Today: Clinic Launches New Organization On Business and Human Rights

Event Notice

April 17, 2013

“MSI Integrity: A New Business and Human Rights Organization”

4:30-6:30 pm

Harkness South

Drinks will be served!

Join the International Human Rights Clinic for the launch of the Institute for Multi-Stakeholder Initiative Integrity, a non-profit organization the Clinic has helped get off the ground. MSI Integrity aims to strengthen the ability of multi-stakeholder initiatives, like Fairtrade and the Kimberley Process, to respect human rights, prevent violations, and remedy abuses.

Business and Human Rights in Ireland: A New Blog

Posted by Shane Darcy, Visiting Fellow, Human Rights Program

Lecturer in Law, Irish Centre for Human Rights

Over the past several years, the topic of corporate behavior has moved from the periphery of the human rights discussion to become an area of concerted focus for international organizations and human rights NGOs. States and companies are paying closer attention to calls for enhanced accountability for corporate activities that impact on human rights, from child labor to internet censorship.

As a lecturer at the Irish Centre for Human Rights, I have been teaching a course on business and human rights for the past few years, focusing on international developments but also exploring how Ireland fits into this trend.

Ireland was recently found to be the world’s third “most globalized economy,” after Singapore and Hong Kong. It is home to the European headquarters of some of the largest multinational corporations, including Apple, Facebook and Google, no strangers to human rights controversies. Shell’s gas pipeline in Mayo has probably been the most notable case recently of corporate activities clashing with community interests in Ireland. And yet, the topic of business and human rights in the country has not been given the attention it deserves.

With that in mind, last month I started a blog, Business and Human Rights in Ireland, which will track and analyze developments from an Irish perspective, with an eye also to the international context. I’ll address legal and policy issues in the blog, as well as highlight human rights concerns from the activities of Irish companies or multinational corporations based in Ireland.

I’ll also use this forum to highlight any developments arising from a 2012 Irish Centre for Human Rights report, ‘Business and Human Rights in Ireland,’ which I co-authored. That report drew on the UN Framework and Guiding Principles and made a list of recommendations for the Irish Government, companies and civil society. I hope that visitors enjoy the blog.

Recap of International Law Journal Panel: Environmental, Human Rights, and Development Issues in International Investment Arbitration

Posted by Cara Solomon

A few weeks ago, as part of the 2013 Harvard International Law Journal symposium, Tyler moderated a panel entitled “Addressing Environmental, Human Rights and Development Issues in International Investment Arbitration.” Cecilia Vogel wrote a recap of the panel, which ILJ recently posted on its site.  Thanks to ILJ for letting us repost it here:

ILJ’s 2013 symposium wrapped up with a lively discussion about the role of environmental and human rights in international investment arbitration. Tyler Giannini, Clinical Professor of Law for the Human Rights Program and International Human Rights Clinic at HLS, moderated the panel in the form of a question and answer session. The panelists, hailing from across the globe and with experience as counsel, arbitrators, advisers, and academics, represented a variety of international viewpoints on the topic.

Professor Giannini began the conversation by asking panelists to address how the international investment regime relates to or differs from the human rights regime. Professor Joost Pauwelyn explained that protections for international investors and human rights do share a common root, although investment protection began first. Both regimes seek the protection of rights against abuse. However, Professor Pauwelyn drew the distinction that the investment regime’s purpose—to facilitate investment—is more utilitarian. The investment regime only protects certain classes of people, i.e. alien investors of certain nationalities, while we are all born into human rights. Unlike the rights of international investors, human rights are enforced in a court system and their enforcement internationally first requires exhaustion of domestic remedies. Professor Pauwelyn also asked: With an eye to determining who can waive investor rights, are investor rights individual rights, like human rights, or are they derivative rights from the state? Finally, Professor Pauwelyn expressed his concern that small investors cannot adequately access protection in the costly investment regime and that this may negatively impact the system’s credibility.

