Academic journal article American University Law Review

Modern-Day Pirates: Why Domestic Parent Corporations Should Be Liable under the Alien Tort Statute for Violations of Workers' Rights within Global Supply Chains

Academic journal article American University Law Review

Modern-Day Pirates: Why Domestic Parent Corporations Should Be Liable under the Alien Tort Statute for Violations of Workers' Rights within Global Supply Chains

Article excerpt

Introduction

In April 2018 the Supreme Court's decision in Jesner v. Arab Bank, PLC1 categorically foreclosed the possibility of foreign plaintiffs bringing suits against foreign corporations in U.S. courts under the Alien Tort Statute (ATS).2 Joining a line of Supreme Court precedent restricting the applicability of the ATS, the Jesner decision further limited the jurisdictional grant of the ATS to provide recourse for wronged plaintiffs.3 Writing in dissent, Justice Sotomayor described the Court's holding as "absolv[ing] corporations from responsibility under the ATS for conscience-shocking behavior."4 Referring to the appropriate ATS defendants through the lens of international norms existing at the establishment of the ATS,5 the dissent identified the lingering question as, "Who are today's pirates?"6 Who, as Justice Breyer wrote years before, are the "common enemies of all mankind"?7

Corporations are modern-day pirates, potential common enemies of mankind. Beasts of business, corporations possess the power to do both good and bad,8 and they are increasingly independent of government control.9 As corporations outsource production needs, their supply chains become more vast and complex; thus, corporations continue to expand their global reach and presence.10 Internationally, states and corporations have recognized the indelible role they now play in safeguarding basic human rights within these global supply chains.11 Accordingly, the ATS should remain an available "statute that helps to protect basic human rights."12

Despite recent jurisprudence further limiting the scope of the ATS, this Comment will argue that the ATS is an appropriate mechanism to provide wronged foreign supply chain workers with their day in court. Part i will address the histories of supply chains and corporate civil liability. Part II will discuss the legal framework of the ATS, the seminal cases that transformed the jurisdictional grant of the ATS, and recent cases whose legal arguments have relied upon ATS jurisdiction. Part iii will first argue that the practice of corporate responsibility for workers' rights violations is crystallizing into a norm of customary international law. Part III will then analyze why the ATS is well-suited for global supply chain workers to bring claims against domestic parent corporations and further suggest that the criteria for actionable ATS torts should grow to encompass a broader array of torts that supply chain workers incur in unsafe working conditions, given the international trend of holding corporations responsible for workers' rights. This Comment will assert that the ATS should remain a mechanism through which U.S. courts have jurisdiction over cases from foreign plaintiffs holding domestic parent corporations liable for violations of workers' rights within supply chains, to incentivize greater transparency and promote the global enforcement of fair working conditions.

I. Background

Corporations and human rights are intrinsically linked in modern society. Historically, corporate acts that directly impacted human rights could evade governmental regulation or oversight. Today, however, the balance is starting to favor the worker as States and international bodies continue to implement guidelines and legislations intended to improve global working conditions.

A.The Intersection of Supply Chains and Human Rights

Over 450 million people work in global supply-chain related jobs.13 In an increasingly inter-related global economy, supply chains have become more complex. The International Labour Organization (ILO) characterizes global supply chains as "the cross-border organization of the activities required to produce goods or services and bring them to customers through inputs and various phases of development, production and delivery."14 Supply chains emerge through the practice of outsourcing, whereby a parent company buys goods or services from outside suppliers rather than producing the goods or services within the parent company itself. …

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