Posted by: alisondcole | January 25, 2012

Life at the Center for Constitutional Rights

By Alison Cole, Global Intern at the Center for Constitutional Rights, New York City

Hi I’m Alison (third from the left – back row) & I’m interning at the Center for Constitutional Rights (CCR), New York City. I’m ashamed to say that I’ve been here for almost two and a half months and this is my first blog – however I like to think that this indicative not of my laziness, but of the wonderfully hectic and immensely fulfilling life I’ve been leading here.

I arrived in mid-November 2011, and was reliably informed by a previous Castan Centre intern to the CCR that this time of year at the CCR was a busy one. He wasn’t wrong. I made the (possibly misguided) decision to start my internship the day immediately following my arrival in the United States, and thus my first day was a blur of faces, names and jet lag induced confusion. But I had been in fairly regular contact with my supervisor here at CCR prior to my arrival and she had briefed me as to which cases I would be working on and given me guidance on the type of work I was to do, which only increased my desire to start work as soon as possible.

I had a meeting (I say ‘meeting’ but it was more of a wonderfully informal chat) with my supervisor – the incredible Katherine Gallagher, a senior staff attorney here at CCR. We spoke about my interests and what I hoped to achieve and work on during my time at the CCR and settled there and then that I would take the lead on research for an upcoming Amicus brief to the Supreme Court of the United States for the case of Kiobel v Royal Dutch Petroleum & Ors.

A bit of background: Kiobel v Royal Dutch Petroleum Co. is a lawsuit brought in the second circuit against the Royal Dutch Petroleum Company., Shell Transport & Trading Co., and its wholly owned subsidiary the Shell Petroleum Development Company of Nigeria Ltd. The suit was brought by Esther Kiobel, individually and on behalf of her late husband, Dr. Barniem Kiobel – an Ogoni activist who was a member of the Movement for the Survival of the Ogoni People (MOSOP) and twelve other Nigerians from Ogoniland. The putative class action sought damages and other relief for crimes against humanity committed with defendants’ assistance and complicity between October 1, 1990 and May 28, 1999 against the residents of Ogoniland, Rivers State, Nigeria, in order to facilitate Royal Dutch/Shell’s discovery and exploitation of oil deposits in Nigeria.

The original complaint was filed in 2002 and to cut a long story of appeals, motions, petitions, and pleadings in the labyrinth that is the US justice system short, in June of 2010 the Second Circuit Court of Appeals issued its decision, effectively dismissing the case. The point of law upon which the suit was dismissed is the Alien Torts Statute (ATS).

The ATS is a powerful tool through which foreign victims of human rights abuses can seek civil remedies in U.S. courts. Adopted as part of the Judiciary Act of 1789, the ATS allows non-U.S. citizens to sue for violations of the “law of nations” or customary international law, or of a treaty of the United States, in U.S. courts. It has been used to bring claims for human rights violations against government officials and non-state actors. The point of issue in Kiobel was whether the ATS can be used against corporations as well as individuals.

The US Circuit courts have been fairly evenly divided on this point; unfortunately however the Second Circuit (the circuit in which the Kiobel case was held) has been one of the most vociferous opponents to the use of the ATS, in particular with regard to corporations. Thus the majority held that the ATS may not be used to sue corporations.

In October of 2011 however, the Supreme Court announced it would hear the plaintiffs’ appeal in this case (and hopefully issue a definitive finding on whether the ATS applies to corporations). This is where my work came into play. CCR was given amicus curiae status and given the opportunity to file an amicus brief to SCOTUS by 21 December 2011. The crux of this brief was that that a general principle of law exists supporting corporate liability and that this principle supports a finding that corporations can be held liable under the ATS. The Second Circuit had previously held the contrary was true and that there was no international consensus that corporations could be held civilly liable for breaches of law.

My role was primarily research based; trawling through  international and US legal sources for evidence of such a general principle. I also engaged in a comparative law analysis of foreign corporate liability laws and the existence of corporate liability in jurisdictions across the globe. I was also incredibly lucky to have been given the opportunity to voice my opinions and draft sections of the brief. One thing which has struck me at CCR is that all opinions are valued and listened to – regardless of your status as intern, researcher, legal assistant or senior attorney (it’s also pretty daunting – having 3 experienced human rights attorneys asking you for an opinion was quite an experience for this 5th year law student).

After many long hours and tireless discussions with other international human rights organisations around the world – the CCR, on behalf of ten other international human rights organizations and two international law experts, filed an amicus brief in support of the Petitioners’ cert petition in the Supreme Court at 4pm, December 21. I must say it was an incredible moment for me at the start of what I hope is a wonderfully fulfilling career in the protection and advancement of human rights.

I am now working on a submission to the International Criminal Court by the CCR on behalf of SNAP – Survivors Network of those Abused by Priestsbut I suspect that will have to be the subject of another blog as this one’s already rather long…


Responses

  1. When’s the petition being heard? Good luck and well done, so far 🙂

    • Thanks very much!

      The Brief for the Respondents (Responding to the 22 Amicus briefs filed in favour of the petitioners on December 21) was filed on January 27 and oral hearings are set to be heard in mid February. Given that this is an issue which tends to split the Court quite decisively, the decision is likely to be issued in late June (we think they’ll need a bit of time to argue about this one amongst themselves), towards the end of the spring session.

  2. Wonderful to read your blog, and nice work translating the labyrinth of your case into the key points, accessible to all. That’s a rare skill in the legal profession!

  3. What an amazing case to be working on. It’s obviously a make-or-break suit for the ATS, and being able to contribute the the Amicus Curiae brief must have been pretty rewarding, not to mention daunting. No pressure!


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