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Rich and Rare are the Gems They War: Holding De Beers Accountable for Trading Conflict Diamonds - International Justice - Global Policy Forum Corporate Liability for Violations
of International Human Rights Law
Harvard Law Review
114 Harv. L. Rev. 2025
May, 2001Note: The footnotes have been omitted from this article.
A number of multinational corporations have come under fire in recent years for alleged human rights abuses. n1 Most of the alleged perpetrators are corporations in the energy, n2 mining, n3 and manufacturing n4 industries; the alleged violations range from severe environmental damage and inhumane working conditions to forced labor, torture, and killings. Corporate violations of human rights frequently go unredressed due to significant gaps in domestic and international legal regimes. Host countries are often unwilling or unable to impose criminal sanctions or provide civil remedies, and home countries generally do not exercise jurisdiction over the extraterritorial acts of multinational corporations. n5 Most significantly, international law is virtually silent with respect to corporate liability for violations of human rights. International law has neither articulated the human rights obligations of [*2026] corporations nor provided mechanisms to enforce such obligations. Corporations thus remain immune to liability, and victims remain without redress.
Recent developments in American law raise the possibility that American courts may begin to hold corporations liable for human rights violations. The Alien Tort Claims Act (ATCA), n6 as interpreted in several recent cases, permits aliens to bring private tort suits against corporations for certain human rights violations committed in the United States or abroad. The first two ATCA cases brought against a corporation were filed in 1996 against Unocal for alleged human rights violations committed in connection with the construction of an oil pipeline in Myanmar. n7 The plaintiffs, Burmese villagers, claimed that Unocal was liable for acts of torture, rape, forced labor, and forced relocation committed by the Burmese military in furtherance of the pipeline project. n8 In 1997, a federal district court in California rejected Unocal's motions to dismiss and ruled that the company could be held liable under the ATCA in both cases. n9 These groundbreaking rulings have led to further ATCA cases against multinational corporations. n10 None of these cases has yet resulted in a final judgment for a plaintiff, and the district court recently dismissed the pioneering cases against Unocal on summary judgment. n11
This Part analyzes and critiques the limited extent of corporate liability under the ATCA and proposes a supplemental multilateral approach to filling the gaps in domestic and international legal regimes that address corporate human rights violations. Section A categorizes and discusses the many human rights that corporations are capable of violating. Section B describes the current gap in the international legal system that leaves corporate human rights violators immune from liability. Section C describes the extent of corporate civil liability under the ATCA by analyzing the requirements of subject matter and [*2027] personal jurisdiction - the two most formidable obstacles to bringing a successful ATCA claim - and concludes that the ATCA is likely to provide relief in only a limited set of cases, leaving many victims of corporate violations without effective remedies. Section D argues that despite the ATCA's shortcomings, courts should not unilaterally expand the scope of the ATCA's subject matter jurisdiction to cover a broader range of human rights violations, because doing so would likely violate international law and raise serious policy concerns. Finally, Section E proposes a means to address the corporate liability gap in international law regarding human rights violations: an international treaty that specifies the human rights obligations of corporations and requires states to provide criminal, civil, or administrative remedies to victims of corporate human rights violations.
A. The Range of Corporate Human Rights Violations
In recent decades, multinational corporations have achieved unprecedented economic power and geographic scope, n12 which have given them enormous influence over the enjoyment of a broad range of human rights. These rights fall into three general categories: n13 economic, social, and cultural rights; civil and political rights; and rights protected under international humanitarian law. The sources of these rights include numerous international treaties n14 as well as customary international law. n15 Some care must be taken in speaking of corporate human rights violations because corporations are generally not seen as bearing legal obligations under international law. n16 Setting aside for the moment whether corporate interference with these rights is, or should be, legally actionable under domestic or international law, n17 this section discusses how corporate activity can interfere with the enjoyment of human rights.
