by Raphael B. Hirsch
On May 29th, 2018 transnational corporations celebrated the narrow victory of Jesner v. Arab Bank of Jordan, PLC. Critics incorrectly argue that domestic federal litigation against transnational corporations for human rights violations have been extinguished. They are wrong. First of all, the Alien Tort Statute as a mechanism for holding transnational corporations liable in American Courts for actions committed abroad was already on its way out before Jesner was decided. Kiobel v. Royal Dutch Petroleum Co., served to preclude suits against foreign corporations when the relevant conduct occurred outside of the United States. Thus, Jesner’s narrow holding that foreign transnational corporations may never be sued under the Alien Tort Statute should come as no surprise to anyone. Secondly, in what appears to be politically motivated, the court was unwilling to assert dominance over a Jordanian company, as Jordan is a strong ally of the United States in the Middle East.
The Alien Tort Statute is a federal law which confers the United States District Courts jurisdiction over foreign actors for bad acts occurring in far-away lands. Although on the books since 1789, it had only been used a handful of times until the 1980s, with only one using the Alien Tort Statute as a jurisdictional basis for the suit.
Originally, the statute was created to provide a legal forum where foreigners could seek remedies for breaches of international law. This was because the newly formed Confederation was concerned that it would become a safe haven for international pirates. The statute itself is short and simple: “The district court 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.”
The Statute found much success in litigating grave human rights violations by individuals. For example, in Kadic v. Karadzac, the former head of the self-proclaimed Serbian Republic of Bosnia- Herzegovina was found liable for “ethnic cleansing.” Filartiga v. Pena-Irala, the case that ushered the modern-day use of the Alien Tort Statute, ended with Pena being found liable for the torture and murder of Jolito Filartiga which occurred in Peru.
The Alien Tort Statute does not create an action by itself. Rather, it grants American Courts jurisdiction over the action. This development in case law led to transnational corporations using forum non conviens defenses more often and with much success. See Wiwa v. Royal Dutch Petroleum Co., 226 F3d 88 (2nd Cir. 2000). Thus, the Jesner ruling, categorically precluding corporate liability under the Alien Tort Statute isn’t particularly remarkable.
Activists will now have to find new ways and forums to hold transnational corporations liable for environmental damages and other grave human rights abuses. Local forums where the damages occur is a strong starting place. Tony Oposa, M.C. Mehta, and David Salaberry have all seen successes litigating environmental cases in their respective countries of origin.
If respective domestic courts are either too inefficient to function, or the damages charged are not against the law, there are regional courts such as the Inter-American Court of Human Rights, and the African Court on Human and People’s Rights that activists may bring cases to. These judicial mechanisms are in place to prevent human rights and environmental damages from occurring. Losing the use of the Alien Tort Statute in litigation against transnational corporations should not cause much harm to the environmental movement. Simply put, Jesner serves to curb extraterritorial federal jurisdiction in America. That is all.
There will always be new methods to litigate cases, and novel theories to bring justice to those who should so be held accountable. Activists must think outside of tradition, conduct their due diligence, and never give up. No court ruling will ever be too negative as to preclude advancement in their cause.
 The Alien Tort Statute: Protecting the Law That Protects Human Rights (April 17, 2013), available at:https://ccrjustice.org/home/get-involved/tools-resources/fact-sheets-and-faqs/alien-tort-statutute-protecting-law-protects
Raphael B. Hirsch is an LL.M. student student at Northeastern University School of Law. Raphael is enrolled as a student under the course: Human rights, the Environment, Development and Community Resilience under Professor Brownell. His work regarding extreme poverty in the U.S. may be accessed at: http://maps.nulawlab.org/view/Poverty