Corporate Personhood and Human Rights: Tracking Corporate Personhood and its Relationship to International Human Rights Law.

Popular culture has become inextricably linked with corporations, invoking images of tailored suits, skyscrapers, and million dollar deals. Alternatively, the concept of corporations does not often invoke images of human beings doing ordinary tasks. However, the issue of corporate personhood, the question of whether a corporation is entitled to the same rights as a person, has emerged at the center of modern legal scholarship surrounding corporate law. Corporations have an undeniable impact on the world around them, and the law struggles to create a uniform method of evaluating that world impact. Corporate personhood became particularly important as a result of the Citizens United v. Federal Elections Commission Supreme Court case, in which the Court decided that corporations have the right to spend as much money as they want in political campaigns as they are entitled to the rights of free speech. Since then, there has been a movement to strip corporations of the personhood that this court decision afforded them in the Citizens United decision. The concept of corporate personhood becomes even more complex when considering the Alien Tort Statute. A law passed by the very first Congress, the Alien Tort Statute allows for internationally recognized crimes to be litigated in US courts. However, in recent judicial history, the court has often considered that corporations are not individuals when it comes to holding them accountable for their human rights abuses. This complex reality then begs the question: when are corporations considered to be individuals who are entitled to individual rights and when are they not? In this paper, I will lay out the seemingly contradictory legal evidence and argue that there is a level of cognitive dissonance in the United States legal system surrounding the rights of corporations and holding those corporations accountable.

The first step in understanding the complex application of corporate personhood is defining the term itself. The Brenner Center for Justice explains that corporate personhood “allows companies to hold property, enter contracts, and to sue and be sued just like a human being.”[i] Essentially, there are certain rights that are claimed to be crucial to the way that corporations functions — rights that are often aimed to protect the privacy of those entered into contracts with the corporations from large extensions of state power. However, there are some fundamental questions about how far these rights and protections extend for corporations. The fundamental issue with extending rights to corporations that were written into the law for humans, is that there are aspects of motive that are impossible to explore with corporate entities. As the Brennan Center explains, “corporations don’t have minds, and without one it is hard to see how a corporation ‘thinks’ about any political issue du jour from gay rights to the budget deficit”[ii] This difference drastically separates human beings from corporations in the eyes of the law, which further complicates the question of whether or not rights are transferable between the two. Beyond that, the rights of corporations are not expressly outlined in any constitutional document, forcing the rights to come from the courts. This makes the standards and precedents that are set by the court system even more important, as that is the only legal writing around corporate personhood that is used in the law.

For the purposes of this paper, I will be closely following the definition outlined above by the Brennan Center. However, I will treat the definition of corporate personhood as intentionally vague, because the basic legal question that many of these cases center around is to what extent corporate personhood exists in the conversation of rights claims in the United States.

The conversation surrounding corporate personhood fundamentally shifted in 2010 after the Supreme Court rendered a decision on Citizens United vs. Federal Elections Commission. In this case, the court found that corporations should have the ability to spend as much on campaigns as they want considering that spending money is an exercise of free speech and corporations are entitled to that right.[iii] In this case specifically, Citizens United was suing because of a movie called Hillary: The Movie.[iv] This movie centered around then-Senator Hillary Rodham Clinton and presented information about whether or not she is fit to serve as President.[v] Interestingly, even though the Justices do not use the term ‘corporate personhood’ anywhere in their decisions, this case is considered central to the issue of what rights corporations have. By establishing that the movie and its accompanying advertisements were expressions of free speech, the Supreme Court gave corporations a sense of legal agency.[vi] Since people are the ones who are entitled to the right of free speech, through this case, the Court extended the legal protections that belong to any person in the United States to corporations. The precedent set by this case reaches far beyond campaign finance legislation, as it extends legal protections that are normally reserved for people to corporations.