1. Economic, Social, and Cultural Rights. - Corporate interference with the enjoyment of human rights probably occurs most frequently [*2028] in the area of economic, social, and cultural rights. n18 Corporations interfere with the right to "the enjoyment of just and favourable conditions of work" - such as "fair wages and equal remuneration for work of equal value" and "safe and healthy working conditions" n19 - when they pay exceedingly low wages, use forced labor, or force employees to work under hazardous conditions without adequate safeguards. Corporations that dump toxic waste or cause widespread pollution interfere with the right "to the enjoyment of the highest attainable standard of physical and mental health." n20 Similarly, corporations that destroy the habitats of indigenous peoples interfere with the right of all peoples to "freely pursue their economic, social and cultural development," including the right not to be deprived of their own means of subsistence. n21
2. Civil and Political Rights. - Corporations may also interfere with the enjoyment of civil and political rights, as the allegations against Royal Dutch/Shell in Wiwa v. Royal Dutch Petroleum Co. n22 suggest. n23 In Wiwa, the plaintiffs alleged that Royal Dutch/Shell recruited the Nigerian military to suppress opposition to the company's oil exploration activities in Nigeria's Ogoni region. n24 The plaintiffs further alleged that the Nigerian military repeatedly arrested, jailed, and tortured two leaders of the opposition movement, Ken Saro-Wiwa [*2029] and John Kpuinen, and that an ad hoc military tribunal convicted and hanged Saro-Wiwa and Kpuinen on fabricated murder charges. n25 According to the plaintiffs, Royal Dutch/Shell instigated, planned, and facilitated the human rights abuses that the Nigerian military inflicted on the Ogoni people. n26 The company allegedly provided money, weapons, and logistical support to the military and helped fabricate the murder charges against Saro-Wiwa and Kpuinen. n27 Those allegations, if credited, would suggest that Royal Dutch/Shell interfered with the plaintiffs' rights to life, n28 freedom from torture, n29 freedom from arbitrary arrest and detention, n30 and a fair trial. n31
3. Rights Protected Under International Humanitarian Law. - Additionally, corporations may play a variety of roles in the most severe human rights violations, such as genocide, crimes against humanity, and war crimes, n32 which generally occur in the context of systematic mass violence. Corporations may, for example, manufacture prohibited classes of weapons, such as biological weapons, for use against enemy troops or civilian populations. n33 They may use slave labor in wartime manufacturing. n34 Corporations may also involve themselves in warfare itself by selling the services of private security forces, n35 which are as capable of committing war crimes as any public [*2030] army. In addition, corporations - particularly financial institutions - may participate in a state's "plunder of public or private property" n36 by laundering the proceeds of such acts. n37
B. The Gap in International Law
Though corporations are capable of interfering with the enjoyment of a broad range of human rights, international law has failed both to articulate the human rights obligations of corporations and to provide mechanisms for regulating corporate conduct in the field of human rights. n38 Since the nineteenth century, international law has addressed almost exclusively the conduct of states. n39 Traditionally, states were viewed as the only "subjects" of international law, the only entities capable of bearing legal rights and duties. n40 Over the last fifty years, though, the gradual establishment of an elaborate regime of international human rights law and international criminal law has begun to redefine the individual's role under international law. It is now generally accepted that individuals have rights under international human [*2031] rights law n41 and obligations under international criminal law. n42 This redefinition, however, has occurred only partially with respect to legal persons such as corporations: international law views corporations as possessing certain human rights, n43 but it generally does not recognize corporations as bearers of legal obligations under international criminal law. n44 The absence of criminal liability results mainly from the different approaches that national legal systems have taken to corporate criminal liability. Although many common law and some civil law jurisdictions recognize corporate criminal liability, many do not. n45
The disagreement among states about corporate criminal liability was apparent at the 1998 Rome Conference on an International Criminal Court. The draft statute under consideration at the Rome Conference included a French proposal to extend the ICC's jurisdiction to legal persons. n46 Despite three weeks of negotiations on various [*2032] versions of this proposal, delegates failed to reach agreement. n47 As a result, the Statute of the International Criminal Court adopted at the conclusion of the Rome Conference provided for jurisdiction only over natural persons. n48
Despite the Rome Conference's failure to adopt the proposal on jurisdiction over legal persons, recent developments in treaty law provide a model for the regulation of corporate conduct in the area of human rights. Several multilateral treaties that address bribery, corruption, and organized crime recognize that legal persons can commit international crimes and require that states parties provide legal remedies. n49 The most recent example is the United Nations Convention Against Transnational Organized Crime, which was opened for signature on December 12, 2000. n50 The convention defines the international [*2033] crimes of participation in an organized criminal group, money laundering, corruption, and obstruction of justice, n51 and obliges states parties to establish criminal, civil, or administrative liability for legal persons who commit these crimes. n52 Such multilateral treaties mark an important development in international law: they not only recognize that legal persons such as corporations can commit international crimes, but also provide regimes for national enforcement.
