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.Footnote 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 Reference BourdieuBourdieu (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. To that end, I analyze how corporations have mobilized a campaign against the use of ATCA while at the same time nurturing a CSR field that is primarily based on self-regulation. I conclude with a discussion of the relevance of my findings for understanding how CSR is incrementally institutionalized into corporate governance structures as a substitute for enforceable regulation in general and an enforceable regime of human rights in particular.
The ATCA Cases: General Background
As corporations emerge as global private authorities approximating the powers of national governments, we are back to the independent realm of economic action “as a major locus of political power” (Reference BeckBeck 1997:4). MNCs are in a position to effectively escape local jurisdictions by playing one legal system against the other, by taking advantage of local legal systems ill-adapted for effective corporate regulation, and by moving production sites and steering financial investments to places where local laws are most hospitable to them. At stake, therefore, is the widening gap between the transnational character of corporate activity and the availability of both national and transnational regulatory regimes that may be invoked to monitor and restrain corporations irrespective of the territory in which they happen to operate.
The problem is twofold. On the one hand, individual countries find it increasingly impossible or undesirable to tame the activities of MNCs. Impoverished countries, often desperate for foreign investment, are unable or unwilling to introduce legal measures that may inhibit corporate investment or may cause MNCs to relocate to more hospitable countries (e.g., countries that do not endorse or enforce minimum wage requirements, child labor prohibitions, health and safety standards, environmental protections, collective bargaining rights, etc.). On the other hand, there is a “remedial gap” in international law when it comes to regulating MNCs. As a matter of history, international law largely creates governmental liabilities yet fails to “articulate the human rights obligations of corporations and to provide mechanisms for regulating corporate conduct in the field of human rights” (Harvard Law Review 2001:2030).
Consequently, efforts to curb corporate power through law operate at two distinct levels. First, there are growing attempts to envision and develop blueprints for regulating MNCs by subjecting them to a set of universal standards that will apply to corporations above and beyond the demands of any specific locality. Attempts at this level include pressures on global and regional bodies such as the United Nations (UN), the European Union (EU), and the World Bank to develop enforceable regulatory frameworks subjecting MNCs to standards of operation that can be systematically monitored, assessed, and, when necessary, enforced. Second, activists try to mobilize the “developed” legal systems of rich countries in order to police and sanction corporate practices in places where it is impractical or impossible to invoke local law. It is this latter strategy of extraterritorially mobilizing U.S. law to govern corrations operating outside the United States, and the response of corporations to this strategy thereof, that is the focus of this article.
Since the early 1990s, dozens of MNCs have been exposed to such legal challenges in the United States. For example, Texaco has been sued for alleged violations of human rights in Ecuador. Coca-Cola has been sued for alleged human rights violations in Colombia. Talisman has been sued for alleged violations of human rights in Sudan. Royal Dutch Shell has been sued for alleged violations of human rights in Nigeria. Unocal has been sued for alleged violations of human rights in Burma. ExxonMobil has been sued for alleged violations of human rights in Indonesia, and Fresh Del Monte Produce has been sued for alleged violations of human rights in Guatemala.
In all of these cases, MNCs have been sued for alleged violations of human rights occurring in conjunction with their operations in developing countries or in places governed by repressive regimes. In all these cases, plaintiffs have tried to subject MNCs to the jurisdiction of American courts in order to overcome their inability to enjoy the protection of the local jurisdictions where the alleged violations occurred. In some of these cases, the allegations concerned “hard-core” infringements on human rights, such as mass murder, rape, and torture. In some cases, the alleged violations concerned issues such as freedom of speech and association. In other cases, an attempt was made to bring under the umbrella of human rights issues such as ethnic discrimination, environmental damages, and unfair labor practices. In yet other cases, the alleged violations were based on arguments of “cultural genocide” caused by forced relocation, destruction of a natural habitat, or the spread of health hazards. In some cases, the alleged violations occurred as a result of direct cooperation between MNCs and oppressive regimes. In other cases, the alleged violations occurred as a result of the corporation benefiting from oppressive practices of military or paramilitary groups. And in other cases, the alleged violations occurred as a direct result of the corporation's business practices. Yet regardless of any particularity, it seems that all of these cases represent a new approach on the part of plaintiffs toward MNCs, approximating their obligations and duties to that of national governments and adding new dimensions to current debates about sovereignty, globalization, the legitimate reach of extraterritorial law, and the possibility of global law (Reference Clapham and JerbiClapham & Jerbi 2002).
In all of these cases, litigation relies on an American law that lay dormant for nearly 200 years. The ATCA was legislated as part of the Judiciary Act of 1789. Originally designed as a display of American neutrality in the face of warring European powers (Reference D'amatoD'amato 1988), the act invested federal courts with jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”Footnote 2 Unlike the Foreign Corrupt Practices Act of 1977, which invests American courts with extraterritorial criminal jurisdiction over American citizens and American companies for using bribery abroad, ATCA exclusively refers to non-American plaintiffs in civil action alone. In this sense, ATCA is truly extraterritorial in its reach, potentially extending American jurisdiction over events that have no bearing on American parties, potentially allowing American courts to declare the valid human rights norms of international law and to apply them to events that took place in other countries.
ATCA had hardly been invoked until 1980, when a Paraguayan man used it to sue a Paraguayan policeman who had tortured his son to death in Paraguay and who had later immigrated to the United States. A Second Circuit court held that ATCA created federal jurisdiction and a right of action, thus paving the way for a host of innovative attempts to use ATCA for adjudicating violations of international law outside the United States.Footnote 3 In the early 1990s, after ATCA had been used for seeking compensation from foreign state officials and foreign governments for alleged violations of internationally recognized human rights, it became a venue for suing MNCs.
