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Bird, Cahoy and Dhooge: Corporate Voluntarism and Liability for Human Rights in a Post-Kiobel World



Robert C. Bird (University of Connecticut – Department of Marketing), Daniel R. Cahoy (Smeal College of Business) and Lucien J. Dhooge (University of the Pacific (UOP) – Eberhardt School of Business) have posted “Corporate Voluntarism and Liability for Human Rights in a Post-Kiobel World”, Kentucky Law Journal, Vol. 102, No. 3, 2014.

The abstract is as follows:

The need to protect human rights from abuses facilitated by corporations is critical in an increasingly globalized economy. Because such abuses often take place abroad, a primary route for addressing liability in the U.S. has been the federal Alien Tort Statute (ATS). The ATS is a jurisdictional statute that confers on U.S. district courts the ability to decide cases brought by aliens involving violations of the “law of nations.” Revived from two centuries of relative dormancy, the ATS’s general terms initially suggested that it would have great promise as a human rights instrument. But negative treatment in recent cases, which included the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Company, has signaled the impotency of the ATS. New methods are needed to encourage corporate compliance with human rights norms in global commerce.

This paper highlights two such methods. One is the promising Protect, Respect, and Remedy framework developed by Special Representative of the U.N. Secretary General John Ruggie. This framework, developed in consultation with business, the legal profession, human rights groups, and affected communities, represents a voluntary mechanism for corporate human rights compliance. A second method concerns affirmative statements in the increasingly common social reporting documents released by firms. The ability to address false statements about human rights compliance through advertising law is an important, but under-explored check on corporate behavior. Regardless of method, placing human rights obligations in a more prominent position on the corporate agenda represents a worthwhile goal of both activist and scholarly pursuit. The reforms and discussions in this article will advance that important agenda.



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