C. Corporate Liability Under the ATCA
The ATCA, as interpreted in recent cases, n53 stands in stark contrast to the remedial gap in international law identified in the previous section. The ATCA permits aliens to sue U.S. and foreign corporations for certain gross violations of human rights committed either within the United States or abroad. n54 The United States stands alone in permitting such suits. n55 The discussion that follows assesses the extent to which the ATCA fills the remedial gap, focusing on the requirements of subject matter and personal jurisdiction, the two most formidable barriers to bringing a successful ATCA claim.
1. Background. - The ATCA, originally enacted in 1789 as part of the first Judiciary Act, n56 grants district courts original jurisdiction over "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." n57 The ATCA remained largely dormant until 1980, n58 when the U.S. Court of Appeals for the Second Circuit decided the landmark case of Filartiga v. Pena- [*2034] Irala, n59 in which two members of a Paraguayan family brought suit against a former Paraguayan police inspector for the torture and death of a third family member. n60 The court held that "deliberate torture perpetrated under color of official authority" violates the law of nations, and that ATCA jurisdiction is proper over any alleged torturer "found and served with process by an alien within our borders." n61
In arriving at this holding, the court interpreted Supreme Court precedents as establishing four propositions: first, the law of nations is part of federal common law, and thus cases arising under the law of nations arise under the laws of the United States as required by Article III of the Constitution; n62 second, the law of nations "may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law"; n63 third, a norm must "command "the general assent of civilized nations'" to be part of the law of nations; n64 and fourth, the law of nations must be interpreted "not as it was in 1789, but as it has evolved and exists among the nations of the world today." n65
The Filartiga decision was highly controversial in scholarly and judicial circles and led to considerable debate about the purpose and scope of the ATCA. n66 The Supreme Court has not interpreted the [*2035] ATCA, leaving these debates unresolved. Congress, however, mitigated much of the uncertainty regarding the Filartiga court's interpretation of the ATCA when it enacted the Torture Victim Protection Act of 1991 (TVPA). n67 The TVPA codified Filartiga's holding and extended to U.S. citizens the ability to bring causes of action for torture and extrajudicial killings. n68
The Filartiga decision has given rise to a new stream of transnational public law litigation. The first few cases brought under the statute were, like Filartiga, against foreign government officials. n69 Plaintiffs then began to sue foreign governments themselves n70 - until the Supreme Court in Argentine Republic v. Amerada Hess Shipping Corp. n71 restricted this strand of ATCA litigation. n72 The Court held that the Foreign Sovereign Immunities Act of 1976 (FSIA), n73 which establishes the general immunity of foreign states from suit before American courts, n74 is the "sole basis" for jurisdiction over foreign states. n75 The severe limitations that Amerada Hess imposes on the ability to sue foreign states under the ATCA have, in part, led plaintiffs to focus on corporations allegedly complicit in human rights violations committed by foreign governments.