To illustrate, one case applying ATCA to corporate practices was filed in 1996 against Unocal, a giant enterprise engaging in energy resource projects around the world.Footnote 4 Plaintiffs argued that Unocal relied on Burmese army units for building a gas pipeline and that the latter, with the tacit knowledge of Unocal, resorted to extreme methods of forced labor and forced relocation of villagers in the course of construction. Plaintiffs argued that Unocal should be held liable for the human rights abuses performed by the military under either joint venture or vicarious liability theories and sought monetary compensation accordingly.Footnote 5
Another ATCA case was filed against Texaco.Footnote 6 In this case, plaintiffs alleged that from 1964 to 1992, Texaco improperly disposed of waste while extracting oil from the Ecuadorian Amazon, resulting in environmental damages that amounted to a violation of human rights on three counts: cultural genocide, ethnic discrimination, and infringing on the indigenous population's right to a healthy environment.Footnote 7 In another case, plaintiffs sued Royal Dutch Shell for conspiring with the Nigerian government against the Ogoni people.Footnote 8 Plaintiffs alleged that the Nigerian military—with the knowledge and cooperation of defendants—arrested and convicted nine members of a Nigerian environmental movement in order to suppress that movement. The arrests, which were part of a widespread intimidation campaign, led to the false conviction and execution of Ken Sero-Wiwa, a Nobel Prize winner and a leader of the movement.Footnote 9
A fourth noteworthy case was brought against Coca-Cola.Footnote 10 Plaintiffs argued that Coca-Cola should be held liable for the activities of paramilitary units that terrorized and murdered union organizers at a bottling plant in Colombia that exclusively catered to Coca-Cola. Among the human rights violations cited in this case were murder, extrajudicial killings, kidnapping, unlawful detention, and torture. Plaintiffs also argued that Coca-Cola and its affiliates were liable for the denial of plaintiffs' rights to associate and organize, in violation of internationally recognized human rights. Plaintiffs alleged that Coca-Cola was jointly and severally liable for all the acts of its subsidiaries and/or vicariously liable for the acts of its alleged agents, the paramilitary units.Footnote 11
In another case, filed in November 2001, The Presbyterian Church of Sudan, aided by lawyers and activists in Canada and the United States, had filed a class action suit against Talisman Inc. Plaintiffs argued that defendants had collaborated with the Sudanese government in a joint strategy to deploy military forces in a brutal ethnic cleansing campaign against the civilian population “for the purpose of enhancing defendants' ability to explore and extract oil from areas of southern Sudan by creating a cordon sanitaire surrounding the oil concessions located there.”Footnote 12 Plaintiffs further argued that the armed campaign was made possible through government utilization of vehicles, helicopters, aircraft, roads, and airstrips owned, chartered, constructed, or maintained by Talisman. Plaintiffs accused Talisman of keeping a blind eye to military operations that relied on Talisman's resources and resulted in severe violations of human rights, including killings, rape, and torture amounting to genocide, ethnic cleansing, and the deliberate obstruction of health and food distribution undertaken by humanitarian organizations.
A few dozen claims against MNCs have since been brought before U.S. courts, alleging various corporate violations of human rights, seeking compensation for resultant damages, and, incidentally, sparking widespread debates about the applicability and suitability of the law as means for taming MNCs (Reference SacharoffSacharoff 1998; Reference Stephens, Kamminga and Zia-ZarifiStephens 2000; Harvard Law Review 2001; Reference PaulPaul 2001). From a strictly legal point of view, ATCA cases raise two fundamental questions. First, does the law create an enforceable private cause of action, or is it merely a jurisdiction-granting provision? Second, assuming ATCA does provide for some causes of action, the issue is to identify them and, moreover, to establish whether federal courts are invested with judicial powers to introduce new causes of action in accordance with contemporary developments in international law (i.e., the “law of nations”).
This latter question is pertinent to the ability of American courts to advance a global regime of human rights, to define its scope, and to potentially constitute a foundation for applying it to MNCs. In a recent decision that did not directly concern corporate practices (hereinafter, the Sosa case),Footnote 13 the U.S. Supreme Court ruled that while ATCA is in terms only jurisdictional, “we think that at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law” (542 U.S. 17 [2004]). The court ruled that at the time of its enactment, the law was designed to provide redress for only three types of actionable causes: violation of safe conduct, infringement of the rights of ambassadors, and piracy. As to the present, the court established the principled powers of courts to recognize a new cause of action, but also found that “there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind” (542 U.S. 30 [2004]). More concretely, the court ruled that
whatever the ultimate criteria for accepting a cause of action subject to jurisdiction under [ATCA], we are persuaded that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [ATCA] was enacted (542 U.S. 38 [2004]),
thus significantly limiting the type of future claims that may be brought against MNCs under the law.
At the center of debate here is the adequate approach that American courts should take when faced with the task of identifying a breach of norms that amounts to a violation of the international law of human rights. While various plaintiffs argue that courts should adopt an expansive reading of human rights, American courts have so far adopted a restrictive view, limiting “subject matter” jurisdiction only to “hard-core,” universally recognized violations of civil and political rights such as summary executions while refusing to rule that infringement upon economic, social, or cultural rights is actionable under ATCA.
The state action requirement further limits the scope of ATCA subject matter jurisdiction over nonstate actors such as corporations. With few exceptions, such as slave trading, genocide, and war crimes, the state action requirement stipulates that the law of nations binds only state actors. In other words, if a corporation is charged with violating the law of nations on grounds other than slave trading, genocide, or war crimes, it cannot be held liable unless the plaintiff establishes that the nonstate actor proximately caused the violation by “exercising control” over a government actor or shows that a corporate defendant acted in the capacity of a state actor (Harvard Law Review 2001, citing Kadic v. Karadzic 1995).
Moreover, the state action requirement may come into conflict with the act of state doctrine. The act of state doctrine “reflects the prudential concern that the courts, if they question the validity of sovereign acts taken by foreign states, may be interfering with the conduct of American foreign policy by the Executive and Congress” (Siderman de Blake v. Republic of Argentina, 965 F. 2d 699, 715, 9th Cir. [1992]; also see Reference ChomskyChomsky 2002). Corporate defenses based on this doctrine are a primary means of challenging the right of U.S. courts to judge conduct occurring abroad in which a foreign sovereign took part (Reference ChomskyChomsky 2002). MNCs and their legal and political spokespersons have routinely based their principled policy-oriented objections to the ATCA cases on this doctrinal argument, using it as a conceptual springboard from which to assert that the use of ATCA for suing MNCs implicates the United States with an unwarranted form of legal imperialism. The recent Sosa decision of the Supreme Court seems to have endorsed these concerns. The court ruled that it is better to set a high bar to establishing new private causes of action and that this should better be left to legislative judgment because of “the potential implications for the foreign relations of the United States” and because the establishment of such rules “would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent has transgressed those limits” (542 U.S. 34 [2004]). The Sosa decision thus echoes some of the views advocated by MNCs in respect to ATCA, yet stops short of fully endorsing the corporate viewpoint that ATCA does not establish a cause of action that may be used as means for enforcing a global regime of human rights.Footnote 14 However, before examining at some length the corporate campaign against the law, in the next part of the article I first situate ATCA cases in a broader sociopolitical context.