Panelists next addressed the role of human rights and environmental law in the current investment regime. Professor Attila Tanzi explained that respondent states have been reluctant to raise environmental law and human rights arguments out of the concern that they might enhance the position of potential claimants before domestic courts. According to Professor Tanzi, the current trend in international investment arbitrations with respect to human rights and environmental law is “compatibility in separation,” meaning it is the obligation of the state to carry out both. Professor Tanzi hopes that investment arbitrations can move toward “compatibility in integration.” Mr. Gómez-Pinzón responded that, as an arbitrator, he would apply environmental or human rights law if it was applicable to the case. On the other hand, professor Boisson de Chazournes called for political elites negotiating investment treaties to take a greater role in incorporating human rights and environmental law because arbitrators have little opportunity to maneuver to include those areas of law in the current regime. Professor Pauwelyn responded that avenues to incorporate more human rights and environmental law in the investment regime already exist, such as Article 42 of the ICSID Convention (referring “to such rules of international law as may be applicable”) but that arbitrators need greater expertise in this area of law.

Addressing the role of soft law human rights and environmental law instruments in foreign private investment, Professor Boisson de Chazournes questioned the legal standing and role of these instruments in the interpretation of customary international law, given they do not reflect state practice but private corporate practice. She suggested that they can perhaps be complementary tools to assist filling in international law gaps. Professor Pauwelyn looked to arbitrators current references to the International Bar Association guidelines as a potential model for the incorporation of human rights and environmental law soft law instruments into the investment regime.

Finally, commenting on the future of investment law’s relationship to environmental and human rights, Mr. Gómez-Pinzón predicted that the evolution would be slow and cautious, with the lead taken by states negotiating bilateral investment treaties. There has already been a greater tendency for transparency and amicus participation in arbitrations, but private companies will likely resist increasing transparency. Judge Brower, the symposium’s keynote speaker, with the last word, cautioned the panel against engaging in a theoretical discussion of a problem that no one has found to yet exist. Noting that the international investment regime has been evolving for years, he encouraged adopting a long view of the system and emphasized that if anything, loss of investor confidence, would be the ruin of the system.

Finding Momentum: Human Rights and the Environment

Posted by Tyler Giannini

Earlier this month, the recently appointed UN Independent Expert on Human Rights and the Environment, John Knox, presented his preliminary report to the Human Rights Council. For those of us who have worked in the field of human rights and the environment since the early 1990s, the fact that this report is even being presented to the Council is a major advance.

In the early 1990s, the mention of a link between human rights and the environment raised eyebrows in many circles. Today, that’s no longer the case. Instead, the international community and the Independent Expert have moved on to other questions, such as: what is the precise legal relationship between human rights and the environment? In his comments before the Human Rights Council, Knox described an urgent need for such clarification, saying it was necessary “for States and others to better understand what those obligations require and ensure that they are fully met, at every level from the local to the global.”

Within the arena of human rights and the environment, we have seen specific issues gain major traction over the past two decades. Take the right to water. A recent seminar organized with Prof. Mathias Risse of Harvard Kennedy School and Sharmila Murthy of the Carr Center for Human Rights Policy shows just how many disciplines (law, philosophy, urban planning, geography, engineering, public health and economics) today think about the right to water. We designed the seminar to provoke debate and discussion around four themes: nature of the rights to water and sanitation; content of the human rights to water and sanitation; strategies for accountability; and community perspective and bottom-up critique of human rights. It did just that. Our final report from the seminar shows just how far the discourse around human and the environment has come.

Tomorrow, December 6: “City of God” Film Screening and Debate

Event Notice

HLS Brazilian Studies Association and the Human Rights Program Present:

“City of God”

Film Screening and Debate

5:30- 8:15 pm

Wasserstein B010

Please join us for a debate on urban violence based on the award-winning movie “City of God.” Film starts at 5:30 pm, followed by a debate at 7:45 pm led by HLS Lecturer on Law Fernando Delgado.