[*2036] 2. Establishing Subject Matter and Personal Jurisdiction Under the ATCA. - Plaintiffs bringing ATCA claims against corporations face an array of procedural hurdles. This discussion focuses on the requirements of subject matter and personal jurisdiction. There are, however, several additional obstacles: standing, n76 the joinder of indispensable parties, n77 and four abstention doctrines that permit judges to dismiss ATCA claims under certain circumstances even if the requirements of personal and subject matter jurisdiction have been met. n78
(a) Subject Matter Jurisdiction. - The ATCA grants federal courts subject matter jurisdiction over torts that violate either the "law of nations" or "a treaty of the United States." n79 Although several ATCA cases have involved alleged violations of U.S. treaties, n80 most ATCA plaintiffs have sued for breach of the law of nations. n81 Courts interpreting the ATCA have generally taken a restrained approach to deciding whether a particular norm is part of the law of nations, following and refining the approach taken in Filartiga. In Forti v. Suarez-Mason, n82 a federal district court in California interpreted Filartiga to require that an international tort be "definable, obligatory (rather than hortatory), and universally condemned." n83 Courts have adopted this test in subsequent cases. n84
In the ATCA cases decided to date, courts have held that gross violations of human rights such as summary execution; disappearance; torture; cruel, inhuman, or degrading treatment; prolonged arbitrary detention; genocide; war crimes; and forced labor violate the law of nations. n85 Courts, however, have declined to recognize cultural genocide; [*2037] environmental abuses; restrictions on freedom of speech; price fixing; and ordinary torts such as libel, fraud, breach of fiduciary duty, and misappropriation of funds as violations of the law of nations. n86
The courts' restrictive definition of the law of nations has significantly limited the human rights claims that plaintiffs may bring against corporations. Although corporations are capable of violating a broad range of human rights, n87 courts have recognized corporate liability only for the most egregious violations of civil and political rights and for violations of international humanitarian law. No court has yet ruled that economic, social, or cultural rights are actionable under the ATCA. Although this limitation forecloses the possibility of redress for many potential plaintiffs, section D argues that courts should maintain their restrained interpretation of the law of nations.
The state action requirement further limits the scope of ATCA subject matter jurisdiction. Consistent with recent developments in international criminal law, n88 courts have held that, with few limited exceptions, the law of nations binds only state actors. n89 The exceptions to this general rule, as set forth in Kadic v. Karadzic, n90 permit suits against nonstate actors for piracy, slave trading, genocide, and war crimes. n91 Two legal propositions emerge from the state action requirement as defined in Kadic: first, if a corporation commits piracy, slave trading, genocide, or war crimes, then it may be held liable under the ATCA even absent state action; and second, if a corporation commits other violations of the law of nations, it may be held liable only if the plaintiff establishes state action. n92
[*2038] As the recent summary judgment ruling in Doe v. Unocal Corp. n93 makes clear, an additional complication arises when a government or its agents, rather than a corporate defendant, commits the alleged violations. In Doe, the de facto military government of Myanmar allegedly committed the violations of slave labor, torture, and forced relocation. The question thus arose whether Unocal could be held liable for the government's acts. The district court held that for law of nations violations requiring state action - in this case, torture and forced relocation - the plaintiff must show that the private defendant proximately caused the violation by "exercising control" over the government actor. n94 The court further held that for law of nations violations that do not require state action - in this case, slave labor - the plaintiff must establish that the private defendant participated or cooperated in the violation. n95 Rejecting the plaintiffs' argument that Unocal's knowledge and approval of the state's use of forced labor constituted participation or cooperation, the court granted summary judgment for the defendants. n96
The courts' restrictive definition of the law of nations, together with the state action requirement, limits the violations actionable under the statute primarily to gross violations of civil and political rights and to violations of rights protected under international humanitarian law. In addition, with the exceptions noted above, a court must deem a corporate defendant to be a state actor in order to impose liability.