Situating ATCA Cases: The Field of CSR
As stated earlier, the basic premise of this article is that ATCA cases should be regarded as one element in a wide spectrum of attempts to tame corporate behavior by inventing new global regulatory regimes. These attempts are generated by players with distinct positions within the emergent CSR field. Indeed, the enhanced powers of MNCs have given rise to new types of political initiatives that focus on the “social responsibilities” of market players. In tandem with the emergence of transnational market forces emerge transnational networks of grassroots movements, loosely organized “corporate bashing” and “corporate watch” groups, and a host of nongovernmental organizations (NGOs) that shift their attention and gaze to MNCs (Reference DeWinterDeWinter 2001; Reference Keck and SikkinkKeck & Sikkink 1998). Consequently, MNCs have begun to experience the heat of popular protests, consumer boycotts, legal suits, and a variety of public shaming campaigns addressing corporate misconduct and pressing for adequate means to enforce the social responsibilities of business. Organizations such as Amnesty International, Global Witness, Oxfam International, and the World Wildlife Fund (WWF) argue that the only effective means of ensuring socially responsible corporate behavior is through binding norms. Some social theorists have also begun to argue that “the task now is to create and entrench such institutions of effective political action as can match the size and the power of the already global economic forces and bring them under political scrutiny and ethical supervision” (Reference BaumanBauman 2002:15; also see Reference HeldHeld 2002).
However, capitalists and capitalist entities do not sit still when faced with such power-curbing challenges. Corporations and corporate executives constantly mobilize a host of agents (e.g., NGOs, research institutions, business associations, state bureaucrats, etc.) to maintain their ideological and practical supremacy (Reference SklairSklair 1997). Capitalism, write Reference Boltanski and ChiapelloBoltanski and Chiapello (2002), has always relied on critiques of the status quo to alert it to any untrammeled development of its current forms and to discover the antidotes required to neutralize opposition to the system. In other words, attempts to tame corporate power and efforts to subject corporations to novel regulatory regimes also trigger corporate counter-efforts to evade, oppose, de-legitimize and co-opt such “unwarranted” pressures. Indeed, many corporations no longer submit to the classical view that they are only answerable to shareholders and that their only commitment is to the maximization of profits (Reference DickersonDickerson 2002). Rather, corporations have begun to be actively involved in various displays of corporate responsibility. We may thus begin to think about the “social responsibilities of corporations” as a site of struggle over meaning, where public pressures and corporate response to such pressures assume a more or less definitive structure, with “authorized” agents who occupy certain “recognized” positions from which they assert “what is at stake” and from which they try to control the definition and scope of the very notion of responsibility.
By and large, corporations tend to invest the term with a voluntary and altruistic spirit and with notions implying honesty toward investors, with charity-oriented “good citizenship” campaigns, and with more or less elaborate schemes of voluntary self-regulation. At the other end of the spectrum, however, are those actors who try to invest the term with a formal obligatory and enforceable meaning. It is this ongoing structured struggle over meaning that sustains the existence of the field and determines its trajectory as a universe comprising practices, positions of power, and a variety of social benefits. Yet what transforms such an arena into a field in the sociological sense is that the struggle over meaning is always at once also a struggle over the establishment of “authorized” positions and the legitimate resources that invest actors with the power to define the “true” meaning of the field's core concepts. In this respect, CSR is first and foremost a field that consists of a multitude of social actors. The most visible players in the field are corporations and corporate networks on the one hand and a host of advocacy networks on the other hand. Yet the field of CSR can rarely be reduced to two such competing camps. In between, the field is saturated with experts of various sorts and with an array of nonprofit organizations that benefit from, are drawn into, or advocate the idea of CSR.
In this context of the field, we may begin to speak about a vibrant development of corporate “soft law,” encompassing voluntary codes of conduct and elaborate ranking schemes and reporting initiatives.Footnote 15 Thus, hundreds of MNCs recently joined the United Nations–sponsored “Global Compact” initiative, intended to enlist corporations to display their commitments to various social expectations across the globe, including commitments to promoting and protecting human rights.Footnote 16 The European Parliament also established a Committee on Development and Cooperation that outlined a European code of conduct for corporations operating in developing countries (Reference HowittHowitt 1998). The European Commission also issued a Green Paper to promote a framework for corporate social responsibility. The Green Paper, prepared in the context of the EU's Sustainable Development Strategy, also examined measures to enhance the social accountability of corporations (Reference DavidssonDavidsson 2002).
All in all, corporate activities currently encompass a variety of declarations and commitments, including “codes of conduct,”“mission statements,” and “social auditing schemes,” all of which are designed to display corporate acceptance of the general idea that they do bear social responsibilities. All of these activities, in turn, both assume and require the availability of knowledgeable experts. One important locus where the notion of CSR is developed is business and management schools, where ideas of corporate citizenship are packaged as tools for enhanced corporate success. New conceptions of corporate responsibility are integrated into the old models of how to successfully manage a business enterprise and how to ensure its reputation. Consequently, strategies of marketing are also being readjusted under alluring titles such as Cause-Related Marketing or Social Branding, which are supposed to create consumer brand loyalty and corporate employee loyalty (Reference BollierBollier 1996; Reference CarrollCarroll 1989).
