International Human Rights and Multinational Corporations: An FCPA Approach
Boston University Law Review, Forthcoming, Vol. 101 (2021)
Virginia Public Law and Legal Theory Research Paper No. 2021-01
49 Pages Posted: 8 Jan 2021
Date Written: January 4, 2021
Recent Supreme Court decisions have severely curtailed the reach of the Alien Tort Statute (ATS), making it nearly impossible to hold multinational corporations accountable in the United States for grave human rights violations overseas. In this article, we propose a new strategy that borrows from the U.S. antibribery regime under the Foreign Corrupt Practices Act of 1977 (FCPA). We demonstrate that the fundamental aspects of this regime can be adapted to cover corporate involvement in human rights violations while remedying many of the serious shortcomings that compromised the effectiveness of civil litigation. A FCPA-based regime would clearly define the prohibited conduct by reference to existing U.S. statutes that criminalize grave human rights violations. It would delineate a clear jurisdictional scope, centered around U.S. corporations and foreign corporations who choose to access U.S. securities markets, and provide clear rules for holding corporations accountable for complicity in human rights violations committed by others. By placing enforcement decisions in the hands of federal prosecutors rather than private plaintiffs, it would avoid the separation of powers concerns that played a central role in the ATS’s demise. Like the FCPA has done for foreign bribery, this model would not only give multinational corporations a powerful incentive to avoid involvement in grave human rights violations but also give the United States a tool for inducing other states to pressure companies under their influence to do the same.
Keywords: Foreign Corrupt Practices Act, FCPA, International Human Rights, International Law, Alien Tort Statute, ATS, Multinational Corporations, U.N. Guiding Principles on Business and Human Rights, Corporate Social Responsibility, CSR
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