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Blog: Kiobel

July 18, 2012

SCOTUSblog: The ATS and the Importance of Historical Evidence

Posted by Cara Solomon

NOTE: Tyler and Susan wrote the following post for SCOTUSblog’s online symposium on Kiobel. For all symposium posts, please see here.

At February’s oral argument in Kiobel v. Royal Dutch Petroleum Co., counsel for the petitioners responded to questions about extraterritoriality by citing the incident in Sierra Leone that led to the well-known 1795 opinion of Attorney General William Bradford. That exchange appears to have sparked the Supreme Court’s request for supplemental briefing on whether the Alien Tort Statute (ATS) applies to acts that arise on foreign territory. History, including the so-called Bradford Opinion, provides strong evidence that the ATS does apply to conduct occurring on foreign soil.

History has long been a critical part of ATS jurisprudence, given that the statute dates to 1789. Sosa guides that any ATS cause of action must be for violations of the law of nations as universally recognized as eighteenth-century paradigms, such as piracy. The text and purpose of the statute, the common law of the era, and the Bradford Opinion provide the relevant insight into the Justices’ current question about claims that arise in foreign lands – and indicate that there would have been no territorial limit on the ATS at the time of the statute’s enactment.

The Framers of the ATS were common-law lawyers, and the law of nations was part of the common law of the time. They would not have embraced a bright line, categorical exclusion of all claims arising on foreign territory – whether in a case between two aliens or some other combination of defendant and plaintiff. Instead, the Framers would have been familiar with fashioning remedies to realize the statute’s broad remedial purpose, providing relief in U.S. courts to aliens who suffered violations of international law. Indeed, as Justice Stephen Breyer noted at oral argument when he quoted from the 1666 English Skinner case, courts of the day were familiar with fundamental notions of justice and crafted common-law remedies for violations “odious and punishable by all laws of God and man.”

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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.

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June 13, 2012

Clinic Files Supplemental Brief with the U.S. Supreme Court in Kiobel Case

Posted by Tyler Giannini and Susan Farbstein

After months of hard work, the International Human Rights Clinic filed today a supplemental brief of amici curiae professors of legal history with the U.S. Supreme Court in support of petitioners in Kiobel v. Royal Dutch Petroleum Co. We’ll post more about this tomorrow, after we’ve gotten a good night’s sleep.

For now, we wanted to say that this wouldn’t have been possible without the superlative work of our students (and now graduates), Poppy Alexander ’12, Yonina Alexander ’12, Russell Kornblith ’12, and Daniel Saver ’12. We’re so fortunate to be able to work with such talented individuals every day.

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March 6, 2012

Kiobel Update: Supreme Court Orders Re-argument and Supplemental Briefing on Extraterritoriality

Posted by Susan Farbstein and Tyler Giannini

The Supreme Court will not rule this term on whether corporations can be held liable for human rights violations under the Alien Tort Statute (ATS).  Yesterday, in an unusual move, the Court instead decided that it will re-hear arguments in Kiobel v. Royal Dutch Petroleum Co. and requested additional briefing on the question of whether ATS cases can be brought in U.S. courts for abuses committed abroad.

The order for additional briefing (to be filed in May and June) and re-argument (likely to be held in October or November) means the case could now have broader implications.  If decided on the grounds of extraterritoriality, the outcome in Kiobel could affect all ATS cases, not only those against corporate defendants.

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March 2, 2012

Camping Out for Kiobel

Posted by Yonina Alexander, JD ’12, and Daniel Saver, JD ‘12

Rumor had it that if we wanted much-coveted tickets to the oral argument in Kiobel v. Royal Dutch Petroleum Co., we would have to arrive at the U.S. Supreme Court very, very early.  The gallery of the Court is fairly small, and there are only a limited number of seats available each day to the general public. After a few phone calls and some internet research, we decided 4:00 am would do the trick.

Then, at 10:00 pm the night before the argument, we heard from a friend that 20 people were already lined up outside the Court. After putting in countless hours working on the Legal Historians amicus curiae brief for the case this past fall, we were bound and determined to be inside the Court when the justices heard the case. Totally unprepared to spend the night outside, we decided to head over anyway.

Armed with a bag of fruit, little to protect us from the elements, but plenty of good energy to make up for it, we arrived at the steps of the Court at 11:30 pm.  A couple dozen other law students, all of whom had contributed to the case in some capacity, greeted the four of us as we took our places in line—numbers 28 to 32.  As the night wore on, others joined the line, and we huddled in the cold, sharing food, war stories, and predictions of what the morning would bring.

There was a sense of camaraderie in the group. We had never met most of these students, but we all shared a commitment to the issue at hand—corporate accountability for human rights violations.  Sometime before dawn, a police officer referred to the gathering as “kind of like a rock concert—but for nerdy law students.”

At 7:30 am, the big moment arrived.  Police officers handed us gold-colored tickets with numbers, and told us the first 40 would be admitted.  We’d done it.  We’d made it in.

We entered through the side door, exchanged our sweatshirts for suits in the bathrooms and, minutes before the oral argument began, walked into the grand chambers of the Court’s gallery.

It struck us at that moment—and often in the hours before—that we were among the lucky.  As students at Harvard Law School, we had the opportunity to fly to Washington, D.C. and wait all night to witness this historic argument.  For many others who deeply cared about the case, that was not an option.

Inside the Courtroom, we sat flanked by stone-colored colonnades and heavy, red curtains, listening to the argument unfold. It was tense for all of us, trying to divine where the justices stood on the issues. Then, in an exchange with the Defendants’ counsel, Justice Stephen Breyer read out a line from our brief.  To hear those words echo through the chambers of the United States Supreme Court was a once-in-a-lifetime experience.  We feel so fortunate to have worked with the rest of the team from the International Human Rights Clinic on a case with this much at stake.