In tandem with business education, a whole commercial market has developed around shaping, assessing, and consulting on the desired dimensions of social responsibility. Accounting firms and other commercial and noncommercial entities have embarked upon the CSR bandwagon, developing special expertise in “social auditing” and offering their commercial services to interested corporations. The issue of auditing, in general, seems to be the fastest growing area of high-revenue expertise related to CSR (Reference PowerPower 1997). A host of commercial entrepreneurs, corporate entities, and (nominally) nonprofit organizations that hope to become the field's standard-setting authority compete over the development of rating systems for measuring corporate behavior. For example, the nonprofit organization Social Accountability International (SAI), funded by the Open Society Institute of George Soros and the MacArthur, Ford, and Rockefeller foundations, has developed the SA8000 standard for workplace conditions and a system for independently verifying compliance with that standard.Footnote 17 The Global Reporting Initiative, a nonprofit organization that is sponsored by corporations such as Ford, General Motors, Nike, and Royal Dutch/Shell, also strives to establish guidelines for corporate social reporting. And the Triple Bottom Line initiative—also enjoying the funding of MNCs and organized business groups—is trying to set its own measurement and verification criteria as a corporate standard while offering CSR and Socially Responsible Investment (SRI) training programs to corporations such as IBM, Shell, Heineken, BASF, Philips, and Canon. Through such initiatives, the notion of social responsibility undergoes a process of bureaucratization and standardization that transforms the heretofore politically loaded and morally debated notion of corporate responsibility into a measurable set of indicators that can then be exchanged and traded among shareholders and investors as any other commodity that adds “value” to the firm (or subtracts from it thereof). Yet as Parker notes, the emergence of this vibrant field of expertise and its various standards raises “questions about the extent to which they measure substance rather than procedure implementation” (2002:224).
A new breed of strategic consultants is also operating in the field. With a typical background in public relations, these experts now sell strategic CSR models, advise corporations on how to develop CSR campaigns, and offer follow-up reports and impact assessment studies. Law firms have also begun to appreciate the new business opportunities this field seems to be offering, and the American Bar Association, on its part, recently established a task force and published a report in which the concept of business responsibility is principally constructed in terms of securing investors' confidence (American Bar Association 2003). And, in the industries of public relations and advertisement, a new line of “social branding” strategies is being adopted by copywriters and graphic designers trained in the new art of associating products and services with “morally good” notions such as saving the planet, educating the poor, reaching out to communities, and preparing children for life in the global village.
Another part of the field is evolving through the activities of nonprofit organizations. Some such organizations are subtly created by, sponsored, or backed by corporations. These market-based NGOs (MaNGOs) are actively distributing corporate versions concerning the adequate scope and meaning of CSR, training corporate executives in the know-how of social responsibility, and organizing and coordinating corporate citizenship campaigns. The single most distinctive common denominator of these corporate-oriented and corporate-inspired notions of social responsibility is the voluntary, nonenforceable, and self-regulatory meaning of the term. Understood from within the context of a field, the voluntarism principle has become a crucial frontline in the struggle over the meaning of corporate responsibility. As we shall shortly see, the grounding of this particular meaning of responsibility is also a driving force behind corporate response to ATCA.
The field also consists of so-called confrontational groups (Reference WinstonWinston 2002), an array of nonprofit organizations that function as corporate watchdogs, blacklist “irresponsible” corporations, arrange for public shaming campaigns, take corporations to court, and lobby for the taming of MNCs through national and transnational governance structures. Sklair identifies this part of the field while writing that “the contemporary level of monitoring of corporate activities is historically unprecedented. There are thousands of organizations actively seeking out corporate malpractices all over the world” (Reference Sklair1995:68). These players develop their own versions of CSR, have their own stakes in maintaining the field, and shape its trajectory. The basic perception that is brought to bear on the CSR field by confrontational players posits that under the present conditions of “global corporate rule,” self-regulation and voluntary displays of responsibility cannot suffice (Reference PrakashPrakash 2002; Reference RodriguezRodriguez 2003). Oxfam International's White Paper on Globalization clearly expresses this position:
At their best, voluntary codes of conduct can act as a guide to corporate practice and set standards for others to follow. … At their worst, they are little more than a public relations exercise. But the deeper point is that corporate behavior is too important for poverty reduction to be left in the field of voluntary codes and standards defined by the corporate sector itself. … What is needed is a set of verifiable and enforceable guidelines covering all aspects of corporate activity. (Oxfam 2003)
The ATCA cases, in turn, are enabled by an underlying theory that posits that MNCs possess powers that give them considerable leverage over the distribution, enjoyment of, and access to a broad range of human rights: economic, social, and cultural rights; civil and political rights; and rights protected under international humanitarian law. The underlying theory, in short, is that corporate power equals governmental powers and that this calls for new types of global regulation.
The CSR field thus brings together, as allies or adversaries, a multitude of actors who occupy a variety of strategic positions. The field therefore provides for the formation of coalitions, commercial relations, and ideological networks that coalesce around certain specific understandings (and vested interests in pursuing certain understandings) of the very term social responsibility. Once looked at from the perspective of the field, it is possible to make sense of novel social formations that transcend traditional distinctions and boundaries.
Consider the identity of many ATCA plaintiffs. In many ATCA cases, indigenous, poor, and oppressed people are able to advance a claim only because they are aided, funded, and represented by institutional players elsewhere. In the case against Unocal, Burmese farmers were represented by lawyers of EarthRights International, the New York–based Center for Constitutional Rights, and two commercial law firms specializing in civil right cases and class action suits. In the case against Texaco, members of three indigenous tribes from Ecuador were aided by a wide coalition: An Ecuadorian lawyer working in the United States initiated the case and was joined by an American commercial law firm specializing in class action lawsuits, a group of law professors from Boston, the Massachusetts Environmental Law Society, Earth Justice International, and Amazon Watch. In the case against Shell in Nigeria, family members of Ken Sero-Wiwa were represented by the Center for Constitutional Rights and aided by EarthRights International. In the case against Coca-Cola, the Colombian union Sinaltrainal was aided and represented by the American United Steel Workers Union and by the International Labor Rights Fund. The International Labor Rights Fund also assumed representation in a case against ExxonMobil in Indonesia.Footnote 18 ATCA cases thus blur the lines between civil law and public law, national law and international law, public interest lawyers and private lawyers, nonprofit organizations and commercial law firms, labor unions and civil rights groups, and environmental concerns and class action interests.
