Do court victories result in social change? Can victories in court result in losses outside of court? If victories in court are no guarantee of victory outside of court, how much worse are court defeats? This Article explores these questions in part through analyzing Ogoni litigation against Royal Dutch/Shell. In 2002, Esther Kiobel and several co-plaintiffs tried to hold Royal Dutch/Shell accountable for its role in the death of Kiobel’s husband and for wider corporate abuses and related state human rights violations in Ogoniland. But in 2013, a unanimous United States Supreme Court held that the Alien Tort Statute (ATS) did not expressly grant extraterritorial jurisdiction to the federal courts to hear suits such as Kiobel’s. Esther Kiobel’s failed litigation in the United States (and in the Netherlands) merely exemplifies the extent to which foreign courts in the Global North——the courts of the company—effectively insulate multinational corporations from accountability for human rights violations and environmental wrongs. Worse still, Kiobel’s failure was not hers alone. Kiobel’s activism led directly to the narrowing, and ultimately the shuttering, of the ATS mechanism for corporate accountability litigation—a victory for corporations rather than for their victims. Kiobel’s activism suggests that courts may be a “hollow hope.”
Despite these litigation failures and setbacks, I argue, the focus on ATS litigation in the United States and the failure to appreciate favorable outcomes in foreign corporate accountability litigation obscures the role that litigation plays in norm generation and norm diffusion processes. In the aggregate, there have been numerous positive outcomes from Ogoni litigation over the past three decades. Far from being a hollow hope, I argue that if one looks beyond Kiobel’s case and other ATS cases that dominate the focus of much discourse in the U.S. legal academy, one might perceive how victim-plaintiffs have succeeded in other forums such as in Canada, England, the Netherlands, France, and elsewhere in Europe. I show, moreover, that whether Ogoni and other Indigenous victim-plaintiffs win or lose, their continued litigation generates positive benefits for society by challenging procedural barriers and by shifting the discourse around corporate accountability for human and environmental rights violations. Scholars have long recognized the role that corporations, among other non-state actors, can play in the formation of international law. Here, Indigenous peoples’ transnational legal mobilization in the corporate accountability and environmental rights spaces constitutes an example of international lawmaking from the bottom up. I thus argue that it is time for scholars of international law and human rights to pay more attention to the international lawmaking—the agency—of Indigenous peoples and other marginalized demographic groups. Ogoni and other Indigenous victim-plaintiffs have brought into mainstream legal and political discourse the cultural and group rights claims of Indigenous populations (for example, self-determination and language claims). They have forged connections with Indigenous groups and environmentalists around the world who support each other’s litigation and non-litigation campaigns. They have stimulated and enabled the capacity-building of non-profit public interest litigation organizations to sustain multi-year challenges against well-resourced multinational corporations.
Indeed, as I argue in this Article, the positive outcomes of Ogoni and other Indigenous peoples’ transnational legal mobilization include the very making of international law from the bottom up. This lawmaking is reflected in soft law instruments such as the UN Guiding Principles on Business and Human Rights, which adopts “access to remedy” as one of its three central pillars, and in the text of the UN Human Rights Council open-ended intergovernmental working group’s draft business and human rights treaty, which likewise declares access to remedy to be a core purpose. Thus, there is an extent to which the Ogoni case study reveals an instance of “winning through losing.”