Resurgence of the Alien Tort Statute Litigation

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10th Dec 2019 Dissertation Reference this

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Corporate Responsibility For Harm Caused Inconsistent With The “Laws Of Nations”: The Use Of “Vigilance Laws” As An Attempt At An Effective ATS Litigation

  1. Introduction.

With the rise of global commerce, it is common to for large, multinational corporations (“MNC”) to expand their business into foreign markets and countries.[1] It is an efficient business tactic, as utilizing resources and the labor force abroad increases the profitability and decreases the operating costs.[2] This strategy does come at a price, and in certain situations, citizens of the foreign countries can fall victims to gross abuses of their human rights and freedoms.[3]  As means to sue the tortfeasors, a short statute, commonly known as the Alien Tort Statute (“ATS”)[4], has been used by victims, to gain jurisdiction in the U.S. courts, and to recover damages from MNC’s that are either involved directly, or indirectly, by means of aiding and abetting in the tort that grossly violates human rights.[5] The issue, however, is that with each new ruling passed by the courts, the meaning of the statute becomes less and less clear.[6] The need for a direction as how to approach the issue of corporate liability is desperate, and it is not likely that courts will provide a concrete answer.[7]

On few occasion, ATS litigation has made its way to the Supreme Court, allowing for several opportunities to settle the debate of corporate responsibility once and for all, yet justices have refused to pick a side.[8] The Court limited and narrowed the scope of the ATS substantially, however, it refuses to rule decisively on the issue.[9] In fact, the unwillingness of the Court to create a concrete rule on the issue resulted in another ATS case making its way to the highest court in the country, and on October 11, 2017, Supreme Court once again faced with an opportunity to settle debate over the corporate responsibility, in the form of Jesner v. Arab Bank.[10]

Numerous scholars have argued over what to do with ATS.[11] The common controversy in most of the discussion around ATS centers around the problem of corporate liability.[12] Specifically, the Courts, while allowing the suits under ATS to go on in most cases, avoid the issue of corporate liability altogether, failing to differentiate between the responsibility of the private actors, and if any difference exists in the level of responsibility exists for the corporations. [13] Considering all of this, it becomes evidently clear that ATS is ill-suited to handle this, and the time has come for a new model to take its place.[14]

This note will discuss ATS, and its resulting failure to deliver a clear and concise answer to the question of corporate responsibility.  Below, Part II will expand on the complicated and tedious history of ATS, as well as underline the global consensus on the need of corporate responsibility.[15]  Part III will dive into the recent developments about the ATS, and the its futility as an effective tool to enforce human rights.[16] Finally, Part IV will speak on newly passed and proposed laws which can be used as models for a creation of a U.S. legislature.[17]

  1. There Is a Growing Demand For Corporate Accountability On A Global Scale Consistent With Fundamental Human Rights.
  1. MNCs Interest Create An Environment Ripe For Human Rights Violations.

At the helm of profiting from globalization are the MNCs.[18] Operating in almost every country worldwide, through either direct or indirect subsidiaries, mergers with local companies and join ventures, MNCs are capable of realize enormous profits.[19] However in the pursuit of their profits, the MNCs hold the power and ability to inflict serious harm in the environments where they operate.[20] Giants of various industries have been caught up in scandals, alleging taking advantage of the foreign workers, destroying preserved lands and resources, and  damaging impoverished communities.[21] Despise all of this, MNCS are not responsible to the communities in which they do business, and remain responsible only to their shareholders, and in many cases have transcended national legal systems and are not threated by frail international regulations, making it nearly impossible to demand accountability.[22]

In the past twenty years, as means of responding to a growing demand by the public, legal systems and corporations, around the world began to look for means to provide MNCs with oversight. [23] Non-government Organizations, once seen as rivals of the MNCs, utilize the  public demand for  accountability as a weapon, and far less willing to provide the MNCs benefit of the doubt, gaining them an enormous power swaying corporate decisions.[24] The damage to a corporate reputation and the fallout that follows is far too great of a cost to carry, due to being accused of aiding and abetting in the violations of human rights carries a swaying power in decidion making, a fact of which the board members are aware. [25] While the consumer-oriented companies face greater cost of this, especially in the highly competitive markets, the threat of large losses of money will drive the MNCs to act on their best behavior, when expanding into markets. [26]

  1. In Response to a Public Demand, There are Attempts Made at Production Of General Guidelines For MNNs To Follow When Doing Business.

First attempt at regulating how MNC’s engage in business, came in the form of the International Labour Organization (“ILO”) Tripartite Declaration, first issued in 1977.[27] The principles in the declaration address several important factors of corporate activities, specifically promotion of employment, equal opportunity and treatment regardless of sex and race, a broad discussion on ways for the governments, via policy making, can develop necessary skills needed for employment.[28] Further, the declaration encouraged the pursuit of favorable work conditions, and encouragement of unionization. However, the declaration lacks any enforcement power and is tailored narrowly, to address only the issues of workers’ rights, making it inappropriate to be used when dealing with the large scope of human rights violations which MNCs can commit.[29]

Similarly, the French Labor Ministry, 2008 issued their own set of guidelines, outlining codes of conduct for MNCs to follow.[30] The guidelines included various ethical codes, in addition to expanding on the ILO standards.

In 2011, United Nations unanimously endorsed the UN Guiding Principles on Business and Human Rights, also known as “the Ruggie framework,” a list of thirty-one principles aimed at providing a standard for preventing and addressing the risk of adverse impacts on human rights by business activities. These principles rest on “three-pillars:” (1) a duty of States to protect again human rights abuses through regulation and policy making; (2) a call for corporate responsibility and the call for private actors to act with due diligence[31]; and (3) a call to the states to provide access to remedy thought judicial, administrative and legislative means, in addition to call for non-state actors to prevent infringement on human rights, or pay for the damage they caused.[32] The guiding principals were widely supported by everyone from both the public and private sector, however they hold no legal binding authority.[33] Despite this, the guidelines are a strong attempt at creating a global standard for human rights to follow.[34]

In 2014, upon the request of the UN, Member States began to create a National Action Plans, made to promote the implementation of the guidelines, resulting in the U.S. governments publishing their plan in 2016, however, much like the guidelines themselves, the NAP held no binding power.

A stronger attempt at holding MNCs responsible for violation of human rights, although significantly lesser in scope, is the UK Modern Slavery Act.[35] Passed in 2015, the law is aimed at any UK business, and its direct or indirect subsidiaries, with a global turnover of at least thirty-six million British pounds, as well any foreign companies and subsidiaries which “carry on a business.”[36] The law calls for an annual report on the steps taken to ensure there is no slavery in any part of the supply chain or general business, or otherwise face potentially limitless fines.[37] But even with the fines present, the law itself is once again extremely narrow, and does little to prevent or remedy the violations.[38] Similarly, the California Supply Chain Transparency Act, which calls for the MNCs to audit their suppliers for the use of slave labor, acts as means of appeasing the growing demand for accountability from the corporations.[39]

  1. ATS and its Application to Corporate Responsibility.

However, the most relevant and effective legislation for the enforcements of human rights violations currently exists solely in the U.S.[40] ATS grants the U.S. Courts jurisdiction over a violation of international law, regardless of the location of the incident, or the citizenship of the parties.[41] The subsection below will discuss the history of ATS and its reach.[42] By itself, the ATS is solely a jurisdictional statute, and does not “regulate conduct or afford relief,” but serves as means for the federal courts to recognize causes of actions based on “law of nations.[43] Essentially, the ATS allows alien plaintiffs, who are victims to a tort committed in violation of international law recognized by the United States, to sue tortfeasors in the U.S. Courts for a violation of a treaty or the law of nations.[44]

