Ronen Shamir - Between Self-Regulation and The Alien Tort Claims Act - On The Contested Concept of Corporate Social Responsibility

Between Self-Regulation and the Alien Tort Claims Act: On the Contested Concept of
Corporate Social Responsibility

Author(s): Ronen Shamir
Source: Law & Society Review, Vol. 38, No. 4 (Dec., 2004), pp. 635-664
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635
Between Self-Regulation and the Alien Tort

Claims Act: On the Contested Concept of
Corporate Social Responsibility
Ronen Shamir
Using Alien Tort Claims Act suits against multinational corporations as an

immediate context for discussion, this article explores the emerging field of
corporate social responsibility. The article argues for an understanding of
concrete legal struggles as part of broader competing strategies for regulating
corporate obligations to a multitude of stakeholders. By identifying and anal-
yzing the positions of concrete actors who operate in the field, the main thesis
of this article is that the field strongly tilts in the direction of voluntary and self-
reliant models of corporate responsibility. The article identifies this process as
consistent with the privatization of regulative structures in general and with
extant modeling of corporate governance in particular, and points at the cor-
relation between these trends and the interests of multinational corporations.
In this article, I look at corporations' responses to attempts

designed to subject them to a regime of human rights. Specifically,
I look at cases in which multinational corporations (hereinafter
MNCs) have been sued in the United States for alleged violations of
human rights occurring in conjunction with their operations in
developing countries or in places governed by repressive regimes.
In all of these cases, plaintiffs have relied on the U.S. Alien Tort
Claims Act (hereinafter ATCA) as the legal basis for their claims,
thereby opening up debates concerning global corporate liability in
its relationship to state sovereignty, international relations, and
extraterritorial jurisdiction.
The main focus of this article is neither on doctrinal develop-
ments relating to extraterritorial jurisdiction nor on the principled
outcomes of specific disputes. Rather, ATCA cases are used here as
illustrations of the way an overarching debate over the appropriate
means for taming MNCs assumes shape and meaning in the course
of concrete disputes. I posit that the career of the ATCA cases, as
they have been represented and negotiated by actors with concrete
I wish to thank the anonymous reviewers of LSR for their insightful and helpful
comments. This research was supported by the Israeli Science Foundation (Grant No. 943/
0233.0). Please address correspondence to Ronen Shamir, Department of Sociology, Tel
Aviv University, Tel Aviv 69978, Israel; e-mail: shamirr@post.tau.ac.il.
Law & Society Review, Volume 38, Number 4 (2004)
( 2004 by The Law and Society Association. All rights reserved.

636 Between Self-Regulation and the Alien Tort Claims Act
political, economic, and moral agendas, reflects and in turn shapes

the contours of a broader struggle: one that deals with the general
question of corporate regulation in the global era and, more spe-
cifically, one that deals with the very meaning and scope of the
notion of corporate social responsibility (hereinafter CSR). From
this perspective, the main thesis of the article is that ATCA claim-
ants operate as actors who try to consolidate the idea of CSR
around legally binding duties. Conversely, I treat corporate at-
tempts to bar or contain the use of ATCA as part of an overall
corporate strategy designed to shape the notion and practice
of CSR as an essentially voluntary and nonenforceable issue.
All in all, the analysis points at the ability of corporations to
install their own version of CSR in general and to resist the legal-
ization of their social duties in the domain of human rights in
particular.
In the first part of the article, I briefly introduce the principled
legal foundations of the ATCA lawsuits and provide some concrete
examples of the type of allegations raised against some MNCs. It
should be emphasized at the outset that I have no intention to
evaluate the truth value of the claims and counter-claims of plain-
tiffs and defendants. Rather, the purpose of this part is to provide a
general background as to the nature of the accusations and to
briefly introduce some key legal issues these claims bring to the
fore.1 In the second part, I develop the argument that the ATCA
claims should be situated in a broader context to which I refer by
designating an emergent field of CSR. Following Bourdieu (1994),
the concept of the "field" refers here to a specific site of strug-
gle-maintained and asserted by a variety of social agents-over
the very scope and meaning of the term social responsibility, as it
applies or should apply to profit-seeking market entities. In the
third part of the article, I focus on corporate strategies of response
to ATCA and show how corporations try to stabilize the field
around notions of corporate responsibility that are nonenforceable
and not binding. To that end, I analyze how corporations have
mobilized a campaign against the use of ATCA while at the same
time nurturing a CSR field that is primarily based on self-regula-
tion. I conclude with a discussion of the relevance of my findings
for understanding how CSR is incrementally institutionalized into
corporate governance structures as a substitute for enforceable
regulation in general and an enforceable regime of human rights
in particular.
1
However, I do not suggest that ATCA litigation is solely determined by political
factors external to the law. Legal reasoning-conceived of as a relatively autonomous
universe of discourse with its own determining logic-may have an independent impact on
the way issues such as the human rights obligations of MNCs are perceived. In this article, I
do not explore the effects of specific legal interpretations on said perceptions.

Shamir 637
The ATCA Cases: General Background
As corporations emerge as global private authorities approx-

imating the powers of national governments, we are back to the
independent realm of economic action "as a major locus of political
power" (Beck 1997:4). MNCs are in a position to effectively escape
local jurisdictions by playing one legal system against the other, by
taking advantage of local legal systems ill-adapted for effective
corporate regulation, and by moving production sites and steering
financial investments to places where local laws are most hospitable
to them. At stake, therefore, is the widening gap between the
transnational character of corporate activity and the availabilityof
both national and transnational regulatory regimes that may be
invoked to monitor and restrain corporations irrespective of the
territory in which they happen to operate.
The problem is twofold. On the one hand, individual countries
find it increasingly impossible or undesirable to tame the activities
of MNCs. Impoverished countries, often desperate for foreign in-
vestment, are unable or unwilling to introduce legal measures that
may inhibit corporate investment or may cause MNCs to relocate to
more hospitable countries (e.g., countries that do not endorse or
enforce minimum wage requirements, child labor prohibitions,
health and safety standards, environmental protections, collective
bargaining rights, etc.). On the other hand, there is a "remedial
gap" in international law when it comes to regulating MNCs. As a
matter of history, international law largely creates governmental
liabilities yet fails to "articulate the human rights obligations of
corporations and to provide mechanisms for regulating corporate
conduct in the field of human rights" (Harvard Law Review
2001:2030).
Consequently, efforts to curb corporate power through law
operate at two distinct levels. First, there are growing attempts to
envision and develop blueprints for regulating MNCs by subjecting
them to a set of universal standards that will apply to corporations
above and beyond the demands of any specific locality.Attempts at
this level include pressures on global and regional bodies such as
the United Nations (UN), the European Union (EU), and the
World Bank to develop enforceable regulatory frameworks sub-
jecting MNCs to standards of operation that can be systematically
monitored, assessed, and, when necessary, enforced. Second, ac-
tivists try to mobilize the "developed" legal systems of rich coun-
tries in order to police and sanction corporate practices in places
where it is impractical or impossible to invoke local law. It is this
latter strategy of extraterritorially mobilizing U.S. law to govern
corrations operating outside the United States, and the response of
corporations to this strategy thereof, that is the focus of this article.