Yonina Alexander, JD ’12, and Daniel Saver, JD ’12, have been members of the Clinic for the past four semesters.

For more information on Kiobel, click here for our resource page.

February 29, 2012

Post-Kiobel Perspectives

Posted by Cara Solomon

After a months-long hurricane of hard work,  the clinical team settled  into their seats at the U.S. Supreme Court yesterday and heard oral arguments in Kiobel.  It was, by all accounts, a long and exhilarating day.  Then Tyler Giannini and Susan Farbstein capped it all off by writing a piece for The New York Times’ Room for Debate.

There are plenty of post-Kiobel perspectives out there right now; we’ll do our best over the next few days to post some of the more substantive ones here.

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February 28, 2012

Update from the Steps of the U.S. Supreme Court

Posted by Cara Solomon

Just got word from Daniel Saver JD ’12: everyone on the clinical team made it into the U.S. Supreme Court for oral argument on Kiobel.  Given all the buzz around this case, there were real questions as to whether that would happen. Susan, Tyler, and Marissa Vahlsing JD ’11 already had tickets.  But it took several hours of waiting for Daniel, Yonina Alexander JD ’12, Poppy Alexander JD ’12, and Russell Kornblith JD ’12, to get theirs.

Four individuals smile outside the Supreme Court. They wear heavy coats, indicating it is winter.
Poppy Alexander, Russell Kornblith, Yonina Alexander, and Meghan Morris wait in line outside the U.S. Supreme Court, hoping to get tickets to hear oral arguments in Kiobel.

According to an email from Daniel, the group settled into line last night around 11:30 pm.  Minutes later, by chance, they ran into Meghan Morris JD ’08, whom Daniel described in the email—with exclamation points, of course—as an HRP legend.  Nobody slept last night, he said—they were huddled together for warmth.

Stay tuned for more Kiobel updates.

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February 28, 2012

Kiobel Oral Argument Today

Posted by Tyler Giannini and Susan Farbstein

We’re in Washington DC, in front of the U.S. Supreme Court, with our team of clinical students.  The Kiobel oral argument will take place this morning.  The blogs and op-eds have been busy over the last week in anticipation of the argument.  If you want to catch up, some links are below.  

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February 23, 2012

No Corporate Exemption: Supreme Court to Hear Major Corporate Human Rights Case

Posted by Tyler Giannini and Susan Farbstein

NOTE: The post below was originally published on Justice Watch, a project of the Alliance for Justice

NO CORPORATE EXEMPTION: SUPREME COURT TO HEAR MAJOR CORPORATE HUMAN RIGHTS CASE


February 22, 2012

Next Tuesday, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co.  Kiobel is the most important human rights case the Court will consider this term, raising fundamental questions about corporate accountability.  The Plaintiffs allege that Royal Dutch/Shell was complicit in the Nigerian government’s torture and killing of their relatives in the 1990s.  The Supreme Court is reviewing a lower court decision that created a corporate exemption from liability under the Alien Tort Statute (“ATS”), concluding that corporations cannot be sued even when they facilitate genocide, crimes against humanity, or war crimes.

The ATS, a 1789 law passed by the First Congress, permits non-U.S. citizens to hold perpetrators accountable in U.S. courts for violations of international law.  In the fall of 2010, however, the Second Circuit Court of Appeals in New York created the corporate exemption now under review.  Since the Second Circuit’s decision, every other appellate court to consider the issue has rejected Kiobel’s approach.  Recognizing the importance of this question and the split among the lower courts, the Supreme Court agreed to hear the case.

Yesterday, the Plaintiffs filed their final brief before the oral argument.  They noted the profound ramifications of the lower court’s holding:

The implications of the decision below are shocking.  When I.G. Farben exploited slave labor at Auschwitz and supplied the Zyklon B poison to facilitate mass murder in its death chambers, that corporation violated international law.  [Defendants’] construction of the ATS means that even a modern-day I.G. Farben could not be sued under the ATS.  Nor could a “Pirates, Inc.” engaged in contemporary piracy, or an entity incorporated to engage in slavery.

Given the significance of blanket immunity for corporate human rights abuse, it is no surprise that the U.S. government has weighed in with an amicus curiae brief in support of the Plaintiffs.  The U.S. government noted that corporations are certainly capable of violating international law, and found “no good reason to conclude that the First Congress would have wanted the suit to proceed only against the potentially judgment-proof individual actor, and to bar recovery against the company on whose behalf he was acting.”  The government’s brief further observed that “[c]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”

For fifteen years before Kiobel, the statute enabled survivors of corporate human rights abuse to pursue accountability here, when it was otherwise unavailable.  For example, Plaintiffs sought redress for corporate complicity in forced labor in Burma, apartheid in South Africa, and extrajudicial killings in Nigeria.  While only cases against companies involved in such egregious human rights violations moved forward, no court contemplated a corporate shield from liability.  With Kiobel, the Supreme Court has an opportunity to reaffirm the U.S. commitment to provide justice to survivors of egregious human rights abuse.  Relief from suffering should not depend on whether an individual or a corporation is responsible for the violation.

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December 22, 2011

Clinic Files Amicus Curiae Brief with U.S. Supreme Court on Behalf of Legal Historians


PRESS RELEASE

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.

Contacts:

  • Susan Farbstein, Associate Clinical Director, Human Rights Program, Harvard Law School: 617-835-8257, [email protected].
  • Tyler Giannini, Clinical Director, Human Rights Program, Harvard Law School: 617-495-9263, [email protected].
  • Cara Solomon, Communications Coordinator, Human Rights Program, Harvard Law School: 617-495-9214, [email protected]

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