  1. Early History and Motivating Factors Behind The ATS.

 

Adopted in 1789 as a part of the Judiciary Act by the first Congress, Alien Tort Statute served as an early attempt to provide some clarity in resolving claims brought by the foreigners in the U.S. Courts, in line with the “law of nations” [45] Although the statute is two hundred and twenty years old, its effects on the U.S. Courts have not been diminished, and it serves as powerful weapon in the fight for the preservation of human rights.[46] Since 1987, ATS has been frequently used to provide decisions in the cases brought by aliens over violations of international human rights by other foreign entities or committed in foreign jurisdictions.[47] The statute provides the district courts with the “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.”[48] While by itself the statute is solely a jurisdictional statute, and does not “regulate conduct or afford relief,” it serves as means for the courts to recognize causes of actions based on “laws of nations.”[49]

The legislative history of the act has been largely lost, and the initial purpose has been a topic of the debate between scholars.[50] However, it is believed that that the need for ATS stems from the language of Article I, Section 8 [51] and Article III of the U.S. Constitution, combined with the at the time weak U.S. position in comparison to the other world powers at the time, served as an important pillar on national security, allowing for disputes to be resolved peacefully, and not giving any excuses for a foreign power an excuse to mount an attack.[52] This argument is underlined by the authors of the Federalist Papers, all of whom spoke about the need of a way to resolve disputes between foreign entities as means to safeguard the American citizens.[53] S, For example, in the Federalist Paper No. 4, John Jay strongly argued that the safety of the United States and its citizens is not only best guarded by a presence of the military, but also by placing the nation in “such a situation as not to invite hostility or insult….”[54] John Jay goes on to argue that nations will go wage war, when they stand to reap the benefits of it, and a system which would allow the disputes to be resolved peacefully, would serve a great benefit.[55] Despite the history, being more or less lost, one thing is certain is that the inclusion of ATS was not an accident.[56]

The history is severely important to its application, and was review by Chief Justice Roberts in his discussion of Kiobel.[57] In its early days, U.S. was faced with two large tests of its foreign relations.[58] First came in 1784, in a form of a dispute between a French ambassador residing in Philadelphia and a French soldier who made his way to the city to secure his commission papers.[59] Second, followed three years later when the New York Police violated the Dutch minister’s immunity by entering his home to arrest his servant.[60] Both situation resulted in the embarrassment for the United States as they  highlighted the inability of the young nation to handle disputes between foreign entities and the implications it could carry on the U.S. foreign affairs.[61] Although no specific legislature on point existed at the time, and the federal courts in the past had asserted jurisdiction over suits alleging breach of the “law of nations,” Congress’s codification of the ATS, served as a means of anchoring its powers, as well as extend the courts reach over the suits brought by aliens. [62]

  1. Resurgence of The ATS Litigation

Prior to the 1980’s ATS remained dormant, only being successfully utilized twice.[63] However, that all changed in 1980, when the Second Circuit reviled ATS in its ruling in Filártiga v. Peña-Irala,[64] opening the door foe the ATS to become “a touchstone for promoting effective remedies for serious human rights violations.”[65] In the case, a Paraguayan family brought an action in the U.S. District Court for the Eastern District of New York, against a former chief inspector of police, Americo Noberto Peña-Irala, also a citizen of Paraguay. The plaintiffs alleged that Peña-Irala kidnapped and tortured a seventeen-year-old Joelito Filártiga, ultimately resulting in his death.[66] The plaintiffs further alleged that the torture and murder was retaliation of the Mr. Filártiga’s political beliefs and dissidence, presenting a pattern of troubles that the Filártiga family faced when attempting to pursue legal resolution in the Paraguaian Court[67] District Court dismissed, for the lack of subject matter jurisdiction, and the Filártigas appealed to the Second Circuit.[68] The majority, after reviving a number of opinions by the domestic courts, municipal constitutions, in addition to The UN Charter, and the Universal Declaration of Human Rights, the reversed, holding torture to be forbidden by the law of nations, and awarding monetary damages to the family.[69]

The decision in Filártiga was monumental, and brought in a new era of human right litigation.[70] The holding allowed for those who violated “sufficiently and constitutionally defined”[71] human rights norms to be brought to justice and face substantial penalties.[72] The right to bring an action against private individuals was only bolstered by the courts, when over a decade later, in 1995, the Second Circuit in Kadic v. Karadžić, held a private individual, and a non-state actor liable violating the “law of nations.”[73]  In Kadic, when the citizens of Bosnia-Herzegovina brought a suit against the self-appointed president of the Republic of Srpska,[74] Radovan Karadžić the court The court, stating that “certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals,”  reasoned that the in the present day, the law of nations are not contained to solely state actions.[75] Specifically, the Second Circuit ruled that some violations of the law of nations are so atrocious, that they alone raise sufficient standing for the ATS, regardless of who actually commits them.[76] Importantly, the court did provide a distinction, ruling that genocide and war crimes, automatically fall within the jurisdiction of the ATS, and do not require a state actor.[77] However, things such as torture and exaction, require a state actor, to fall within the ATS jurisdiction, if the private individual aids and abed in the committed of those acts, or commissions gross violations of human rights, he will open himself to liability, and jurisdiction under the ATS.[78] By recognizing torture as a crime, the Court showed that violations of human rights, could be prosecuted in the U.S. under the ATS.[79]

The issue however arose when the “winners” of the litigation found out that they could recover any damages from the judgement.[80] However the holdings of Filáriga and later Kadic and specifically its “aiding and abending” standard served as a stepping stone in establishing corporate liability under the ATS, however,  it also served to splinter the courts.[81] The approach let do confusion and conflict in the courts over which standard for the corporate responsibility should be applied post Kiobel.[82]

Further, Doe I v. Unocal[83], Ninth Circuit judges were struggling with defending not only the source of law, but on finding the definition of “aiding and abetting.”[84] The precedent set forward in the Kadic, played an important role here.[85] Specifically, the plaintiffs alleged that the defendant, Unocal corporation hired the Burmese military to provide security for the construction of the Yadana Pipeline project. [86] Plaintiffs alleged that Unocal was aware of the sheer brutality of the military, and decided to enter into the “joint venture” regardless. [87] Further, plaintiffs allege that the military committed atrocious human rights violations including forced labor, rape, torture and murder, all in connection with the construction of the pipeline.[88] Finally, plaintiffs claimed that Unocal turned a blind eye to the violations and aided and abetted the military.[89] The majority, in an opinion, written by Judge Pregerson, ultimately held that international law was a sufficient standard against which the violations of the law of nations” could be judged, ultimately allowing the case against Unocal to continue[90] in his concurrence, judge Reinhard disagreed and found the cause of action in domestic law.[91] The similar lack of clarity was also echoed in the Second Circuit decision in the Khulumani v. Barclay National Bank Ltd.[92]where the panel of three judges, each writing its separate opinion, allowed the plaintiffs to plead the theory of “aiding and abetting liability” but ultimately split on which law should the courts look when determining the scope of the liability.[93] After these two cases , the Kadic line of thinking was effectively upheld and allowed for the victims to pursue agreeing with the ruling that a private actor can be held liable, without differentiation between a natural person or a corporation.[94] The road for the plaintiffs to sue corporations as they would natural citizens, was paved.[95]