Since the early 1990s, dozens of MNCs have been exposed to

such legal challenges in the United States. For example, Texaco has
been sued for alleged violations of human rights in Ecuador. Coca-
Cola has been sued for alleged human rights violations in Colom-
bia. Talisman has been sued for alleged violations of human rights
in Sudan. Royal Dutch Shell has been sued for alleged violations of
human rights in Nigeria. Unocal has been sued for alleged viola-
tions of human rights in Burma. ExxonMobil has been sued for
alleged violations of human rights in Indonesia, and Fresh Del
Monte Produce has been sued for alleged violations of human
rights in Guatemala.
In all of these cases, MNCs have been sued for alleged viola-
tions of human rights occurring in conjunction with their opera-
tions in developing countries or in places governed by repressive
regimes. In all these cases, plaintiffs have tried to subject MNCs
to the jurisdiction of American courts in order to overcome
their inability to enjoy the protection of the local jurisdictions
where the alleged violations occurred. In some of these cases,
the allegations concerned "hard-core" infringements on
human rights, such as mass murder, rape, and torture. In some
cases, the alleged violations concerned issues such as freedom
of speech and association. In other cases, an attempt was made
to bring under the umbrella of human rights issues such as
ethnic discrimination, environmental damages, and unfair labor
practices. In yet other cases, the alleged violations were based
on arguments of "cultural genocide" caused by forced reloca-
tion, destruction of a natural habitat, or the spread of health haz-
ards. In some cases, the alleged violations occurred as a result of
direct cooperation between MNCs and oppressive regimes.
In other cases, the alleged violations occurred as a result of the
corporation benefiting from oppressive practices of military or
paramilitary groups. And in other cases, the alleged violations oc-
curred as a direct result of the corporation's business practices.
Yet regardless of any particularity, it seems that all of these
cases represent a new approach on the part of plaintiffs toward
MNCs, approximating their obligations and duties to that of na-
tional governments and adding new dimensions to current debates
about sovereignty, globalization, the legitimate reach of extrater-
ritorial law, and the possibility of global law (Clapham & Jerbi
2002).
In all of these cases, litigation relies on an American law that lay
dormant for nearly 200 years. The ATCA was legislated as part of
the Judiciary Act of 1789. Originally designed as a display of
American neutrality in the face of warring European powers
(D'amato 1988), the act invested federal courts with jurisdiction
over "any civil action by an alien for a tort only, committed in

Shamir 639
violation of the law of nations or a treaty of the United States."2

Unlike the Foreign Corrupt Practices Act of 1977, which invests
American courts with extraterritorial criminal jurisdiction over
American citizens and American companies for using bribery
abroad, ATCA exclusively refers to non-American plaintiffs in civil
action alone. In this sense, ATCA is truly extraterritorial in its
reach, potentially extending Americanjurisdiction over events that
have no bearing on American parties, potentially allowing Amer-
ican courts to declare the valid human rights norms of interna-
tional law and to apply them to events that took place in other
countries.
ATCA had hardly been invoked until 1980, when a Paraguayan
man used it to sue a Paraguayanpoliceman who had tortured his son
to death in Paraguay and who had later immigrated to the United
States. A Second Circuit court held that ATCA created federal ju-
risdiction and a right of action, thus paving the way for a host of
innovative attempts to use ATCA for adjudicating violations of in-
ternational law outside the United States.3In the early 1990s, after
ATCA had been used for seeking compensation from foreign state
officials and foreign governments for alleged violations of interna-
tionallyrecognized human rights, it became a venue for suing MNCs.
To illustrate, one case applying ATCA to corporate practices
was filed in 1996 against Unocal, a giant enterprise engaging in
energy resource projects around the world.4 Plaintiffs argued that
Unocal relied on Burmese army units for building a gas pipeline
and that the latter, with the tacit knowledge of Unocal, resorted to
extreme methods of forced labor and forced relocation of villagers
in the course of construction. Plaintiffs argued that Unocal should
be held liable for the human rights abuses performed by the mil-
itary under either joint venture or vicarious liability theories and
sought monetary compensation accordingly.5
2
Judiciary Act of 1789, ch. 20, ?9, 1 Stat. 73, 77 (1789) (amended 28 U.S.C. ?1350,
1982). D'amato (1988) explains that ATCA created federal jurisdiction because state courts
were perceived as biased against foreign nationals.
3
Filartigav. Pena-Irala, 630 F 2d 876 (2nd Cir. 1980). The decision also led to the
enactment of the Torture Victim Protection Act (1992), which creates a right of action for
torts involving torture and extrajudicial killing.
4 Doe, et al. v. Unocal
Corporation,et al., 110 F. Supp. 2d 1294 (C.D. Cal. 2000).
5 On
August 31, 2000, the district court granted summary judgment in favor of
Unocal. Plaintiffs appealed the district court's ruling to the Ninth Circuit, which affirmed
in part and reversed in part the district court's decision. That panel opinion, however, was
itself vacated on February 14, 2003, when the Ninth Circuit ordered the matter to be heard
en banc. The rehearing was argued before the en banc panel on June 17, 2003. On
December 9, 2003, an order was filed withdrawing the case pending issuance of the Su-
preme Court's decision in Sosa v. Alvarez-Machain.See Doe, et al. v. UnocalCorporation,et al.,
110 F. Supp. 2d 1294 (C.D. Cal. 2000), affirmed in part, revised in part, 2002 WL
31063976 (9th Cir. Sept. 18, 2002), rehearing granted, vacated by 2003 WL 359787 (9th
Cir. Feb. 14, 2003).

Another ATCA case was filed against Texaco.6 In this case,

plaintiffs alleged that from 1964 to 1992, Texaco improperly dis-
posed of waste while extracting oil from the Ecuadorian Amazon,
resulting in environmental damages that amounted to a violation
of human rights on three counts: cultural genocide, ethnic dis-
crimination, and infringing on the indigenous population's right to
a healthy environment.7 In another case, plaintiffs sued Royal
Dutch Shell for conspiring with the Nigerian government against
the Ogoni people.8 Plaintiffs alleged that the Nigerian military
-with the knowledge and cooperation of defendants-arrested
and convicted nine members of a Nigerian environmental move-
ment in order to suppress that movement. The arrests, which were
part of a widespread intimidation campaign, led to the false con-
viction and execution of Ken Sero-Wiwa, a Nobel Prize winner and
a leader of the movement.9
A fourth noteworthy case was brought against Coca-Cola.10
Plaintiffs argued that Coca-Cola should be held liable for the ac-
tivities of paramilitary units that terrorized and murdered union
organizers at a bottling plant in Colombia that exclusively catered
to Coca-Cola. Among the human rights violations cited in this case
were murder, extrajudicial killings, kidnapping, unlawful deten-
tion, and torture. Plaintiffs also argued that Coca-Cola and its af-
filiates were liable for the denial of plaintiffs' rights to associate and
organize, in violation of internationally recognized human rights.
Plaintiffs alleged that Coca-Cola was jointly and severally liable for
all the acts of its subsidiaries and/or vicariously liable for the acts of
its alleged agents, the paramilitary units.11
In another case, filed in November 2001, The Presbyterian
Church of Sudan, aided by lawyers and activists in Canada and the
United States, had filed a class action suit against Talisman Inc.
Plaintiffs argued that defendants had collaborated with the
6
Aguinda v. Texaco,Inc., 142 F Supp. 2d 534 (S.D.N.Y. 2001).
7 The district court dismissed the lawsuit in 1996 on the grounds that the case should
be heard in Ecuador. In 1998, the U.S. Second Circuit Court of Appeals reversed the lower
court ruling and remanded the case to the trial court for reconsideration. In 2001, the trial
court again dismissed the lawsuit. Plaintiffs have again appealed the trial court's dismissal
to the Second Circuit.
8 Wiwav.
RoyalDutchPetroleumCo., et al., 226 F 3d 88 (2nd Cir. 2000).
9 In
1998, the U.S. District Court dismissed the case on grounds of forum non con-
veniens. On appeal, the Second Circuit reversed the trial court's ruling. The case was
remanded to the District Court on the defendants' motion to dismiss. On February 28,
2002, the trial judge partially denied defendants' motion to dismiss, and the case pro-
ceeded to discovery.
JO Sinaltrainal,et al. v. Coca-ColaCo., 256 F. Supp. 2d 1435, S.D. Fla. (2003).
" The complaint was filed on July 20, 2001. After the defendants filed a motion to
dismiss, the plaintiffs filed an amended complaint on January 22, 2002. On March 5, 2002,
the defendants filed a motion to dismiss the amended complaint.

