Rights Come With Responsibility

Susan Farbstein and Tyler Giannini teach at Harvard Law School and direct its International Human Rights Clinic. They are co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including Kiobel.

Updated March 6, 2012, 4:05 PM

At Tuesday's oral argument in Kiobel v. Royal Dutch Petroleum, Justice Stephen Breyer asked the defendants why corporations should not be held liable for acts “odious and punishable by all laws of God and man.” Justice Breyer quoted from a 1666 case brought by a merchant against the East India Company for violations of international law. The justice’s question resonates as much today as it would have then.

Corporations should not receive greater legal protections than people.

Under the defendants’ rule, the company that supplied poison gas at Auschwitz, I.G. Farben, would be immune from civil liability. That is, a corporation would escape liability even for facilitating genocide. Defendants argue that corporations deserve a categorical exemption, even though natural persons are unquestionably accountable when they violate international law.

In the defendant’s view, even a corporation that decided to establish a torture center to assist a dictatorship, or began trading slaves for profit, could not be held liable. Such a categorical corporate immunity from suit will undermine the rule of law, benefiting human rights abusers by shielding profits earned through exploitation.

But principles of corporate liability are well-established under our law. In exchange for rights, corporations accept certain responsibilities, including liability for harms committed by their agents. Corporations should not receive greater legal protections than people. Relief from suffering, and accountability for human rights violations, should not depend on whether an individual or a corporation is responsible for the abuse.