  1. The ATS Model Is An Ineffective Domestic Law Mechanism To Address MNC responsibility.
  1. Restrictions by the Supreme Court Severely Limit Any Usability of ATS

Although the “aiding and abending” liability exists and serves as a jumping stone for the MNC liability, ATS did not possess proper authority to make any different on the front of human rights, as best illustrated by two cases heard by the Supreme Court: (1) Sosa v. Alvarez-Macain;[96] and (2) Kiobel v. Royal Dutch Petroleum Co.[97]

  1. Sosa V. Alvarez-Macaín And the Initial ATS Limitations

 

The first blow to ATS came in 2004, the U.S. Supreme Court decided Sosa v. Alvarez-Machain.[98] In Sosa, a Mexican citizen, Humberto Álvarez-Machaín, brought a suit against the United States Drug Enforcement Agency (“DEA”), alleging that DEA violated his civil rights by hiring Mexican nationals to detain him and transfer him to U.S. to stand trial for the murder of a DEA agent.[99] In its opinion, the Supreme Court offered three standards which the courts below use to apply the ATS.[100] First, the Court categorically ruled that the ATS is solely a jurisdictional grant and not a separate cause of action.[101] Second, the Court derived a standard as to apply when an ATS claim is raised, limiting the application of ATS’ jurisdiction to a modest number of violations.[102] Lastly, the Court instructed the courts below, although briefly and in passing, without offering details, to consider the extent of the ATS, and if it extends to include not only private actors but corporations as well, echoing the argument made by the judges in Kadic.[103]

In the essence, the Supreme Court held that the accountability of the claim “must be gauged against the current state of international law, looking to those sources [courts] have long, albeit cautiously recognized.”[104]  By this ruling, Supreme Court has validated the international law is changing and ever-evolving, but cautioned that to survive constitutional muster, the claim under the ATS must fall within the eighteenth century paradigm, at the time the ATS was implemented.[105] The decision, severely elevated the level of scrutiny each litigant will face, severely reducing a number of cases which can be brought under the ATS.[106]

  1. Kiobel v. Royal Dutch Petroleum: The Fundamental Shake Up to The Effectiveness of ATS

 

Another blow to the foundation of ATS came in the form of Kiobel v. Royal Dutch Petroleum.[107] In Kiobel, citizens of a Nigerian region of Ogoniland, brought a suit against Royal Dutch Petroleum Company and Shell Transport and Trading Company, who were conducting oil drilling and extraction in the region.[108] The plaintiffs alleged that Shell Petroleum Development Company incorporated in Nigeria and a subsidiary of Shell and RDPC, operating in Nigeria since 1958, caused an unrepairable environmental harm to the land.[109] Additionally, the plaintiffs alleged that SPDC in tandem with the Nigerian government, had committed gross violations of human rights, when attempting to suppress the complains by local population.[110] The Second Circuit dismissed the action, holding that actions against corporations, which allege the violations of international law do not have jurisdiction under the ATS.[111] In the decision, the court stated that the liability under the ATS applies to states and natural persons, but specifically not corporations.[112] Judge Leval, in his concurrence wrote a strong case as to why the corporate liability is near to impossible to successfully gather under the ATS.[113]  Agreeing with the majority, Judge Leval stated that there is no international precedent, which would even begin to impose the liability on corporations under current international law.[114] Judge Leval’s believes that because current norms of international law, in line with the Sosa ruling, do not speak as to the question of civil responsibility as applied to the corporations, United States are free to enforce such remedies against corporations.[115]

The Supreme Court granted certiorari on the issue of ATS being applied to corporate responsibility.[116] With this, both sides patiently waited for the would decide whether corporate liability under the ATS existed.[117] However, they were shortly disappointed with the outcome.[118] After the first argument, the court strayed away from the issue, deciding to instead focus on extraterritoriality.[119] Some scholars note that likely the reason for this shift lays in the severe divide between the justices as to the applicability of the ATS, forcing the court to focus on a less divisive issue.[120] The court in its ruling centered on whether the ATS applies to “violations of the law of nations occurring within the territory of a sovereign other than the United States.” The Court ultimately, in a one-paragraph opinion by Chief Justice Roberts, ruled that the courts should presume that ATS does not apply extraterritoriality.[121] The Court underlined the issue of extraterritoriality, stating that if Congress intended ATS to have extraterritorial reach, Congress should authorize it, realizing heavily on the text, the history and the supposed purpose of the ATS.[122]

First, the Chief Justice stated that, “nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach.”[123] Chief Justice addressed the argument by the petitioner which brought up the reference the ATS, in its language, makes to “any civil action,” to international law, and to torts, and was not persuaded.[124] Court ruled that there must be a clear Congressional intent to extend the applicability to extend extraterritorially, and in the ATS it is not present.[125] Second, as Justice Roberts address the ATS’s historical background, the Court echoed back to Sosa, stating that restricted the scope of the ATS to three specific breaches of international law existing under the 18th century paradigm, specifically the violation of safe conducts, the breach of the rights of ambassadors, and piracy.[126] While, some argued that the first two violations, specifically the breech of rights of ambassadors and violations of safe conduct, clearly do not support the expansion of extraterritoriality, the third inclusion of piracy, as argued by the petitioner, would clearly support it. [127] However, although the Court agreed that piracy is arguably the first international crime punished by all states, even if committed outside their individual territories, The Court, denied that “the existence of a cause of action against pirates is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another independent state.”[128] Stating that piracy frequent occurred on the “high seas” generally outside of any single boundaries.[129] Finally, focusing on the purpose of ATS, the Court read that the Congressional intention for the new nation to gain the trust and respect of the other nations at the international level, and not to create an unusual forum for enforcement of international legal norms.[130]

  1. ATS Fails to Prevent Violations, Provides No Remedy and Only Serves To Create Confusion.

After the Kiobel decision the outcry from the supporters of pro-corporate application of ATS was drastic.[131]  However the Court’s ruling is not wrong.[132] In fact in only served as means to underline the need for a new, clearer law that MNCs can comply with.[133] However, most of the debate surrounding ATS focused its use as means of developing a “norm” for the international human rights, rather than means of preventing the violations or allowing a remedy.[134] Additionally, hailing ATS as a “badge of honor” for the United States, and its symbol of its commitment to upholding human rights only underlines the flaws of the law further.[135] Arguably, the law does not serve as means of protecting the actual rights, does not allow for protection of workers, or exploitation of recourses, but instead acts a political token, and its power is purely symbolic.[136]

Additionally, the confusion of how to deal with the ATS does not only frustrate the courts, but the MNC’s doing business in the U.S.[137] Specifically, lack of an objective standard, to follows results in the harrowing prospect of the business being involved in the lengthy and expensive lawsuits, based on frivolous grounds, is a terrifying one, and come with large bills to be paid.[138] Some, such as legal fees, are easy to calculate and hedge against, while others, such as damage to the reputation loss of opportunity, rising costs of doing business, and hesitation of new investors to expand and invest are near uncalculatable altogether.[139]

