Human Rights and Corporate Wrongs

Human Rights and Corporate Wrongs

Closing the Governance Gap

Corporations, Globalisation and the Law series

Simon Baughen

The effects of globalisation, together with the increase in foreign investment and resource development within the developing world, have created a context for human rights abuses by States in which transnational corporations are complicit. This timely book considers how these ‘governance gaps’, as identified by Professor John Ruggie, may be closed. Simon Baughen examines the status of corporations under international law, the civil liability of corporations for their participation in international crimes and self-regulation through voluntary codes of conduct, such as the 2011 UN Guiding Principles.

Chapter 3: Suing in the US (2): The Alien Tort Statute 1789 and statutory causes of action

Simon Baughen

Subjects: business and management, corporate social responsibility, law - academic, corporate law and governance, human rights, public international law, politics and public policy, human rights

Extract

In this chapter we shall consider statutory provisions in the US which provide a cause of action in relation to conduct that violates international law. The first, and most famous provision, is the Alien Tort Statute 1789 (ATS) whose jurisdictional grant has been held to allow the development of a cause of action based on violations of a limited category of jus cogens norms of customary international law. The scope of the statute has recently been restricted by the Supreme Court’s ruling in Kiobel that it does not have extra-territorial reach. Second, there is the Torture Victims Protection Act 1991 (TVPA) which gives a civil right of action to any national in respect of torture. Third, there are two statutory provisions which give US nationals civil rights of action in respect of injuries or death sustained as a result of terrorism. Fourth, there is a statutory right of action granted to the victims of human trafficking. The statute provides that: ‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.' The statute was probably enacted in response to the Marbois incident of 1784 involving verbal and physical assaults on the French Ambassador, Longchamps, by a French citizen.

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