(b) Personal Jurisdiction over Corporations. - Personal jurisdiction can be a significant barrier in ATCA cases against foreign corporations. n97 Unless a plaintiff establishes that a court in one of the fifty [*2039] states has personal jurisdiction over a corporate defendant and unless exercise of such jurisdiction is consistent with Fifth Amendment due process, the plaintiff generally cannot sue the corporation under the ATCA. n98 The main difficulty in establishing personal jurisdiction over foreign corporations in ATCA cases is demonstrating sufficient contacts between the foreign corporation and the forum state. In Doe v. Unocal Corp., n99 the trial court dismissed a suit against the French oil company Total S.A. because Total's contacts with California were insufficient to give rise to either specific or general jurisdiction. n100 The court rejected the plaintiffs' argument that the California contacts of Total's subsidiaries could be attributed to Total itself. n101 By contrast, in Wiwa v. Royal Dutch Petroleum Co., the U.S. Court of Appeals for the Second Circuit upheld the trial court's ruling that personal jurisdiction over the defendants, both of whom were foreign corporations, was proper. n102 The court agreed with the plaintiffs that the activities of the defendants' investor relations office in New York City were sufficient to establish general personal jurisdiction. n103
Although the holdings in these two cases are far from conclusive, they indicate that the personal jurisdiction requirement has the potential to shield foreign corporations from ATCA liability. If personal jurisdiction becomes a major obstacle to plaintiffs' bringing ATCA cases against foreign corporations, then it may confine the applicability of the statute to domestic corporations. This limitation would seriously undermine the efficacy of the ATCA as a mechanism for filling the remedial gap identified in section B.
3. Damages and Deterrence. - Despite the significant obstacles posed by subject matter and personal jurisdiction, ATCA cases against [*2040] corporations have the potential to yield enormous damages awards. n104 A number of ATCA suits against foreign government officials have resulted in damages awards reaching the hundreds of millions or even billions of dollars. n105 Although these awards have gone largely unpaid, n106 judgments against corporations will probably be enforceable because the corporations must, by virtue of the personal jurisdiction requirement, be either U.S. corporations or foreign multinationals with significant U.S. contacts. n107
Even if ATCA cases against corporations never reach final judgments, they may nonetheless yield benefits for the plaintiffs through legal and political settlements. Although no ATCA case against a corporation has yet settled out of court, Texaco reportedly offered a $ 500 million settlement to the plaintiffs in Jota v. Texaco, Inc. n108 In addition to legal settlements, ATCA cases against corporations may facilitate political settlements between the parties. ATCA cases played a central catalyzing role in two groundbreaking settlements between corporations and Nazi-era victims and their heirs: a $ 1.25 billion settlement with Swiss banks n109 and a $ 5 billion settlement with the [*2041] German government and German corporations. n110
If plaintiffs win large judgments against corporations in ATCA cases - which remains only a remote possibility given the jurisdictional hurdles and the fact that a final judgment against a corporation has yet to be reached n111 - these judgments may have a general deterrent effect on corporate conduct. Any multinational corporation subject to the personal jurisdiction of an American court would be imprudent to disregard potential ATCA liability. The threat of losing their American assets would give such multinationals a powerful incentive to change their own internal standards and methods of operation voluntarily in order to comply with ATCA jurisprudence. It is also possible that the potential for ATCA liability would alter corporations' foreign direct investment decisions. Multinationals may choose to stay away from countries with poor human rights records, fearing that significant involvement would expose them to liability under the ATCA.
The potential effect of ATCA liability on corporate conduct may in turn influence the behavior of host governments. If corporations base their foreign direct investment decisions in part on potential ATCA liability, foreign governments trying to attract corporate investment may alter their human rights policies. In this respect, corporate liability under the ATCA may amount to an indirect economic sanction on foreign governments that participate in gross human rights abuses. n112
4. Limitations of the ATCA. - The efficacy of the ATCA as a mechanism for filling the remedial gap identified in section B is limited in two respects. First, the international human rights norms enforceable under the statute are restricted to certain civil and political [*2042] rights and to rights under international humanitarian law. Courts have not interpreted the statute to cover economic, social, or cultural rights. Second, the requirements of personal jurisdiction limit the number of corporations that are subject to suit under the statute. Foreign corporations that lack sufficient U.S. contacts to support personal jurisdiction are effectively immune from liability.
