corporate form itself. It is well known that corporations are fictions invented by national law, ‘legal persons’ granted a juridical existence separate from their executives and shareholders who, as a result, enjoy ‘limited liability’ shielded by a ‘corporate veil’. In the case of the TNC, however, new levels of complexity emerge. TNCs are complicated interlocking layers of corporate entities that present a structural density that makes accountability extremely difficult to construct, granting TNCs a juridical elusiveness jealously guarded by those who gain from TNC privileging in the global order. TNCs gain their immense power not only from the law’s failure to take into account the material distinctions between kinds of persons—a quintessentially disembodied conceptual excision typical of law’s constitution of juridical subjectivity33—but also from the law’s failure to ‘account [for] the reality of the accumulation of power represented by a large number of companies related by interlocking shareholdings’.34

When such corporate complexity combines with the international law doctrine of sovereign state equality and overblown assumptions about the power of the state to hold corporations to account, the problem of extraterritorial accountability emerges with a particular rigueur. The juridical complexity of the TNC and its protean ability to evade jurisdictional accountability in a complex and densely interwoven global order especially clearly limits the state’s ability to hold TNCs accountable and profoundly reduces the possibilities of redress for corporate human rights violations. In the post-Kiobellawscape, what hope, then, can still be found in the doctrine of universal jurisdiction and under the US Alien Tort Claims Act?

3. THE DOCTRINE OF UNIVERSAL JURISDICTION AND THE US ALIEN TORT CLAIMS ACT

Despite the sanctity of state sovereignty under international law and consequent limitations on extraterritorial liability, it has long been recognized that certain international crimes can give rise to ‘universal jurisdiction’, that is, a grant to every state of legal authority to apply international law to certain violations of the ‘law of nations’ even if the state in question has no connection to the violation when it occurred—important for present purposes. The original—and archetypal—universal jurisdiction offence is piracy, the prime example of a violation of the law of nations.35 All states can enforce the prohibition against piracy as a matter of universal jurisdiction. In the words of eighteenth century common law scholar William Blackstone, piracy is incontestably ‘an offence against the universal law of society’.36 It is via this relatively narrow aperture of legal doctrine that human rights advocates have sought to deploy creative arguments for extraterritorial accountability.

Fundamentally, universal jurisdiction operates today as it did at its origin: as an authoritative mandate to enforce existing international law against an act deemed offensive to the law of nations—an offence so profound that the offender is rendered hostis humani generis: ‘an enemy of all mankind’.37 The exercise of universal jurisdiction, it should be understood, is not the same as a state applying its own law to another state, but the limitations hindering the extraterritorial application of IHRL have led to creative approaches using national law, not IHRL, to establish liability for human rights harms extraterritorially inflicted. There exists, however, one notable albeit indirect and unique exception: when national legislation authorizes resort to ‘the law of nations’ as a source of law for decision, then human rights norms accepted as customary international law, part of the law of nations (as well as core components of IHRL), may be invoked for the rule of decision. The paradigmatic example of this exception is of course the well-known statute unique to the USA known as the Alien Tort Claims Act (ATCA),38 also called the Alien Tort Statute (ATS). Originally enacted during the first session of the First United States Congress as section 9 of the Judiciary Act of 1789 (establishing the Federal Judiciary) primarily to protect against piracy, it has for more than three decades been deployed by litigants to overcome the limitations burdening the extraterritorial application of universal human rights doctrines, principles and rules, beginning in 1980 when, in Filártiga v Peña-Irala,39 the US Second Circuit Court of Appeals decided—for the first time in modern times—in favour of foreign human rights claimants based on the ACTA.