A Question of Accountability: The Clinic’s Take on the Alien Tort Statute

Note: this article was written by Cara Solomon and originally published in Harvard Law Bulletin

A Question of Accountability

In a Supreme Court case, the International Human Rights Clinic argues that the Alien Tort Statute applies to corporations

It started off with an insult: A French adventurer, standing in the streets of Philadelphia, called the ambassador of France a nasty name. And perhaps if it had ended there, the Alien Tort Statute might never have come to be.

But language was not enough for the Chevalier de Longchamps, who was nursing a grudge. He lunged toward the ambassador. He hit the ambassador’s cane with his own. And in assaulting a foreign ambassador, Longchamps committed a violation of the law of nations.

It was 1784. The incident in Philadelphia drew international attention; then condemnation; then ridicule, as the Continental Congress lacked the power to take meaningful action in response.

Five years later, as part of the First Judiciary Act, the founders sent a strong message with what they called the Alien Tort Statute: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

It was an important gesture to the international community—a symbol of solidarity, historians would say: We will open up our new federal court system to victims of violations of the law of nations. The United States had arrived.

Part I

On the morning of Feb. 28, 2012, a team from Harvard Law School’s International Human Rights Clinic took their seats in the U.S. Supreme Court. Sitting directly behind petitioners’ counsel were Clinical Professor Tyler Giannini and Assistant Clinical Professor Susan Farbstein ’04, nationally recognized leaders in Alien Tort Statute litigation, and co-directors of the clinic.

They had waited months to hear oral arguments in Kiobel v. Royal Dutch Petroleum Co., a case that would test the limits of the centuries-old ATS. It was the highest-profile human rights case to come before the Supreme Court in years.

Even before the Court granted certiorari, Kiobel had become an international flash point for the debate on corporate accountability, generating nearly 40 amicus briefs analyzing the ATS from every angle—foreign policy, the global economy, the international human rights movement. HLS staff, students and alumni were involved on both sides of the issue. For its part, the clinic filed a brief on behalf of legal historians, in support of petitioners.

Illustration by Justin Renteria, courtesy of Harvard Law Bulletin

“What’s at stake in Kiobel is the future of the ATS itself, and whether it will remain an example of how the United States takes its international legal obligations seriously,” said Farbstein.

Kiobel began like any other ATS case in recent memory—with allegations against a company or an individual for violations of international law. Esther Kiobel and 11 other members of the Ogoni people in Nigeria filed suit

against Shell in 2002, alleging crimes against humanity, including complicity in torture and extrajudicial executions. At issue: the company’s actions from 1992 to 1995, when the Ogoni were protesting oil development activities on their land.

Because Shell does much of its business in the United States, the courts agreed to hear the case. But on appeal, the 2nd Circuit turned its attention away from the case and toward the statute itself, dismissing Kiobel on the grounds that corporations could not be held liable under the ATS.

For observers of the ATS, this came as a surprise: For years, courts had allowed cases to proceed on the presumption that corporations were as liable as individuals for violations of international law.

“No one had really questioned it,” said Jenny Martinez ’97, a professor at Stanford Law School and one of the amici represented by the clinic. “It did seem rather obvious.”

After the 2nd Circuit’s ruling, other appellate courts went in the opposite direction, finding corporate liability perm

issible under the ATS—in cases against Exxon Mobil Corp. for violence in Indonesia, the Rio Tinto mining group for violence in Papua New Guinea, and Firestone tire company for child labor in West Africa.

“It was clear from the split in the lower courts that the question in Kiobel—whether a corporation could be held liable—was a central and fundamental threshold question that had to be clarified,” said Giannini.

Sooner or later, he said, the issue was headed to the Supreme Court.

