International Human Rights Clinic Files Amicus Curiae Brief in Major Corporate Alien Tort Statute Case
Written on behalf of professors of federal jurisdiction and legal history, brief argues that Alien Tort Statute’s text and history do not foreclose suits against corporations.
October 15, 2010, Cambridge, MA – Harvard Law School’s International Human Rights Clinic (“IHRC”) submitted an amicus curiae brief to the Second Circuit in support of a petition for rehearing en banc in a major corporate Alien Tort Statute (“ATS”) case, Kiobel, et al. v. Royal Dutch Petroleum Co., et al. In a September 17, 2010 ruling, the Second Circuit became the first appellate court to reject the proposition that corporations may be held liable for torts in violation of international law under the ATS. The Clinic served as counsel on behalf of professors of federal jurisdiction and legal history, who argue that the history and purpose of the ATS support what the text explicitly provides: that jurisdiction extends to all causes in which an alien sues for a tort in violation of the law of nations, including cases against corporate defendants.
“The original drafters of the ATS made a conscious decision to confine cases under the statute to those brought by ‘an alien’”, explained amici William Casto, the Paul Whitfield Horn University Professor at Texas Tech University School of Law. He continued, “In contrast, Congress placed no limits on who could be a defendant.”
“For more than fifteen years, no federal court has limited who can be sued under the ATS,” explained IHRC Clinical Director Tyler Giannini. “In fact, until Kiobel, the Second Circuit had allowed a long line of cases to proceed against corporations for egregious human rights abuses such as torture, extrajudicial killing, and forced labor.”
The Court’s holding, if allowed to stand, would have drastic implications for efforts to hold corporations to account for human rights violations. The decision represents a significant departure from established ATS jurisprudence, and deprives the survivors of corporate misconduct of a valuable tool for seeking justice.
“Under the majority’s rule, a corporation could operate the modern-day equivalent of the Nazi death camps, run a torture center, or trade slaves, and it would be immune from civil liability to its victims under the ATS,” said Susan Farbstein, a Clinical Instructor in the IHRC. “That result undermines one of the core purposes of international law—to protect fundamental human rights.”
Harvard Law School students Stephen Cha-Kim (J.D. ’11), Amelia Evans (LL.M. ’11), Elizabeth Forsyth (J.D. ’11), Ben Hoffman (J.D. ’11), Sandra Ray (J.D. ’12), and Marissa Vahlsing (J.D. ’11), contributed to the drafting of the brief. Farbstein and Giannini served as counsel and supervised the writing of the brief.
In Kiobel, Nigerian plaintiffs brought claims for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention. The plaintiffs alleged that the company collaborated with the Nigerian government to commit these violations to suppress their lawful protests against oil exploration.
The Clinic has represented survivors of human rights violations in U.S. and international courts, and has served as counsel for amici curiae in cases that include claims for crimes against humanity, torture, and extrajudicial killing. During the 2009-2010 term, the Clinic served as counsel on Supreme Court amicus briefs in Samantar v. Yousuf, on behalf of major human rights organizations, and Presbyterian Church of Sudan v. Talisman Energy, Inc., on behalf of leading international law scholars.
For a copy of the brief, please click here.
Contacts:
- Susan Farbstein, Clinical Instructor, International Human Rights Clinic, Harvard Law School: 617-495-4589, sfarbstein@law.harvard.edu.
- Tyler Giannini, Clinical Director, International Human Rights Clinic, Harvard Law School: 617-496-7368, giannini@law.harvard.edu.