INTRODUCTION

The lawsuits filed in the United States by victims of apartheid represent perhaps the most ambitious attempt thus far to use the Alien Torts Claims Act (the ATS), to obtain compensation for the human rights violations of transnational corporations. The dismissal by a New York Court of a consolidated action against corporations active in South Africa during apartheid therefore came as a blow to human rights activists, who had hoped that the ATS was emerging perhaps as the only effective means available anywhere of holding corporations legally accountable for international human rights violations. (The matter is, at time of writing, on appeal.)

It is said that the Universal Declaration of Human Rights of 1948 inaugurated a human rights revolution. Over the next half-century, the broad promises of the Declaration were fleshed out in a series of conventions and multilateral treaties, addressing areas ranging from civil rights, to social and economic rights, to environmental rights. But for the most part, these documents embody unrealised ideals. Human rights have continued to be violated with impunity almost everywhere. The human rights revolution is not just unfinished. For many, it has yet to attain material reality.

One of the gaps in human rights enforcement has been in its failure to address violations perpetrated by non-state actors. Both individuals and corporations have largely escaped responsibility. That has begun to change. The Pinochet case undermined one of the redoubts of individual impunity; the immunity historically enjoyed by heads of state. But the problem of holding corporations to account for their international misdeeds has remained intractable.

It is now generally accepted that corporations can be both criminally and civilly liable under international law. Yet, it has proven very difficult to find a forum to which they can be summoned. Home-country courts are seldom receptive to suits alleging human rights abuses by their corporate citizens committed in distant lands. Tribunals of host countries, ever hungry for foreign investment, are likewise often closed to suits against foreign corporations. (The apartheid case teaches that, just as individual perpetrators are often immunised by post-transition amnesty programs, transnational corporations may benefit from the protection of a new government.) Finally, corporations do not generally fall under the jurisdiction of international criminal tribunals.