Today, October 11: Documentary and Discussion of Doctors’ Role in Torture of U.S. Detainees

Event Notice

“Doctors of the Dark Side”

A Screening and Panel Discussion

6- 8:30 pm

Langdell 225 North

Doctors of the Dark Side exposes the scandal behind the torture scandal — how psychologists and physicians implemented and covered up the torture of detainees in US controlled military prisons. The stories of four detainees and the doctors involved in their abuse show how essential doctors have been to the torture program. Director Martha Davis spent four years investigating the controversy and produced the documentary with an award-winning team.

Deborah Popowski, Clinical Instructor with the Human Rights Program, makes an appearance in the film, and will lead a panel discussion afterward with Martha Davis and Dr. Trudy Bond, an Ohio-based psychologist, of the Coalition for an Ethical Psychology.

This event is being co-sponsored by HLS Advocates for Human Rights and Harvard Law Documentary Studio

Update: Kiobel Transcript, Plus Media Coverage of the Case

Posted by Cara Solomon

For all of you Kiobel watchers, here’s the transcript for this morning’s argument before the U.S. Supreme Court. We’ll post Tyler and Susan’s take on the questioning as soon as we can.

Esther Kiobel speaks in front of the Supreme Court today. (Photo Credit: Too Big To Punish?)

In the meantime, here’s some media coverage of the case, some of it published before the arguments and some of it published afterward. We were particularly pleased to see Desmond Tutu’s opinion piece in USA Today, which has clearly been making the rounds.

OPINION

Desmond Tutu, USA Today: “Will U.S. Rule for Rights of South Africans?”

Jodie Kirshner, The Christian Science Monitor: “Supreme Court Case Tests U.S. Leadership in Human Rights”

EDITORIALS

The New York Times: “Justice Under the Law of Nations”

The New York Times: “October Term 2012”

ARTICLES

L.A. Times: “Supreme Court Weighs Whether Foreign Victims Can Sue in U.S.”

Slate: “Torture Inc.”

SCOTUSblog: “Argument Recap: In Search of an ATS Compromise”

Reuters: “Supreme Court May Narrow Law in Human Rights Cases”

Supreme Court to Hear Kiobel Again Tomorrow: Much More at Stake the Second Time Around

Posted by Tyler Giannini and Susan Farbstein

NOTE: The post below was originally published Saturday on Justice Watch, a project of the Alliance for Justice. For more on the Kiobel case, including the most recent amicus briefs submitted to the U.S. Supreme Court, please click here.

Supreme Court to Hear Major Human Rights Case Again: Much More at Stake the Second Time Around

Guest Post by Tyler Giannini & Susan Farbstein

The Supreme Court will open its new term on Monday.  The first argument it hears will be Kiobel v. Royal Dutch Petroleum Co., the most significant human rights case to reach the Court in recent years.  Intense interest in the case has generated more than 80 amicus curiae briefs from a range of actors around the world, including governments, human rights organizations, and corporations.  Kiobel is especially intriguing not only because of the human rights issues at stake, but also because it will be the Court’s secondtime hearing oral argument in the matter.  This is a rarity; the last example was Citizen United, the major campaign finance case.

What are the issues?

Kiobel is an Alien Tort Statute (“ATS”) suit based on a 1789 statute that allows non-U.S. citizens to bring civil claims in U.S. federal courts for universally recognized violations of international law.  The case arises out of allegations that Royal Dutch/Shell was complicit in killings and other abuses by the Nigerian government in the 1990s.  The Court first heard Kiobel last February, addressing the question of whether corporations can be held liable under the statute.  But in an unusual move, a week later the Court requested supplemental briefing and a second oral argument.

At the first oral argument in February, it quickly became clear that some of the justices were interested in additional questions beyond corporate liability.  Specifically, they asked about whether the ATS permits claims that arise out of actions that take place on foreign soil (in this case, Nigeria).  This question—whether, and when, the ATS allows such suits—was the focus of the supplemental briefing and will be addressed in the second oral argument.

As the Petitioners and their amici have explained, the text of the statute, as well as its history, show that the ATS does allow for cases arising on foreign soil.  It was intended to provide a remedy for universal violations, including piracy, which by definition occur outside the United States.  For example, one of the earliest interpretations of the ATS, by Attorney General William Bradford in 1795, involved pillage and plunder committed during a raid on the British colony of Sierra Leone.

