The Politics of Space: Kiobel v. Royal Dutch Petroleum

Law is a ‘politics of space.’ The last week’s Supreme Court decision in ‘Kiobel’ significantly cuts the possibilities to sue human rights violators before courts in the United States, particularly when the relevant conduct occurred on the territory of a foreign sovereign. The decision builds upon a highly territorialized notion of law and points to what may be called a ‘nationalization’ of international law—with repercussions for the transnational law of public and private global governance. In the Kiobel case transnational oil corporations (Royal Dutch Petroleum/Shell) were accused of having aided and abetted in massive violations of human rights in Nigeria, including extrajudicial killings, crimes against humanities, and torture. The lawsuit was relying on the Alien Tort Statute (ATS) — a Judiciary Act enacted by the First Congress of the United States in 1789 — which is granting ‘aliens’ access to courts in the US for bringing tort claims basing on international law.

While human rights advocates criticize the decision as ‘disappointment,’ those speaking in the name of private business hail the judicial strengthening of the state. In fact, the decision points to an exclusion of private conduct beyond the jurisdictional boundaries of the Unites States from being adjudicated through state courts, even when massive violations of human rights are at issue. But at the same time this exclusion is achieved only by way of a perpetuation of nation-state boundaries—transnational private governance goes hand-in-hand with ‘modern’ nation-state practice ...

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