Can corporations be found liable in U.S. courts for human rights violations abroad? That question is squarely before the Supreme Court now in Kiobel v. Royal Dutch Petroleum, and Burt Neuborne, Inez Milholland Professor of Civil Liberties, filed an amicus brief in the case on December 21. Neuborne, who is also legal director of NYU Law’s Brennan Center for Justice, submitted the brief on behalf of the center.

In Kiobel, Nigerian nationals sued three oil companies, alleging that they enlisted members of the Nigerian military who resorted to atrocities to crush opposition to oil operations. The plaintiffs sought compensation for violation of customary international law under the Alien Tort Statute, but the U.S. Court of Appeals for the Second Circuit ruled that, while individual employees may be sued personally under the statute, corporations are immune from such claims. The court said that the concept of derivative corporate civil liability for damages caused by employees has not been incorporated into customary international law.

In fact, Neuborne argued, this concept “is universally recognized by the international community as central to the maintenance of the robust rule of law.” Underpinning the Second Circuit’s erroneous ruling, Neuborne wrote, was the mistaken notion that the law’s “pragmatic decision to grant a business corporation a fictive legal personality,” also requires treating the corporation “as if it were a wholly freestanding being whose rights and duties may be logically derived, catalogued, and enforced without regard to the expectations, rights and duties of the human beings who constitute the corporate universe.”

Posted January 6, 2012