Shamir 641
Sudanese government in a joint strategy to deploy military forces

in a brutal ethnic cleansing campaign against the civilian popula-
tion "for the purpose of enhancing defendants' ability to explore
and extract oil from areas of southern Sudan by creating a cordon
sanitaire surrounding the oil concessions located there."12 Plaintiffs
further argued that the armed campaign was made possible
through government utilization of vehicles, helicopters, aircraft,
roads, and airstrips owned, chartered, constructed, or maintained
by Talisman. Plaintiffs accused Talisman of keeping a blind eye to
military operations that relied on Talisman's resources and resulted
in severe violations of human rights, including killings, rape, and
torture amounting to genocide, ethnic cleansing, and the deliber-
ate obstruction of health and food distribution undertaken by
humanitarian organizations.
A few dozen claims against MNCs have since been brought
before U.S. courts, alleging various corporate violations of human
rights, seeking compensation for resultant damages, and, inciden-
tally, sparking widespread debates about the applicability and suit-
ability of the law as means for taming MNCs (Sacharoff 1998;
Stephens 2000; Harvard Law Review 2001; Paul 2001). From a
strictly legal point of view, ATCA cases raise two fundamental
questions. First, does the law create an enforceable private cause of
action, or is it merely a jurisdiction-granting provision? Second,
assuming ATCA does provide for some causes of action, the issue is
to identify them and, moreover, to establish whether federal courts
are invested with judicial powers to introduce new causes of action
in accordance with contemporary developments in international
law (i.e., the "law of nations").
This latter question is pertinent to the ability of American
courts to advance a global regime of human rights, to define its
scope, and to potentially constitute a foundation for applying it to
MNCs. In a recent decision that did not directly concern corporate
practices (hereinafter, the Sosa case),'3 the U.S. Supreme Court
ruled that while ATCA is in terms only jurisdictional, "we think that
at the time of enactment the jurisdiction enabled federal courts to
hear claims in a very limited category defined by the law of nations
and recognized at common law" (542 U.S. 17 [2004]). The court
12
ThePresbyterianChurchof Sudan, et al. v. TalismanEnergy,Inc., et al., 244 F Supp. 2d
289 (S.D.N.Y. Mar. 19, 2003) (Civil Action No. 01 CV 9882 [DLC]).
13 United Statesv.
Alvarez-Machain(No. 03-485) and Sosa v. Alvarez-Machain(No. 03-
339). The case concerned Dr. Humberto Alvarez-Machain, a Mexican citizen, who was
kidnapped and brought from Mexico to the United States by agents and/or local aides of
the U.S. Drug Enforcement Administration. Alvarez-Machain used ATCA to sue both the
U.S. government and a Mexican national who had been involved in the kidnapping and
resides in the United States The Supreme Court unanimously ruled in favor of petitioner
Sosa and the U.S. government.

ruled that at the time of its enactment, the law was designed to
provide redress for only three types of actionable causes: violation
of safe conduct, infringement of the rights of ambassadors, and
piracy. As to the present, the court established the principled pow-
ers of courts to recognize a new cause of action, but also found that
"there are good reasons for a restrained conception of the discre-
tion a federal court should exercise in considering a new cause of
action of this kind" (542 U.S. 30 [2004]). More concretely, the court
ruled that
whatever the ultimate criteria for accepting a cause of action

subject to jurisdiction under [ATCA],we are persuaded that fed-
eral courts should not recognize private claims under federal
common law for violations of any international law norm with less
definite content and acceptance among civilized nations than the
historical paradigms familiar when [ATCA]was enacted (542 U.S.
38 [2004]),
thus significantly limiting the type of future claims that may be

brought against MNCs under the law.
At the center of debate here is the adequate approach that
American courts should take when faced with the task of identi-
fying a breach of norms that amounts to a violation of the inter-
national law of human rights. While various plaintiffs argue that
courts should adopt an expansive reading of human rights, Amer-
ican courts have so far adopted a restrictive view, limiting "subject
matter" jurisdiction only to "hard-core," universally recognized
violations of civil and political rights such as summary executions
while refusing to rule that infringement upon economic, social, or
cultural rights is actionable under ATCA.
The state action requirement further limits the scope of ATCA
subject matter jurisdiction over nonstate actors such as corpora-
tions. With few exceptions, such as slave trading, genocide, and war
crimes, the state action requirement stipulates that the law of na-
tions binds only state actors. In other words, if a corporation is
charged with violating the law of nations on grounds other than
slave trading, genocide, or war crimes, it cannot be held liable
unless the plaintiff establishes that the nonstate actor proximately
caused the violation by "exercising control" over a government
actor or shows that a corporate defendant acted in the capacity of a
state actor (Harvard Law Review 2001, citing Kadic v. Karadzic 1995).
Moreover, the state action requirement may come into conflict
with the act of state doctrine. The act of state doctrine "reflects the
prudential concern that the courts, if they question the validity of
sovereign acts taken by foreign states, may be interfering with the
conduct of American foreign policy by the Executive and Con-
gress" (Siderman de Blake v. Republic of Argentina, 965 F 2d 699, 715,

Shamir 643
9th Cir. [1992]; also see Chomsky 2002). Corporate defenses based
on this doctrine are a primary means of challenging the right of
U.S. courts to judge conduct occurring abroad in which a foreign
sovereign took part (Chomsky 2002). MNCs and their legal and
political spokespersons have routinely based their principled pol-
icy-oriented objections to the ATCA cases on this doctrinal argu-
ment, using it as a conceptual springboard from which to assert
that the use of ATCA for suing MNCs implicates the United States
with an unwarranted form of legal imperialism. The recent Sosa
decision of the Supreme Court seems to have endorsed these con-
cerns. The court ruled that it is better to set a high bar to estab-
lishing new private causes of action and that this should better be
left to legislative judgment because of "the potential implications
for the foreign relations of the United States" and because the
establishment of such rules "would go so far as to claim a limit on
the power of foreign governments over their own citizens, and to
hold that a foreign government or its agent has transgressed those
limits" (542 U.S. 34 [2004]). The Sosa decision thus echoes some of
the views advocated by MNCs in respect to ATCA,yet stops short of
fully endorsing the corporate viewpoint that ATCA does not es-
tablish a cause of action that may be used as means for enforcing a
global regime of human rights.14 However, before examining at
some length the corporate campaign against the law, in the next
part of the article I first situate ATCA cases in a broader sociopo-
litical context.
Situating ATCA Cases: The Field of CSR

