Holding corporations to account. Crafting ATS suits in the UK?

Simon J. Baughen, University of Bristol Law School

Abstract

The traditional province of international law is in the regulation of relations between States. However, with the tribunals at Nuremberg and Tokyo established at the end of the second world war, for the first time it became possible for individuals to incur criminal liability in respect of violation of a core of norms of customary international law, such as the prohibitions on war crimes and crimes against humanity. This process has continued with the UN’s establishment in the 1993 and 1994 of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) and the International Criminal Tribunal for Rwanda (‘ICTR’) respectively, culminating with the establishment of the International Criminal Court in 2002. Although there have been no comparable institutions with power to award civil compensation for violations of the norms covered by the international criminal tribunals, the US courts have developed a jurisprudence on civil liability of individuals for violating norms of customary international law, either directly, or as aiders and abetters. The gateway for this development has been the Alien Tort Statute 1789. The contours of this nascent international civil law have been developed in the US federal courts by transplanting the principles under which international law imposes criminal liability on individuals into the field of civil liability in tort. Until recently, it was assumed that corporations could incur civil liability under the ATS. In September 2010 in Kiobel v Royal Dutch Shell, the Second Circuit decided that this is not the case. Civil liability under customary international law is evidenced by the sources which established criminal liability and none of the international criminal tribunals has ever been given jurisdiction over legal persons. However, subsequent decisions in other Circuits have affirmed that corporations can incur liability under the ATS. This paper will analyse the development of ATS law on the civil liability of corporations under customary international law and will then consider whether international law can ground a civil cause of action before the courts of the United Kingdom so as to provide a means of holding multinational corporations to account for their involvement in human rights abuses.