The second issue for the MNC’s stems from the potential effect on the investors in the rising markets.[140] Specifically, by some calculations, a stronger push for the ATS presence in the current form will result in U.S.’ companies divesting from developing markets.[141] The result could be the loss of as much as $55 billion of foreign direct investment, and a loss of nearly $10 billion to the US economy.[142] While the numbers do appear drastic, they serve as to further underline the need for detailed guidelines as to corporate liability under the ATS.[143] The issue of ATS is not new, yet the MNC’s have been on the rise for the past three decades since its resurgence, seemingly not afraid of the exact consequences, now claimed to be world-ending.[144]

  1. Arab Bank underlines that ATS cannot be amended to handle current state of affairs.

A group of plaintiffs, composed of various aliens who were injured, tortured or captured by terrorists, filed a complaint, seeking relief from Arab Bank, for injuries sustained in various terrorists attacks throughout the Middle East.[145] The defendant, a bank with its headquarters located in Jordan, and branches around the world, including a single office in New York, was accused of providing the financing, through their New York office, to Palestinian terrorist organizations, in part through promises of financial payments to the relatives of “martyrs” who were killed, injured, or captured while implementing the attacks.[146]The plaintiffs argued that the defendant knowingly maintained accounts that the terrorist organizations used to solicit funds and also knowingly maintained accounts that proxy organizations and individuals used to raise funds for the terrorist organizations.[147]Additionally, the defendant allegedly played an active role in identifying the families of “martyrs” and facilitating payments to them.[148]

The plaintiffs filed five lawsuits against the defendant between 2004 and 2010, claiming violations of the Anti-Terrorism Act, the ATS, and federal common law.[149] In 2013, the district court dismissed the ATS claims on the basis of precedent set by Kiobel [150].At that time, the ATS claims were all that remained in three of the five lawsuits, and final judgment was entered accordingly.[151]

The Second Circuit court affirmed the district court’s judgment dismissing the plaintiffs’ ATS claims.[152]In reaching its decision, the court relied on the holding of Kiobel that the ATS does not allow for corporate liability.[153] The court acknowledged the growing trend toward allowing corporate liability, but nonetheless determined that it was bound by the precedent of Kiobel.[154] The case is curranty under review by the Supreme Court

  1. The French Vigilance Model and The Like Laws Currently in Deliberation, Offer Better Protection For Human Rights Than ATS.

ATS currently does not have a comparable standard in the world, and lack of peers leads to problems.[155] A common theme has been echoed by both US and France, specifically an unwillingness to act unilaterally, in fear that an overbearing law would result in loss of competitive advantage.[156] Even at the peak of its popularity, several scholars stressed the need to look for an international standard to replace the U.S.’ standard.[157] Some have argued that international law must be uniform, and create a unified norm as to how to deal with violations of human rights.[158] As of today, international law has proven to useless in protecting the human rights, when it comes to MNC’s gravely violating human rights.[159] It is not likely that  a universal rule will ever see the light of day, however current developments in a number of nations, with France at the helm, are making stride towards a standard of corporate liability.[160]

  1. French Vigilance Law is a Strong Model to Follow When Creating a Like Statute in The U.S.

On April 24, 2013, an eight-story building, named Rana Plaza, located in the Dhaka District of Bangladesh collapsed, trapping 4,000 workers under the rubble. After three weeks of rescue attempts, the tragedy cost over a thousand people their lives, and is considered the deadliest garment factory accident in history.[161] The building contained several clothing factories, manufacturing clothes for the various clothing giants around the globe.[162] After large cracks were discovered in the floors, and the safety inspectors warned the manufactures to avoid using the building, the Garment workers were ordered to report for work, causing the building to implode during the morning rush-hour.[163] The French media widely critiqued the French companies with the manufacturing at Rana Plaza, who in turned blamed their suppliers. In the end, nobody was found to be responsible.[164]

Inspired by these events, and heavily relying on the ATS model, the French Legislature, looked towards potential legislative avenues allowing civil recovery to the victims of foreign subsidiaries.[165] A law, allowing the French Courts to have jurisdiction over corporate violations of human rights committed by French companies and its subsidiaries or by foreign companies with sufficient minimum contacts to France.[166] The Bill however did not easily pass.[167] After a rigorous debate on the disadvantages the French companies (and by extension the French economy) could face because of the bill, the French senate rejected it, however the bill was sent back to the National assembly, where in the February of 2017, the bill was adopted.[168]

Titled ‘Loi relative au devoir de vigilance des sociétés mères et des entrprises donneuses d’ordre’ (“law about the duty of due diligence of parent companies and main contractors”), applies to the French companies and its direct or indirect subsidiaries which, for the period of two consecutive years, employ at least five thousand employees, if their office is located in France, and if the office is located abroad but they do business in France, companies which employ at least ten thousand employees by itself or through their direct or indirect subsidiaries.[169] The unique design of the law focuses not only allowing victims of human rights violations to seek damages, but to act proactively, forcing the companies to instead prevent the violations in the first place.[170]

 

A large part of the bill is focused on prevention of human rights violations.[171] This is achieved by placing a un devoir de vigilance (“a duty of vigilance”) a three-part obligation for the companies to follow.[172]

First the companies must establish a “vigilance plan.”[173] This plan sets out reasonable measures for identifying risks and prevention of gross abuses of human rights, which can result from the activities which is the company, its subsidiaries, subcontractors or suppliers, or any company with which there is an established commercial relationship, are involved in.[174] This includes risk-mapping to help with identification and analysis of risks, prophylactic procedures for assessing the status of any affiliates with respect to the potential human right risks, defining appropriate actions to prevent or mitigate an occurrence of gross violations, an implication of a whistle blowing system to allow for reporting of potential violations, and lastly a monitoring system to keep consistent updates on the plan. Second, the plan must be effectively implemented, meaning it must be monitored and companies must dedicate a budget for the program.[175] Third, the plan must be made public, and a report on how the plan is effectively implemented must be included annually in the company’s management report and freely available to public.[176]

Those who are found to be in violation, are given an opportunity to correct their behavior. First a public formal notice, and allowing three months to implement a vigilance plan.[177] If the company does not comply with the notice, the issue could be brought in front of the French courts, with a fine could be levied up to 10 million euros.[178]

Additionally, Article 2, which finds its roots in the general law of tort, is aimed at holding corporations not only responsabilité pour faute (“responsible for their own fault”) but also responsabilité du fait d’autrui (“vicariously liable”) for the actions of their subordinates.[179]

Bringing an extraterritorial application of the law.[180] The victims of negligence, which according to the law can occur on the foreign territory, can bring a clam to the French court seeking damages, if the negligence could have been avoided or mitigated with the presence of a plan. [181] Additionally, the judge can also levy a fine of up to 30 million euros.[182] However, this application is only limited to the situations where the MNC’s failed to initially establish a vigilance plan, and the negligence caused, could have been prevented.

The original draft of the law, however did include an ability for the victims to pursue remedy not only the cases when the vigilance plan was not satisfied, but similarly to the ATS, allow the victims access to justice in the event they are able to carry the burden of proof showing harm has occurred, as long as the size and contacts with the French territory requirements mentioned above are satisfied.[183] The senate swiftly rejected this part of the law. However in its debate, the Senate stated that the part of the law is being denied not because it would impossible to grant such power to the Courts, but because the specific part of law is too vague in its construction.[184]

  1. The bill aims to not only punish, but to make the prevention of human right abuses a part of corporate culture.

Unlike the ATS, which focuses solely on allowing remedy, the Vigilance plan attacks the problem on its head. Specifically, the law forces the MNCs to focus on being preemptive. The benefit if the vigilance law is that it works by not only serving as a punishment in the way of having the companies pay out large sums in settlements, but by shaming the companies and affecting their good public standing, and then affecting their entire supply chain. Specifically, in the aftermath of the Rana Plaza collapse, brands worldwide proceeded to blacklist factories which failed to comply with safety and health standards of the industry. However, the damage has already been done, the pubic turned against the retailers and their bottom line took a hit. Further the companies which failed to donate to the recovery funds were shamed in the newspapers and various other publications.

