Erga Omnes

What happens when a multinational corporation colludes with a repressive regime to kill and torture opponents of oil exploration? This is partly the question in Kiobel v. Royal Dutch Petroleum, which opened yesterday before the U.S. Supreme Court.

The civil lawsuit is brought by Esther Kiobel, on behalf of herself, her late husband Dr. Barinem Kiobel, and ten others (including writer and activist Ken Saro-Wiwa) who were killed in the Niger Delta’s Ogoni region during the early 1990s. The claim is that Royal Dutch Shell Petroleum Company, one of its subsidiaries, and a British firm were all implicated in grave human rights violations—aiding and abetting the military regime in torture and murder.

Human Rights First, which has filed an amicus brief in the case and is broadly active in combating impunity, described how universal jurisdiction intersects with ‘corporate responsibility’:

The idea that non-Americans should be able to use U.S. courts to sue non-Americans for international law violations committed abroad is not new… Universal jurisdiction is not only a well-established practice in international law, it is required for grave breaches of the Geneva Conventions, such as murder and torture, and by the U.N. Convention against Torture…

If corporations are people for purposes of rights, they should also be treated as people for purposes of responsibilities.  And requiring them to be responsible for complicity in murder and torture is the least our judicial system should demand.

Corporate responsibility for human rights crimes is about more than (re)drawing the boundaries between rights-holders and duty-bearers.  It is, minimally, about having to answer publicly for alleged social harms.  In this sense, universal jurisdiction can play an essential role, giving claimants and the accused an official, mediated, seemingly depoliticized space in which to exchange views.

As oral hearings proceed in the long-awaited trial, it’s worth remembering that universal jurisdiction’s power lies partly in requiring corporate and state leaders to confront—and even communicate with—their accusers.  It may not seem like much, but it beats the arrogant silence of impunity.

SEE UPDATE.