The Community Court of Justice of the Economic Community of West African States (ECOWAS Court) is an increasingly active and bold adjudicator of human rights. Since acquiring jurisdiction over human rights complaints in 2005, the ECOWAS Court has issued numerous decisions condemning human rights violations by the member states of the Economic Community of West African States (Community). Among this Court’s path-breaking cases are judgments against Niger for condoning modern forms of slavery and against Nigeria for impeding the right to free basic education for all children. The ECOWAS Court also has broad access and standing rules that permit individuals and nongovernmental organizations (NGOs) to bypass national courts and file suits directly with the Court. Although the Court is generally careful in the proof that it requires of complainants and in the remedies that it demands of governments, it has not shied away from politically courageous decisions, such as rulings against the Gambia for the torture of journalists and against Nigeria for failing to regulate multinational companies that have degraded the environment of the oil-rich Niger Delta.

It is often asserted that the Vienna Convention on the Law of Treaties (VCLT) relegates drafting history to a rigidly subsidiary role in treaty interpretation. Many commentators go so far as to suggest that the VCLT entrenches a categorical prejudice against travaux préparatoires (travaux)—the preparatory work of negotiation, discussions, and drafting that produces a final treaty text. Because of this alleged hostility to history as a source of meaning, the conventional wisdom is that when an interpreter thinks a text is fairly clear and produces results that are not manifestly unreasonable or absurd, she ought to give that prima facie reading preclusive effect over anything the travaux might suggest to the contrary.

In August we learned of the passing of Detlev Vagts, our colleague, mentor, and friend, and this Journal’s co-editor in chief from 1993 to 1998 with Judge Theodor Meron. Fortunately, Vagts lived to hear not only praise for his life devoted to scholarship, teaching, and academic administration at the Harvard Law School but also expressions of gratitude for his service to his country and to this Journal. In addition, his former students honored him during his lifetime with a Festschrift of insightful essays, providing a complete list of his publications and valuable perspectives on his career.

The Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum Co. disfavors American corporations. While largely unshackling foreign corporations from the risk of being haled before an American court to answer for human rights abuses abroad, the decision keeps American corporations constrained by human rights law. This inconsistency exists because application of the Alien Tort Statute (ATS), as announced in Kiobel, turns on whether a corporation’s actions “touch and concern” the United States. American corporations are simply far more likely to satisfy that standard than foreign corporations.

The U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. has not ended future debate about the scope and impact of the Alien Tort Statute (ATS). But the Kiobel Court did resolve at least one issue with surprising unanimity: both the opinion for the Court by Chief Justice John Roberts and the main concurring opinion by Justice Stephen Breyer refused to interpret the ATS as authorizing universal jurisdiction. All nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that the ATS excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law.

Kiobel v. Royal Dutch Petroleum Co. marks the second time in nine years that the Supreme Court has ruled unanimously that the Alien Tort Statute (ATS) does not provide jurisdiction in a high-profile human rights case, a sequence that might suggest an end to the gilded age of human rights litigation that began with Filártiga v. Peña-Irala. On closer analysis, however, Kiobel, like Sosa v. Alvarez-Machain before it, adopts a rhetoric of caution without foreclosing litigation that fits the Filártiga model. To the contrary, Sosa and Kiobel invite considerably more ATS litigation than they resolve or bar and therefore confirm Justice Antonin Scalia’s memorable encapsulation of the Court’s “Never Say Never Jurisprudence.” All four of the opinions in Kiobel confirm that multiple significant issues remain for future resolution, but it is unrealistic to expect answers on the basis of the Court’s decision because what is law in Kiobel isnt clear and what is clear in Kiobel isn’t law.

Access to an effective remedy is part of the third pillar of the United Nations Guiding Principles on Business and Human Rights (Guiding Principles). It should require states to provide access to judicial remedies for human rights violations, even those that have occurred outside the territory of the state by a corporation domiciled in that state, especially where claimants “cannot access [their] home State courts regardless of the merits of the claim.” While the decision of the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum Co. may seem to overwhelm or even drown some of the expectations of such remedies within the United States, the case law in the rest of the world is unlikely to be greatly affected by the ruling due to the jurisdictional and legal system foundations of other states. This article will examine the main case law and judicial remedies sought across the world, with a special emphasis on Europe, where the majority of large non-U.S. transnational corporations have their headquarters.

