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December 22, 2011
Brief in Kiobel v. Royal Dutch Petroleum Co. argues that corporations can be held liable
for violations of the law of nations under the Alien Tort Statute
December 21, 2011, Cambridge, MA—Harvard Law School’s International Human Rights Clinic has submitted an 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: Barbara Aronstein Black, William R. Casto, Martin S. Flaherty, Robert W. Gordon, Nasser Hussain, Stanley N. Katz, Michael Lobban, John V. Orth, and Anne-Marie Slaughter.
Associate Clinical Director Susan Farbstein, JD ’04, and Clinical Director Tyler Giannini served as counsel for the amici, who argue that Congress enacted the statute so that plaintiffs would have a meaningful civil remedy in federal court for violations of international law. The brief outlines how creating a special exemption for corporate defendants, as the Court of Appeals did in Kiobel, contradicts the original purpose of the ATS as well as its plain text.
“Excluding corporations from liability for the most egregious violations of international law ignores the Founders’ purpose in enacting the ATS,” said Giannini. “Long before the ATS was passed, courts were holding entities such as the British East India Company accountable for the wrongs they committed.”
Poppy Alexander, JD ’12, and Russell Kornblith, JD ’12, served as student leaders on the team that assisting with drafting. Clinical students Yonina Alexander, JD ’12, Catherine Fischl, JD ’12, and Daniel Saver, JD ’12, also contributed to the brief.
“The project presented a unique opportunity to work closely with a talented team of students and professors, who were all dedicated and focused on the same end goal,” Poppy Alexander said. Kornblith added, “I feel incredibly privileged to have been a part of this team whose work spanned three countries and four centuries.”
Since the U.S. Supreme Court granted certiorari in the case, more than a dozen other HLS students and alumni around the world have contributed to an international research effort supporting for the brief: Bradford Adams, JD ’12, Sam Birnbaum, JD ’14, Tess Borden, JD ’14, Nikolas Bowie, JD ’14, Carly Cohen, JD ’13, Elizabeth Floyd, JD ’14, Josh Frieman, JD ’13, Meghan Heesch, JD ’12, Julian Hill, JD ’14, Clara Long, JD ‘12, Meg McDermott, JD ’13, Julien Savoye, LLM ’12, and Sarah Wheaton, JD ’14. In addition, Deval Desai, LLM ’09, supervised a team of students at the School of Oriental and African Studies who contributed research assistance: Mary Johnson, LLM ’12, Catherine Lancaster, MA ’12, Allison Lindner, LLM ’11, Whitney Purdum, MA ’12, Luke Smitham, MA ’12, Anjana Varma, MA ’12, and Jessica Whelligan, LLM ’12.
“Kiobel should be reversed because it departs from more than a decade of jurisprudence holding corporations liable under the statute,” said Farbstein. “If left to stand, the decision would deprive survivors of corporate misconduct of a valuable tool for seeking justice, contrary to the intent of the Founders.”
In Kiobel, Nigerian plaintiffs filed claims for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention. The plaintiffs allege that Royal Dutch Petroleum collaborated with the Nigerian government to commit these violations in order to suppress their lawful protests against oil exploration. In a September 2010, ruling, the Second Circuit became the first appellate court to reject the proposition that corporations may be held liable under the ATS for torts in violation of international law.
Kornblith noted that, “Courts have held corporations responsible for their actions for centuries, and the lessons of the past cannot become the mistakes of tomorrow.” Alexander continued, “We cannot forget that in spite of the work we did, there are a lot of people with a lot more riding on this. It has been a privilege to work for justice for them.”
Oral argument before the Supreme Court has been scheduled for February 28, 2012, and a decision is expected by June 2012.
- Susan Farbstein, Associate Clinical Director, Human Rights Program, Harvard Law School: 617-835-8257, firstname.lastname@example.org.
- Tyler Giannini, Clinical Director, Human Rights Program, Harvard Law School: 617-495-9263, email@example.com.
