By Susan Farbstein and Tyler Giannini, Associate Clinical Director and Clinical Director of Harvard Law School’s Human Rights Program. Farbstein and Giannini are 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.
Today, the U.S. Supreme Court hears the most important human rights case of the term. Kiobel v. Royal Dutch Petroleum Co. will determine the fate of corporate liability under the Alien Tort Statute (“ATS”), a 1789 law passed by the First Congress. The plaintiffs allege Shell’s complicity in killings and crimes against humanity committed in Nigeria during the 1990s. Now the Supreme Court must decide whether corporations who profit from human rights abuse are exempt from civil liability for these activities — even though natural persons are unquestionably liable for the same acts.
The case has attracted a slew of amicus briefs and recent press coverage. On one side, those like John Bellinger, a former U.S. State Department Legal Advisor, argue for completely exempting corporations from suit under the ATS. On the other side are those like Ka Hsaw Wa, the Executive Director of EarthRights International, who notes the importance of these cases to survivors of corporate abuse, and Peter Weiss, the Vice President of the Center for Constitutional Rights, who rightly points out that total corporate immunity would give corporations more rights and legal protections than people.
The debate stems from a 2010 Second Circuit Court of Appeals decision, which held that people could be sued under the ATS, but corporations could not. That ruling broke with more than a decade of jurisprudence in which numerous courts had repeatedly found or assumed that corporations could be sued under the statute.
Mr. Bellinger asserts that because the alleged violations often take place abroad, corporate ATS cases should not be allowed in U.S. courts. Corporations, however, routinely answer in U.S. courts for their activities overseas, whether in contract cases or run-of-the-mill product liability claims. And when there is a better forum to hear a case, defendants can — and do — request that the case be moved. Yet under Mr. Bellinger’s view even when there is no alternate forum, a suit still should not be allowed to proceed here against U.S.-based corporations. He would deny survivors of human rights abuses even this last resort.