June 14, 2012

History Shows That Those Who Commit International Law Violations Outside the United States Can Be Held Liable in U.S. Courts

PRESS RELEASE

Clinic files amicus curiae brief with U.S. Supreme Court on behalf of legal historians in major Alien Tort Statute case

June 14, 2012, Cambridge, MA—Harvard Law School’s International Human Rights Clinic has submitted a supplemental amicus curiae brief to the U.S. Supreme Court in support of petitioners in a major Alien Tort Statute (“ATS”) case, Kiobel v. Royal Dutch Petroleum Co. Nine eminent legal historians joined the brief as amici: William R. Casto, Charles Donahue, Robert W. Gordon, Nasser Hussain, Stanley N. Katz, Michael Lobban, Jenny S. Martinez, and Anne-Marie Slaughter.

Clinical Directors Susan Farbstein and Tyler Giannini served as counsel for the amici, who argue that Congress, when enacting the statute, did not intend to restrict its territorial reach. Rather, the ATS was passed to address universally-condemned violations of the law of nations, such as piracy.

“This statute was clearly designed to open U.S. courts to those who suffered egregious violations of international law, wherever they are committed,” said Tyler Giannini, Clinical Professor of Law at Harvard Law School. “The framers had in mind abuses like piracy, which necessarily takes place outside the United States.”

The U.S. Supreme Court heard oral arguments in Kiobel in late February and a week later requested supplemental briefing on the question of whether the statute encompasses violations committed outside the territory of the United States. The case, which has attracted international attention, involves claims for human rights abuses committed in Nigeria.

“Kiobel is one of the most significant human rights cases to come before the U.S. Supreme Court in years,” said Susan Farbstein, Assistant Clinical Professor of Law at Harvard Law School. “As a team, we felt honored to do the work of clarifying the historical record on how the courts have traditionally interpreted the ATS and the legal doctrines it embodies.”

Historical documents unearthed by the Clinic’s research team in British and American archives confirm that, from the outset, survivors could bring ATS claims for violations of international law occurring outside the United States. In one of the earliest interpretations of the statute, dating to 1795, the U.S. Attorney General opined that individuals harmed in a raid in British Sierra Leone could use the ATS to seek redress in U.S. courts.

“It’s been gratifying to see the principles of justice are transcendent throughout history,” said Russell Kornblith, JD ’12, who was a key member of the project team.

In addition to Kornblith, clinical students Poppy Alexander, JD ’12, Yonina Alexander, JD ’12, and Daniel Saver, JD ’12, contributed countless hours towards the brief, working in close collaboration with the amici. The Harvard team was supported by international researchers, including students from the School of Oriental and African Studies under the supervision of Deval Desai, LLM ’09.

“It was definitely the highlight of my law school experience,” said Poppy Alexander, JD ’12, who worked on the case for more than a year. “We had a strong sense of mission about this case.”

At the heart of the case is Esther Kiobel, whose husband was one of eight Ogoni leaders executed during the mid-1990s. In 2002, she and the other plaintiffs filed claims against Royal Dutch Petroleum Co. for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention, alleging that the multi-national company collaborated with the Nigerian government to perpetrate these violations in order to suppress lawful protest against oil exploration.

The case became a focus of debate over corporate accountability when, in a September 2010 ruling, the Second Circuit became the first and only appellate court to reject the proposition that corporations may be held liable for torts in violation of international law under the ATS. Subsequent decisions by the D.C. Circuit in Doe v. Exxon and the Seventh Circuit in Flomo v. Firestone explicitly rejected the Second Circuit’s reasoning.

Re-argument before the Supreme Court on the supplemental issue of territoriality is expected for late 2012, with a decision in 2013.

Contacts:

Tyler Giannini, Clinical Director, Human Rights Program, Harvard Law School: 617-495-9263, giannini@law.harvard.edu.

Susan Farbstein, Clinical Director, Human Rights Program, Harvard Law School: 617-835-8257, sfarbstein@law.harvard.edu.

Cara Solomon, Communications Coordinator, Human Rights Program, Harvard Law School: 617-495-9214, csolomon@law.harvard.edu