Between Self-Regulation and the Alien Tort Claims Act: On the Contested Concept of Corporate Social Responsibility
Shamir, Ronen, Law & Society Review
Using Alien Tort Claims Act suits against multinational corporations as an immediate context for discussion, this article explores the emerging field of corporate social responsibility. The article argues for an understanding of concrete legal struggles as part of broader competing strategies for regulating corporate obligations to a multitude of stakeholders. By identifying and analyzing the positions of concrete actors who operate in the field, the main thesis of this article is that the field strongly tilts in the direction of voluntary and self-reliant models of corporate responsibility. The article identifies this process as consistent with the privatization of regulative structures in general and with extant modeling of corporate governance in particular, and points at the correlation between these trends and the interests of multinational corporations.
In this article, I look at corporations' responses to attempts designed to subject them to a regime of human rights. Specifically, I look at cases in which multinational corporations (hereinafter MNCs) have been sued in the United States for alleged violations of human rights occurring in conjunction with their operations in developing countries or in places governed by repressive regimes. In all of these cases, plaintiffs have relied on the U.S. Alien Tort Claims Act (hereinafter ATCA) as the legal basis for their claims, thereby opening up debates concerning global corporate liability in its relationship to state sovereignty, international relations, and extraterritorial jurisdiction.
The main focus of this article is neither on doctrinal developments relating to extraterritorial jurisdiction nor on the principled outcomes of specific disputes. Rather, ATCA cases are used here as illustrations of the way an overarching debate over the appropriate means for taming MNCs assumes shape and meaning in the course of concrete disputes. I posit that the career of the ATCA cases, as they have been represented and negotiated by actors with concrete political, economic, and moral agendas, reflects and in turn shapes the contours of a broader struggle: one that deals with the general question of corporate regulation in the global era and, more specifically, one that deals with the very meaning and scope of the notion of corporate social responsibility (hereinafter CSR). From this perspective, the main thesis of the article is that ATCA claimants operate as actors who try to consolidate the idea of CSR around legally binding duties. Conversely, I treat corporate attempts to bar or contain the use of ATCA as part of an overall corporate strategy designed to shape the notion and practice of CSR as an essentially voluntary and nonenforceable issue. All in all, the analysis points at the ability of corporations to install their own version of CSR in general and to resist the legalization of their social duties in the domain of human rights in particular.
In the first part of the article, I briefly introduce the principled legal foundations of the ATCA lawsuits and provide some concrete examples of the type of allegations raised against some MNCs. It should be emphasized at the outset that I have no intention to evaluate the truth value of the claims and counter-claims of plaintiffs and defendants. Rather, the purpose of this part is to provide a general background as to the nature of the accusations and to briefly introduce some key legal issues these claims bring to the fore.1 In the second part, I develop the argument that the ATCA claims should be situated in a broader context to which I refer by designating an emergent field of CSR. Following Bourdieu (1994), the concept of the "field" refers here to a specific site of struggle-maintained and asserted by a variety of social agents-over the very scope and meaning of the term social responsibility, as it applies or should apply to profit-seeking market entities. In the third part of the article, I focus on corporate strategies of response to ATCA and show how corporations try to stabilize the field around notions of corporate responsibility that are nonenforceable and not binding. …