In their attempt to discredit their adversaries, corporations point to the presence of commercial class action lawyers as “proof” that greed, and not principle, fuels the claims against them. At other times, corporations try to raise suspicions concerning the political motivations of their adversaries. We have to understand such attempts as strategic moves designed to discredit the authority of certain actors to speak in the name of corporate responsibility. However, the “suspicious hybridity” of the transnational networks of plaintiffs makes sense once we understand that the field assumes shape along lines that distinguish various positions in the field, or connect various positions and actors, on the basis of shared (ideological and practical) orientation toward a preferred assigned meaning to the concept of responsibility. In sum, the field takes shape through the push and pull of competing substantive notions as to what responsibility is and who may legitimately speak in its name. Thus understood, we are now better equipped to make sense of corporate response to the ATCA challenge, to be discussed in the next part of the article.
Corporate Response to ATCA Claims
The way corporations respond to ATCA is but one element in a broader strategic positioning within the CSR field. In general, this positioning is based on a dual strategy: on the one hand, resisting the applicability of ATCA to MNCs and discrediting those who try to use it; on the other hand, acting proactively to shape the CSR field around principles of enlightened self-regulation.
Resisting ATCA
The basic fact about most ATCA cases is that the “facts”—namely, the claim that human rights were violated—do not constitute the heart of the dispute between the parties. Rather, the concrete “factual” dispute is often about chains of causality in general and about the responsibility of the corporation to the actions of state agents in particular. The Coca-Cola case provides one such example. In this case, the alleged human rights violations were attributed to paramilitary groups who intimidated (and in some cases murdered) union leaders at Panamco, a bottling plant that is locally owned and managed. Coca-Cola's main line of defense on the merits was that it neither owned nor controlled Panamco and could therefore not be held responsible for the alleged wrongs. Similarly, Unocal had vigorously challenged the vicarious liability charges brought against it in respect to its operations in Burma. Unocal argued that it was only a “minority investor” in the pipeline, that TotalFinaElf had been the project operator, and that it neither took part in nor influenced the actions of the Burmese armed forces.
Unocal and Coca-Cola, therefore, defended themselves by trying to show that they were twice removed from liable misconduct: first, because of their limited role in the overall business practice and second, because they had no influence over or knowledge of the alleged abuses by the military or paramilitary groups. In fact, ATCA cases force MNCs into a strategy of downplaying their ability to have a substantial impact upon their immediate social and physical environment, thereby implying a sort of diminished capacity to act responsibly in a proactive way.
We may speak here of a strategy designed to create corporate distance from issues of responsibility. Responsibility is transformed here, through legal discourse, to a question of “vicarious liability,” hence raising age-old capitalist objections to the use of torts as a redistributive mechanism (Reference Horwitz and KairysHorwitz 1982). Moreover, by proclaiming a distance from the actual perpetrators, corporate response is based on an effort to preserve traditional distinctions between state and market, allocating enforceable liabilities for violations of human rights only to the former. Looked at from the perspective of the field, we may thus describe this strategy as one that aims to situate the particular instances that the ATCA lawsuits bring to the fore as residing outside the CSR field altogether. As we shall see, a second strategic move in this direction, namely one that seeks to transform the issues at stake into questions of national sovereignty and national security, complements this act of strategic distancing.
Indeed, corporate response to the challenge posed by ATCA extends well beyond the courtroom. Relying on academics, trade and commercial associations, and various selected representatives, corporations have pursued a wide-range lobbying campaign against the very use of ATCA.Footnote 19 In December 2002, the world leadership of the International Chamber of Commerce (ICC), mobilized by its American chairman, Richard D. McCormick, issued a statement addressed to the U.S. government urging it “to curb the misuse” of ATCA by allowing foreign companies “to be sued in U.S. courts for alleged events in third countries.” The ICC, which represents thousands of corporations and business associations, described the use of ATCA as “an unacceptable extraterritorial extension of U.S. jurisdiction” and urged other governments “to raise the issue with Washington” (International Chamber of Commerce 2002:1).
A prime example of orchestrated action against ATCA is a wide coalition of hundreds of MNCs—including many of those sued under ATCA—that operates under the name of USA-Engage. Since 1997, USA-Engage has led campaigns against imposing economic sanctions on countries with gross human rights records. The group's basic stance is that American interests are “compromised” by the imposition of sanctions because they undermine America's economic “competitiveness.” USA-Engage campaigns against the “abuse” of ATCA by various plaintiffs and states that its purpose is to bring about the complete repeal of this law. To start with, the fact that the field allows for the emergence of transnational, “hybrid” coalitions (discussed earlier in this article) is used to isolate and in turn to discredit the involvement of commercial class action lawyers in the suits, alleging that the punitive money damages that are sought by plaintiffs would not benefit the alleged victims but rather the class action lawyers themselves (USA-Engage 2004). In turn, the lawyers' alleged greed serves as a basis for further accusing them of unfairly exploiting the American judicial system and contributing to hyper-litigation that exhausts vital judicial resources (Reference HowardHoward 2002).
Part of the response to ATCA is based on a tactic designed to discredit the “moral authority” of at least some actors to speak in the name of responsibility, and to undermine the legitimacy of these actors' positions in the CSR field. Further, the existence of transnational coalitions that pursue ATCA cases is used to cast suspicion on the substantive agenda of plaintiffs. The latter are interchangeably referred to by USA-Engage and its allies as “foreign nationals,”“unaccountable actors,” and “political organizations with unspecified agendas.” Yet again, we should read these insinuations as a tactic designed to discredit the moral authority of these players to participate in the negotiations over the meaning of responsibility which take place in the field.
