Geographical knowledge at work: Human rights litigation and transnational territoriality
| Author | Philip Liste |
| Published date | 01 March 2016 |
| Date | 01 March 2016 |
| DOI | 10.1177/1354066115581180 |
European Journal of
International Relations
2016, Vol. 22(1) 217 –239
© The Author(s) 2015
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DOI: 10.1177/1354066115581180
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E
JR
I
Geographical knowledge
at work: Human rights
litigation and transnational
territoriality
Philip Liste
University of Hamburg, Germany
Abstract
In April 2013, the US Supreme Court left a mark on the spatiality of law. In a decision
on human rights violations in Nigeria, state territoriality served as a technique to rule
out the application of transnational law against private corporations. Paradoxically, the
private actor turned out to be the primary beneficiary of this jurisdictional territorialism.
Drawing on work in critical geography, the article argues that this was only possible
against the background of a certain geographical knowledge as reproduced in the
course of legal practice. The corporate production of space consisted of a ‘private use
of territoriality’ to resist the extraterritorial application of law and thus transnational
state regulation. During a spatial analysis of a number of the 82 amicus curiae briefs to
Kiobel v. Royal Dutch Petroleum, the article reveals how the geographical configurations
of our contemporary order not only withstand transnational challenges, but are even
reproduced transnationally by a multiplicity of state and non-state actors. While
international law builds upon and reproduces territoriality as a foundational principle
of global normativity, it also provides the means for the doing away with territoriality.
In order to demonstrate how legal practice contributes to a critical reproduction of
normativity on different scales (national and international, local and global), the article
establishes a spatial gaze on transnational relations at work.
Keywords
Alien Tort, corporations, courts, human rights, international law, Kiobel, space,
territory, transnational, transnational relations
Corresponding author:
Philip Liste, Political Science & Global Governance, Faculty of Economics and Social Sciences, University of
Hamburg, Allende-Platz 1, 20146 Hamburg, Germany.
Email: philip.liste@wiso.uni-hamburg.de
581180EJT0010.1177/1354066115581180European Journal of International RelationsListe
research-article2015
Article
218 European Journal of International Relations 22(1)
Introduction
In April 2013, the US Supreme Court left a mark on the spatiality of law. Kiobel v. Royal
Dutch Petroleum1 was a class action against a transnational corporation (TNC) that had
been accused of having aided and abetted a number of serious violations of human rights
related to the extractive industry in Nigeria. Since the alleged incidents occurred ‘abroad’,
in another country, thousands of miles away from the jurisdiction within which the case
was brought to court, the established geographical knowledge of law and the amalgama-
tion of law and the state were challenged. To enter the US court system, the petitioners
had relied on the Alien Tort Statute (ATS),2 which is part of a Judiciary Act from 1789,
enacted by the First Congress of the United States. Following this statute,
‘[t]he district courts shall have original jurisdiction of any civil action by an alien for a
tort only, committed in violation of the law of nations or a treaty of the United States’.3
While in previous stages of the lawsuit, the emphasis had been on the question of whether
private corporations could be liable under international law,4 the judges at the Supreme
Court changed the main legal focus to a question of territoriality and thus for the geog-
raphy of law. Finally, it was on ‘territorial’ grounds that the case was rejected. As the
majority of the judges held, the claims that had been brought would not ‘touch and con-
cern the territory of the United States … with sufficient force’.5 In the Kiobel judgement,
an abusive form of public–private partnership — Royal Dutch Shell together with
Nigerian public authorities — could escape the transnational rule of law by referring to
the territorial logic of jurisdiction. Paradoxically, the primary beneficiary of this territo-
rialism was a private actor. The judges strengthened the normative boundaries of the
international state system in such a way that the corporation could not be held responsi-
ble for alleged violations of human rights.
Territorial jurisdiction is no doubt a basic feature of our contemporary normative
order. However, under globalization, the principle of territoriality has come under pres-
sure, and transnational litigation practice is one of the challenges. This stimulates ques-
tions as to how law and space are interrelated. The overriding normative issue at stake is
whether or not lawsuits should be allowed to be brought to courts located far away from
the place of conduct. Does it make sense to sue a conglomerate of British, Dutch and
Nigerian corporations in a US court for violations of rights that have occurred in Nigeria?
The aim of this article is to explore the geographical knowledge at work when such ques-
tions are raised and corresponding answers are given in legal practice. Drawing on work
in critical geography, I address transnational human rights litigation practice as an epi-
sode of colliding ‘politics of space’ (Lefebvre, 2009a). The courtroom is addressed as a
site of politico-legal encounters, worthy of study in order to establish a critical gaze on
transnational relations.
International Relations (IR) theories have often characterized international law either
as the normative glue of the international society (the latter in the sense of a society of
states; see Bull, 1995) or as a mode of governance that tends to alter the meaning of
nation-state boundaries (e.g. through human rights; see Risse and Ropp, 2013). The
study of transnational law and space reveals that law can be both, and, paradoxically,
both at the same time. While international law builds upon and reproduces territoriality
as a foundational principle of global normativity, it also provides the means for the doing
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