The Liberalizing Effects of Tort: How Corporate Complicity Liability Under the Alien Tort Statute Advances Constructive Engagement

Abstract

Does allowing U.S. corporations to evade liability for abetting human rights abuses such as genocide or torture ultimately promote democratic reform in countries with repressive regimes? In suits recently filed under the Alien Tort Statute (ATS), the Bush Administration has claimed that it does. It has filed briefs supporting dismissal, asserting that liability would limit the U.S. government's ability to adopt a "constructive engagement" policy of using U.S. private sector investment to promote democracy and human rights. This Article challenges the Administration's claims.

The Administration's argument has inserted the long-running policy debate regarding the efficacy of "constructive engagement" into the equally contentious legal debate regarding whether the ATS encompasses complicity liability. The latter is perhaps the most important ATS question not directly addressed in Sosa v. Alvarez Machain, 542 U.S. 692 (2004), which approved the use of the statute in certain human rights cases.

The fundamental flaw in the Administration's argument is that it ignores the mechanisms by which engagement is thought by its proponents to promote reform. Engagement theory assumes that companies will, through example and interaction, convey democratic values. While remaining largely agnostic on the efficacy of engagement, this Article shows that liability for abetting abuses creates incentives for companies to actually do what the theory requires. Conversely, without the potential for liability, companies might continue to abet the very abuses engagement is designed to prevent. Thus, contrary to the Administration's position, liability facilitates a constructive engagement policy. Moreover, the analysis of how these mechanisms actually operate in the real world provides insight into what kind of engagement is most likely to be successful and what counterproductive.

Keywords: alien tort, constructive engagement, human rights, corporate accountability, international law, foreign policy

JEL Classification: K33, N50, 020