The concept of corporate personhood becomes relevant to the issue of human rights litigation once it begins to interact with the Alien Tort Statute. The Alien Tort Statute was passed by the First Congress and it allows for actions that are considered to be crimes internationally to be tried in US courts. Normally, US judicial jurisdiction requires that the crime occurs in the United States, or the victim/perpetrator of the crime be a US citizen. However, the Alien Tort Statute circumvents those rules about jurisdiction and allows for any action that the international community considers to be a crime to be tried in US courts.[vii] This law was largely irrelevant for the majority of American history, but in the 21st century it was expanded to include the broader definition of human rights. This shift in the definition of the Alien Tort Statute was a watershed moment for the way that human rights crises were litigated, as this law allowed human rights attorneys to hold individuals and organizations such as corporations and banks accountable for their actions.[viii] The Alien Tort Statute offered a window through which human rights litigants in the United States were able to advocate for their clients through a functional and responsive court system. In the last 40 years, the legal definition of the Alien Tort Statute that is set by the Supreme Court has gone through a dramatic change. The Supreme Court has taken very different stances on various issues of human rights that were brought under the Alien Tort Statute — which has resulted in the jurisprudence around this law in the US to become extremely complex.

The Alien Tort Statute requires that the crime that the plaintiff is trying to bring to a US federal court is considered a violation of an international law. Importantly, the standing of a law to determine whether or not it is considered international is determined by four prongs in the International Court of Justice Statute. These standards are “(a) the interpretation of a treaty; (b) any question of international law; © the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of international obligation.”[ix] These standards are the important first step of ATS litigation, as before a case can be brought in front of a federal court under the Alien Tort Statute, it must meet the standards of the law.

The transition that the Alien Tort Statute has gone through can be tracked through the decisions surrounding some landmark Supreme Court cases. The first landmark decision in the judicial history of the Alien Tort Statute came in 1976 with the Filartiga v. Pena-Irala. In this case, a family from Paraguay had lost their son in Paraguay as a result of torture and murder while he was in police custody.[x]Although the family was not able to do anything in Paraguay when the father of Filartiga saw the man who tortured his son in Manhattan, he called the police.[xi] After the police brought Pena-Irala in, the Filartiga family sued under the Alien Tort Statute, specifically for the torture and murder of their son and in 1980 their claims were upheld, resulting in 10 million dollars of damages being awarded to the Filartiga family.[xii] In this case, the court creates an extraordinarily powerful precedent, one where litigators can use the Alien Tort Statute to hold individuals who violate international laws through human rights abuses accountable. At this moment, the court opens up the floodgates for human rights litigation to enter the domestic sphere in the United States.

This precedent was then deepened with the case Sosa v, Alvarez-Machain, in which the Supreme Court found that federal courts have the jurisdiction to rule under the Alien Tort Statute, as long as the claims are on crimes that are widely accepted at violations of common law.[xiii] The impact of this decision is two-fold. First, it establishes that the original law of the Alien Tort Statute did not give any specific indication of what the legal cause can be used to bring a case, other than a violation of common law. The court asserts that this common law can be historically determined to include actions such as piracy, however, the modern equivalent is unclear in the original wording of the law.[xiv] Second, in the opinion of the court, Justice Souter establishes that the Alien Tort Statute extends the jurisdiction of international common law violation litigation to federal courts in the United States.[xv] Ultimately, the Sosa Standard validates the finding from Filartiga vs. Pena-Irala and reinforces the understanding that international crimes can be litigated in American federal courts.

However, this standard becomes more complex with the case of Kiobel vs. Royal Dutch Petroleum in 2013. This case was brought under the Alien Tort Statute, not to hold an individual responsible for committing a crime that was internationally accepted as criminal, but rather to hold a corporation accountable for aiding in torture and state-sponsored violence. Esther Kiobel, among the other plaintiffs, presents the case that Shell and its parent corporation, Royal Dutch Petroleum, helped fund the weapons that were used by the government of Nigeria to engage in torture and state-sponsored violence — in order to clear up land for use for oil reserves.[xvi] This case was fundamentally different than the Filartiga case because the defendant was no longer an individual who was committing an international crime — it was now a corporation that was assisting an individual in committing an international crime. This difference presents two important legal changes. First, the entity that was being sued shifted, which shifted the standards of legal responsibility because people have different rights and responsibilities than corporations do. Second, this time the entity being sued was not someone who had committed a crime themselves, it was a corporation that aided in committing a crime. Because the corporation was not committing the crime themselves, it added a level of separation from the crime, which has the potential to complicate the larger legal question of who is liable.