Since Filártiga, the USA has proved magnetically attractive to foreign litigants, although not least because of important procedural advantages in using US courts—for example, the possibility of contingency fees. Providing that ‘[t]he district courts [of the United States] shall 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’, this statute, for many years after Filártiga, has been judicially interpreted to allow foreign citizens to seek civil (tort) remedies in US courts for human rights violations committed outside the US, thus enabling non-US litigants to present ‘unique substantive causes of action against [TNCs] that … breached their human rights’.40 Particularly noteworthy is the language used in the Second Circuit judgment, echoing the early development of the doctrine of universal jurisdiction in the context of piracy. The court famously stated: ‘[F]or purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind.’41

Filártiga concerned, as is well known, not a corporation but a former Paraguayan police inspector general who had tortured and killed a member of the Filártiga family. But the authority that issued from Filártigawas widely celebrated among human rights activists—heralded as a ‘beacon of hope’42 by those who welcomed the ATCA’s ‘revival’ as a powerful way of challenging corporate human rights abuses. Indeed, the vast majority of TNC human rights litigation has arisen in US courts pursuant to this domestic legislation. Over time, particularly in the 1990s, numerous cases involving corporate human rights abuses began to come before the US courts, gradually evolving into an application of the universal jurisdiction doctrine enabling US courts to hold corporate actors accountable in tort for human rights abuses committed far beyond US jurisdictional borders.

Perhaps predictably, however, this was a trajectory that, at the hands of more conservative ideology and politics (and therefore the appointment of more conservative jurists) was ultimately to be significantly challenged—as indeed it was in Kiobel 2010 by the US Second Circuit Court of Appeals (the same though differently composed court that decided Filártiga)—and later in Kiobel 2013 by the US Supreme Court in what many commentators have regarded as a particularly retrogressive ruling. It is to these two decisions in Kiobel v Royal Dutch Petroleum Co43 that we now turn.

A. Kiobel in 2010: A Dead End for Human Rights Activists?

The facts of Kiobel fully reflect the fundamental concerns of the litigation trend that took off under the ATCA in the 1990s against claimed TNC human rights abuses. The case exemplifies the widespread visceral sense of injustice that instances of corporate human rights violation evoke the world over.

The relevant events took place in Ogoniland, Nigeria, an oil-rich region of the Niger Delta intensively exploited for its oil reserves by Shell Oil (a subsidiary of Royal Dutch Shell) beginning in 1956, now a location synonymous with corporate human rights violations epitomizing the ‘justice problem which arises when a repressive regime, extractable natural resources, transnational corporate interests, and a vulnerable population collide’.44 Between 1990 and 1993, in light of extensive environmental damage, including the negative health effects of gas flaring and damage wreaked by repeated oil spills (reportedly 2,976, or 2.1 million barrels from 1976 to 1991), Ogoniland residents rose up in non-violent protest. The Nigerian government, however, reacted violently. Several Ogoni leaders were murdered—nine in particular—known as the ‘Ogoni 9’ (including the now world-famous Ken Saro-Wiwa). All were arrested on trumped-up charges, brought to trial, sentenced to death, and, in 1995, executed. The trial, widely considered a travesty of justice, exposed not only the repressive nature of the Nigerian regime at the time, but the extensive and rights-violating complicity of the TNCs operating in Ogoniland—particularly Shell. Ken Saro-Wiwa’s death, deemed by many to be a judicial murder, also attracted rapid and widespread international condemnation.

Several lawsuits were initiated in the USA against individuals and entities related to Royal Dutch Shell. Kiobel, brought under the ATCA, was one of them. The complaint alleged that the Royal Dutch Petroleum Company (incorporated in the Netherlands), Shell Transport and Trading Company (incorporated in England), and Shell Petroleum Development Company of Nigeria (incorporated in Nigeria) aided and abetted extra-judicial killings, torture and the commission of crimes against humanity and other human rights violations by the Nigerian military. The corporate defendants, it was alleged,

provided logistical support, transportation and weapons to Nigerian authorities to attack Ogoni villages and stifle opposition to Shell’s oil-excavation activities. Ogoni residents were beaten, raped, shot and/or killed during these raids. In 1995, Ken Saro-Wiwa and John Kpuinen were notoriously hanged after being convicted of murder by a special tribunal in the course of which Royal Dutch Shell allegedly bribed witnesses, conspired with Nigerian authorities to orchestrate the trial, and offered to free Ken Saro-Wiwa in return for an end to [his organization’s] international protests against Shell. During the trial, members of Ken Saro-Wiwa’s family, including his elderly mother, were beaten.45

Esther Kiobel was one of the plaintiffs—her husband, Dr Barinem Kiobel, having been executed in 1995 for his non-violent protest alongside Ken Saro-Wiwa.

