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Translating Unocal: The Expanding Web of Liability for Business Entities Implicated in International Crimes

2009; Routledge; Volume: 40; Issue: 4 Linguagem: Inglês

1534-9977

Robert C. Thompson, Anita Ramasastry, Mark B. Taylor,

Global Peace and Security Dynamics

INTRODUCTION In 1996, a group of villagers from Myanmar sued Unocal Corporation in the United States for alleged complicity in forced labor and other crimes against humanity committed in Burma/Myanmar by a military unit under contract to provide security during the construction of a gas pipeline. The Unocal litigation produced two milestone events in the development of human rights law: decisions by both a California federal district court1 and a panel of the Ninth Circuit2 that ruled that a corporation could be held liable under the federal Alien Tort Claims Act (ATCA)3 for its complicity in a violation of international criminal law occurring outside the United States. Since the decision in Unocal, every year litigants have filed increasing numbers of ATCA cases involving the complicity of corporations in human rights abuses outside the United States.4 These cases continually bring to the attention of multilateral agencies, businesses, lawyers, scholars, and human rights advocates that, in conditions of war or political repression, host countries (that is, the countries in which the activities in question occur) rarely provide forums in which the perpetrators of serious human rights abuses may be held accountable.5 Simply stated, host countries with informal economies and the defacto recession of die state generally exhibit a nearly total loss of regulatory effectiveness and dius are poor environments for regulating transnational economic entities.6 The widespread occurrence of these conditions around die world has been termed a global and a permissive environment for wrongful acts by companies of all kinds.7 The International Military Tribunal at Nuremberg (IMT) and the International Military Tribunal for die Far East in Tokyo (IMTFE) were the first judicial efforts to close the governance gap by trying and convicting a number of individual businessmen who, on behalf of their employers, had engaged in aiding and abetting forced labor and other international crimes during World War II.8 After nearly fifty years, Unocal and the suits following in its wake have revived those efforts by constructing a basis under U.S. law for victims of human rights abuses occurring abroad to bring civil actions against the offending companies themselves.9 These cases raise two questions: (1) Is the United States the only country that provides judicial accountability for business entities involved in international crimes abroad? and (2) How are other countries translating the basic kinds of accountability that Unocal recognized into their own legal systems?10 This Article attempts to answer these questions by presenting the results of a comparative law survey (the Survey)11 involving sixteen countries (the Surveyed Countries)12 that invited lawyers and legal scholars to examine questions relating to the status of international criminal law (ICL)13 in each country. Their responses examine the incorporation of ICL from the Rome Statute of the International Criminal Court (Rome Statute and ICC, respectively)14 and other international covenants into domestic penal codes, assess the extraterritorial application of those laws, describe applicable concepts of third-party liability, and evaluate the status of corporate liability under domestic penal codes. Their responses reveal other sources of criminal liability for illicit business conduct abroad, such as bribery of foreign officials, money laundering, and dealing in stolen property. Finally, they provide analyses of the laws and legal customs relating to the rights of victims to access civil courts in the Surveyed Countries (and the obstacles that impede such access) in search of compensation and other remedies under various concepts of tort, delict,15 and noncontractual responsibility. This Article's summary analysis of the responses presents compelling evidence of the existence of what has been termed an emerging transnational web of liability16 for business entities implicated in international crimes. …