Brief in major corporate Alien Tort Statute case argues, on behalf of legal historians, that corporations can be held liable
for supporting and assisting human rights violations

June 17, 2011, Cambridge, MA—Harvard Law School’s International Human Rights Clinic submitted an amicus curiae brief to the Supreme Court today in support of a petition for certiorari in a major corporate Alien Tort Statute (ATS) case, Kiobel v. Royal Dutch Petroleum Co.

The Clinic served as counsel of record on behalf of professors of legal history who argue that Congress adopted the ATS to provide plaintiffs with a meaningful domestic remedy in federal court for violations of international law.  According to the amici, creating a special exemption for corporate defendants, as the Second Circuit did in Kiobel, contradicts the original purpose of the statute as well as its plain text, and ignores the history of enforcement of international law violations against corporations.

“Dating back to the 1600s, with cases against the East India Company involving violations of international law, the historical record shows that the Second Circuit erred in its ruling,” said Clinical Director Tyler Giannini.  “The drafters of the Alien Tort Statute wanted to provide a broad remedy for all torts in violation of the law of nations, and the text of the statute excludes no class of defendant.”

Giannini and Associate Clinical Director Susan Farbstein served as counsel and supervised the writing of the brief.  Harvard Law School students Poppy Alexander, JD ’12, Russell Kornblith, JD ’12, and Marissa Vahlsing, JD ’11, contributed to the research, conceptualization, and drafting of the brief.

“We spent countless hours reading the cases and treatises that the framers of the ATS would have read,” Alexander said.  “To have the opportunity in law school to work this closely with a team that includes eminent legal historians, to help form an argument, and then to see it through to the end, is very special.”

The Kiobel opinion represents a significant departure from established ATS jurisprudence, and deprives survivors of corporate misconduct of a valuable tool for seeking justice.

“If the Second Circuit’s decision stands, a corporation could operate the modern-day equivalent of the Nazi death camps or trade in slaves, and it would be exempt from civil liability under the ATS,” Farbstein said.  “History shows that the statute’s drafters never would have contemplated such a corporate exception.”

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 17, 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.

For the clinical team that drafted the brief, the opportunity to work on a case with far-reaching implications for individuals and communities affected by corporate abuse proved memorable and inspiring.

“I came to law school because I wanted to use the ATS to hold corporations accountable for human rights violations,” said Vahlsing.  “To then spend my final year of law school working on bringing this very issue before the Supreme Court is an indescribable honor.”


·      Susan Farbstein, Associate Clinical Director, Human Rights Program, Harvard Law School: 617-495-4589, [email protected].

·      Tyler Giannini, Clinical Director, Human Rights Program, Harvard Law School: 617-496-7368, [email protected].

·      Cara Solomon, Communications Coordinator, Human Rights Program, Harvard Law School: 617-495-9214, [email protected].