These differences turned out to be fundamental to the way that the court ruled, as the court unanimously voted that because of an issue of extraterritorial application of the law, there was no way for the Court to find the corporation liable.[xvii] Essentially, the court asserted that the original language of the Alien Tort Statute never asserted that extraterritorial application of the law is acceptable, and without that principle, there would be a potential clash between American law and the law of another nation.[xviii] Because the Court asserted that this case did not properly fit under the Alien Tort Statute, the Court found that Royal Dutch Petroleum was not liable, and did not consider the question of whether or not a corporation can be considered liable of violating the law of nations.[xix]

This decision established a new precedent — one that complicated the framework around human rights litigation that had been formed as a result of the earlier discussed cases. By bringing the issue of extraterritorial application of US laws into the conversation, the Supreme Court added another overarching legal question to the legal scholarship around the Alien Tort Statute. Beyond that, the Court entirely skirted around the question of whether or not corporations can be held responsible for violations of the law of nations, and by not acknowledging this aspect of the case in their decisions, the Court effectively manages to avoid setting any precedent regarding corporate responsibility and the Alien Tort Statute.

As a result of the Court’s failure to address the issue of corporate liability in Kiobel vs. Royal Dutch Petroleum, the case of Jesner vs. Arab Bank, PLC was brought in front of the Supreme Court in 2018. In this case, the plaintiff was suing the Arab Bank for financially assisting internationally criminal actions, specifically terrorism. This case was argued under the Alien Tort Statute, and the Court found in a 5–4 decision that corporations are not considered liable under the Alien Tort Statute.[xx] In this decision of the court, Justice Kennedy writes that “it has not been shown that corporate liability under the ATS is essential to serve the goals of the statute.”[xxi] This argument asserts at its core that the Alien Tort Statute can still exist as a law that is used in cases like the Filartiga case, but that legal precedent does not need to extend to corporations per se. Furthermore, Justice Kennedy also asserts in the court’s decision that “judicial deference requires that any imposition of corporate liability on foreign corporations for violations of international law must be determined in the first instance by the political branches of the Government.”[xxii] With this decision, the Court essentially removed any sense of judicial responsibility in the issue of corporate liability, relegating the issue entirely to Congress. This handicaps the ability to use the Alien Tort Statute to hold corporations accountable, as it prevents the courts, and the Statute from being used in future cases related to corporate liability.

In the same case, Justice Sotomayor asserts in her dissent memo that “immunizing corporations that violate human rights from liability under the ATS undermines the system of accountability for law-of-nations violations that the First Congress endeavored to impose.”[xxiii]

Justice Sotomayor reminds the Court that when evaluating the social influence of corporations it is important to consider their sheer power. She further argues that the Court ought to “consider the genocide that took upwards of 800,000 lives in Rwanda in 1994, which was fueled by incendiary rhetoric delivered via a private radio station, the Radio Télévision Libre des Mille Collines (RTLM).”[xxiv] She outlines the dangerous impact that corporations can have in developing countries, particularly in poor communities of color that lack the power to stand up for themselves. Moreover, suffering like this occurs all across the world, whether related to corporations or not, which creates the need for the Alien Tort Statute to exist. Chimamanda Ngozi Adichie writes in “The American Embassy” about the struggles of a woman attempting to seek asylum in the United States — outlining the woman’s struggles and the failure of the law to assist her.[xxv] The function of the Alien Tort Statute, both on individual and corporate liability, exists to help ensure that the law is able to be used to defend those who are often given the least protections in our society.

These cases that have passed through the judiciary over the past 40 years present a clear cognitive dissonance for the court’s application of the concept of corporate personhood. The precedent that is set by both Filartiga vs. Pena-Irala and Sosa vs. Alvarez-Machain establishes that the Alien Tort Statute can be used as grounds to litigate violations of the law of nations in US Federal courts, successfully in the Filartiga case. The understanding which allows individuals to be held accountable for human rights violations eventually falls short after the Supreme Court decision in Jesner vs. Arab Bank PLC, in which the court finds that foreign corporations are free of liability pursuant to claims under the Alien Tort Statute. This seemingly clear legal standard is further complicated when corporate personhood in considered in light of the Citizens United decision. Following the Court’s argument in Citizens United, there is an important considering to the reality that corporations are entitled to a certain degree of individual rights in the American legal system. In the realm of campaign finance, Citizens United created the precedent that money can be considered speech, and that corporations can be considered people when adjudicating regarding the protection of a corporation’s free speech rights.