  1. France is Not Alone in Extending the Reach of Courts to Include Foreign MNCs When Dealing With Human Rights Violations.

In addition to France, several other European countries are following in their footsteps. Specifically, in Switzerland, a proposition, if passed, would impose duties to prevent human rights violations on Swiss companies and its direct and indirect subsidiaries, or face fines and possible law suits.[185] Swiss law bears similarities to the French Vigilance Law.[186] Specifically, both laws focus not on a narrow arrow of rights, but rather the focus is on the size of the MNCs.[187] Much like the vigilance law, the Swiss proposal would create a duty of care for the MNC which it must exercise through the entirety of the supply chain, and extend the jurisdictional reach to foreign entities, even if the harm occurred in a territory of another state.[188] However, unlike the French law, the Swiss proposal would shift the burden of proof to the MNC’s rather than putting it on the victims.[189] Similarly, Sweden is working on a law which would exercise jurisdiction over foreign subsidiaries in the event they are caught abusing human rights.[190]

Additionally, Netherlands and U.K. although not currently developing hard laws, they are building a precedent which would extended the court’s jurisdiction over a foreign MNC. In 2012, in Chandler v. Capeplc, English Court of Appeals held that a parent was responsible for the actions of its subsidiarity, even if the victim was only in contract with subsidiary, allowing the victims of asbestos poisoning to recover from the parent company. Although all parties were domestic, High Court recognized that this precedent could be applied extraterritorially. The Court went on to apply this precedent four year later in 2016, in Lungowe v. Vedanta.[191] In Vedanta the court found jurisdiction over a parent company whose subsidiary in Zambia was accused of grave environmental harm and a mass tort against nearly 2000 Zambian Farmers. The court went on to state that since the parent company had superior assets and was in a better financial position than its subsidiary, substantially profited from the actions of its subsidiary, and extended substantial control over its subsidiary. The Court noted that in the event the case is successful, the parent could liquidate its subsidiary, and thus avoid paying out the damages. The court concluded by stating that since Vedanta, the parent company, was profiting from its subsidiary, it should be held accountable.[192]

Lastly, even in the U.S. an attempt on a new law has been previously made.[193] In the aftermath of the Sosa decision, a senator from California, attempted to get a bill[194] through Congress, that would attempt to restructure the ATS. However, the attempt was met by criticism, alleging that it was only passed as means to appease the multinational corporations in the state, resulting in the bull ultimately dying.[195]

  1. Conclusion

It is clear that ATS is no longer an effective tool to use when attempting to find remedy for violations of human rights. Yet, it does not mean that the law should be simply forgotten. The current growing demand by the public for accountability from their corporations and push for MNCs to be socially aware, mixed with the rapid growth of the MNCs creates the perfect to reflect on the ATS and use it as a base for a, and improved law. That not only allows for victims to sue, but regulates and prevents the violations from occurring in the first place. And in these times, there is a desperate need for a leader.

The French law is a major milestone in improving how MNCs approach human rights, however, as its currently one of a kind, it does not provide the strongest front. The French Council acknowledges that with the ever-growing presence of MNCs, the times when states only protect their own interest and allow the board members to hide behind the corporate veil are long gone. Their model allows for not only remedy, but forces companies to consistently check their entire supply line and force them to act proactively.

France is not alone, striving to improve corporate accountability. As I noted earlier, Netherlands, Switzerland, Canada, among others, are making strides, and while the resolution of many of the laws remains to be seen, it is likely that much like the situation in France, the laws will pass and become effective.

Human Rights are a crucial part of the United States identity. Further, United States have a long history acting as a leader, being on a forefront of history and leading the charge in large developments worldwide. The Declaration of Independence can be viewed as “the first civic document that met a modern definition of human rights.”[196] It is asinine to turn a blind eye now.[197] A  strong position by United States, creating a law that allows for the violators to be sued in the US courts, but has a preventive perspective to it, in connection with the actions currently taken by France, will not only create a unified front from which developments can be made farther.[198] Additionally, with US leading the charge, a new and improved law that will replace the ATS will act as a prophylactic and guarantee that MNCs focus heavily on their behavior in the development world and act ethically.[199]


[1] See Thomas L. Friedman, The World Is Flat 3.0: A Brief History of the Twenty-First Century 9-10 (2005) (noting that with the rapid developments in technology reusing in decrease of transpiration costs and allowing for immediate world-wide communication, resulted in a dramatic rise of global commerce).

[2] See Panos Mourdoukoutas, The Unintended Consequences of Outsourcing, Forbes (Oct. 9, 2011), https://www.forbes.com/sites/panosmourdoukoutas/2011/12/09/the-unintended-consequences-of-outsourcing/#2e00034b7e36 (“Outsourcing is a good business strategy. It improves efficiency, cuts costs, speeds up product development, and allows companies to focus on their ‘core competencies.’”).

[3] See Cardona v. Chiquita Brands Intern., Inc. 760 F.3d 1185 (11th Cir. 2014) (alleging torture and murder of the local populace by Colombian paramilitary, with funds supplied by Chiquita Brands); Doe v. Exxon Mobil Corp., 573 F. Supp. 2d 16 (D.C. Cir. 2008) (alleging “brutality and cruelty” by Indonesian military hired by Exxon to protect its natural gas facility in the Aceh province); Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001) (alleging forced labor, wrongful death, false imprisonment, assault, intentional infliction of emotional distress and negligence, all relating to the construction of the Yadana gas pipeline).

[4] 28 U.S.C. § 1350 (2006). On occasions, Courts have also referred to the ATS as Alien Tort Claims Act (“ATCA”). See Doe v. Unocal Corp., 395 F.3d 932, 943 (9th Cir. 2002); Benjamins v. British European Airways, 572 F.2d 913, 916 (2d Cir. 1978). However, in line with the Supreme Court referring to the statute as “ATS,” this Note will do the same. See Sosa v. Alvarez-Machain, 542 U.S. 692, 697 (2004).

[5] See Peter Henner, Human Rights and the Alien Tort Statute: Law, History and Analysis 10 (2009) (stating that since its first use in 1980, ATS has become one of the most powerful “weapons” in the hands of human rights advocates); see also Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).

[6] Donald E. Childress, The Alien Tort Statute, Federalism, And The Next Wave Of Transnational Litigation, 100 Geo. L.J. 709, 713 (2012).

[7] See id. at 714.

[8] See Sosa 542 U.S. at 691 (limiting the Court’s jurisdiction over those violations accepted by the civilized world and defined with specificity comparable to the features of the 18th century paradigms); Kiobel v. Royal Dutch, 621 F.3d 111 (2d Cir. 2010); cert. granted, 132 S.Ct. 472 (2010) (ruling that ATS does not apply extraterritorially). Further, the Court has looked at the application of ATS to corporate liability in October 2017, when it heard the case of Jesner v. Arab Bank. See Jesner v. Arab Bank 808 F.3d 144 (2d Cir. 2009) cert. granted 137 S.Ct. 1432 (2017).