In 2010, a majority of the US Second Circuit Court of Appeals ruled that because the scope of liability in an ATCA suit is determined by customary international law and because ‘no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights’, corporate liability ‘is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to [ATCA]’.46 The plaintiffs’ claims were accordingly dismissed for lack of subject-matter jurisdiction. The grounds for optimism about an ATCA revival vis-à-vis TNC accountability had reached, it seemed, something of a dead end.

Dine, however, argues that much of the hubris surrounding the ATCA ‘revival’ was misplaced in the first place, despite its value in revealing ‘how complex extraterritorial claims are, how difficult it is to sue TNCs and the fact that no matter how ‘common sense’ the solution appears to outraged human rights and environmental activists, legal solutions remain elusive’.47 She observes that some of the claims advanced by non-governmental organisations (NGOs) concerning the ATCA at its high point were of doubtful reliability and unduly optimistic. Most of the cases were in any event settled out of court—and the settlements thus obtained under the ATCA were, for Dine, simply a way for TNCs to avoid any formal admission of liability. She writes: ‘I would argue that it is wrong to call such settlements victoriesbecause the law has not been thereby developed to cover the instances of abuse forming the substance of the claim: there is no precedent for the future.’48

In addition to being critical of the hype surrounding the ATCA as a cause célèbre for human rights progress, Dine is critical of the legislation itself. For her, the ATCA invited an excessively restrictive standard for the substantive ground of a complaint raised under it. In Kiobel, the Second Circuit Court found that only very restrictive grounds could be allowed—relying on the US Supreme Court ruling in Sosa v Alvarez-Machain,49 a precedent in which the Supreme Court held that claims must be founded on ‘a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th Century paradigms we have recognized’.50 Thus, though the ATCA revival did achieve an intensification of TNC reputational risk (as well as some compensation for victims of corporate abuse), Kiobel 2010, without overruling Filártiga, but by adhering to a restrictive reading of the basis for universal jurisdiction, did appear—to some at least—to narrow the potential cause of action to eighteenth-century standards and thereby to produce something of a full stop for twenty-first century human rights activists long before the Supreme Court ruling of 2013.

Dine’s view has considerable resonance when the facts are as clearly pernicious as they were in Kiobel.Unmistakably, Kiobel 2010 implicated the public–private divide that traditionally has sheltered corporate violations of human rights; a company can be held liable under the ATCA, it appears, if its activity amounts to ‘state action’ in breach of international law. But as Dine argues, Kiobel 2010 also reveals ‘the extent to which the ATCA was a thin thread on which to hang legal accountability for [TNC] violations’.51Despite the benefit of ATCA cases bringing gross corporate violations of human rights to public attention, she observes, ultimately the litigation strategy centring upon the ATCA diverted attention from the kind of fundamental reforms necessary to change legal regimes comprehensively. Diverting attention from such reforms has, moreover, proved beneficial to the violating TNCs, as human rights activists have spent energy fighting on a difficult and somewhat flimsy platform rather than concentrating on changing the rules of IHRL to establish that companies can be human rights violators and to provide mechanisms for holding them to account.52

At any rate, despite the apparent disappointment presented by Kiobel 2010, the possibility of extraterritorial liability under the ATCA has continued to inspire an industry of argument and commentary. As Wuerth recently noted,

[a]fter more than thirty years of extensive high-profile litigation along with sustained academic commentary, a large and seemingly ever-growing number of basic questions about [the ATCA] remained unanswered … . As lower courts and litigants hacked their way through a thickening jungle of unresolved [ATCA] issues, clarification from Congress or the Supreme Court felt long overdue.53

That clarification was attempted in 2013 when the US Supreme Court delivered the final Kiobeljudgment.54