The suspicion-raising campaign is directly concerned with fusing economic interests with national security interests and with mobilizing the U.S. government to side with MNCs in their efforts to curb the impact of ATCA. This strategy surfaced in relation to a case against ExxonMobil's operations in Indonesia.Footnote 20 Plaintiffs in this case, Indonesian citizens represented by the International Labor Rights Fund, alleged that Indonesian army units assigned to protect ExxonMobil facilities in Aceh on the island of Sumatra were provided logistical support by the defendant while committing severe human rights violations such as genocide, torture, and kidnapping, in the course of fighting against rebel forces in the area. The defendant's motion to dismiss was largely based on arguing that litigation endangered vital American foreign policy interests. Subsequently, the court requested the State Department's opinion on the matter. The State Department's response, written by one of its legal advisers, was unequivocal, stating that “the Department of State believes that adjudication of this lawsuit at this time would in fact risk a potentially serious adverse impact on significant interests of the United States, including interests related directly to the on-going struggle against international terrorism.”Footnote 21 The letter went on to explain that the lawsuit might have a negative impact on Indonesia's economic recovery efforts, as it could discourage foreign investment. Further, the letter noted that an important aspect of U.S. foreign policy is to increase opportunities for American business abroad, while adjudication in this case could “prejudice the Government of Indonesia and Indonesian businesses against U.S. firms.”Footnote 22 Finally, the letter tied economic interests to national security. The letter noted that the lawsuit could disrupt efforts “to secure Indonesia's cooperation in the fight against international terrorist activity” because that Moslem country “serves as a focal point for US initiatives in the on-going war against Al-Qaeda.”Footnote 23
In sum, largely describing the ATCA cases as involving a foreign government's internal conflicts involving its own citizens (USA-Engage 2004), USA-Engage and its affiliate corporations argued that the use of ATCA to evaluate the conduct of sovereign nations vis-à-vis their own citizens poses risks to U.S. national interests and amounts to an illegitimate intervention in the affairs of other sovereign countries. This latter argument is sometimes presented as a concern about the implications of imposing a regime of “legal imperialism” on other countries. The argument here is that
developing countries have a legitimate interest in determining their own policies in areas such as economic development and environmental protection. … if American courts interpret the law of nations to include norms that are not sufficiently defined or universally recognized, they will encroach on the legitimate authority of foreign states ….” (Harvard Law Review 2001:2043)
MNCs, as aforementioned, have made this consideration a cornerstone of their attack on ATCA, emphasizing the political dangers involved in unwarranted intervention in the internal affairs of other countries and the principled need to respect other states' sovereignty.
Arguing along these lines, defendant corporations have also succeeded in fully enlisting the Justice Department to their struggle. In May 2003, Attorney General John Ashcroft filed an amicus curiae brief for the defense in the Unocal case.Footnote 24 Largely arguing on the basis of a presumption against extraterritoriality, the Justice Department's brief went beyond the particularities of the case and argued for an overall reinterpretation of the law. The brief stated that ATCA could not be used as a basis for filing civil cases, that the “law of nations” covered by the law did not include international human rights treaties, and that abuses committed outside of the United States should not be covered under it. All in all, the brief argued that while the original intent of the law was to avoid conflicts with other countries, its present use may bring about the opposite result. Thus, the brief avoided altogether questions relating to the liabilities of MNCs and squarely positioned the dispute in the domain of sovereignty, international relations, and American foreign policy concerns.
The latest assault on ATCA along these lines came in December 2003, when the Supreme Court granted a writ of certiorari announcing it would hear the Sosa case in its spring 2004 term (see note 13, above). Although the case did not involve a multinational corporation, it was clear that the ruling would have had far-reaching implications in respect to the ability to use ATCA for suing MNCs. Therefore, alongside and in support of the government's petition for certiorari, business groups such as the National Foreign Trade Council, USA-Engage, the National Association of Manufacturers, the U.S. Chamber of Commerce, and the U.S. Council for International Business—supported by conservative public interest law centers such as the Washington Legal Foundation—presented the Court with detailed amicus briefs, all advocating the elimination of ATCA as means of enforcing the protection of human rights and all warning against American legal imperialism.Footnote 25
Indeed, debates and principled arguments about the legitimacy of using national laws for extraterritorial purposes have a long history in American jurisprudence, political philosophy, and international relations theory. Reference GaytonGayton (2003) argues that changes in the nature and scope of extraterritorial claims reflect changing conceptions of sovereignty. Thus, he shows that in the nineteenth century, an American system of consular courts—extending extraterritorial jurisdiction over American citizens in some foreign countries—corresponded to a standard of civilization that “denied the sovereign equality of ‘uncivilized’ states” (2003:59). This conceptual legitimizing device, however, declined with the ascendance of positivist doctrines that were based on perceptions of equal sovereignty (2003:3). When MNCs and other critics argue that the use of ATCA amounts to American legal imperialism and to a breach of the equal sovereignty principle, they thus imply that plaintiffs—groups and individuals that often base their claims on postcolonial sensitivities to American imperialism—are in fact forcing back an imperialist conception that attributes lesser civility to other countries.
ATCA claims thus demonstrate the way principled arguments and the logic of ideas are situated “in action.” In the matter of subjecting MNCs to a universal regime of human rights, the identity and interests of those who resist the extraterritorial application of the law, namely MNCs, dictate a position that insists on doctrines of equal sovereignty regardless of a complex reality of economic and political inequality among states and regardless of alternative conceptions of commercial, political, and moral interdependence. That is, in the context of a general corporate reluctance to operate under a regime of enforceable responsibility, the idea that developing countries have a legitimate interest in determining their own policies has to be assessed with caution. This argument implies that impoverished states freely pick and choose social and legislative policies, while the political-economic reality is often radically different. The “choice” of such countries not to introduce certain rules and regulations often stems from their desperate need to attract foreign investment on the “take it or leave it” terms of capitalist business ventures.
All in all, MNCs thus depict themselves as both lacking an ability to have an impact on relevant policies and neutrally respectful of state policies in the countries where they operate. In this way, the very notion of social responsibility is disengaged from any concrete duty and is relegated only to those domains that cannot and should not interfere with the so-called domestic affairs of sovereign countries. This latter move of transforming the question of corporate responsibility into questions of other nations' sovereignty on the one hand and U.S. national security and national economic interests on the other hand complements the distancing moves that I described above. By moving the discourse into the terrain of national concerns, MNCs in effect “relocate” the ATCA cases outside the CSR field, divesting the question of corporate social responsibility from being relevant to what is at stake.
CSR and Corporate Governance
So far, I have discussed the ways in which corporations try to remove ATCA and its bearers from the “legitimate” concerns of the CSR field. Yet alongside the fierce resistance to ATCA as an unwarranted form of intervention, corporations are also engaged in the positive structuring of the CSR field, struggling to structure it around voluntary self-regulation and to position themselves as authoritative players within it. Indeed, the attack on ATCA is systematically corroborated by assertive displays of “social responsibility” by all ATCA defendants. Like many other MNCs, the companies sued under ATCA have developed extensive campaigns emphasizing their social responsibility and “corporate citizenship” in general and their commitments to the defense of human rights in particular.