- Cara Solomon, Communications Coordinator, Human Rights Program, Harvard Law School: 617-495-9214, firstname.lastname@example.org
December 8, 2011
Reflections on a Major Weapons Victory: Overcoming Powerful Opposition, Ban on Cluster Munitions Strengthened
Posted by Anna Crowe, LLM '12, Nicolette Boehland, JD '13, and Robert Yoskowitz, JD '13
“We are the voices of victims, not just diplomats. . . . If we have to pay a political price, if we can just save one single life, it is worth it. And I think we are not alone.”
– Representative of Costa Rica, the Fourth Review Conference of the Convention on Conventional Weapons
At precisely 7:05pm on Friday, November 25, the chair of the Fourth Review Conference for the Convention on Conventional Weapons concluded that there was no consensus in the room on the adoption of a proposed protocol regulating cluster munitions. This seemingly banal statement marked the end of a decade of deliberations and political machinations, and hundreds of days of diplomatic meetings. More important, it marked a victory for the supporters of the Convention on Cluster Munitions and its goal of eliminating these weapons and the harm they cause.
As the Clinic had argued in a joint paper with Human Rights Watch—and in other documents distributed at the Conference—adding a new treaty to the 1980 Convention on Conventional Weapons would have constituted an unprecedented step backwards for the laws of war. The proposed weak treaty would have legitimized rather than stigmatized future use of cluster munitions, and we are thrilled that it was rejected. The outcome was in no way certain.
The Clinic has been working for years first to help create and then to promote the 2008 Convention on Cluster Munitions, which prohibits not just the use of these weapons, but also their production, stockpiling, and transfer. Currently, 108 states have signed on to the ban, which took legal effect last year, and 66 are full states parties.
The United States, however, wanted to produce a separate treaty that would have allowed cluster munition use under the Convention on Conventional Weapons framework. Continue Reading…
December 5, 2011
Posted by Cara Solomon
This article was originally published in The Harvard Law Bulletin
It’s hard to remember now what she said. But it was vintage Marissa—something others would not have thought, or had the courage to say. She raised her hand in the first week of law school, and spoke her mind.
Right away, Ben wanted to be her friend. He flagged her down on the crosswalk after class. He asked if she wanted to bat around some ideas. And that was how Ben Hoffman and Marissa Vahlsing started Harvard Law School: side by side.
Three years later, they graduated the same way.
“The joke is that Ben has become more like Marissa, and Marissa has become more like Ben, and they’re starting to blur into the same person,” said Susan Farbstein ’04, associate clinical director of the Human Rights Program, a mentor and teacher to both.
This fall, along with the rest of the Class of 2011, Marissa and Ben have headed out into the world to make their way. Specifically, they’re working in Peru, helping EarthRights International set up an office to support indigenous communities in the fight to protect their land.
When Marissa heard they had received funding for the project, she could not stop smiling.
“We were going anyway,” she said. “Now we’ll have the money to eat.”
In high school, Marissa wanted to be a potter. Or maybe a writer. Then one day, talking to an activist on a banana plantation in Costa Rica, she asked what he needed most.
A lawyer, he said.
December 2, 2011
12:00- 1:15 pm
Please join us for a panel discussion with the author, Ruti G. Teitel, the Ernst C. Stiefel Professor of Comparative Law at New York Law School; Gabriella Blum, Rita E. Hauser Professor of Human Rights and Humanitarian Law; Naz Modirzadeh, Associate Director of the Program on Humanitarian Policy and Conflict Research at Harvard University; and Robert Sloane, Associate Professor of Law at Boston University.
December 1, 2011
Posted by Cara Solomon
For those of you following Kiobel news, Tyler and Susan have submitted their closing statement in PENNumbra’s online debate, arguing that the Second Circuit’s ruling ignores history in creating a corporate carve-out. The U.S. Supreme Court is due to hear the Kiobel v. Royal Dutch Petroleum Co. case early next year, deciding for itself whether corporations can be held liable for violations of international law.
More on our previous work on Kiobel is available here and on the Alien Tort Statute here. Also, here’s a sampling from the flood of recent media coverage: from Reuters, Businessweek, and The Atlantic. On the blog front, check out pieces on the Opinio Juris blog and The Huffington Post.
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