Transnational Human Rights Litigation and Territorialised Knowledge: Kiobel and the ‘Politics of Space’

Abstract

In Kiobel v Royal Dutch Petroleum, Dutch and British private corporations were accused of having aided and abetted the violation of the human rights of individuals in Nigeria. A lawsuit, however, was brought in the United States, relying on the Alien Tort Statute—part of a Judiciary Act from 1789. In its final decision on the case, the US Supreme Court focused strongly on ‘territory’. This use of a spatial category calls for closer scrutiny of how the making of legal arguments presupposes ‘spatial knowledge’, especially in the field of transnational human rights litigation. Space is hardly a neutral category. What is at stake is normativity on a global scale with the domestic courtroom turned into a site of spatial contestation. This paper explores the construction of ‘the transnational’ as space, which implicates a ‘politics of space’ at work underneath the exposed surface of legal argumentation. The ‘Kiobel situation' is addressed as a case belonging to a broader picture, including the following contested elements of space: a particular spatial condition of modern nation-state territoriality; the production of ‘counter-space’, eventually undermining the spatial regime of inter-state society; and the state not accepting its withering away. How are normative boundaries between the involved jurisdictional spaces drawn? How does the ‘politics of space’ work underneath or beyond the plain moments of judicial decision-making? How territorialised is the legal knowledge at work and how does territoriality work in legal arguments?