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St. Thomas Law Review

First Page

669

Document Type

Article

Abstract

The scope and future of the Alien Tort Claims Act ("ATCA") may well be decided this term by the Supreme Court in Alvarez-Machain v. United States. However that case is decided, the review process has exposed an extremely critical issue that has great significance to the future of the global economy. The major international business organizations in the United States, including the National Foreign Trade Council ("NFTC"), the U.S. Chamber of Commerce, the U.S. Council for International Business and the U.S. Business Roundtable, collectively filed an amicus curiae brief in Alvarez-Machain ("NFTC Brief") that explicitly states what those of us working in the area of "corporate social responsibility" have long suspected. Rather than embracing the binding norms of the ATCA as the foundation for meaningful corporate responsibility, the brand names of the global economy collectively asserted that the ATCA should be nullified by the Supreme Court because its application to U.S.-based multinational corporations placed them at a competitive disadvantage in the global economy. The Alvarez-Machain case itself posed no issue directly related to any multinational company. Rather, it simply presents the first opportunity for Supreme Court review of the interpretation of the ATCA, beginning with Filartiga v. Pena-Irala, and then consistently applied by every court that has considered the issue since then, that the ATCA creates a right to sue for violations of the "law of nations." Unhappy with the fact that several multinationals had themselves been sued under the ATCA for human rights violations, the business community simply could not resist going after the ATCA at full bore at the first opportunity to nip in the bud any prospect that U.S. companies could possibly be held accountable for human rights violations committed in the course of their international operations. The implications for this position extend far beyond the specific result of Alvarez-Machain. The essential assumptions of the architecture of the global economy are necessarily called into question if the collective U.S. business community claims the need to be freed from the constraints of the ATCA to gain competitive advantage. Since World War II,U .S. foreign policy has included as a major component the promotion of U.S. business interests abroad. This was perhaps tolerable as a major subsidy for U.S. business at taxpayer expense if legitimate societal interests were directly advanced. The myth was that U.S. business promoted American values, such as democracy, freedom and respect for the rule of law. However, this myth is absolutely shattered when U.S. companies now claim the need to be free of the ATCA's prohibition of slavery, torture, extra-judicial killing, genocide, war crimes, crimes against humanity and arbitrary detention in order to increase profits. A second major implication is that this "profits first" position reveals the lack of good faith in the much-touted voluntary codes of conduct movement. The already questionable idea of trusting corporations to self-police compliance with their broad codes of conduct is rendered ridiculous, given the aggressive refusal of these same companies to accept being bound to the minimal constraints of the ATCA. Virtually all of the firms represented in the NFTC Brief participate in some form of a corporate social responsibility initiative and pledge to comply with social standards that far exceed the minimum standards of fundamental human rights under the ATCA. Unless these companies are misrepresenting their compliance with their own standards, their assertion that the ATCA is a hindrance to their economic competitiveness is simply incredible. The focus of the remainder of this article will be on examining just how radical, and legally unsupportable, the position is that the ATCA should be judicially repealed in order to free U.S. companies from the competitive disadvantage of the ATCA's minimal constraints. The ATCA, as interpreted today, is simply one source in a body of law that includes the Nuremberg Tribunals and various other federal laws that place clear, universally recognized limits on the conduct of corporations and individuals. Indeed, if the ATCA does not survive the Supreme Court's review, the position of the business community in the case exposes the clear need to develop some other mechanism to constrain corporate profitseeking behavior. In collectively seeking the repeal of the ATCA, the U.S. multinational business community has repudiated the public trust.

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