One of the most striking features of Chief Justice John Roberts’s majority opinion in the U.S. Supreme Court’s judgment in Kiobel v. Royal Dutch Petroleum Co. is how it pays homage to foreign governments’ opposition to the extraterritorial application of the Alien Tort Statute (ATS), as voiced most prominently from European foreign ministries. “[F]oreign policy concerns” and the overarching goal to avoid diplomatic tensions with foreign sovereigns are themes heavily informing the Roberts opinion. The majority found the presumption against extraterritoriality applicable to the ATS in large part due to fear of “unwarranted judicial interference in the conduct of [U.S.] foreign policy” if the Court allowed the ATS to “reach conduct occurring in the territory of a foreign sovereign.” In that light, the Kiobel judgment can be understood primarily as a decision prohibiting the overreach of U.S. law and protecting jurisdictional prerogatives of lex loci delicti and state of incorporation alike.

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that “the presumption against extraterritoriality applies to claims under the [Alien Tort Statute (ATS)], and that nothing in the statute rebuts that presumption.” The Court preserved the possibility that claims arising from conduct outside the United States might be actionable under the ATS “where the claims touch and concern the territory of the United States ... with sufficient force to displace the presumption against extraterritorial application.” However, the Court’s decision apparently sounds the death knell for “foreign-cubed” human rights claims under the ATS—that is, cases in which foreign defendants committed human rights abuses against foreign plaintiffs in foreign countries.

On May 6, 2013, in the combined reports Canada—Certain Measures Affecting the Renewable Energy Generation Sector and Canada—Measures Relating to the Feed-in Tariff Program (Canada—Renewable Energy/Feed-in Tariff), the Appellate Body of the World Trade Organization (WTO) upheld some key conclusions of a decision of the WTO’s dispute settlement panel (the panel), finding Ontario’s feed-in tariff (FIT) program in violation of certain of Canada’s WTO obligations. The FIT program permits qualified Ontario-based renewable energy producers to enter into long-term fixed-price electricity purchase contracts at premium rates in exchange for feeding into the grid. Japan and the European Union had challenged the program on two grounds: first, that conditioning FIT program eligibility on the use of locally produced materials discriminates against foreign goods, contrary to “national treatment” obligations; and, second, that it constitutes an unlawful subsidy (the provision of a financial contribution by the government that confers a benefit on a specific recipient), contrary to WTO requirements under the Subsidies and Countervailing Measures (SCM) Agreement. While affirming the panel’s decision on the first ground, the Appellate Body reversed its finding on the second, that the complainants had failed to establish a FIT-based “benefit” for electricity producers within the meaning of WTO law. But the Appellate Body itself could not eventually confirm the fact of illegal subsidization.

In the joined cases brought by the European Commission (Commission), the United Kingdom, and the Council of the European Union (EU) against Yassin Abdullah Kadi, decided on July 18, 2013, the Court of Justice of the European Union (ECJ or Court) sustained the judgment of the General Court that had annulled the Commission regulation freezing Kadi’s funds in accordance with the mandate of the United Nations Security Council’s sanctions committee. The ECJ ruled that, although the majority of the reasons relied on by EU authorities for listing Kadi were sufficiently detailed and specific to allow him to exercise his rights of defense and judicial review effectively, no information or evidence had been produced to substantiate the allegations, when challenged by Kadi, that he had been involved in activities linked to international terrorism.

On June 11, 2013, in Stichting Mothers of Srebrenica, a chamber of the European Court of Human Rights found that the Dutch courts’ grant of immunity to the United Nations in a case brought by and on behalf of relatives of individuals killed by the Army of the Republika Srpska in and around Srebrenica in July 1995 did not run afoul of Articles 6 and 13 of the European Convention on Human Rights (Convention). Those provisions guarantee, respectively and among other things, the right of access to a court and the right to “an effective remedy before a national authority” if any Convention right is violated. Having found that the challenged decisions accorded with Dutch obligations under the Convention, the chamber declared the application before the Court inadmissible as “manifestly ill-founded” and “rejected” it pursuant to Article 35(3)(a) and 4. The chamber’s decision was unanimous.

In February 2013, the Committee on the Elimination of Racial Discrimination (CERD Committee or the Committee) issued its opinion in TBB—Turkish Union in Berlin/Brandenburg v. Germany. The majority of the Committee concluded that Germany had violated its obligations to protect its Turkish and Arab populations from a former state official’s allegedly racially discriminatory statements in violation of Articles 2(1)(d), 4(a), and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD or the Convention). The Committee reached significant conclusions regarding the contours of incitement to racial hatred and ideas of racial superiority, the balance between freedom from discrimination and freedom of expression, and state discretion not to prosecute. Consideration of this matter also marks the first time a member of the CERD Committee has filed an individual—or dissenting—opinion.