Text of Remarks.Corporate Alien Tort Liability.Herz

Text of Remarks.Corporate Alien Tort Liability.Herz - Herz,...

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Herz, Richard. “Corporate Alien Tort Liability and the Legacy of Nuremberg. Text of Remarks. Gonzaga Journal of International Law . 2006. <http://www.gonzagajil.org/content/view/139/26/#_ftn1> Text of Remarks: Corporate Alien Tort Liability and the Legacy of Nuremberg Richard Herz* Thank you. I am very grateful to Amnesty International and the University of Washington School of Law for affording me the opportunity to speak at what has been a terrific conference. I am going to talk today about the Alien Tort Statute, and specifically about ATS litigation against corporations. The cases I will discuss involve multinational oil and mining companies. My co- panelist Susan Burke will address government contractor cases. In my presentation, I will make three broad points. First, these cases are a direct legacy of the Nuremberg Tribunals. For all intents and purposes, the standards of liability that we are trying to apply to corporations complicit in human rights abuses were recognized at Nuremberg, and they have not changed significantly since. Second, the Bush Administration has vigorously opposed the use of complicity liability in Alien Tort Statute litigation. Actually, they vigorously opposed any use of the Alien Tort Statute whatsoever. They lost that issue before the Supreme Court two years ago in Sosa v. Alvarez - Machain. Now, they are attempting to do retail what they were unable to do wholesale, by attacking various aspects of the Alien Tort Statute, one of which is complicity liability. Returning to a theme of many of the previous speakers, I want to talk a little bit about how this particular aspect of Bush Administration policy is a betrayal of the Nuremberg legacy. That is true in two senses. Doctrinally, the Administration rejects the idea of complicity liability that was established at Nuremberg even while they embrace those exact same standards in the war on terrorism. More broadly-and this echoes Ambassador Shattuck's argument and that of many panelists today-the Administration fundamentally rejects the vision of the role of legal judgment in preventing atrocity that underlies the entire project of the Nuremberg Tribunals. The third point I will make is that the Bush Administration's position is incoherent even on its own terms. The Administration claims corporate complicity liability undermines its ability to utilize a "constructive engagement" approach to promoting human rights. In fact, however, adjudication of corporate cases under the Alien Tort Statute actually promotes, rather than hinders constructive engagement. Let me address each of these points in turn. The Alien Tort Statute allows suits by aliens for torts committed in violation of the laws of nations. It had not been used very much until 1980, when the Second Circuit decided Filartiga v. Pena-Irala, which held that an alien could sue a former foreign government official for torture. The law thereafter was used in a number of other cases against former officials responsible for egregious human rights violations. Then
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Text of Remarks.Corporate Alien Tort Liability.Herz - Herz,...

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