Therefore, this understanding of the law begs the question: if corporations are considered people in the world of campaign finance, and foreign nationals can be held liable for human rights abuses under the Alien Tort Statute, then why has the Supreme Court found that foreign corporations are free of liability for human rights abuses under the Alien Tort Statute? This question rests at the core of the legal confusion regarding corporate personhood and corporate liability — a confusion that hinders human rights advocates around the world. This legal question becomes even more imperative when considering the social impact that corporations can have on the world of human rights. Sustainable development in developing countries is closely tied to the power of multinational corporations, and that influence often extends beyond economic development. Communities impacted by human rights abuses are often underprivileged and lack a seat at the table where decisions are made, and many of these communities live under oppressive regimes and suffer from issues like religious and racial persecution and food insecurity. The Alien Tort Statute has the ability to help legal advocates fight for these communities, and by confusing the issues surrounding corporate personhood, the Supreme Court has severely damaged the path through which these folks can achieve justice through the law.

[i] Torres-Spelliscy, Ciara. “The History of Corporate Personhood.” Improving Judicial Diversity , Brennan Center for Justice , 7 Apr. 2014, 5 December 2018, www.brennancenter.org/blog/hobby-lobby-argument.

[ii] Ibid.

[iii]“CITIZENS UNITED v. FEDERAL ELECTION COMM’N.” LII / Legal Information Institute, Legal Information Institute, 21 Jan. 2010, 3 December 2018, www.law.cornell.edu/supct/html/08-205.ZS.html.

[iv] “Citizens United v. Federal Election Commission.” Oyez, 6 Dec. 2018, www.oyez.org/cases/2008/08-205.

[v] Ibid.

[vi] Ibid.

[vii] Theophila, Mara. “‘MORAL MONSTERS’ UNDER THE BED: HOLDING CORPORATIONS ACCOUNTABLE FOR VIOLATIONS OF THE ALIEN TORT STATUTE AFTER KIOBEL V. ROYAL DUTCH PETROLEUM CO.” Fordham Law Review , vol. 79, no. 6, 2011.

[viii] “The Alien Tort Statute.” CJA, The Center for Justice & Accountability, 3 December 2018, cja.org/what-we-do/litigation/legal-strategy/the-alien-tort-statute/.

[ix]“STATUTE OF THE INTERNATIONAL COURT OF JUSTICE.” Latest Developments | Legality of the Threat or Use of Nuclear Weapons | International Court of Justice, International Court of Justice, 27 November 2018 www.icj-cij.org/en/statute.

[x] “Filártiga v. Peña-Irala.” Center for Constitutional Rights, 5 December 2018, ccrjustice.org/home/what-we-do/our-cases/fil-rtiga-v-pe-irala.

[xi] United States Court of Appeals, Second Circuit. Filartiga vs. Pena Irala. June 30, 1980, 3 December 2018, http://hrp.law.harvard.edu/wp-content/uploads/2011/04/filartiga-v-pena-irala.pdf

[xii] “Filártiga v. Peña-Irala.” Center for Constitutional Rights, 5 December 2018, ccrjustice.org/home/what-we-do/our-cases/fil-rtiga-v-pe-irala.

[xiii]”Sosa v. Alvarez-Machain.” Oyez, 7 Dec. 2018, www.oyez.org/cases/2003/03-339.

[xiv] “SOSA V. ALVAREZ-MACHAIN.” Justia Law, 2004, 5 December 2018, https://supreme.justia.com/cases/federal/us/542/692/#tab-opinion-1961656

[xv] Ibid.

[xvi] “Kiobel v. Royal Dutch Petroleum.” Oyez, 4 Dec. 2018, www.oyez.org/cases/2011/10-1491.

[xvii] Ibid.

[xviii] Ibid.

[xix] Ibid.

[xx] Ibid.

[xxi] “JOSEPH JESNER, Et Al., PETITIONERS v. ARAB BANK, PLC.” Justia Law, 2018, 3 December 2018, supreme.justia.com/cases/federal/us/584/16–499/#tab-opinion-3891040.

[xxii] Ibid.

[xxiii] “JOSEPH JESNER, Et Al., PETITIONERS v. ARAB BANK, PLC.” Justia Law, 2018, 29 November 2018, supreme.justia.com/cases/federal/us/584/16–499/#tab-opinion-3891039.

[xxiv] Ibid.

[xxv] Adichie, Chimamanda Ngozi. “The American Embassy.” The Thing Around Your Neck. N.p.: Knopf Doubleday Group, 2009. N. pag. Print.