These limitations in turn raise two questions: First, can or should U.S. courts interpret the ATCA more liberally to expand the types of actionable corporate violations? Second, what other steps could be taken to fill the remedial gap? Section D addresses the first question; section E addresses the second.
D. Expanding Subject Matter Jurisdiction Under the ATCA
Although the requirements of personal jurisdiction are not specific to the ATCA and thus cannot be altered through judicial interpretation, courts could broaden the scope of subject matter jurisdiction under the statute by interpreting the "law of nations" more expansively. The question becomes whether doing so would be legally permissible from the perspective of international law or desirable as a matter of policy. Although broader interpretations of the "law of nations" would probably provide remedies to a greater number of victims of corporate human rights violations, it would also likely overstep the bounds of legitimate jurisdiction under international law, stir up conflict in international relations, and diminish the legitimacy of American courts in the eyes of the international community.
As discussed in section C, courts have interpreted the law of nations restrictively, insisting that its norms be "definable, obligatory (rather than hortatory), and universally condemned." n113 The rationale that courts have offered for this restrictive definition is that under a more permissive one, "courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law." n114 The more expansive a court's interpretation of the law of nations, the greater the danger that the court will impose American, rather than universal, norms on other countries.
This danger is particularly acute in ATCA actions against corporations because large judgments may effectively force foreign governments to change their domestic policies. A state can hardly complain when a foreign court holds a corporation liable for war crimes, genocide, [*2043] or torture within that state's territory because these acts are well-defined and universally condemned. By contrast, many economic, social, and cultural norms, despite near universal consensus, n115 remain relatively abstract. n116 Developing countries have a legitimate interest in determining their own policies in areas such as economic development and environmental protection. n117 One country should not unilaterally impose its goals on another. As the Fifth Circuit Court of Appeals recently observed, "federal courts should exercise extreme caution when adjudicating environmental claims under international law to insure that environmental policies of the United States do not displace environmental policies of other governments." n118 If American courts interpret the law of nations to include norms that are not sufficiently defined or universally recognized, they will encroach on the legitimate authority of foreign states and engender conflict and hostility.
Adjudicating claims based on poorly defined norms would also violate jurisdictional principles under international law. When American courts assess whether they have jurisdiction under the ATCA, they look to the requirements of domestic law rather than to those of international law. Yet public international law provides a set of principles for the determination of domestic courts' authority to adjudicate cases. n119 These principles aim at avoiding conflict by allocating competence among domestic courts. As one commentator has observed, "there is no more important way to avoid conflict than by providing clear norms as to which state can exercise authority over whom, and in [*2044] what circumstances. Without that allocation of competences, all is rancor and chaos." n120
Viewed from the perspective of the international legal system, the ATCA is an assertion of universal jurisdiction. n121 The universality principle provides all states with jurisdiction over a limited category of crimes deemed to be of universal concern. n122 Under this principle, the nature of the offense itself, rather than the location where the offense takes place or the nationality of the perpetrator or victim, entitles a court to exercise jurisdiction. n123 Although the universality principle generally concerns criminal jurisdiction, n124 it may also give rise to civil jurisdiction. n125 The ATCA is an example of the latter phenomenon.
Courts interpreting the ATCA have not explicitly invoked the universality principle. n126 Nevertheless, they have largely remained within its boundaries by limiting the scope of actionable violations to those that are defined, obligatory, and universally condemned. n127 If courts [*2045] venture significantly beyond this point, they will risk violating international principles of jurisdiction and may stir up the very "rancor and chaos" that the principles are designed to avoid.
There are strong legal and policy reasons to maintain the current restrictive interpretation of the law of nations. Although the ATCA plays an important role in providing remedies for offenses that are subject to universal condemnation, courts should not employ it to impose the policy choices and values of one country on another. American courts adjudicating ATCA cases against corporations should bear in mind the broader legal and policy implications of ruling that a particular norm is part of the law of nations. If the ATCA's subject matter jurisdiction were expanded, the statute could all too easily turn from a "badge of honor" n128 into an instrument of imperialism.