A considerable variance exists among corporations in terms of the degree to which social responsibility is incorporated into their corporate culture and, more important, into their institutions of “corporate governance.” When corporations use the term corporate governance, they typically refer to the formal internal structure of authority governing the firm, including the authority and composition of the board, the responsibilities of various committees, and the nature of internal management systems. Thus, to the extent that corporations begin to address social issues in general and human rights issues in particular by, for example, establishing designated committees, publishing annual certified reports, introducing ISO-like standards of compliance, or by developing special management systems, we may talk about a high degree of CSR institutionalization.
In general, CSR activities undertaken by corporations tend to follow the good citizenship model of philanthropy. Compared not only to the institutionalization of economic and administrative standards but also to the institutionalization of environmental standards, corporate social performance in general and in the area of human rights in particular is relatively underdeveloped. Coca-Cola, sued under ATCA in relation to its operations in Colombia, is a strong example of a company whose primary effort in the field of CSR is directed toward acts of charity. Coca-Cola's code of business conduct, for example, is mainly about the level of discipline required from employees, and is practically silent about the firm's social obligations. However in 2001, Coca-Cola began to publish a corporate citizenship report alongside its financial reports (http://www2.cocacola.com/ourcompany/pdf/2002_citizenship_report.pdf, accessed September 14, 2003). The 2002 report lists a variety of community empowerment programs, donations, and investments in the fight against AIDS. It also details employee-directed diversity and equal employment opportunities policies, and emphasizes the progress the company has made in establishing an internal environmental management system (and ISO certification for one of its facilities in Spain). Coca-Cola also provides reports on its country-specific activities around the globe. Referring to Colombia, Coca-Cola maintains that it operates twenty bottling plants there, seventeen of them owned by Panamco (the bottling plant allegedly responsible for human rights violations). Coca-Cola reports its community involvement projects in Colombia, ranging from building schools ruined by an earthquake to coastal cleanup campaigns, culminating in channeling $700,000 to education through an NGO that has been established for that purpose. Judging from the firm's publications, therefore, it seems that its CSR model rests largely in the philanthropic domain, with the marked exception that Coca-Cola reports that it adheres to a voluntary code of conduct known as the Sullivan principles.Footnote 26
Unocal, ExxonMobil, and Royal Dutch Shell, sued under ATCA over respective activities in Burma, Indonesia, and Nigeria, also invest efforts in philanthropic-type activities but display a far more advanced degree of CSR institutionalization. Unocal, responding to the ATCA claim against it, has started to put prime emphasis on human rights issues. Specifically addressing its operations in Burma, Unocal asserts that the pipeline project was constructed according to high ethical standards and provided real benefits in employment, education, and healthcare to the 43,000 villagers and farmers who live in the area. Unocal also vows that it would not tolerate the use of forced labor or other human rights abuses in any of its projects (http://www.unocal.com/responsibility/humanrights/hr5.htm, accessed November 22, 2003). Unocal also contracted two independent human rights experts for monitoring the Yadana Project, with which the corporation was involved in Burma. The experts subsequently published a report that vindicated Unocal of any wrongdoing and affirmed the positive impact of Unocal on the Burmese social environment. More generally, Unocal also developed an internal voluntary code of conduct in which human rights commitments occupy center stage. The code incorporates the principles of the UN Global Compact, the Sullivan Principles, the U.S./U.K. Voluntary Principles on Security and Human Rights, and, in general, aligns Unocal with the Universal Declaration of Human Rights (http://www.unocal.com/ucl_code_of_conduct/index.htm, accessed November 22, 2003).
Shell, sued for alleged violations of human rights in Nigeria, also engages in vast and impressive projects of community empowerment, coastal cleanups, and educational programs in Nigeria, especially in the area where the alleged violations occurred. Asserting a commitment to promote and protect human rights, Shell seems to be the most advanced among the MNCs I studied in incorporating human rights as an integral part of its corporate governance. The steps Shell has taken include the establishment of a Social Responsibility Committee that reports directly to the board. The committee reviews the policies and conduct of the corporation with respect to the corporation's Statement of General Business Principles. This latter constitutive document includes, among other things, a commitment to support fundamental human rights by endorsing the Universal Declaration of Human Rights, the UN Global Compact, and the Sullivan Principles. In its 2002 annual report (http://www.shell.com/html/investor-en/reports2002/doc/pdf/rde_full.pdf, accessed August 12, 2004), Shell also reports the installment of implementation and compliance mechanisms. These include the “Business and Human Rights Management Primer,” the development of a human rights compliance tool based on tools developed by the Human Rights and Business project of the Danish Centre for Human Rights, a widely distributed training guide on human rights dilemmas, and dialogue programs with human rights groups across the globe (http://www.shell.com/static/media-en/downloads/business_and_human_rights_primer.pdf, accessed August 12, 2004).
ExxonMobil, beyond reporting annual contributions of nearly $100 million in 2002, responded to the accusations concerning its operations in Indonesia with a relatively high degree of CSR institutionalization in general and human rights commitments in particular. Acknowledging civil disorder in Aceh, ExxonMobil reported on a variety of community programs targeting the Aceh population. In its 2002 Corporate Citizenship Report (http://ccbn27.mobular.netccbn/7/269/280/, accessed November 14, 2003), ExxonMobil reports on diversity and equal employment opportunities programs; the establishment of an Operations Integrity Management System (OIMS) as a self-regulatory framework for maintaining health, safety, and environmental standards in line with the guidelines of ISO 4001; and environmental and social impact assessment studies that include community consultation before investing in projects. ExxonMobil's Standards of Business Conduct also establish an approach consistent with the principles of the Universal Declaration of Human Rights “insofar as they apply to private companies” (http://www2.exxonmobil.com/corporate/files/corporate/sbc.pdf, accessed October 26, 2003) and with the U.S./U.K. Voluntary Principles on Security and Human Rights. ExxonMobil also has an Integrated Security Management system that includes a reference to the protection of human rights and cultural integrity. As part of its formal corporate governance structure, ExxonMobil has also established a Public Issues Committee that reports to the board (http://www2.exxonmobil.com/corporate/files/corporate/sbc.pdf, accessed October 26, 2003).