As stated earlier, the basic premise of this article is that ATCA
cases should be regarded as one element in a wide spectrum of
attempts to tame corporate behavior by inventing new global reg-
ulatory regimes. These attempts are generated by players with
distinct positions within the emergent CSR field. Indeed, the en-
hanced powers of MNCs have given rise to new types of political
initiatives that focus on the "social responsibilities" of market play-
ers. In tandem with the emergence of transnational market forces
emerge transnational networks of grassroots movements, loosely
organized "corporate bashing" and "corporate watch" groups, and
14
Jennie Green, attorney for the Center for Constitutional Rights, commented that
"the Supreme Court sent a clear message today to the Bush Administration and multi-
national corporations that they can not ignore international human rights law," and that
"the Court has rejected the efforts of the Bush Administration and multinational corpo-
rations to eliminate the most important law that gives human rights victims their day in
court. This is a victory for human rights everywhere" (http://www.ccr-ny.org,accessed July
1, 2004). But see the opinion of Justice Scalia in the case, which comes closer to the position
favored by corporations and business associations.

a host of nongovernmental organizations (NGOs) that shift their

attention and gaze to MNCs (DeWinter 2001; Keck & Sikkink
1998). Consequently, MNCs have begun to experience the heat of
popular protests, consumer boycotts, legal suits, and a variety of
public shaming campaigns addressing corporate misconduct
and pressing for adequate means to enforce the social responsibil-
ities of business. Organizations such as Amnesty International,
Global Witness, Oxfam International, and the World Wildlife Fund
(WWF) argue that the only effective means of ensuring socially
responsible corporate behavior is through binding norms. Some
social theorists have also begun to argue that "the task now is to
create and entrench such institutions of effective political action as
can match the size and the power of the already global economic
forces and bring them under political scrutiny and ethical super-
vision" (Bauman 2002:15; also see Held 2002).
However, capitalists and capitalist entities do not sit still when
faced with such power-curbing challenges. Corporations and cor-
porate executives constantly mobilize a host of agents (e.g., NGOs,
research institutions, business associations, state bureaucrats, etc.)
to maintain their ideological and practical supremacy (Sklair 1997).
Capitalism, write Boltanski and Chiapello (2002), has always relied
on critiques of the status quo to alert it to any untrammeled
development of its current forms and to discover the antidotes
required to neutralize opposition to the system. In other words,
attempts to tame corporate power and efforts to subject corpora-
tions to novel regulatory regimes also trigger corporate
counter-efforts to evade, oppose, de-legitimize and co-opt such
"unwarranted" pressures. Indeed, many corporations no longer
submit to the classical view that they are only answerable to share-
holders and that their only commitment is to the maximization of
profits (Dickerson 2002). Rather, corporations have begun to be
actively involved in various displays of corporate responsibility. We
may thus begin to think about the "social responsibilities of cor-
porations" as a site of struggle over meaning, where public pres-
sures and corporate response to such pressures assume a more or
less definitive structure, with "authorized" agents who occupy cer-
tain "recognized" positions from which they assert "what is at
stake" and from which they try to control the definition and scope
of the very notion of responsibility.
By and large, corporations tend to invest the term with a vol-
untary and altruistic spirit and with notions implying honesty
toward investors, with charity-oriented "good citizenship" cam-
paigns, and with more or less elaborate schemes of voluntary self-
regulation. At the other end of the spectrum, however, are those
actors who try to invest the term with a formal obligatory and
enforceable meaning. It is this ongoing structured struggle over

Shamir 645
meaning that sustains the existence of the field and determines its
trajectory as a universe comprising practices, positions of power,
and a variety of social benefits. Yet what transforms such an arena
into a field in the sociological sense is that the struggle over mean-
ing is always at once also a struggle over the establishment of "au-
thorized" positions and the legitimate resources that invest actors
with the power to define the "true" meaning of the field's core
concepts. In this respect, CSR is first and foremost a field that
consists of a multitude of social actors. The most visible players in
the field are corporations and corporate networks on the one hand
and a host of advocacy networks on the other hand. Yet the field of
CSR can rarely be reduced to two such competing camps. In be-
tween, the field is saturated with experts of various sorts and with
an array of nonprofit organizations that benefit from, are drawn
into, or advocate the idea of CSR.
In this context of the field, we may begin to speak about a
vibrant development of corporate "soft law," encompassing volun-
tary codes of conduct and elaborate ranking schemes and report-
ing initiatives.15 Thus, hundreds of MNCs recently joined the
United Nations-sponsored "Global Compact" initiative, intended
to enlist corporations to display their commitments to various social
expectations across the globe, including commitments to promot-
ing and protecting human rights.16The European Parliament also
established a Committee on Development and Cooperation that
outlined a European code of conduct for corporations operating in
developing countries (Howitt 1998). The European Commission
also issued a Green Paper to promote a framework for corporate
social responsibility. The Green Paper, prepared in the context of
the EU's Sustainable Development Strategy, also examined meas-
ures to enhance the social accountability of corporations (Davids-
son 2002).
All in all, corporate activities currently encompass a variety of
declarations and commitments, including "codes of conduct,"
"mission statements," and "social auditing schemes," all of which
are designed to display corporate acceptance of the general idea
that they do bear social responsibilities. All of these activities, in
turn, both assume and require the availability of knowledgeable
15 Soft law refers to international
agreements not concluded as treaties and therefore
not binding under international law. Soft law may be described as a self-contained regime
of obligations that emerges out of the occasional preference of states to reach nonbinding
agreements and to model their relations in ways that exclude the application of treaty or
customary law (Hillgenberg 1999). I use the term to draw attention to the nature of the
transnational self-regulatory structures of CSR.
16
On the global compact, see http:/www.unglobalcompact.org, accessed September
10, 2003. For a critique of the initiative as an unenforceable instrument, see "the corpo-
ratization of the United Nations" on http://www.corpwatch.org, accessed September 10,
2003.

