Posted by Tyler Giannini, Deborah Popowski and Fernando Delgado
We send our warmest congratulations to Jim Cavallaro on his election yesterday to the Inter-American Commission on Human Rights. Having worked closely with Jim for years on human rights in the Americas, including before the Inter-American Commission, we know firsthand the dedication, legal skill, and thoughtfulness Jim will bring to the post. We look forward to watching him do great things at the Commission in the years to come.
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.
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.
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.
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.
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”
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.
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.
Posted in Alien Tort Statute, Corporate Accountability, Criminal Justice, Environment, Gender Equality, Sexual and Reproductive Health, Staff, Student Perspectives, U.S. Health Professionals Involved in Torture, Weapons
Tagged Bonnie Docherty, Deborah Popowski, Fernando Delgado, Gerald Neuman, HRP Orientation, Meera Shah, Mindy Roseman, Susan Farbstein, Tyler Giannini
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.
Posted in Corporate Accountability
Tagged Alien Tort Statute, Kiobel, paul hoffman, Susan Farbstein, Tyler Giannini
Posted by Harvard Law School Communications
Tyler Giannini, Clinical Professor of Law, and Gerald L. Neuman ’80, J. Sinclair Armstrong Professor of International, Foreign and Comparative Law, have been appointed co-directors of the Human Rights Program (HRP) at Harvard Law School.
Said HLS Dean Martha Minow: “I’m delighted to announce Gerry Neuman and Tyler Giannini as co-directors of Harvard’s Human Rights Program. Tyler is a pioneer in the development of theories of liability in the field of human rights, and his efforts have guided our path-breaking clinic and he has collaborated with clinical students and superb colleagues in human rights advocacy pursuing all the available tools—investigations, litigation, media, and coalition-building. Gerry’s distinguished scholarship spans human rights, constitutional law, and regulations of immigration and refugees; his immense expertise in international human rights law includes his invaluable contributions and experiences as a member of the UN’s Human Rights Committee. Outstanding as individuals, Tyler and Gerry are an amazing team, and I look forward to the new initiatives emerging through their collaboration and leadership.”
HRP is the central venue for international human rights work at Harvard Law School, offering students a range of opportunities to engage in academic pursuits and to apply theory to practice, both on campus and abroad. By fostering scholarship, engagement with pressing issues, and training in human rights advocacy, HRP’s faculty has worked for decades to educate students who will become leaders of the human rights movement. Now in its 28th year, HRP was founded by Emeritus Professor Henry Steiner ’55.
“I cannot think of two better people than Gerald Neuman and Tyler Giannini to continue to strengthen HRP as one of the premiere human rights programs in the world,” said Lisa Dealy, assistant dean of Clinical and Pro Bono Programs. “Having them both at the helm of this joint directorship ensures that the International Human Rights Clinic is closely integrated with the academic Human Rights Program, which is greatly beneficial to both the practice on the ground and the broader study of human rights law.”
“It’s an honor to be part of HRP and its long tradition of excellence,” Giannini said. “HRP represents the very best in the Law School’s efforts to combine scholarship and practice in an academic setting. HRP is a place where scholarship is informed by practice through our International Human Rights Clinic, and just as importantly, the efforts of our Clinic are enriched greatly by HRP’s engagement with intellectual pursuits.”
Said Neuman: “I am excited about continuing the Human Rights Program’s tradition of intellectually rigorous engagement with the field of human rights advocacy and implementation. I also hope to build stronger connections with the wider academic community here at HLS, and in the University more generally.”
