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Kiobel and Corporate Complicity- Running with the Pack

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Many human rights activists have lamented the outcome of Kiobel v. Royal Dutch Petroleum Co. Reacting to the opinion, Human Rights Watch expressed concern that Kiobel “significantly reduce[s] the possibility that corporations can be held accountable in US courts for human rights abuses committed abroad.” The Center for Constitutional Rights issued a statement that it was “deeply troubled by the Supreme Court’s decision to undercut 30 years of jurisprudence.” Similarly, Amnesty International characterized the opinion as a “radical departure from its own precedent and a decision that . . . flies in the face of the trend toward enhancing accountability for serious human rights violations.”

Rather than opposing a well-settled international legal norm, however, the Supreme Court’s decision actually appears to align with domestic jurisprudence elsewhere in North America and Europe. The courts in these diverse cases have expressed, in various ways, a reluctance to find an international rule of liability: although a few cases are still pending, almost all these cases have been dismissed based on application of justiciability doctrines and other non-merits grounds.

This article briefly examines three civil cases filed in Canada and France. It also looks at two prosecutorial decisions on criminal complaints filed by activists in the Netherlands and Switzerland. In each of these examples, claims of corporate complicity in human rights abuses have not been allowed to proceed.

About the Author

Anne Herzberg

Anne Herzberg

Anne Herzberg is the Legal Advisor of NGO Monitor. She is a graduate of Oberlin College and Columbia University Law School. Prior to joining NGO Monitor, she worked as an attorney in New York. Her areas of research include business and human rights, international human rights law, the laws of armed conflict, universal jurisdiction, international fact finding, NGOs, and the UN.