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Beyond Kiobel: Alternative Remedies for Sustained Human Rights Protection

Part of: Agora: Reflections on Kiobel

Published online by Cambridge University Press:  21 February 2018

Justine Nolan ,
Michael Posner  and
Sarah Labowitz
Justine Nolan
Affiliation:
University of New South Wales
Michael Posner
Affiliation:
NYU Stern School of Business
Sarah Labowitz
Affiliation:
NYU Stern School of Business
Rights & Permissions [Opens in a new window]

Extract

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Corporate accountability actions brought under the Alien Tort Statute (ATS) tend to be grounded more in hope than in expectation. While an effective publicity tool for highlighting allegations of corporate irresponsibility and a successful approach for gaining favorable settlements in a few high-profile cases, U.S. courts have generally been reluctant to use the ATS to hold global corporations accountable for their actions outside the United States.

Type
Agora: Reflections on Kiobel
Information
AJIL Unbound , Volume 107 , 2013 , pp. 48 - 54
Copyright
Copyright © American Society of International Law 2013

References

1 28 U.S.C. §1350 (also known as the Alien Tort Claims Act (ACTA)).

2 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).

3 David Kinley, Civilising Globalisation: Human Rights and the global Economy 193 (2009) (citing Harold Koh, Separating Myth from Reality About Corporate Responsibility Litigation, 7 J. INT’Lecon. L. 263, 269 (2004) (noting Koh's assessment of the ATS)).

4 This term refers to cases in which a foreign plaintiff sues a foreign defendant for acts committed on foreign soil.

5 Doe v. Unocal Corp., 110 F.Supp.2d 1294 (C.D. Cal. 2000), aff ‘d in part, rev’d in part, 395 F.3d 932 (9th Cir. 2002), vacated, 395 F.3d 978 (9th Cir. 2003) (en banc), appeal dismissed, 403 F.3d 708 (9th Cir. 2005).

6 Pierre N. Leval, The Long Arm of International Law: Giving Victims of Human Rights Abuses Their Day in Court, 92 Foreign AFF., Mar.–Apr. 2013, at 16–17, available at http://www.foreignaffairs.com/articles/138810/pierren- leval/the-long-arm-of-international-law. The earlier split decision (2-1) of the Second Circuit in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), reveals contrasting views of the educative value and impact of the ATS. While Chief Judge Dennis Jacobs, writing for the majority, appeared dismissive of the potential longerterm effect of the ATS in reducing corporate rights violations, he subsequently summarized the views of Judge Pierre Leval as believing that the dismissal of corporate liability would likely open the door to “slavers and pirates … [to] rush into corporate transactions.” Kiobel v. Royal Dutch Petroleum Co., 642 F.3d 268, 271 (2d Cir. 2011) (denying petition for panel rehearing).

7 For an overview of the Bhopal disaster, see Amnesty International, Clouds of In justice: Bhopal Disaster 20 Years on (2004), available at http://www.amnesty.org/en/library/asset/ASA20/015/2004/en/ fa14a821-d584-11dd-bb24-1fb85fe8fa05/asa200152004en.pdf.

8 See Julfikar Ali Manik, Steven Greenhouse & Jim Yardley, Outrage Builds After Collapse in Bangladesh, N.Y. Times, Apr. 26, 2013, at A1; Dan Viederman, Supply Chains and Forced Labour After Rana Plaza: Lessons Learned, Guardian (London), May 30, 2013, at http://www.guardian.co.uk/global-development-professionals-network/ 2013/may/30/rana-plaza-bangladesh-forced-labour-supply-chains.

9 UN Human Rights Council, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie: Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UN Doc. A/HRC/17/31 (Mar. 21, 2011), available at http://www.ohchr.org/Documents/Issues/Business/AHRC- 17-31_AEV.pdf.

10 Recognition of the limited governmental capacity to provide a remedy to prevent further disasters is evident by the focus on encouraging companies to sign on to the privately developed accord on fire and building safety in Bangladesh, which in essence privatizes the establishment of a fire and building safety program in Bangladeshi factories. See Accord on Fire and Building Safety in Bangladesh (May 13, 2013), available at http://www.bangla deshaccord.org/wp-content/uploads/2013/10/the_accord.pdf; see also IndustriALL Global Union, Bangladesh Safety Accord Implementation—Moving Forward ( July 7, 2013), at http://www.industriall-union.org/bangla desh-safety-accord-implementation-moving-forward.