B. Kiobel in 2013: Confirming Disappointment?

In 2013, in Kiobel v Royal Dutch Petroleum Co, the US Supreme Court, in a splintered decision and invoking a canon of statutory interpretation known as the ‘presumption against extraterritorial application’ (when legislation gives no clear contrary mandate), held that ‘the presumption against extraterritoriality applies to claims under the [ATCA], and that nothing in the statute rebuts that presumption’55—a conclusion reached apparently without heed to the ACTA’s express directive to apply ‘the law of nations’ (including such IHRL norms as are accepted as customary international law). At the same time, the Court suggested that claims arising from conduct outside the USA could be actionable under the ATCA ‘where the claims touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritorial application’.56

According to Weston, ‘informed observers responding to Kiobel [2013] appear generally to have agreed upon at least four implications of the Court’s reasoning’:57

(1) that foreign corporations would … be largely, if not completely, insulated from [US] ‘prosecution’ under the [ATCA] for human rights violations committed against foreign nationals in foreign countries, (2) that [US] corporations would not be so insulated, (3) that the development of litigation in Europe and elsewhere outside the United States would be affected by [Kiobel] only slightly, if at all; and (4) that the applicability of [Kiobel] to foreign natural persons, never addressed by the court, was uncertain. 58

The Supreme Court’s decision was, at least, definitive in one centrally important respect: that the presumption against extraterritoriality applies to the ATCA. On the facts presented to it, the Supreme Court held that the presumption was not overcome because the relevant conduct took place within the territory of a foreign sovereign and because the claims did not sufficiently ‘touch and concern’ US territory—the foreign defendants (Dutch Shell Petroleum) had no more than a ‘corporate presence’ in the USA. For Curran and Sloss, the decision

apparently [sounded] the death knell for ‘foreign-cubed’ human rights claims under the [ATCA]—that is, cases in which foreign defendants committed human rights abuses against foreign plaintiffs in foreign countries [and that] [t]he Court’s decision overrules, sub silentio, a line of cases that originated with Filártiga v Peña-Irala.59

In the words of Ku, ‘[a]ll nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that [the ATCA] excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law.’60 For Ku, this amounted to nothing short of the unanimous rejection in Kiobel of universal jurisdiction, a conclusion which, while possibly overstated, drives at the importance of the decision for the hopes (misplaced hopes, Dine would argue) of human rights activists and litigants seeking to use the ATCA as a strategic route towards extraterritorial corporate human rights accountability and, ultimately, universal jurisdiction over at least gross human rights violations committed by corporations abroad.

Not surprisingly, given the enormity of the stakes at hand, the issue of corporate liability attracted a range of submissions from multiple amici. The Court received statements from governments (Argentina, Germany, the Netherlands, the UK and the USA), the European Commission, NGOs, scholars and—of course—corporations. Since the Court’s central holding was that alleged corporate malfeasance must ‘touch and concern the territory of the United States’ with ‘sufficient force’ to displace the presumption against extraterritoriality, logically the Court had to address that issue directly if it was to do justice to the question of corporate liability at all. Protective of corporate functioning among other interests, one may assume, the Court reasoned that since corporations are often ‘present’ in many countries, ‘corporate presence’ alone is insufficient to displace the presumption.

Perhaps from a corporate perspective, the implications of Kiobel concerning extraterritorial corporate liability may seem clear. But this would be misleading. First, the Court did not address the question of corporate liability under the ATCA directly notwithstanding that it was because of this concern that it granted certiorari in the first place. Secondly, the Court’s stated rationales for its decision—the minimization of ‘international friction’ and related separation-of-powers concerns—have been judged unpersuasive by informed legal scholars or, in any event, as insufficient to justify eliding more than three decades of established ATCA precedent. Thirdly, as Wuerth argues, the ‘opinions arguably assume the viability of [the ATCA] suits against corporations’,61 thus leaving the door open to such actions albeit in an ambivalent manner. ‘Not surprisingly’, Wuerth observes, ‘[the] ambiguities in the majority opinion have already generated spirited commentary on what Kiobel will mean for future ATS cases. The blogospheric spin is well under way.’62

There are many other aspects to the Kiobel 2013 holding. Prominently exposed and debated from a range of perspectives under the auspices of the American Journal of International Law published in 2014,63 they reflect among other things the inevitable complexities implicated by the position of the ATCA at the nexus of profoundly competitive political