experts. One important locus where the notion of CSR is devel-

oped is business and management schools, where ideas of corpo-
rate citizenship are packaged as tools for enhanced corporate
success. New conceptions of corporate responsibility are integrated
into the old models of how to successfully manage a business en-
terprise and how to ensure its reputation. Consequently, strategies
of marketing are also being readjusted under alluring titles such as
Cause-Related Marketing or Social Branding, which are supposed
to create consumer brand loyalty and corporate employee loyalty
(Bollier 1996; Carroll 1989).
In tandem with business education, a whole commercial mar-
ket has developed around shaping, assessing, and consulting on
the desired dimensions of social responsibility. Accounting firms
and other commercial and noncommercial entities have embarked
upon the CSR bandwagon, developing special expertise in "social
auditing" and offering their commercial services to interested cor-
porations. The issue of auditing, in general, seems to be the fastest
growing area of high-revenue expertise related to CSR (Power
1997). A host of commercial entrepreneurs, corporate entities, and
(nominally) nonprofit organizations that hope to become the field's
standard-setting authority compete over the development of rating
systems for measuring corporate behavior. For example, the non-
profit organization Social Accountability International (SAI), fund-
ed by the Open Society Institute of George Soros and the
MacArthur,Ford, and Rockefeller foundations, has developed the
SA8000 standard for workplace conditions and a system for inde-
pendently verifying compliance with that standard.17The Global
Reporting Initiative, a nonprofit organization that is sponsored by
corporations such as Ford, General Motors, Nike, and Royal
Dutch/Shell, also strives to establish guidelines for corporate social
reporting. And the Triple Bottom Line initiative-also enjoying
the funding of MNCs and organized business groups-is trying to
set its own measurement and verification criteria as a corporate
standard while offering CSR and Socially Responsible Invest-
ment (SRI) training programs to corporations such as IBM,
Shell, Heineken, BASF, Philips, and Canon. Through such initia-
tives, the notion of social responsibility undergoes a process of
17 SA8000 is a global standard for auditing and certifying compliance with corporate
responsibility. It provides the requirements and audit methodology to evaluate workplace
conditions including child labor, forced labor, health and safety, freedom of association,
discrimination, disciplinary practices, working hours, compensation, and management's
responsibility to maintain and improve working conditions. The SA8000 system is modeled
after the ISO 9001 and ISO 14001 standards for quality and environmental management
systems. The standard was initiated by Social Accountability International (SAI), a non-
profit partnership of corporations and NGOs. It was devised by a group headed by the
Council for Economic Priorities (CEP) and accredited by the Council for Economic
Priorities Accreditation Agency (CEPAA).

Shamir 647
bureaucratization and standardization that transforms the hereto-

fore politically loaded and morally debated notion of corporate
responsibility into a measurable set of indicators that can then be
exchanged and traded among shareholders and investors as any
other commodity that adds "value" to the firm (or subtracts from
it thereof). Yet as Parker notes, the emergence of this vibrant field
of expertise and its various standards raises "questions about the
extent to which they measure substance rather than procedure
implementation" (2002:224).
A new breed of strategic consultants is also operating in the
field. With a typical background in public relations, these experts
now sell strategic CSR models, advise corporations on how to de-
velop CSR campaigns, and offer follow-up reports and impact as-
sessment studies. Law firms have also begun to appreciate the new
business opportunities this field seems to be offering, and the
American Bar Association, on its part, recently established a task
force and published a report in which the concept of business re-
sponsibility is principally constructed in terms of securing inves-
tors' confidence (American Bar Association 2003). And, in the
industries of public relations and advertisement, a new line of
"social branding" strategies is being adopted by copywriters and
graphic designers trained in the new art of associating products
and services with "morally good" notions such as saving the planet,
educating the poor, reaching out to communities, and preparing
children for life in the global village.
Another part of the field is evolving through the activities of
nonprofit organizations. Some such organizations are subtly creat-
ed by, sponsored, or backed by corporations. These market-based
NGOs (MaNGOs) are actively distributing corporate versions con-
cerning the adequate scope and meaning of CSR, training corpo-
rate executives in the know-how of social responsibility, and
organizing and coordinating corporate citizenship campaigns.
The single most distinctive common denominator of these corpo-
rate-oriented and corporate-inspired notions of social responsibil-
ity is the voluntary, nonenforceable, and self-regulatory meaning of
the term. Understood from within the context of a field, the vol-
untarism principle has become a crucial frontline in the struggle
over the meaning of corporate responsibility. As we shall shortly
see, the grounding of this particular meaning of responsibility is
also a driving force behind corporate response to ATCA.
The field also consists of so-called confrontational groups
(Winston 2002), an array of nonprofit organizations that function
as corporate watchdogs, blacklist "irresponsible" corporations, ar-
range for public shaming campaigns, take corporations to court,
and lobby for the taming of MNCs through national and transna-
tional governance structures. Sklair identifies this part of the field

while writing that "the contemporary level of monitoring of cor-

porate activities is historically unprecedented. There are thousands
of organizations actively seeking out corporate malpractices all over
the world" (1995:68). These players develop their own versions of
CSR, have their own stakes in maintaining the field, and shape its
trajectory. The basic perception that is brought to bear on the CSR
field by confrontational players posits that under the present con-
ditions of "global corporate rule," self-regulation and voluntary
displays of responsibility cannot suffice (Prakash 2002; Rodriguez
2003). Oxfam International's White Paper on Globalization clearly
expresses this position:
At their best, voluntary codes of conduct can act as a guide to
corporate practice and set standards for others to follow. ... At
their worst, they are little more than a public relations exercise.
But the deeper point is that corporate behavior is too important
for poverty reduction to be left in the field of voluntary codes and
standards defined by the corporate sector itself. ... What is
needed is a set of verifiable and enforceable guidelines covering
all aspects of corporate activity.(Oxfam 2003)
The ATCA cases, in turn, are enabled by an underlying theory

that posits that MNCs possess powers that give them considerable
leverage over the distribution, enjoyment of, and access to a broad
range of human rights: economic, social, and cultural rights; civil
and political rights; and rights protected under international hu-
manitarian law. The underlying theory, in short, is that corporate
power equals governmental powers and that this calls for new types
of global regulation.
The CSR field thus brings together, as allies or adversaries, a
multitude of actors who occupy a variety of strategic positions. The
field therefore provides for the formation of coalitions, commercial
relations, and ideological networks that coalesce around certain
specific understandings (and vested interests in pursuing certain
understandings) of the very term social responsibility.Once looked at
from the perspective of the field, it is possible to make sense of
novel social formations that transcend traditional distinctions and
boundaries.
Consider the identity of many ATCA plaintiffs. In many ATCA
cases, indigenous, poor, and oppressed people are able to advance
a claim only because they are aided, funded, and represented by
institutional players elsewhere. In the case against Unocal, Bur-
mese farmers were represented by lawyers of EarthRights Inter-
national, the New York-based Center for Constitutional Rights,
and two commercial law firms specializing in civil right cases and
class action suits. In the case against Texaco, members of three
indigenous tribes from Ecuador were aided by a wide coalition: An

Shamir 649
Ecuadorian lawyer working in the United States initiated the case

and wasjoined by an American commercial law firm specializing in
class action lawsuits, a group of law professors from Boston, the
Massachusetts Environmental Law Society, Earth Justice Interna-
tional, and Amazon Watch. In the case against Shell in Nigeria,
family members of Ken Sero-Wiwawere represented by the Center
for Constitutional Rights and aided by EarthRights International.
In the case against Coca-Cola, the Colombian union Sinaltrainal
was aided and represented by the American United Steel Workers
Union and by the International Labor Rights Fund. The Interna-
tional Labor Rights Fund also assumed representation in a case
against ExxonMobil in Indonesia.'8 ATCA cases thus blur the lines
between civil law and public law, national law and international law,
public interest lawyers and private lawyers, nonprofit organizations
and commercial law firms, labor unions and civil rights groups, and
environmental concerns and class action interests.
In their attempt to discredit their adversaries, corporations
point to the presence of commercial class action lawyers as "proof"
that greed, and not principle, fuels the claims against them. At
other times, corporations try to raise suspicions concerning the
political motivations of their adversaries. We have to understand
such attempts as strategic moves designed to discredit the authority
of certain actors to speak in the name of corporate responsibility.
However, the "suspicious hybridity" of the transnational networks
of plaintiffs makes sense once we understand that the field assumes
shape along lines that distinguish various positions in the field, or
connect various positions and actors, on the basis of shared (ide-
ological and practical) orientation toward a preferred assigned
meaning to the concept of responsibility. In sum, the field takes
shape through the push and pull of competing substantive notions
as to what responsibility is and who may legitimately speak in its
name. Thus understood, we are now better equipped to make
sense of corporate response to the ATCA challenge, to be discussed
in the next part of the article.
Corporate Response to ATCA Claims

