Foreign Alternatives to the Alien Tort Claims Act: The Success (or Is It Failure?) of Bringing Civil Suits against Multinational Corporations That Commit Human Rights Violations

By Mostajelean, Bahareh | The George Washington International Law Review, March 15, 2008 | Go to article overview

Foreign Alternatives to the Alien Tort Claims Act: The Success (or Is It Failure?) of Bringing Civil Suits against Multinational Corporations That Commit Human Rights Violations


Mostajelean, Bahareh, The George Washington International Law Review


I. INTRODUCTION

Many independent nations, especially within the developed countries of the Western World, have complete, functioning domestic legal systems that are capable of handling both civil and criminal cases that arise within their boundaries.1 A variety of cultural, legal, and political barriers have prevented these nations, however, from developing a truly global system of justice to allow for civil suits that arise from injuries sustained outside of the territories of the individual countries.2 The rise of the multinational corporation (MNC) has made this gap in the justice system even more prevalent.3 Victims of actions by MNCs are often unable to seek redress for their injuries because of insufficient domestic legal systems in the country where the acts occurred and jurisdictional roadblocks within foreign legal systems.4 This problem is especially unfortunate when MNCs are guilty of human rights violations.5

The United States has attempted to overcome this barrier through its use of the Alien Tort Claims Act (ATCA).6 The ATCA allows aliens to bring tort claims for violations of international law or treaties of the United States in U.S. federal courts, regardless of where the tort occurred.7 By passing the ATCA as well as the Torture Victims Prevention Act (TVPA),8 which grants both aliens and U.S. citizens the right to sue for torture or extrajudicial executions, the United States developed one feasible avenue for bringing civil suits against MNCs that commit human rights violations. The ATCA is still bound by jurisdictional issues, however, and is not a global solution to the problem.9 Only a truly multinational agreement, such as a jurisdictional treaty, or the establishment of universal jurisdiction across nations can provide more thorough legal relief from these corporate human rights violations.10

This Note will look at several foreign alternatives to the ATCA,11 focusing on options that allow an injured party to bring a civil suit against an MNC that has committed human rights violations.12 The first section of this Note will offer a brief discussion of the obligations of MNCs in today's international community.13 The next section will discuss the development of the ATCA within the United States, with a focus on the modern ATCA's effectiveness and its limitations in civil suits against MNCs.14

This Note will then present the alternatives to the ATCA in two broad categories: 1 ) public international law alternatives that allow for private civil suits and 2) alternatives within the domestic legal systems of individual countries.15 The discussion of the first category will focus on a number of declarations and conventions that have opened the door toward developing human rights norms and permitting civil suits against human rights violators.16 The discussion of the second category will focus on the likelihood of ATCAtype litigation in a common-law legal system, the United Kingdom, and a civil law legal system, France.17 The discussion of the second category will also examine the possibility of restructuring these human rights violations as garden-variety torts, in order to create a cause of action under the civil codes of different nations.18

The last section of this Note will present an analysis of these different alternatives and will evaluate their likelihood of success through a comparison of the discussed alternatives.19 Of the current alternatives, redefining human rights violations as garden-variety torts will provide the greatest opportunity for successful civil suits.20 These current alternatives are not as effective as the ATCA, however, and a convention or treaty is necessary to establish either universal jurisdiction or, more plausibly, a firmly established right within each signatory country's legal system to bring civil suits of this nature.21

II. DISCUSSION

A. Multinational Corporations: Obligations and Liabilities

MNCs are prevalent in most aspects of today's society - from the clothes we wear to the goods we consume and the services we obtain. …

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