Beyond Kiobel: Providing Access to Judicial Remedies for Violations of International Human Rights Norms by Transnational Business in a New (Post-Kiobel) World
75 Pages Posted: 1 Jan 2015
Date Written: December 30, 2014
Abstract
In the April 2013 case of Kiobel v. Royal Dutch Petroleum, the U.S. Supreme Court significantly limited the application of the Alien Tort Statute (ATS) by finding that the presumption against extraterritoriality exists with regard to claims brought for violations of customary international law (CIL) occurring abroad, even where U.S. citizens, including corporations, might be liable. In addition, there are many other obstacles to holding transnational businesses liable for their involvement in extraterritorial human rights abuses, especially those occurring in host countries with ineffective or corrupt judicial systems. Many home countries, including the United States, are simply failing to meet their obligations under international law to provide access to judicial remedies to such victims. This article, after describing countries’ obligations under international to provide access to judicial remedies for such abuses, outlines the various barriers victims face in seeking access to judicial remedies for harms caused by violations of international human rights on the part of transnational businesses’ located or doing significant business in the United States. The article also takes note of some of the barriers victims face in Canada, Switzerland, and in the European Union against transnational businesses located or doing significant business there, in order to give larger context to the barriers victims of such abuses face in accessing a judicial remedy in any country. The article then proposes ways forward, including specific policy recommendations.
Keywords: Kiobel, Human Rights
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