Likewise, Talisman—sued under ATCA for its operations in Sudan—has begun to publish a detailed social responsibility annual report. In 2002, it stated that it took steps to further integrate corporate responsibility activities into its corporate governance and management systems. Talisman's forty-two-page Corporate Responsibility Report covers issues such as human rights, community programs, ethical business conduct, employee relations, environmental audits, waste management issues, and transparency practices. The report was certified by PriceWaterhouseCoopers (PWC), which has provided assurances as to the accuracy of statements. The report is structured along the suggested principles of the Global Reporting Initiative (GRI) and follows the Triple Bottom Line model (economic, environmental, and social reporting), which in recent years has emerged as a blueprint for responsible reporting. Among its human rights activities, Talisman reports that it has established a security policy to deal with the conduct of national defense forces protecting corporate facilities. Talisman reported that this policy emerged out of its experience in Sudan, where it tried to prevent the use of its oil field facilities for “nondefensive purposes.” Talisman also reports on its human rights training initiatives and projects in Sudan and Colombia as well as on its specific management efforts to promote peace in these two countries (http://www.talisman-energy.com/pdfs/TLM02CFR.pdf, accessed November 18, 2003).
In sum, the strategic maneuvering of corporations in the CSR field consists of two basic moves: one that resists attempts to subject MNCs to an enforceable legal framework, and another that engages in actively consolidating a self-regulatory regime of CSR that is based on a host of voluntary and nonenforceable instruments. Transcending the particularities of any specific ATCA lawsuit, we may therefore speak of a strategy that employs powerful ideological and practical devices designed to stabilize the field around voluntary and legally nonbinding practices of social responsibility.
Conclusion
The question of how to bring multinational corporations under “political scrutiny and ethical supervision” (Reference BaumanBauman 2002:15) has become a major political issue. In this article, I have designated the field of CSR as one conceptual space where various regulatory/disciplinary regimes are pursued and negotiated among a host of players. In general, I have argued that the meaning of responsibility, as it is negotiated in the field, tilts between the search for external regulatory structures and the development of self-regulatory mechanisms. I illustrate this argument by discussing attempts to use the ATCA as one particular instrument of legal control over corporate behavior in the field of human rights. In particular, I focus on the corporate response to these attempts. In so doing, I follow the idea that capitalist hegemony is never fully secured and has to be constantly maintained by corporations and a host of other organizations and movements (Reference SklairSklair 1997). Corporations thus respond in a variety of ways to pressures such as those exerted through the ATCA cases, and it is precisely this constant interplay of pressure and response that constitutes the dynamic and the trajectory of the CSR field.
I have argued that the challenge represented by ATCA claims goes well beyond corporate concerns with punitive damages and bad reputation. ATCA claims penetrate right into the heart of the question of how corporations may be subjected to a global regime of human rights, and it is in this light that the response of corporations has to be understood. I have found that corporate response to ATCA has two distinct elements to it. On the one hand, corporations try to undermine the legitimacy of using ATCA as an instrument of control and to cast doubt on the motives and the identities of those who try to invoke it. To that end, corporations do not restrict their actions to adjudication alone, but also mobilize organizations such as USA-Engage, the International Chamber of Commerce, and ultimately the U.S. government.
On the other hand, corporations invest considerable resources in shaping the CSR field in general as one that should be based on voluntary measures. To that end, I have tried to show that CSR has become a prominent feature of that body of knowledge and practice organized around the notion of corporate governance. Not unlike the concept of CSR, the concept of corporate governance is also contested and may entail different analytical and normative orientations. The point is that these different conceptions all assume “the increasingly prominent role of internal control systems” and try “to push control further into organizational structures, inscribing it within systems which can then be audited” (Reference PowerPower 1997:41–2). In other words, the notion of corporate governance signifies a decisive move in the direction of abandoning traditional “command and control” state regulatory schemes in favor of “responsive regulation,” which is supposed to facilitate—yet not enforce and dictate—self-regulation programs and “compliance-oriented” regulation, which is to be carried out through corporate consent and voluntary organizational processes of reflexive learning (Reference ParkerParker 2002). Corporate governance, and CSR within it, as they are currently conceived, have thus become major forces pressing for the privatization of regulatory structures (also see Reference Dezalay and GarthDezalay & Garth 1996).
Accordingly, corporate voluntarism has become the corporations' most sacred principle, a crucial frontline in the struggle over meaning and an essential ideological locus for disseminating the neoliberal logic of altruistic social participation that is to be governed by goodwill alone. Moreover, it seems that an entire sociolegal scholarship lends further credibility to this trend, if merely by suggesting the inevitability of moving away from the old—supposedly failing—command-and-control regulatory model (e.g., Reference Ayres and BraithwaiteAyres & Braithwaite 1992; Reference ParkerParker 2002). This process may thus announce a new modality of power, one that creates mechanisms that work all by themselves, namely through the responsibilization of subjects who are empowered to discipline themselves (see Reference Ferguson and GuptaFerguson & Gupta 2002).
In light of the trends discussed in this article, the idea that human rights standards will be imposed by courts (whether national or international) and the idea that corporations may be coerced into compliance in this area through formal binding regulations (whether national or transnational) are still far on the horizon. So far, attempts to move in the direction of compulsory regulation seem to make little headway.Footnote 27 Likewise, recent attempts to subject MNCs to the recently established International Criminal Court on grounds that MNCs are to be held liable for violations of international norms of human rights have also been aborted, establishing that the jurisdiction of the International Criminal Court would not cover “legal persons” (Reference Clapham, Kamminga and Zia-ZarifiClapham 2000).
It also remains to be seen whether the recent Sosa decision will effectively curtail and limit the ability to use ATCA as means for enforcing human rights. Still, from my adopted perspective of a CSR field that exists above and beyond any concrete judicial outcome, the career of the ATCA cases, by forcing the issue of corporations and human rights into the open, already shapes corporate behavior because it forces corporations to reflect upon, if not to institutionalize, human rights–related issues. The extent to which such institutionalization would merely secure the nonenforceability of human rights and end up “blue-washing” corporate behavior, however, is yet to be investigated.