[9] See Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1667 (2013) (suggestion of corporate responsibility is present, yet not explored);Sosa 542 U.S. at 692 (noting the issue of corporate liability, but not exploring it);

[10] 808 F.3d 144 (2d Cir. 2009) cert. granted 137 S.Ct. 1432 (2017).

[11] See Julian G. Ku, The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed System of Judicial Lawmaking, 51 Va. J. of Int’l Law 353. 356 (2010); Gary C. Hofbauer & Nicholas K. Mitrokostas, Awakening Monster: The Alien Tort Statute of 1787 10 (2003); Michael Koebele, Corporate Responsibility Under the Alien Tort Statute: Enforcement of International Law Through US Torts Law (2009).

[12] Kevin Golden, License to Kill? Corporate Liability Under the Alien Tort Claims Act?,1 Global Bus. L. Rev. 37, 44 (2012).

[13] See Ku, supra note 11, at 366.

[14] Ku, supra note 11, at 354.

[15] See infra part II

[16] See infra Part III

[17] See infra part IV

[18] See Freidman, supra note 1, at 135.

[19] Id., at 137.

[20] Id.

[21] See Henner, supra note 5 at 324 (noting that companies such as Hershey, Apple, Nike, among others have been involved in several serious human rights violations, ranging from oppression of labor, to inhumane working conditions, to destruction of recourses).

[22] See Saman Zia-Zarifi, Suing Multinational Corporations in the U.S. for Violating International Law, 4 UCLA J. Int’l L. & Foreign Aff. 81, 81 n.1 (1999).

[23] See Paul A. Argenti, Corporate Ethics In The Era of Millenials, NPR, Aug. 24, 2016 http://www.npr.org/sections/13.7/2016/08/24/490811156/corporate-ethics-in-the-era-of-millennials (stating that consumers demand more corporate responsibility); James Epstein-Reeves, Consumers Overwhelmingly Want CSR, Forbes (Dec. 15, 2010) (“More than 88% of consumers think companies should try to achieve their business goals while improving society and the environment.”).

[24] See id.

[25] See Vivian G. Curran, Harmonizing Multinational Parent Company, 17 Chi. J. Int’l L. 403, 410 (2017).

[26] Bill Reinsch, The Alien Tort Statute’s Impact On The Business Community, 30, World Comm. Rev. (June 2012) http://www.worldcommercereview.com/publications/article_pdf/612.

[27] International Labour Organization, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, 5th Ed. Mar. 2017.

[28] Connie De La Vega, et al., Holding Businesses Accountable for Human Rights Violations: Recent Developments and Next Steps, Friedrich Ebert Foundation: Dialogue on Globalization 4 (July 2011), http://www.l4bb.org/articles/amol_article.pdf.

[29] Id.

[30] Lara Blecher, Codes of Conduct The Trojan Horse of International Human Rights Law?, 38 Comp. Lab. L & Pol’y J. 437, 441 (2017).

[31] Id.

[32] John Ruggie, Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises: Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework,

https://business-humanrights.org/sites/default/files/media/documents/ruggie/ruggie-guiding-principles-21-mar-2011.pdf

[33] Id.

[35] See U.K. Modern Slaverly Act of 2015, http://www.legislation.gov.uk/ukpga/2015/30/contents/enacted.

[36] See id.

[37] Id.

[38] Id.

[39] See California Supply Chain Transparency Act of 2010, Cal. Civ. Code § 1714.43 (West 2012).

[40] See Brief for Ctr. for Const. Rts. & Int’l Fed’n for Hum. Rts. as Amici Curiae in Support of Neither Party at 3, Jesner v. Arab Bank, 808 F.3d 144 (2d Cir. 2009) cert. granted 137 S.Ct. 1432 (2017) (No. 16-499), 2017 WL 2839265 (“The Alien Tort Statute is a vital tool for enforcing the law of nations, which in the modern era includes international human rights as a central area of attention.”).

[41] See 28 U.S.C. § 1350 (2012).

[42] See infra.

[43] See 3C Am. Jur. 2d Aliens and Citizens § 2114 (2017); See Sosa v. Alvarez-Machain 542 U.S. 692, 713 (2004) (ruling that ATS does not create a new cause of action, but allows the courts to utilize causes of actions that exist under international law).

[44] See Sosa 542 U.S. at 699.

[45] 28 U.S.C. § 1350, see, e.g., Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 116 (1784); see also Sosa 729-30 (2004) (“For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations[…]. It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.”). Some scholars also argue that reasons for the ATS inclusion in the 1789 Judiciary Act could have been that Congress may have intended to provide uniformity in the application of international norms by allowing federal courts jurisdiction over alien tort claims, as suggested by the Supreme Court in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1964). Other sources have asserted that Congress may have believed that it was the responsibility of the United States, as a member of the world community, to provide an alien tort remedy. See, e.g., AnneMarie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AM. J. INT’L L. 461, 475-80 (1989).

[46] See Henner, supra note 5, at 2 (noting that the ATS litigation saw a major rise in popularity since 1980’s.).

[47] See Kiobel v. Royal Dutch, 621 F.3d 111 (2d Cir. 2010); Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009); Doe v. Exxon Mobil Corp., 573 F. Supp. 2d 16 (D.C. Cir. 2008); Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001); Wang Xiaoning v. Yahoo!, Inc., No. 07 Civ. 02151 (N.D. Cal. Nov. 9, 2007) (this matter was ultimately settled out of court).

[48] 28 U.S.C. § 1350.

[49] See 3C Am. Jur. 2d Aliens and Citizens § 2114 (2017); See Sosa v. Alvarez-Machain 542 U.S. 692, 713 (2004) (ruling that ATS does not create a new cause of action, but allows the courts to utilize causes of actions that exist under international law).

[50] Anthony D’Amato, The Alien Tort Statute and the Founding of the Constitution, 82 Am. J Int’l L. 62, 63 (1988) (“[N]o capsule summary of legislative history can be found explaining the origin of the Alien Tort Statute . . . .”).Additionally, Judge Friendly described ATS as a “kind of legal Lohengrin” stating that much of ATS’s history and background are a mystery, due to lack of any concrete evidence as to where ATS came from, and what motivation was driving the First Congress to add the statute, only adding difficulty to its application. See IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975).

[51] U.S. CONST. Art. I, § 8. cl. 10 (“Congress shall have the power to . . . to define and punish piracies and felonies committed on the high seas, and the offences against the Law of Nations….”).

[52] D’Amato, supra note 37, at 64. D’Amato notes that at the time of the passing of ATS, “the plight of individual citizens in the foreign countries . . . was the major excuse for war,” noting that founding fathers were aware of this and attempted to avoid any “denials of justice” to foreign citizens. Id

[53] The Federalist No. 4 (John Jay). Additionally, inability of the Federal Government to deal with violations of the “laws of Nations” was spoken on by James Madison, arguing that a lack of an overall judiciary to control violations of treaties would result in the Union not being taken seriously. See The Federalist No. 41 (James Madison) (“These articles [of confederation] contain no provision for the case of offenses against the law of nations; and consequently, leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations.”). This motion was echoed by Alexander Hamilton. The Federalist No. 80 (Alexander Hamilton) (stating that not addressing violation of sovereign immunity is sufficient “perversion of justice” and enough of a cause to declare a war under the law of nations).