E. A Multilateral Approach to Filling the Remedial Gap
Given the limitations imposed by subject matter and personal jurisdiction and the legal and policy concerns raised by a more liberal interpretation of the law of nations, the ATCA cannot by itself bridge the remedial gap identified in section B. In addition to the ATCA, a multilateral approach is needed to address the problem of corporate human rights violations. The most effective multilateral approach would be to establish an international treaty that specifies the human rights obligations of corporations and requires states parties to provide criminal, civil, or administrative remedies for violations of those obligations. n129 The negotiation of such a treaty would not be easy, [*2046] particularly in light of the international community's past failure even to agree on a nonbinding code of corporate conduct. n130 But nearly two decades have passed since that failed attempt, and the international community has become increasingly aware of the problem of corporate human rights violations. n131
Drafters could model the multilateral agreement on the international treaties discussed in section B that both define the legal obligations of corporations and mandate some form of national enforcement through criminal, civil, or administrative remedies. n132 This approach would avoid the controversy over corporate criminal liability that arose during the negotiations on the International Criminal Court. n133 The treaty would require states parties to establish only those legal enforcement mechanisms appropriate under domestic law. Thus, states parties that do not recognize corporate criminal liability n134 would not be required to establish it. The disadvantage of this approach, however, is that it would permit significant national variation in enforcement mechanisms.
Any such treaty should at the very least cover the types of egregious human rights violations currently actionable under the ATCA. Thus, the treaty should prohibit violations of international humanitarian law, such as genocide, war crimes, and crimes against humanity, as well as gross violations of civil and political rights, such as killings, torture, disappearance, and arbitrary arrest and detention. The treaty should also proscribe particularly egregious violations of economic, social, and cultural rights, such as the destruction of indigenous peoples' habitats or the knowing causation of environmental pollution that gravely threatens human health. The multilateral treaty negotiations would provide a forum for the parties to reach consensus on the scope and definition of violations.
[*2047] The treaty could take a number of different approaches to the question of jurisdiction. n135 Territorial jurisdiction would be the approach most likely to garner support. It would, however, have the lowest efficiency because, as contemporary allegations against corporations indicate, the international community cannot rely on host governments to regulate effectively the multinationals operating on their territory. It would be preferable for the treaty to authorize states parties to exercise nationality jurisdiction over multinational corporations. This form of jurisdiction is not without its difficulties, n136 but if a significant number of states were to sign and ratify the treaty, the exercise of such jurisdiction would be less controversial than if it were exercised unilaterally. A third option would be universal jurisdiction, but this approach would probably limit the types of violations covered in the treaty to violations of international humanitarian law and certain gross violations of civil and political rights. States parties would likely be reluctant to approve universal jurisdiction over economic, social, and cultural rights.
The establishment of such a treaty would provide several important benefits. First, the treaty would expand the number of legal avenues available to victims of corporate human rights violations. All states parties would be obliged to provide domestic remedies for corporate human rights violations. Foreign corporations that are not subject to personal jurisdiction before American courts could be held liable before the courts of another country. Second, the treaty could potentially prohibit a broader array of human rights violations than the ATCA currently does. Third, the treaty would lend increased international legitimacy to ATCA cases against corporations. The United States would no longer be the sole forum for human rights suits against corporations. The ATCA would become one component of a multinational effort to curb corporate human rights abuses.
F. Conclusion
Corporate violations of human rights are a significant problem facing the international community. Although the ATCA provides remedies to a limited group of victims, it is by no means an adequate response. The requirements of subject matter and personal jurisdiction leave many corporations safe in their impunity and many victims without redress. The answer is not to expand the scope of subject matter jurisdiction by interpreting the law of nations more liberally; doing so may violate international principles of jurisdiction and may lead to international discord. Rather, a multilateral approach is [*2048] needed to address the problem of corporate violations of human rights. An effective solution requires international agreement not only on the human rights obligations of corporations, but also on an effective enforcement mechanism. The international community should view the recent ATCA cases against corporations as a call to collective action.
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