What is at stake?

On the question of corporate liability, Shell’s lawyers have advocated for a categorical rule: there should be no corporate liability under the statute under any circumstances.  Shell’s lawyers are proposing a similarly absolutist rule on the question of extraterritoriality: plaintiffs should never be allowed to bring ATS claims for violations occurring outside the United States.  This view is in opposition to the U.S. government’s position, and has drawn the attention of numerous commentators, including John Ruggie, the former UN Special Representative on business and human rights, who views Shell’s position as “extraordinarily far-reaching.”

Shell’s views raise the stakes of the case.  Its stance on corporate liability departs from more than fifteen years of corporate ATS jurisprudence.  But Shell’s proposed rule on extraterritoriality would be an even more profound reversal, departing from more than thirty years of ATS case law.

The first seminal ATS case—Filártiga, considered the Brown v. Board of international human rights litigation in U.S. courts—launched the modern era of ATS jurisprudence in 1980.  Dolly Filártiga brought her case in New York against the Paraguayan police official who had tortured her brother to death.  The court’s decision was rooted in the notion that today’s torturers, like eighteenth century pirates, are the enemies of all mankind.  Filártiga was endorsed by the Supreme Court in its 2004 ATS decision, Sosa v. Alaverez-Machain.

The categorical rule now advanced by Shell would close the door to remedies for plaintiffs like Dolly Filártiga, who wrote before Sosa: “I am proud to live in a country where human rights are respected, where there is a way to bring to justice people who have committed horrible atrocities.  Now it is up to the Supreme Court to ensure that truth will continue to triumph over terror.”  Her sentiments remain as moving today as they did then.

What might happen?

As with so many cases, it is difficult to make predictions, but most commentators are focused on Justice Anthony Kennedy as the critical swing vote.  Justice Kennedy has been a supporter of international law and joined the majority in Sosa, which allowed ATS claims to proceed in narrow circumstances for well-recognized violations of international law.  At the same time, Justice Kennedy and the Court have been notably sympathetic to corporate interests in recent years.  After Monday, we may have a better sense of what to expect in Kiobel.

The Sosa Court left the door ajar to ATS suits for universal violations, whether piracy or genocide, whether committed outside the United States or within its borders.  This Court should do the same.  Survivors of torture, extrajudicial killing, crimes against humanity, and war crimes deserve the opportunity to obtain justice in U.S. courts, just as Dolly Filártiga did more than thirty years ago.

Tyler Giannini and Susan Farbstein are the co-directors of the International Human Rights Clinic at Harvard Law School.  They are currently co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the Petitioners in Kiobel v. Royal Dutch Petroleum Co.  Giannini served as one of the architects of Doe v. Unocal, a precedent-setting suit that settled in 2005.  Farbstein was a member of the legal team in Wiwa v. Royal Dutch Petroleum Co., the companion case to Kiobel that settled in 2009.   

Performance Art (and Other Pictures from HRP Orientation)

Posted by Cara Solomon

Here’s a Friday afternoon treat for you: an iconic image from the law school experience.

When Fernando spotted this display at our recent HRP Orientation, he rightly described it as a piece of performance art—except, of course, that it wasn’t.

Below are some other images from the event. Apologies in advance for the poor picture quality, and a belated thanks to all who came, learned, and ate. We were so happy to have you there.

Tyler talks to a full house at HRP Orientation.Thanks for coming!

Fernando speaks with students about his work on prison reform in Brazil.

Mindy and Deborah speak with a student about (I’m guessing here) their fall seminar on Gender and Human Rights.

Ana Lise Feliciano Hansen and James Tager, co-presidents of HLS Advocates for Human Rights, speak with a student about the group’s work. My bet is that James is saying something odd here. Hence, the laugh.

Meera speaks with a student about her projects in the Middle East.