Samuel EstreicherThe question of whether U.S. federal courts should allow lawsuits against corporations in connection with human rights violations overseas has prompted the filing of an amicus brief to the Supreme Court by a group of eight law professors with expertise in international law, foreign relations law, and federal jurisdiction. Samuel Estreicher, Dwight D. Opperman Professor of Law, is co-counsel for the amici curiae.

Kiobel v. Royal Dutch Petroleum, whose oral arguments the justices will hear on February 28, pits a dozen Nigerian plaintiffs against Royal Dutch and two subsidiaries. The petitioners allege that the companies colluded with the Nigerian government to torture and extrajudicially execute protesters against oil exploration. The plaintiffs invoked the Alien Tort Statute (ATS) when filing their suit. That 1789 law allows “an alien” to bring suit in federal court for “a tort only, committed in violation of the law of nations or a treaty of the United States,” but remains silent on which sorts of entities can be sued. The U.S. Court of Appeals for the Second Circuit ruled in September 2010 that only individual employees of corporations, and not the companies themselves, are subject to the statute.

The amicus brief filed by Estreicher and his colleagues argues that Congress passed the ATS for “the intensely practical goal of addressing a narrow category of tortious wrongs against aliens, typically occurring within the United States, that if left unredressed, threatened the security and international relations of the United States. Specifically, the ATS was designed to address only private violations of the law of nations for which the U.S. had a duty to provide redress and which—if not redressed—would constitute affronts to other nations that could result in diplomatic conflict or war.... The type of claim that Petitioners allege in this case—an action against private corporations for allegedly aiding and abetting a foreign government’s violations of the rights of its own citizens and residents within its own territory—involves no international obligation of the United States and thus implicates none of the purposes of the ATS. Indeed, for U.S. courts to presume to adjudicate the legality of the domestic conduct of a foreign sovereign would invite, rather than avert, the international conflict the ATS was enacted to prevent.”

Last month, Burt Neuborne, Inez Milholland Professor of Civil Liberties and legal director of the Brennan Center for Justice, filed an amicus brief on behalf of the center coming down on the opposite side in the same case.

Posted on February 7, 2012