[54] The Federalist No. 4 (John Jay).

[55] The Federalist No. 4 (John Jay).

[56] See D’Amato, supra note 37, at 63.

[57] Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1666 (2013).

[58] See Kiobel,133S. Ct. at 1666.  

[59] See Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 116 (1784). In the case, Mr. De LongChamps attacked French ambassador in the middle of Philadelphia. See Alfred Rosenthal, The Marbois-Longchamps Affair, 63 The Pennsylvania Mag. 295 (1939). Since the US Government failed to address the offense, and due to incompetency by the arresting officer, allowing De Longchamps to escape custody, the French minister treated to leave the United States. Id. Although, with the help of John Jay, the minister ultimately subsisted, however the inability of the Federal Government to deal with such events was highlighted. Id.

[60] See Kiobel, 133 S. Ct. at 1667. The incident, resulted in John Jay reporting to the Congress that it was “embarrassing” that the nation had no means to deal with such incidents. 34 J. Cont. Cong. 109, 111 (1788).

[61] See George P. Fletcher, Tort Liability for Human Rights Abuses 10 (2008).

[62] See Sosa v. Alvarez-Machain, 542 U.S. 692, 729-30 (2004) (“For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations[…]. It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.”). Some scholars also argue that reasons for the ATS inclusion in the 1789 Judiciary Act could have been that Congress may have intended to provide uniformity in the application of international norms by allowing federal courts jurisdiction over alien tort claims, as suggested by the Supreme Court in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1964). Other sources have asserted that Congress may have believed that it was the responsibility of the United States, as a member of the world community, to provide an alien tort remedy. See, e.g., AnneMarie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AM. J. INT’L L. 461, 475-80 (1989).

[63] See Bolchos v. Darrell, 3 F. Cas. 810 (D.S.C. 1795) (invoking ATS to establish jurisdiction over an action in violation of Treaty of Amity with France); Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961) (holding that in the case of a child-custody case between two Lebanese nationals, involving unlawful taking of the child from the custody of her father and falsifying the child’s identity and nationality, to wrongfully transport the child across borders was in violation of the law of nations.); see also Beth Stephens & Michael Ratner, International Human Rights Litigations in U.S. Courts 8 (1996) (naming the two occasions as Bolchos and Adra).

[64] 630 F.2d 876.

[65] Brief of Amici Curiae International Jurists in Support of Affirmance at 13, Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004) (No. 03-339)

[66] See Filártiga v. Peña-Irala 630 F.2d 876 (2d Cir. 1980).

[67] See id. at 877-79 (noting that the attempts by the family to obtain relief in Paraguay, were continuously blocked. Mrs. Filártiga and her daughter were arrested on multiple occasions, and family members received death threats each time a mention of a suit was brought up. Id.).

[68] See id. at 892.

[69] Filártiga v. Peña-Irala 630 F.2d 876, 880 (2d Cir. 1980) (“[W]e find that an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.”).

[70] See Henner, supra note 5, at 58, see also David J. Bederman, Dead Man’s Hand: Reshuffiling Foreigj Sovereign Immunities in U.S. Human Rights Litigation, 25 Ga. J. Int’L & Comp. L. 255, 256 (1996) (“In a sense, all current human rights litigation owes its fortune to Filartiga. The rediscovery of the Alien Tort Statute was much like finding the Holy Grail.”)

[71] United States v. Smith, 18 U.S. (5 Wheat.) 153, 162 (1820).

[72] See Arce v. Garcia 434 F.3d 1254, 1256 (11th Cir. 2006) (awarding defendants fifty-four million dollars); see also Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355, 1364 (S.D.Fla. 2008) (awarding eighty million dollars in damages). However, less than 100 cases, were filled to attempt to recover a large sum from corporations, with a number of successful cases being less than a dozen. Bill Reinsch, The Alien Tort Statute’s Impact on The Business Community, 29, World Com. Rev. (June 2012).

[73] See Kadic v. Karadžić, 70 F. 3d 232 (2d Cir. 1995).

[74] The Republic of Srpska is a mostly autonomous administrative division of Bosnia and Herzegovina. Central Intelligence Agency, The World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/bk.html (last visited Oct. 13, 2017). The defendant was a self-appointed president of the republic between 1992 to 1996. See Ku, supra note 11, at 365. While he was de jure president, the independence of Srpska was not recognized as a state, nor considered a part of Yugoslavian or Bosnian government, leading to Mr. Karadzic being tried as a private actor. See id.

[75] See Kadic, 70 F.3d at 236-237.

[76] See id.

[77] See id.

[78] See id. at 247.

[79] Filártiga v. Peña-Irala 630 F.2d 876 (2d Cir. 1980).

[80] See Hofbauer, supra note 11, at 10 (stating that although the amounts of settlements are well into billions, in many cases, the plaintiffs are left with no means to recover anything, as the defendants are judgment proof). An example of this phenomenon, is the Filártiga family, who awarded $10.3 million judgment, however could not collect any of the money, as the defendant was deported shortly after the trial. See Filártiga v. Peña-Irala 630 F.2d 876, 880 (2d Cir. 1980).

[81] See, e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 247 (2d Cir. 2009);

Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 259 (2d Cir. 2007) (per curiam); Doe I v. Unocal Corp., 395 F.3d 932, 947 (9th Cir. 2002).

[82] See infra.

[83] Unocal, 395 F.3d 932.

[84] See id. at 937.

[85] See Donald E. Childress, The Alien Tort Statute, Federalism, And The Next Wave Of Transnational Litigation, 100 Geo. L.J. 709, 712 (2012).

[86] Doe v. Unocal Corp., 963 F. Supp. 880, 884-885 (C.D. Cal. 1997).

[87] Doe v. Unocal Corp., 963 F. Supp. 880, 884-885 (C.D. Cal. 1997).

[88] Doe I v. Unocal Corp., 395 F.3d 932, 939-940 (9th Cir. 2002).

[89] Katherine Gallagher, Civil Litigation and Transnational Business: An Alien Tort Statute Primer, 8 J. INT’L CRIM. JUST. 745, 750 (2010).

[90] See id. at 945.

[91] Id. at 963 (Reinhardt, J., concurring) (“[T]he ancillary legal question of Unocal’s third-party tort liability should be resolved by applying general federal common law tort principles, such as agency, joint venture, or reckless disregard.”).

[92] 504 F.3d 254 (2d Cir. 2007).

[93] See id. Judge Hall in his opinion argued that the federal law must consulted by the federal court. Id. at 284. While Judge Katzamann stated that the courts must analize international tribunals on the issue to find the applicable standard. Id. at 270-78. Lastly, Judge Korman, while concurring in his opinion that international law should be used, stated that it does not extend to the corporate liability. Id. at 312.

[94] See Doe v. Unocal Corp., 963 F. Supp. 880. 892 (C.D. Cal. 1997).

[95] See Doe 963 F. Supp. at 892

[96] 542 U.S. 692 (2004).

[97] 569 U.S. 108 (2013).

[98] Sosa, 542 U.S. 692.

[99] Id. at 697-98.

[100] Id.

[101] Id.

[102] Id.

[103] Id. at 699

[104] Id. at 619

[105] Id. at 725

[106] Id. at 724-725. The offences which fall under the 18th Century paradigm are “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Sosa, 542 U.S. at 715.

[107] See Ku, supra note 11, at 372 (2010).

[108] Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108,109 (2013).

[109] Kiobel, 569 U.S. 109.