The way corporations respond to ATCA is but one element in a
broader strategic positioning within the CSR field. In general, this
positioning is based on a dual strategy: on the one hand, resisting
the applicability of ATCA to MNCs and discrediting those who try
18
John Doe I, et al. v. Exxon Mobil Corp.,et al., No. 01CV01357 (D.D.C. filed June 19,
2001).

to use it; on the other hand, acting proactively to shape the CSR
field around principles of enlightened self-regulation.
Resisting ATCA
The basic fact about most ATCA cases is that the
"facts"-namely, the claim that human rights were violated-do
not constitute the heart of the dispute between the parties. Rather,
the concrete "factual" dispute is often about chains of causality in
general and about the responsibility of the corporation to the ac-
tions of state agents in particular. The Coca-Cola case provides one
such example. In this case, the alleged human rights violations
were attributed to paramilitary groups who intimidated (and in
some cases murdered) union leaders at Panamco, a bottling plant
that is locally owned and managed. Coca-Cola's main line of de-
fense on the merits was that it neither owned nor controlled Pan-
amco and could therefore not be held responsible for the alleged
wrongs. Similarly, Unocal had vigorously challenged the vicarious
liability charges brought against it in respect to its operations in
Burma. Unocal argued that it was only a "minority investor" in the
pipeline, that TotalFinaElf had been the project operator, and that
it neither took part in nor influenced the actions of the Burmese
armed forces.
Unocal and Coca-Cola, therefore, defended themselves by try-
ing to show that they were twice removed from liable misconduct:
first, because of their limited role in the overall business practice
and second, because they had no influence over or knowledge of
the alleged abuses by the military or paramilitary groups. In fact,
ATCA cases force MNCs into a strategy of downplaying their ability
to have a substantial impact upon their immediate social and phys-
ical environment, thereby implying a sort of diminished capacity to
act responsibly in a proactive way.
We may speak here of a strategy designed to create corporate
distance from issues of responsibility. Responsibility is transformed
here, through legal discourse, to a question of "vicarious liability,"
hence raising age-old capitalist objections to the use of torts as a
redistributive mechanism (Horwitz 1982). Moreover, by proclaim-
ing a distance from the actual perpetrators, corporate response is
based on an effort to preserve traditional distinctions between state
and market, allocating enforceable liabilities for violations of hu-
man rights only to the former. Looked at from the perspective of
the field, we may thus describe this strategy as one that aims to
situate the particular instances that the ATCA lawsuits bring to the
fore as residing outside the CSR field altogether. As we shall see, a
second strategic move in this direction, namely one that seeks to

Shamir 651
transform the issues at stake into questions of national sovereignty

and national security, complements this act of strategic distancing.
Indeed, corporate response to the challenge posed by ATCA
extends well beyond the courtroom. Relying on academics, trade
and commercial associations, and various selected representatives,
corporations have pursued a wide-range lobbying campaign
against the very use of ATCA.19 In December 2002, the world
leadership of the International Chamber of Commerce (ICC), mo-
bilized by its American chairman, Richard D. McCormick, issued a
statement addressed to the U.S. government urging it "to curb the
misuse" of ATCA by allowing foreign companies "to be sued in
U.S. courts for alleged events in third countries." The ICC, which
represents thousands of corporations and business associations,
described the use of ATCA as "an unacceptable extraterritorial
extension of U.S. jurisdiction" and urged other governments "to
raise the issue with Washington" (International Chamber of Com-
merce 2002:1).
A prime example of orchestrated action against ATCA is a wide
coalition of hundreds of MNCs-including many of those sued
under ATCA-that operates under the name of USA-Engage.
Since 1997, USA-Engage has led campaigns against imposing eco-
nomic sanctions on countries with gross human rights records. The
group's basic stance is that American interests are "compromised"
by the imposition of sanctions because they undermine America's
economic "competitiveness." USA-Engage campaigns against the
"abuse" of ATCA by various plaintiffs and states that its purpose is
to bring about the complete repeal of this law. To start with, the fact
that the field allows for the emergence of transnational, "hybrid"
coalitions (discussed earlier in this article) is used to isolate and in
turn to discredit the involvement of commercial class action lawyers
in the suits, alleging that the punitive money damages that are
sought by plaintiffs would not benefit the alleged victims but rather
the class action lawyers themselves (USA-Engage 2004). In turn,
the lawyers' alleged greed serves as a basis for further accusing
them of unfairly exploiting the American judicial system and con-
tributing to hyper-litigation that exhausts vital judicial resources
(Howard 2002).
Part of the response to ATCA is based on a tactic designed to
discredit the "moral authority" of at least some actors to speak in
the name of responsibility, and to undermine the legitimacy of
19 See
Bradley (2001); John Howard (2002) of the U.S. Chamber of Commerce claims
that ATCA provides opportunities for "foreign nationals" to sue corporations whose
"products or resources were used in a U.S. military campaign against terrorists," or to sue
corporations in countries where "the country's government had engaged in actions to put
an end to riots, rebellion or other disorders" (2002:1). Also see Tom Niles (2002), president
of the United States Council for International Business, a New York-based industry group.

these actors' positions in the CSR field. Further, the existence of

transnational coalitions that pursue ATCA cases is used to cast sus-
picion on the substantive agenda of plaintiffs. The latter are inter-
changeably referred to by USA-Engage and its allies as "foreign
nationals," "unaccountable actors," and "political organizations
with unspecified agendas." Yet again, we should read these insin-
uations as a tactic designed to discredit the moral authority of these
players to participate in the negotiations over the meaning of re-
sponsibility which take place in the field.
The suspicion-raising campaign is directly concerned with fus-
ing economic interests with national security interests and with
mobilizing the U.S. government to side with MNCs in their efforts
to curb the impact of ATCA. This strategy surfaced in relation to a
case against ExxonMobil's operations in Indonesia.20 Plaintiffs in
this case, Indonesian citizens represented by the International
Labor Rights Fund, alleged that Indonesian army units assigned to
protect ExxonMobil facilities in Aceh on the island of Sumatra were
provided logistical support by the defendant while committing se-
vere human rights violations such as genocide, torture, and kid-
napping, in the course of fighting against rebel forces in the area.
The defendant's motion to dismiss was largely based on arguing
that litigation endangered vital American foreign policy interests.
Subsequently, the court requested the State Department's opinion
on the matter. The State Department's response, written by one of
its legal advisers, was unequivocal, stating that "the Department of
State believes that adjudication of this lawsuit at this time would in
fact risk a potentially serious adverse impact on significant interests
of the United States, including interests related directly to the on-
going struggle against international terrorism."21 The letter went
on to explain that the lawsuit might have a negative impact on
Indonesia's economic recovery efforts, as it could discourage for-
eign investment. Further, the letter noted that an important aspect
of U.S. foreign policy is to increase opportunities for American
business abroad, while adjudication in this case could "prejudice
the Government of Indonesia and Indonesian businesses against
U.S. firms."22 Finally, the letter tied economic interests to national
20
John Doe I, et al. v. ExxonMobil Corp.,et al., No. 01CV01357 (D.D.C. filed June 19,
2001).
21 See
page 1 of letter of July 29, 2002, from William H. Taft IV to Judge Louis
F. Oberdorfer, United States District Court for the District of Columbia, on http://www.
humanrightsfirst.org/workers_rights/wr_indonesia/state%20exxon%20mobil.pdf (accessed
August 11, 2004).
22 See Taft's
letter, page 5. A similar argument is raised by critics of the Foreign
Corrupt Practices Act (1977), which bestows extraterritorial jurisdiction for use of bribery
by American businesses abroad. It is argued that it gives an unfair competitive advantage to
non-American companies and impinges on American economic interests abroad (Gayton
2003:202).

