European Papers (Jan 2022)
The Role of Soft-Law in Adjudicating Corporate Human Rights Abuses: Interpreting the Alien Tort Statute in the Light of the UN Guiding principles on Business and Human Rights
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1293-1306 | European Forum Insight of 20 January 2022 | (Table of Contents) I. Introduction. - II. Some remarks on the features of cocoa supply chain. - III. The interpretation of the ATS and the Nestlé case: a tug-of-war between courts. - IV. The relevant role and content of UNGPs. - V. Lessons from European case-law. - VI. A re-assessment of Nestlé v. Doe in the light of the UNGPs. - VII. Concluding remarks. | (Abstract) In the last years, the Alien Tort Statute (ATS) has been used as main reference for human rights litigation against corporations in the US. However, subsequent interpretation of the ATS by the US Supreme Court has progressively narrowed its scope of application, so that now it hardly can be considered as a viable legal basis for claims against human rights abuses occurred overseas in supply chains. In the recent Nestlé case, the US Supreme Court affirmed that general corporate activity in the US territory cannot be a sufficient basis to overcome the presumption against extraterritoriality set in the Kiobel case. The risk of leaving a wide range of human rights violations without an effective remedy in the US is tangible. A solution may be to look at the UN Guiding Principles on Business and Human Rights (UNGPs) as the international guidance to corporate responsibility to respect human rights as a tool to interpret domestic law accordingly and recognize the duty of lead companies to use leverage over their business partners to prevent violations. The lessons learned from recent European domestic case-law is paradigmatic in this sense and may be a source of inspirations for future UNGPs-oriented reading of the ATS.
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