THE COST OF TERRITORIALITY: JUS COGENS CLAIMS AGAINST CORPORATIONS.

• Author: Doyle, Ursula Tracy
• Position: Corporations on Trial: International Criminal and Civil Liability for Corporations for Human Rights Violations

INTRODUCTION

In Jesner v. Arab Bank, PLC, the United States Supreme Court held that "foreign corporations may not be defendants in suits brought under the [Alien Tort Statute ("ATS")]," a U.S. federal statute. (1) The ATS states that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (2) In Jesner, foreign nationals sought jurisdiction over a claim against a Jordanian financial entity, with a New York office, pursuant to the ATS, alleging that the entity's agents effectively financed terrorist groups in the Middle East. (3) These plaintiffs further alleged that this conduct caused or facilitated their injuries or their decedents' deaths, which occurred abroad. (4) In reaching its holding, the Court concluded that the text of the ATS does not evidence Congress's intent for the statute to confer jurisdiction over claims against corporations; (5) international law does not recognize corporate liability; (6) little authority exists at international law to hold corporations accountable for the acts of their agents; (7) and judicial recognition of corporate liability would invade the province of the legislative branch (8) and improvidently frustrate U.S. foreign relations. (9)

The Court expressly limited its holding to foreign corporations, (10) but made clear that it saw no reason to use the ATS to confer subject matter jurisdiction over a claim against a U.S. corporation given the ability of diversity jurisdiction to do the same. (11) Moreover, it observed that Congress's choice not to include corporate liability in the Torture Victim Protection Act of 1991, a companion statute to the ATS (which creates a cause of action for torture and extrajudicial killing) (12) was "all but dispositive of the present case." (13) This logic would also apply, of course, to U.S. corporations.

Nonetheless, given the express limitation of the Court's holding, whether a U.S. corporation will be subject to ATS jurisdiction continues to be determined by the parameters set in Kiobel v. Royal Dutch Petroleum (14) and RJR Nabisco v. European Community, which appear to require a territorial connection between the underlying claim and the United States for ATS jurisdiction to lie. (15) Accordingly, rather than enter the debate on the soundness of the Court's rationales for excluding foreign corporations from ATS jurisdiction, this essay will consider the apparent disjunction between the Court's effective limitation of liability for the U.S. corporation, pursuant to Kiobel and RJR Nabisco, for perhaps even the most heinous acts, and the more expansive liability for the natural person, pursuant to the same cases, for the same acts.

Congress enacted the ATS, in 1789, to provide jurisdiction for a limited set of international law violations, including infringements against ambassadors, denials of safe travel, and piracy. (16) Although rarely invoked during its first 167 years, (17) in 1980, the United States twice in the late 18th century, and once more in the next 167 years). Court of Appeals for the Second Circuit, in Filartiga v. Pena-Irala, (18) allowed foreign plaintiffs, whose decedent was tortured and killed by a foreign defendant in a foreign country, to use the statute as a conduit to recovery. (19) The success of that "foreign-cubed" case transformed the statute from yesteryear's relic to today's innovative human rights tool.

Historically, the foreign-cubed claim, brought pursuant to the ATS, alleged the most egregious of human rights abuses, the jus cogens violation. In Kiobel, the Court clearly rejected jurisdiction over the foreign-cubed claim before it., which alleged indirect liability against a corporation for jus cogens violations, because the claim lacked sufficient connection to the territorial United States. (20) It is less clear but certainly arguable that both Kiobel and RJR Nabisco preclude ATS jurisdiction, as well, over the claim which alleges direct liability against a corporation for a jus cogens violation, barring sufficient connection between the claim and the territorial United States.

By contrast, there is reason to believe that Kiobel and RJR Nabisco do not preclude a foreign-cubed claim from being brought under the ATS, if that claim alleges direct liability (21) for a jus cogens violation against a natural person, as these cases do not concern a claim of this kind (22) and do not, in any meaningful way, speak to a claim with this structure. (23) This disjunction would result in higher accountability for the natural person who violates a jus cogens norm than for the juridical one, a distinction that defies...