Shamir 653
security. The letter noted that the lawsuit could disrupt efforts "to
secure Indonesia's cooperation in the fight against international
terrorist activity" because that Moslem country "serves as a focal
point for US initiatives in the on-going war against Al-Qaeda."23
In sum, largely describing the ATCA cases as involving a for-
eign government's internal conflicts involving its own citizens
(USA-Engage 2004), USA-Engage and its affiliate corporations ar-
gued that the use of ATCA to evaluate the conduct of sovereign
nations vis-a-vis their own citizens poses risks to U.S. national in-
terests and amounts to an illegitimate intervention in the affairs of
other sovereign countries. This latter argument is sometimes pre-
sented as a concern about the implications of imposing a regime of
"legal imperialism" on other countries. The argument here is that
developing countries have a legitimate interest in determining
their own policies in areas such as economic development and
environmental protection.... if American courts interpret the law
of nations to include norms that are not sufficiently defined or
universally recognized, they will encroach on the legitimate au-
thority of foreign states ...." (HarvardLaw Review2001:2043)
MNCs, as aforementioned, have made this consideration a corner-
stone of their attack on ATCA, emphasizing the political dangers
involved in unwarranted intervention in the internal affairs of
other countries and the principled need to respect other states'
sovereignty.
Arguing along these lines, defendant corporations have also
succeeded in fully enlisting the Justice Department to their strug-
gle. In May 2003, Attorney General John Ashcroft filed an amicus
curiae brief for the defense in the Unocal case.24 Largely arguing
on the basis of a presumption against extraterritoriality, the Justice
Department's brief went beyond the particularities of the case and
argued for an overall reinterpretation of the law. The brief stated
that ATCA could not be used as a basis for filing civil cases, that the
"law of nations" covered by the law did not include international
human rights treaties, and that abuses committed outside of the
United States should not be covered under it. All in all, the brief
argued that while the original intent of the law was to avoid con-
flicts with other countries, its present use may bring about the
opposite result. Thus, the brief avoided altogether questions relat-
ing to the liabilities of MNCs and squarely positioned the dispute in
the domain of sovereignty, international relations, and American
foreign policy concerns.
23
See Taft's letter, page 3.
24
Brief for the United States as amicus curiae in the Unocal case was submitted in
May 2003 in the U.S. Court of Appeals for the Ninth Circuit, Nos. 00-56603, 00-56628. See
note 6 above.

The latest assault on ATCA along these lines came in December

2003, when the Supreme Court granted a writ of certiorari an-
nouncing it would hear the Sosa case in its spring 2004 term (see
note 13, above). Although the case did not involve a multinational
corporation, it was clear that the ruling would have had far-reaching
implications in respect to the ability to use ATCA for suing MNCs.
Therefore, alongside and in support of the government's petition
for certiorari, business groups such as the National Foreign Trade
Council, USA-Engage, the National Association of Manufacturers,
the U.S. Chamber of Commerce, and the U.S. Council for Inter-
national Business-supported by conservative public interest law
centers such as the Washington Legal Foundation-presented the
Court with detailed amicus briefs, all advocating the elimination of
ATCA as means of enforcing the protection of human rights and all
warning against American legal imperialism.25
Indeed, debates and principled arguments about the legitimacy
of using national laws for extraterritorial purposes have a long
history in American jurisprudence, political philosophy, and inter-
national relations theory. Gayton (2003) argues that changes in the
nature and scope of extraterritorial claims reflect changing con-
ceptions of sovereignty. Thus, he shows that in the nineteenth
century, an American system of consular courts-extending ex-
traterritorial jurisdiction over American citizens in some foreign
countries-corresponded to a standard of civilization that "denied
the sovereign equality of 'uncivilized' states" (2003:59). This con-
ceptual legitimizing device, however, declined with the ascendance
of positivist doctrines that were based on perceptions of equal sov-
ereignty (2003:3). When MNCs and other critics argue that the use
of ATCA amounts to American legal imperialism and to a breach of
the equal sovereignty principle, they thus imply that plain-
tiffs-groups and individuals that often base their claims on post-
colonial sensitivities to American imperialism-are in fact forcing
back an imperialist conception that attributes lesser civility to other
countries.
ATCA claims thus demonstrate the way principled arguments
and the logic of ideas are situated "in action." In the matter of
subjecting MNCs to a universal regime of human rights, the iden-
tity and interests of those who resist the extraterritorial application
of the law, namely MNCs, dictate a position that insists on doctrines
of equal sovereignty regardless of a complex reality of economic
5
Human rights groups such as Amnesty International, the Center for Constitutional
Rights, the Center for Justice and Accountability, EarthRights International, Human
Rights First, the International Labor Rights Fund, and international law clinics based at the
University of California, Berkeley, Yale University, and the University of Virginia all filed
briefs in support of using ATCA, thus effectively turning the Sosacase into a battlefield over
the future responsibilities of MNCs.

Shamir 655
and political inequality among states and regardless of alternative

conceptions of commercial, political, and moral interdependence.
That is, in the context of a general corporate reluctance to operate
under a regime of enforceable responsibility, the idea that devel-
oping countries have a legitimate interest in determining their own
policies has to be assessed with caution. This argument implies that
impoverished states freely pick and choose social and legislative
policies, while the political-economic reality is often radically dif-
ferent. The "choice" of such countries not to introduce certain
rules and regulations often stems from their desperate need to
attract foreign investment on the "take it or leave it" terms of cap-
italist business ventures.
All in all, MNCs thus depict themselves as both lacking an
ability to have an impact on relevant policies and neutrally re-
spectful of state policies in the countries where they operate. In this
way, the very notion of social responsibility is disengaged from any
concrete duty and is relegated only to those domains that cannot
and should not interfere with the so-called domestic affairs of sov-
ereign countries. This latter move of transforming the question of
corporate responsibility into questions of other nations' sovereignty
on the one hand and U.S. national security and national economic
interests on the other hand complements the distancing moves that
I described above. By moving the discourse into the terrain
of national concerns, MNCs in effect "relocate" the ATCA cases
outside the CSR field, divesting the question of corporate social
responsibility from being relevant to what is at stake.
CSR and Corporate Governance

