Anthony Bernard · April 2010
78 GEO. WASH. L. REV. 615 (2010)
Imagine that a natural gas pipeline is being constructed in a developing country in Southeast Asia. The country’s military-dominated government has contracted with a foreign multinational corporation to construct the pipeline in order to attract foreign investment and fund the project. The pipeline is hailed as an opportunity to bring much-needed revenue into the struggling economy. However, along with this hope comes a darker reality. The security forces for the project, provided by the country’s military regime, are subjecting local villagers to forced labor, rape, torture, and extrajudicial killings. The government turns a blind eye to these human rights violations, not wanting to disrupt the progress and promise of the pipeline. The corporation working with the government on the project may or may not know about the atrocities being committed, but it does nothing. Without any local redress, some of the villagers are lucky enough to escape the country and gain entry into the United States. What are their options to obtain legal redress for the wrongs committed against them?
Unfortunately, in a number of circumstances, the answer to the above question is: none. The villagers may be unable to vindicate their rights or obtain any compensation for the atrocities they have suffered. It is possible that the victims will be unable to obtain any adequate remedy in the local courts, depending on the state of the judicial system and the level of corruption in the victims’ country of origin. The victims of such human rights violations will also be unable to bring suit against the foreign government involved because the government will likely avail itself of foreign sovereign immunity.
Under the current regime, victims of human rights violations abroad have no assurance that the abuses they have suffered will be redressed. As a world leader in the protection of human rights, the United States should ensure that victims of human rights abuses can gain redress. Furthermore, corporations are currently unable to accurately assess the risks of participating in projects in conjunction with governments abroad because of the uncertainty inherent in the resolution of lawsuits under the ATS. To remedy these problems, Congress should enact a statute that creates a cause of action available to victims of human rights abuses abroad that would allow the imposition of liability against corporations for human rights violations committed by governments abroad.
Part I of this Note discusses the law of nations, including the history of the ATS and the reasons for its enactment. Part II examines the emergence of the ATS as a tool to enforce human rights violations and then considers the statute’s limitations. Part III identifies and explores the problems with holding corporations accountable for human rights violations under the current legal regime of the ATS. Finally, Part IV proposes a legislative solution to the current problem and identifies possible counterarguments to this solution.