[110] Id. at 110.

[111] Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 125-132 (2d Cir. 2010).

[112] Id. at 122-131 (2d Cir. 2010).

[113] Id. at 151.

[114] Id.

[115] Id. at 152 (2d Cir. 2010).

[116] Peter Henner, When is a Corporation a Person? When it Wants to Be. Will Kiobel End Alien Tort Statute Litigation?, 12 Wyo. L. Rev. 303, 304 (2012).

[117] Lauren Carasic, Kiobel case: Corporate accountability for human rights abuses, AlJazeera (Apr. 1, 2013), http://www.aljazeera.com/indepth/opinion/2013/04/201341103110790388.html.

[118] See Kiobel v. Royal Dutch Petroleum Co. 569 U.S. 108 (2013).

[119]  Henner, supra note 96, at 304.

[120] Id. (“It appears that the Court is badly fractured between pro-ATS wing (Justices Breyer, Ginsberg, and Kagan) and the conservative anti-ATS wing (Justices Roberts, Alito, Scalia, and Thomas).”).

[121] Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108,124 (2013) (“We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.”).

[122] Id. at 115.

[123] Id.

[124] Id.

[125] 28 U.S.C. § 1350 (2012); see also Kiobel, 569 U.S. at 115.

[126] Id. at 116 (2013). Supreme Court stated that “[t]here was… a sphere in which these rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships. Blackstone referred to it when he mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy.” See Sosa v. Alvarez-Machain, 542 U.S. 692, 715 (2004).

[127] See supra Part II.

[128] See Kiobel, at 115.

[129] Id. at 116.

[130] Id. at 123 (“[T]here is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.”).

[131]  See Jordan J. Paust, Human Rights Through The ATS After Kiobel: Partial Extraterritoriality, Misconceptions, And Elusive And Problematic Judicially-Created Criteria, 32 Duke F.L. & Soc. Change, 31, 31 (2014) (arguing that the judges took any wind out of ATS and ruled contrary to the common consensus of the world, setting United States back in the fight for human rights); Ku, supra note 11, at (underlining that the ruling dealt a crippling blow to the pro-corporate liability argument).

[132] See Paust, supra note 120, at 32.

[135] Ku, supra note 117, at 2218-219.

[136] Id., at 2219 (“ATS’s importance lies less in the outcome of actual cases, and more in its symbolic and expressive importance for U.S. foreign policy and for the development of international law.”).

[137] Reinsch, supra note 62, at 29.

[138] Id.

[139] Id.

[140] Id.

[141] Id. at 30.  http://www.worldcommercereview.com/publications/article_pdf/612.

[142] Bill Reinsch, The Alien Tort Statute’s Impact On The Business Community, 29, World Commerce Review (June 2012) http://www.worldcommercereview.com/publications/article_pdf/612.

[143] See Curran, supra note 25, at 408

[144] See Peter Marber, From Third World To World Class: The Future Of Emerging Markets In The Global Economy 87-104 (1998) (speaking on the MNCs expanding end developing their opportunities in the emerging nations.).

[145] Jesner v. Arab Bank, 808 F.3d 144, 158 (2d Cir. 2009) cert. granted 137 S.Ct. 1432 (2017).

[146]Id., at 147.

[147] Id.

[148] Id.

[149] Id.

[150] Id., a159.

[151] Id.

[152] Id., at 160.

[153] Id., at 151.

[154] Id., at 160.

[156] See James Bessen, Accountig for Rising Corporate Profits: Intangibles or Regulatory Rents?, B.U. L. & Econ. Paper No. 16-18, (May 2016), see also Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1667 (2013) (noting that it is not the place of United States to act the moral compass of the world). Bessen further notes that the governments are not keen on overstepping their boundaries and acting unitarily when comes to prosecuting MNCs as it can result in segregation of political ties between states and cause unnecessarily tensions. See Bessen, supra note 135.

[157] Propositiondeloirelativeaudevoirdevigilancedessociétésmèresetdesentreprisesdonneusesd’ordre, Assemblée nationale, 14 ème législature, no. 2578 (Feb. 11, 2015), http://www.assemblee-nationale.fr/14/rapports/r2628.asp.

[158] Id.

[159] Id.

[160] Id.

[161] Id.

[162] Id.

[163] Id.

[164] See Expose des mostif, supra note 136.

[165] Id.  Liesbeth Enneking  in her comment, has credited the ATS as behind motivation behind a “western trend towards … foreign direct liability cases.” Liesbeth Enneking, The Future of Foreign Direct Liability? ExploringtheInternationalRelevanceoftheDutch Shell Nigeria Case, 10 UTRECHT L. REV. 44, 44 (2014).

[166] Id.

[167] SeePropositiondeloiadoptéeavecmodificationsparl’Assembléenationaleendeuxièmelecture,relativeaudevoirde vigilance dessociétésmèresetdesentreprisesdonneusesd’ordre,Sénat, Session ordinaire de 2015-2016, no. 496 (Mar. 24, 2016) http://www.assemblee-nationale.fr/14/pdf/ta/ta0924.pdf. The law was defeated in the senate, and was returned to the National Assembly for revote. Id.

[168] Décision no. 2017-750 DC du 23 Mars 2017 du Conseil Constitutionnel, http://www.conseil-constitutionnel.fr/ conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2017/2017-750-dc/decision-n-2017- 750-dc-du-23-mars-2017.148843.html

In the event the two houses of parliament do not pass the law, following two readings by each house, the French National Assembly has the final say in the law-making decisions. Enregistré à la Présidence de l’Assemblée nationale le 11 mars 2015, Article 45, http://www.assemblee-nationale.fr/14/rapports/r2628.asp#P105_12526

[169] See Propositiondeloi, supra note 156.

[170] Id.

[171] See Propositiondeloi, supra note 156, at 2-3

[172] See Propositiondeloi, supra note 156, at 3.

[173] Entreprises: devoir de vigilance des enterprises donneuses d’ordre, Loi no, 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des enterprises doneuses d’ordre, http://www.assemblee-nationale.fr/14/dossiers/devoir_vigilance_entreprises_donneuses_ordre.asp.

[174] Speak on how UNGP defines substantial bus. Con.

[178] See Loi no2017-399, supra note 163.

[180] See Loi no2017-399, Article 2, supra note 163.

[183] Décision no 2017-750, supra note 147, at 13.

[185] Sandra Cossart, The French Law on Duty of Care: A Historic Step Towards Making Globalization Work for All, 2 Bus. & Human Rights J. 317, 319 (2017).

[186] Id., at 318.

[187] Id.

[188] Id.

[189] Id.

[190] Id., at 320.

[191] Lungowe v. Vedanta Resources Plc [2016] EWHC (TCC) 975.

[192] Id. at 984

[193] Senator Feinstein Puts Brakes on Anti-ATS Bill S. 1874, EarthRights (Oct. 25, 2005), https://www.earthrights.org/campaigns/senator-feinstein-puts-brakes-anti-ATS-bill-s-1874.

[194] S. 1874, 109th Cong. (2005).

[195]  See EarthRights, supra note 159.

[196] See Carol Devine et al, Human Rights: The Essential Reference 26-29 (1999).

[197] Anthony J. Colangelo, A Systems Theory of Fragmentation And Harmonization, 49 N.Y.U. J. Int’l L. & Pol. 1, 5 (2016).

[198] Id.

[199] Id. at 10.

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