CORPORATE LIABILITY FOR HUMAN RIGHTS ABUSES: ANALYZING KIOBEL & ALTERNATIVES TO THE ALIEN TORT STATUTE

摘要

Can corporations be held liable for human rights abuses under international law? According to the Second Circuit's highly controversial Kiobel decision, the answer is "no." Specifically, corporations are not liable for human rights abuses under the Alien Tort Statute (ATS) - a statute that has become the central battleground for debating the role of international law in U.S. courts. In an era of prolific transnational economic and legal activity, Kiobel entails a fascinating and sharply-worded debate on the duties that corporations as private actors owe under international law, as well as key insights into how an influential U.S. court interprets international law and the scope of its authority to create legal remedies. Despite the importance of these issues for scholars and practitioners of international law, current scholarship does not comprehensively analyze this decision issued in October 2010, the various opinions issued in February 2011 denying en banc and panel rehearing, and the ensuing circuit split- leading up to oral arguments before the Supreme Court in February 2012. This Note weaves together these important strands into a singular narrative and provides a rigorous framework to analyze Kiobel's major themes, fault lines, and consequences. Furthermore, it uniquely combines an analysis of Kiobel and its narrowing of ATS corporate liability with a detailed examination of alternatives to the ATS in holding corporations accountable for human rights abuses. Following a careful evaluation of the ATS's deficiencies, it proposes alternate forms of relief, including suing corporate officers and directors, initiating state law claims, suing in specific foreign jurisdictions, and relying on multilateral corporate social responsibility initiatives. It further proposes two novel statutory alternatives to the ATS: imposing corporate civil liability, modeled on the Foreign Corrupt Practices Act, and individual criminal liability for violating the law of nations.