11 At http://betterwork.org/global.

12 At http://betterfactories.org.

13 The International Finance Corporation (IFC) updated its Environmental and Social Sustainability Performance Standards in August 2011 and began implementing them in 2012. The IFC Performance Standards are a set of standards with which IFC borrowers, primarily corporations and states, must comply to qualify for project funding; their objective is to reduce the environmental and social risk to IFC's investments. The update included an attempted alignment with the UN Guiding Principles; however, the human rights references in the IFC Performance Standards continue to be fairly sparse. See International Finance Corp., Performance Standards ON Environmental and Social Sustainability ( Jan. 2012), available at http://www1.ifc.org/wps/ wcm/connect/c8f524004a73daeca09afdf998895a12/IFC_Performance_Standards.pdf?MOD& excl;Ajperes.

14 The Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (codified at 12 U.S.C. §5301 note), addresses financial transparency. Section 1504 requires all listed oil and mining companies to disclose the revenues that they pay to governments worldwide. The European Union has also recently adopted new laws aimed at increasing the transparency of government income from the oil and gas and logging industries. The 2013 EU Accounting and Transparency Directives will require European companies to report payments of more than !100,000 made to the government of the country in which they operate, including taxes levied on their income, production or profits, royalties, and license fees. Council Directive 2013/34/EU, 2013 O.J. (L 182) 19, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri!OJ:L:2013:182:0019: 0076:EN:PDF (accounting directive); Commission Proposal for a Directive of the European Parliament and of the Council Amending Directive 2004/109/EC on the Harmonisation of Transparency Requirements in Relation to Information About Issuers Whose Securities Are Admitted to Trading on a Regulated Market and Commission Directive 2007/14/EC,COM(2011) 683 final (Oct. 25, 2011), available at http://ec.europa.eu/internal_market/ securities/docs/transparency/modifying-proposal/20111025-provisional-proposal_en.pdf (transparency directive)

15 See Burmese Sanctions Regulations, 31 C.F.R. pt. 537 (2012); see also Bureau of Democracy, Hum. Rts. & Labor, U.S. Dep't of State, Responsible Investment Reporting Requirements (2013), available at http://www. humanrights.gov/wp-content/uploads/2013/05/Responsible-Investment-Reporting-Requirements-Final.pdf.

16 On January 1, 2012, the 2010 California Transparency in Supply Chains Act took effect. The act compels companies that meet certain threshold requirements to disclose their efforts to eradicate slavery and human trafficking from their supply chains. California Transparency in Supply Chains Act of 2010, CAL. CIV. CODE §1714.43.

17 See Exec. Order No. 13606, 77 Fed. Reg. 24,571 (Apr. 24, 2012), available at http://www.gpo.gov/fdsys/pkg/ FR-2012-04-24/pdf/2012-10034.pdf.

18 See U.S. Dep't of the Treasury, Resource Center: Frequently Asked Questions and Answers, para. 183 (Oct. 15, 2013), at http://www.treasury.gov/resource-center/faqs/Sanctions/Pages/answer.aspx#183.

19 15 U.S.C. §78dd-1 et seq.

20 See alsoUN Convention Against Corruption, GA Res. 58/4,UN Doc. A/Res/58/4 (Oct. 31, 2003), available at http://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf; Organisation for Economic Co-operation and Development, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Dec. 18, 1997, S. Treaty DOC. No. 105-43, 37 ILM 1 (1998), available at http://www.oecd.org/corruption/oecdantibriberyconvention.htm.

21 See Mazars-Shift Project, Developing Global Standards for the Reporting and Assurance of Company Alignment with the UN Guiding Principles on Business and Human Rights: A Discussion Paper 4 (May 1, 2013), available at http://business-humanrights.org/media/documents/developing-global-standards-discussion-paper. pdf (“Under the second pillar—the corporate responsibility to respect—the Guiding Principles require companies to know and show that they are respecting human rights by developing policies and processes for managing human rights … .”).