Private Party Liability and Obligations Under International Law
July 2002
There has been an explosion of suits against multinational corporations that allege violations of international law. Claims under international law are also central to the slavery and apartheid "reparations" cases recently filed in U.S. courts against insurance companies, banks, railroads, universities and others.
While international law has traditionally focused on nation states, it has never been entirely aloof from individuals and corporations. In the United States, federal courts have been enforcing international law for and against individuals and companies since the earliest days of the republic, as the state courts did before them, in turn following the long-established practice of the English courts. In recent times, international law claims have been filed against multinational corporations in the United States, England, Australia and the Netherlands. Defendants have included well-known U.S. and European-based multinational companies in the banking, energy, food, apparel, insurance, manufacturing, pharmaceutical and mining sectors. Multimillion-dollar settlements have been reached in the United States and England, as the leading U.S. and English plaintiffs class action firms have discovered the field.
These cases have now been joined by the slavery and apartheid reparations cases, which centrally include an international law human rights claim. The international law claim has been cited as a maneuver around some of the legal problems these cases face. Slavery has long been prohibited by international law, but its status at the relevant time in the 1800s was controversial (Justice Story held that the slave trade was in violation of international law in 1822; Justice Marshall held it was not in 1825; ex-President Adams argued it was in The Amistad in 1841). The status of apartheid under international law has been a subject of debate since the South West Africa Cases in the World Court in the 1960s. The plaintiffs’ lawyers are arguing that slavery and apartheid did violate international law, and that violations of international human rights law have no statute of limitations.
In addition to the national courts where these cases have been brought and the World Court, there are a number of other international tribunals established by treaties where international law claims are litigated. Among these, NAFTA and World Trade Organization tribunals are better known to U.S. lawyers, while European lawyers have become increasingly familiar with various transnational European courts. There also are lesser-known tribunals, such as that established by the Law of the Sea Convention (covering, e.g., ocean pollution claims). Claims against corporations can be "espoused" by governments and asserted in these government-to-government forums, as in Ireland’s recent case against British Nuclear Fuels’ Sellafields plant in the Law of the Sea Tribunal.
Apart from these assertions of liability under international law, there are a number of international regulatory regimes affecting commercial activities. These include the Organization for Economic Cooperation and Development’s (OECD) version of the U.S. Foreign Corrupt Practices Act, adopted by most of the OECD member countries; a U.S.-Canada Great Lakes Commission protocol, mandating stringent limitations on wastewater discharges into the Great Lakes and their tributaries; and the just-adopted United Nations Convention for the Suppression of the Financing of Terrorism, requiring new record keeping and reporting requirements for financial institutions. If the Cartagena Biosafety Protocol goes into force as expected, biotechnology and pharmaceutical firms will confront an international law version of the potentially restrictive "Precautionary Principle."
Finally, there are a number of other international organizations that act less directly to make law. Thus, the United Nations Commission on International Trade Law (UNCITRAL) prepares "model laws," including one on cross-border insolvencies that has been adopted in various forms in Canada, Mexico and Japan and incorporated into bills before the U.S. Congress. Similarly, the UN’s International Labor Organization is working on international standards for chemical safety data sheets and hazard warnings to be used by companies making and transporting chemical products and potentially incorporated into international agreements, national laws and product liability standards of care.
