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.   

Today, Sept. 18: Paul Hoffman, Lead Counsel in Kiobel, on the Future of the ATS

Posted by Susan Farbstein and Tyler Giannini

Please join us tomorrow, September 18, for a talk with Paul Hoffman, lead counsel in Kiobel v. Royal Dutch Petroleum Co. and Sosa v. Alvarez-Machain. Paul is the leading Alien Tort Statute (ATS) litigator in the country, serving as counsel in ATS cases including Unocal, Wiwa, Apartheid, Talisman, and Kiobel, and arguing Sosa before the U.S. Supreme Court. 

Tomorrow, from 12:00-1:00 pm in Milstein 2036, he will speak with us about the future of human rights litigation in U.S. courts in the context of Kiobel, a case against Shell for human rights violations committed in Nigeria.

Paul first argued the Kiobel case in front of the Supreme Court last February, addressing the question of whether corporations can be held liable under the statute.  In an unusual move, following that argument the Court requested supplemental briefing and reargument on the question of whether the ATS extends to international law violations committed outside the United States, in the territory of a foreign sovereign.  Given the case’s potential impact on the ability of survivors of human rights abuse to seek justice in U.S. courts, it will be a privilege to hear Paul’s thoughts as he prepares to reargue Kiobel on October 1st, in the Court’s first hearing of the new term.

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.”

The language of the text itself reinforces that the Framers did not contemplate a territorial limit on the ATS. At the time of the statute’s passage, the word “tort” embraced well-recognized transitory tort principles providing that, in furtherance of justice, personal injury torts were triable wherever a defendant could be found. The young United States did not wish to harbor a pirate or slave trader considered the enemy of all mankind. Through the ATS, the founders willingly took up its responsibility to enforce international law through American courts. Likewise, the use of the words “law of nations” indicates that the Framers intended to provide remedies for universally condemned violations of international law. Taken together, the early piracy cases of Palmer and Smith show that when Congress used the term “law of nations” in a statute, it meant for U.S. courts to exercise jurisdiction and enforce internationally prohibited norms to their fullest extent.

Critically, eighteenth-century interpretations of the statute confirm that there was no territorial limit on its application. The Sosa Court recognized the 1795 Bradford Opinion as the most influential early application of the ATS. At oral argument (at 10:24) in February, counsel for the petitioners “suggest[ed] to the Court, [that] if the Court went back to the original documents that . . . were sent to Attorney General Bradford . . . from the British government . . . the Court would find that . . . this attack actually took place in the territory of Sierra Leone.” Archival documents, unearthed prior to oral argument, put to rest any doubt: Bradford was proposing an ATS action for incidents that arose on land in British Sierra Leone.

Bradford’s Opinion was prompted by a British complaint from George Hammond, “his Britannic Majesty’s minister plenipotentiary to the Secretary of State,” seeking redress from the United States for American participation in a raid on the British Sierra Leone colony. Included with the complaint was a Memorial from the acting Governor of the Sierra Leone Company, Zachary Macaulay, and the agent of the proprietors of Bance Island (an island several miles up the Sierra Leone River), John Tilley. The Memorial describes how, on September 28, 1794, three Americans “voluntarily join[ed] themselves to the French fleet, and . . . attack[ed] and destroy[ed] the property of British subjects” in the British territory of Freetown and Bance Island, Sierra Leone. Among other offenses, one was “active in exciting the French soldiery to the commission of excesses, and was aiding and abetting in plundering of their property[,] the Honble [sic] the Sierra Leone Company and other individuals[,] British subjects.” Another “instigated to the commission of enormities by every mean [sic] in his power, often declaring that his heart’s desire was to wring his hands in the blood of Englishmen.”

In a document accompanying the Macaulay and Tilley Memorial, Hammond protested that these acts were “contrary to all the principles of Justice and all the established rules of neutrality.” The British were particularly aggrieved because the Americans had “taken so decided and leading a part in the business” that the French “appear rather in the light of Instruments of hostility in [the American] hands than as Principals in an enterprise undertaken against the Colony of a Power with whom France only was at war.”

Bradford’s opinion concludes that the United States had a duty to provide a remedy because “committing, aiding, or abetting hostilities” like those in Sierra Leone “render[ed the perpetrators] liable to punishment under the law of nations.” Bradford expressed “no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the law of nations.”

In short, the Bradford Opinion shows that historically the ATS could be used to remedy misconduct committed in a foreign country. Some have noted that Bradford was responding specifically to complaints about American actions. But there is no indication that Bradford would have treated nationals of another neutral country who fled to the United States any differently. Given the purpose of the ATS, it beggars belief to contend as much.

Courts in the modern era have consistently and correctly understood this history. Virtually every ATS case, including Filártiga and Sosa, has concerned abuses committed abroad. Courts have found the citizenship of the defendant and the locus of the conduct to be irrelevant.

Plainly put, history answers the questions raised in the request for supplemental briefing: Archival documents, as well as the text and purpose of the statute, confirm that the ATS provides redress for torts in violation of the law of nations occurring in foreign lands.

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.

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.

Susan Farbstein Appointed Assistant Clinical Professor and Co-Director of the International Human Rights Clinic

Posted by Martha Minow, Dean, Harvard Law School, and Tyler Giannini

As a teacher, a mentor, a clinician, and a colleague, Susan Farbstein has already made her mark on the Human Rights Program over the past four years. Today we have the privilege of announcing that she has been appointed as an Assistant Clinical Professor at Harvard Law School and will become a Co-Director of its International Human Rights Clinic. We look forward to many more years of her leadership, both within the Human Rights Program, and in the larger Law School community.

Susan Farbstein speaks with a student at the Human Rights Program orientation last autumn. Farbstein is a national leader in the area of Alien Tort Statute litigation.

Click here for the full story on the Harvard Law School homepage.

For the many blog posts written by Susan (and about Susan) click here.

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, sfarbstein@law.harvard.edu.
• Tyler Giannini, Clinical Director, Human Rights Program, Harvard Law School: 617-495-9263, giannini@law.harvard.edu.
• Cara Solomon, Communications Coordinator, Human Rights Program, Harvard Law School: 617-495-9214, csolomon@law.harvard.edu

In Creating a Corporate Carve-Out, Kiobel Ignores History

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.

Supreme Court Grants Cert in Kiobel, Deciding to Hear Corporate ATS Case

Posted by Tyler Giannini and Susan Farbstein

The Supreme Court announced today that it will hear arguments in Kiobel v. Royal Dutch Petroleum Co., an Alien Tort Statute (ATS) case that squarely presents the question of whether corporate liability exists under the statute.  Since June, when the plaintiffs in Kiobel filed their petition for certiorari, there have been significant developments around the question of corporate ATS liability as two courts of appeals rejected the Kiobel position.  In taking the case, the Supreme Court should resolve this split in the lower courts.  The hearing will be during the 2011-2012 term, and a decision can be expected by June 2012.  Kiobel involves allegations against Royal Dutch/Shell for its complicity in egregious human rights violations, such as extrajudicial killings, in the mid-1990s in Nigeria.  Of note, the Court combined argument in Kiobel with Mohamad v. Rajoub, which poses the question of whether corporations may be held liable under the Torture Victim Protection Act (TVPA).