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Pursuant to the holding in Kadic regarding private party liability of violations of internationallaw, it is most likely that success of any action brought against an MNC will depend onwhether a violation would offend a jus cogens norm, such as piracy, war crimes, genocide,crime against humanity, and slavery, which also includes forced labour. 236On December 2004, Unocal announced that it would settle, in principle, the alien tortlitigation alleging complicity in human rights abuses over the building of the pipeline.Although welcomed by the international human rights community, the settlement doesnot provide an opportunity for the high courts to explore MNCs’ liability under ATCA,and thus falls short of resolving any uncertainties that remain especially with regards toATCA’s position on corporate aiding and abetting.2.6 Future ClaimsNorms embedded in the international legal landscape are also binding on privateindividuals and MNCs alike. Accordingly, the international legal system has gone throughan evolution, per se, by conferring certain rights and duties on supranational institutionsinsurgent rebel groups, individuals and corporations.Despite the advancements that have been made in law to hold individuals and other entitiesaccountable for violations of human rights standards, the current mechanisms for applyingthe law have limitations that have not yet been resolved either by court judgments or bypolicy decisions. As a result, the success of any future claims is unpredictable.2.6.1 MNC violations in concert with the stateAlthough successes under the ATCA can be noted, there remain limitations in its applicationto hold MNCs liable for international human rights violations. First, the likelihood thatthe ATCA will apply to MNCs seems more probable in cases where the plaintiff can provethat the MNC was working in concert with an offending state with assistance, for examplevia military or police support as a source of security. For example, Kadic articulated thatprivate individuals are more likely to be found liable under the ATCA if they act togetherwith the state or state official, or if the private individual offends a jus cogens norm.In terms of enforcement of the law of nations, the most facile means of avoiding the stateactor requirement imposed by federal courts in ATCA litigation is to allege a violationof the jus cogens. Actions brought against private individuals before a US federal court56|Private Sector Accountability in Combating the Commercial Sexual Exploitation of Children
must be a recognised violation of the “law of nations”. It is false to assume that the ATCAcatches MNCs for violations of human rights abuses which are outside the realm of juscogens norms or customary international law.2.6.2 Laws of NationsA violation characterised as a jus cogens norm is far more limited on account of thenarrow scope of international human rights violations that are caught within its meaning.Accordingly, courts have yet to accept certain human rights violations as jus cogens norms,such as terrorism, restrictions on freedom of expression, forced prison, environmentaldamage, cultural genocide, and labour violations. The US Supreme Court in Sosa v. Alvarez-Machain 237 recently addressed this challenge faced by practitioners and victims alike. TheCourt affirmed that the ATCA will only entertain violations of international law coveredunder the ambit of customary international law and that Congress had not intended toconfer upon the ATCA power to designate jus cogens status to flagrant abuses of humanrights beyond those already accepted as norms under customary international law. 238[The ATCA], pursuant to which the district courts “have cognizance...of allcauses where an alien sues for a tort only in violation of the law of nations or atreaty of the United States,” is [a] jurisdictional statute, in [the] sense that it onlyaddresses power of courts to entertain certain claims and does not create statutorycause of action for aliens. 239In light of this, MNCs operating separately from a state could indeed use the limits ofjus cogens as a shield against accusations of international human rights violations notrecognised by international law.2.6.3 Forum Non-ConveniensThe common law principle of forum non conveniens can be considered as another limitationof the ATCA. The successful application of the ATCA relies on the premise that a US federalcourt has legal authority over the defending MNC (e.g. “personal jurisdiction”). Borrowedfrom the principles of private international law, the issue of appropriate jurisdiction gives acourt discretion to refuse to hear a case where it may be more appropriately tried in someother forum, in the interests of all the parties and of justice. Immediately a plaintiff is facedwith its first obstacle: proper jurisdiction is determined on the contacts the defendant haswith the state that seeks to exercise the jurisdiction.Private Sector Accountability in Combating the Commercial Sexual Exploitation of Children|57
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PRIVATE SECTOR ACCOUNTABILITYIN COM
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3. Travel and Tourism Sub-Sector 63
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Executive SummarySince the First an
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from the sale of child pornography
Page 13 and 14: 1.1 Defining Commercial Sexual Expl
Page 15 and 16: The issue of commercial sexual expl
Page 17 and 18: 1.2.1 Transnational and multination
Page 19 and 20: offer stronger protections against,
Page 21 and 22: 1.3 Defining Corporate Social Respo
Page 23 and 24: Parliament passed a law requiring a
Page 25 and 26: 2. International Standards and the
Page 27 and 28: In terms of international law, the
Page 29 and 30: alia: establish the grounds for cri
Page 31 and 32: The ILO Convention No. 138, Concern
Page 33 and 34: 2.4 Existing Legal Mechanisms to En
Page 35 and 36: 2.4.2 Existing mechanisms for regul
Page 37 and 38: Governments play an auxiliary role
Page 39: lack of ) monitoring and enforcemen
Page 42 and 43: who follow relevant international l
Page 44 and 45: the Commentary references the rule
Page 46 and 47: 2.4.2.1.2.1 Tripartite DeclarationT
Page 48 and 49: Unlike the preceding sections, whic
Page 50 and 51: A major criticism of the Tripartite
Page 52 and 53: MNEs are asked to respect worker’
Page 54 and 55: Guidelines voluntary, but non-OECD
Page 56 and 57: An alternative to the above is to r
Page 58 and 59: freedom from state interference in
Page 60 and 61: During the Nuremburg Tribunals, Ger
Page 62 and 63: ATCA expanded liability for interna
Page 66 and 67: The Court could establish jurisdict
Page 68 and 69: likely come across similar obstacle
Page 70 and 71: ecognised by customary internationa
Page 72 and 73: The report draws together a number
Page 74 and 75: means of fostering international pe
Page 76 and 77: a resolution, as well, in which it
Page 78 and 79: The Swedish document was originally
Page 80 and 81: services are designed to combat chi
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Page 84 and 85: children’s perception of the worl
Page 86 and 87: advertisement. The European adverti
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Page 90 and 91: child actors have gone on in adulth
Page 92 and 93: 5. New Technologies Sub-Sector5.1 C
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Page 96 and 97: With the advent of the social netwo
Page 98 and 99: up to $US 500 if they violate the c
Page 100 and 101: As the genre is so new, there have
Page 102 and 103: - children’s rights advocates, go
Page 104 and 105: law enforcement agencies, but equal
Page 106 and 107: 6. Financial Sub-SectorIt has been
Page 108 and 109: law enforcement is having trouble u
Page 110 and 111: encourage cooperation and follow-up
Page 112 and 113: emedies against all corporations op
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Another important objective of the
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Endnotes1 Mark Erik Hecht is an aca
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35Canada. Industry Canada. Corporat
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84On 31 Jan. 1999, UN Secretary-Gen
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110Norms, D.111Norms, point 5. (Rea
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143Ibid., “General Policies.” P
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179Ibid., Annex, III: Global Report
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of the Guidelines).212Ibid., Part I
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258Ibid.259UNWTO Report to the UN G
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310Ibid., 12.311Council of Europe,
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Germany and South Africa, ISPs are
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The World Congress III against Sexu
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