Reframing the Kiobel case: political recognition and state jurisdiction.

• Author: Isailovic, Ivana

This paper examines through the lens of political recognition the U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum Co., (1) which upholds the territoriality principle regarding the reach of the Alien Tort Statute (ATS). Political recognition describes the transnational space in which historically and present-day marginalized groups, such as indigenous peoples, women or LGBTQ communities, are challenging oppressive practices they are facing. The theory of recognition accounts for the process through which historically marginalized identities are accepted in the political space and it provides a new frame for thinking about justice in the globalized world. (2) The theory further posits that recognizing the other means acknowledging the other's equal worth. According to Taylor, recognition means that one accepts both the equal dignity of all individuals and particularly subaltern identities, and everyone's distinctive and unique identity. For Taylor this invites us to "maintain and cherish distinctness" in the social space. (3)

In Kiobel, members of the Ogoni community sued Shell and Royal Dutch Petroleum-incorporated respectively in the Netherlands and in England-and their joint Nigerian subsidiary under the ATS for various human rights breaches committed in Nigeria in the 1990s. ATS is a jurisdictional statute adopted in the 18th century giving U.S. federal courts jurisdiction in private suits for torts resulting from breaches of the law of nations. (4) In the past thirty years, the statute has been used in order to deal with egregious violations of human rights law including international crimes committed by individuals or corporations. (5)

In this decision, the majority found that the ATS does not apply to activities which occurred outside the United States unless the dispute "touch[es] and concern[s] [U.S. territory] ... with sufficient force to displace the presumption against extra territorial[ity]." (6) The presumption is based on two justifications: the first is that the state's power to regulate is limited to its territorial boundaries, and the extraterritorial application of laws constitutes interference in foreign jurisdictions. The second concern pertains to the constitutional ordering and the power of judges vis-a-vis the executive branch: by applying the presumption, the judiciary avoids "unwarranted judicial interference" with the work of the Executive. (7)

The majority held that the two companies' "mere corporate presence" in the United States was not sufficient to satisfy the touch and concern test because multinational companies are by nature ubiquitous and the alleged conduct of the defendant occurred outside the United States. (8) Members of the Ogoni community were thus denied compensation for the damages they suffered.

This decision goes against many lower court cases in which ATS was the basis of U.S. jurisdiction in cases of private actors' overseas activities. (9) The ruling also raises important questions regarding the nature of the global economy, (10) the distributive effects of private and public international rules regulating state jurisdiction and multinational companies' accountability for their harmful activities abroad. These questions have been widely debated from the standpoint of the legal technique and of their normative implications. (11)

For the legal scholar Beth Stephens, Kiobel is an illustration of how the legal system shields corporations from their liability for breaches of human rights. According to her, territoriality and extraterritoriality are meaningless concepts in this context, (12) precisely because modern corporations purposely operate worldwide through subsidiaries and various contractors in a web-like structure to minimize their liability. Therefore, the place of incorporation that has been traditionally used to determine state jurisdiction does not mirror close ties between the entity and a forum. In this context, using territoriality and extraterritoriality means regulating each component of the corporation independently instead of treating it as a single entity. (13)

Upendra Baxi also expressed a similar view in relation to domestic courts regulating multinationals. He argues that doctrines such as forum non conveniens (14) comity (15) or the doctrine of foreign state immunity, (16) applied by U.S. courts, have largely contributed in shaping a regime of organized irresponsibility and impunity of global corporations. (17)

For international public law scholars, the central question in cases such as Kiobel, is under which conditions states may exercise extraterritorial jurisdiction in order to improve multinationals' accountability? According to Olivier de Schutter, at issue is the definition of corporations' nationality-which grounds state jurisdiction-and corporate personality, because according to the dominant view, each corporate entity is independent from another. (18) Andrew Clapham raises another question that the discipline is grappling with, arguing that multinational companies are subjects of international law and bearers of both rights and duties, (19) and as such, are directly liable for breaches of human rights law under international law. (20) The "Protect, Respect and Remedy" framework promoted under the aegis of the United Nations, which proposes a coherent legal system regarding transnational businesses and human rights, also deals with these two questions. (21) The framework emphasizes the primary duty of the state to protect against human rights breaches within its ter- ritory or jurisdiction, which also includes extraterritorial basis of jurisdiction although the state does not have a duty to exercise extraterritorial jurisdiction. (22) This comprises the duty of the state to remedy breaches of human rights law that occur within its jurisdiction, through its judicial, administrative, and legislative mechanisms and other appropriate means. (23) Second, multinationals need to respect human rights wherever they operate. The framework lists the core international human rights that should be guaranteed, and adds that in some cases multinationals should also respect rights of specific groups, such as indigenous peoples, elaborated within relevant U.N. documents. (24)

Given this context, I would like to offer a different perspective on the Kiobel case in which the Kiobel litigation is analyzed as part of the Ogonis' political struggle against the state and Shell concerning their ownership over their land. Land being crucial for their survival and their cultural and economic practices, the conflict, I argue, corresponds to a struggle for recognition of their specific identity. This approach also shows that in addressing the legal and normative stakes in Kiobel, a truly transnational approach, that is an integrated approach between private or domestic transnational practices and international public norms and doctrines is needed.

Prior to bringing the case before the U.S. courts, the Ogonis' claims were litigated before the African Commission on Human and Peoples' Rights (ACHPR). (25) The Commission found that the state breached a number of the Ogonis' socioeconomic rights including their collective right to property in their natural resources. In light of this case and other similar cases decided by the Inter-American Court of Human Rights (IACtHR) I argue that the decision in Kiobel constitutes an instance of misrecognition meaning that law condones the dispossession of the Ogonis. The decision thereby entrenches processes of socio-economic marginalization. In human rights cases territoriality-the links between the indigenous community and their lands-has been used to empower the Ogonis, whereas in Kiobel, territoriality conceals the Ogonis' struggles to retain control over their lands. This is because the territoriality principle essentializes the foreign state identity and leads to represent the nation-state as a culturally and politically homogenous community.

This paper seeks to suggest an alternative conception of the ATS scope of application, and more generally of state jurisdiction, which is based on the notion of political recognition. As I argued elsewhere, recognition-based framework embeds law within the broader transnational political, cultural and economic context. (26) Legal issues are defined in connection with the underpinning social patterns of marginalization that exist in the transnational space, beyond the local-national boundaries. This legal approach builds on studies of power-relations (27) and the insights from global legal pluralist literature according to which all social relations are regulated by a multiplicity of overlapping legal regimes. (28) The legal reasoning is thus context specific insofar as it acknowledges the systematic disadvantages groups and individuals have suffered and calls into question instances of oppression in the transnational space. (29)

It follows that in cases such as Kiobel, thinking about the ATS scope of application in terms of political recognition invites us to abandon the territoriality principle and to adopt the universal jurisdiction principle. This means that U.S. courts are competent under ATS in cases in which plaintiffs allege egregious violations of their human rights, including international crimes already recognized by U.S. domestic courts such as torture, genocide, as well as breaches of indigenous peoples' right to control the access to and develop their lands and natural resources located therein.

Part I of this paper describes the Ogoni community's political struggles for recognition against the state and the Shell group and the military actions against the community referred to as the Ogoni crisis. (30) I also show how this struggle over ownership was translated into a transnational legal struggle. Part II discusses the ACHPR Ogoni case (31) as interpreted by the Commission's subsequent communication in the Endorois Community v. Kenya case...