So far, I have discussed the ways in which corporations try to
remove ATCA and its bearers from the "legitimate" concerns of
the CSR field. Yet alongside the fierce resistance to ATCA as an
unwarranted form of intervention, corporations are also engaged
in the positive structuring of the CSR field, struggling to structure
it around voluntary self-regulation and to position themselves as
authoritative players within it. Indeed, the attack on ATCA is
systematically corroborated by assertive displays of "social
responsibility" by all ATCA defendants. Like many other MNCs,
the companies sued under ATCA have developed extensive cam-
paigns emphasizing their social responsibility and "corporate
citizenship" in general and their commitments to the defense of
human rights in particular.
A considerable variance exists among corporations in terms of
the degree to which social responsibility is incorporated into their
corporate culture and, more important, into their institutions of
"corporate governance." When corporations use the term corporate

governance,they typically refer to the formal internal structure of

authority governing the firm, including the authority and compo-
sition of the board, the responsibilities of various committees, and
the nature of internal management systems. Thus, to the extent
that corporations begin to address social issues in general and
human rights issues in particular by, for example, establishing
designated committees, publishing annual certified reports, intro-
ducing ISO-like standards of compliance, or by developing special
management systems, we may talk about a high degree of CSR
institutionalization.
In general, CSR activities undertaken by corporations tend to
follow the good citizenship model of philanthropy. Compared not
only to the institutionalizationof economic and administrativestand-
ards but also to the institutionalizationof environmental standards,
corporate social performance in general and in the area of human
rights in particular is relatively underdeveloped. Coca-Cola, sued
under ATCA in relation to its operations in Colombia, is a strong
example of a company whose primary effort in the field of CSR is
directed toward acts of charity.Coca-Cola'scode of business conduct,
for example, is mainly about the level of discipline required from
employees, and is practicallysilent about the firm's social obligations.
However in 2001, Coca-Colabegan to publish a corporate citizenship
report alongside its financial reports (http://www2.cocacola.com/our
company/pdf/2002_citizenship_report.pdf,accessed September 14,
2003). The 2002 report lists a variety of community empowerment
programs, donations, and investments in the fight against AIDS. It
also details employee-directed diversity and equal employment op-
portunities policies, and emphasizes the progress the company has
made in establishingan internal environmental management system
(and ISO certificationfor one of its facilitiesin Spain). Coca-Colaalso
provides reports on its country-specificactivities around the globe.
Referring to Colombia, Coca-Cola maintains that it operates twenty
bottling plants there, seventeen of them owned by Panamco (the
bottling plant allegedly responsible for human rights violations).
Coca-Colareports its community involvement projects in Colombia,
ranging from building schools ruined by an earthquake to coastal
cleanup campaigns, culminating in channeling $700,000 to educa-
tion through an NGO that has been established for that purpose.
Judging from the firm's publications,therefore, it seems that its CSR
model rests largely in the philanthropic domain, with the marked
exception that Coca-Colareports that it adheres to a voluntary code
of conduct known as the Sullivan principles.26
26 The Global Sullivan

Principles of Corporate Social Responsibility is a private in-
itiative for a voluntary code of conduct. They were articulated by Reverend Leon Sullivan
in 1999 and so far have been adopted by dozens of corporations.

Shamir 657
Unocal, ExxonMobil, and Royal Dutch Shell, sued under

ATCA over respective activities in Burma, Indonesia, and Nigeria,
also invest efforts in philanthropic-type activities but display a far
more advanced degree of CSR institutionalization. Unocal, re-
sponding to the ATCA claim against it, has started to put prime
emphasis on human rights issues. Specifically addressing its oper-
ations in Burma, Unocal asserts that the pipeline project was con-
structed according to high ethical standards and provided real
benefits in employment, education, and healthcare to the 43,000
villagers and farmers who live in the area. Unocal also vows that it
would not tolerate the use of forced labor or other human rights
abuses in any of its projects (http://www.unocal.com/responsibility/
humanrights/hr5.htm, accessed November 22, 2003). Unocal also
contracted two independent human rights experts for monitoring
the Yadana Project, with which the corporation was involved in
Burma. The experts subsequently published a report that vindi-
cated Unocal of any wrongdoing and affirmed the positive impact
of Unocal on the Burmese social environment. More generally,
Unocal also developed an internal voluntary code of conduct in
which human rights commitments occupy center stage. The code
incorporates the principles of the UN Global Compact, the Sullivan
Principles, the U.S./U.K. Voluntary Principles on Security and
Human Rights, and, in general, aligns Unocal with the Universal
Declaration of Human Rights (http://www.unocal.com/ucl_code_
of_conduct/index.htm, accessed November 22, 2003).
Shell, sued for alleged violations of human rights in Nigeria,
also engages in vast and impressive projects of community empow-
erment, coastal cleanups, and educational programs in Nigeria,
especially in the area where the alleged violations occurred.
Asserting a commitment to promote and protect human rights,
Shell seems to be the most advanced among the MNCs I studied in
incorporating human rights as an integral part of its corporate
governance. The steps Shell has taken include the establishment
of a Social Responsibility Committee that reports directly to the
board. The committee reviews the policies and conduct of the cor-
poration with respect to the corporation's Statement of General
Business Principles. This latter constitutive document includes,
among other things, a commitment to support fundamental hu-
man rights by endorsing the Universal Declaration of Human
Rights, the UN Global Compact, and the Sullivan Principles. In its
2002 annual report (http://www.shell.com/html/investor-en/reports
2002/doc/pdf/rde_full.pdf, accessed August 12, 2004), Shell also
reports the installment of implementation and compliance mech-
anisms. These include the "Business and Human Rights Manage-
ment Primer,"the development of a human rights compliance tool
based on tools developed by the Human Rights and Business

project of the Danish Centre for Human Rights, a widely distrib-

uted training guide on human rights dilemmas, and dialogue pro-
grams with human rights groups across the globe (http://www.
shell.com/static/media-en/downloads/business_and_human_rights_
primer.pdf, accessed August 12, 2004).
ExxonMobil, beyond reporting annual contributions of nearly
$100 million in 2002, responded to the accusations concerning
its operations in Indonesia with a relatively high degree of CSR
institutionalization in general and human rights commitments
in particular. Acknowledging civil disorder in Aceh, ExxonMobil
reported on a variety of community programs targeting the Aceh
population. In its 2002 Corporate Citizenship Report (http://ccbn27.
mobular.net/ccbn/7/269/280/, accessed November 14, 2003), Ex-
xonMobil reports on diversity and equal employment opportunities
programs; the establishment of an Operations Integrity Manage-
ment System (OIMS) as a self-regulatory framework for maintaining
health, safety, and environmental standards in line with the guide-
lines of ISO 4001; and environmental and social impact assessment
studies that include community consultation before investing in
projects. ExxonMobil's Standards of Business Conduct also establish
an approach consistent with the principles of the Universal Decla-
ration of Human Rights "insofar as they apply to private companies"
(http://www2.exxonmobil.com/corporate/files/corporate/sbc.pdf, ac-
cessed October 26, 2003) and with the U.S./U.K. Voluntary Prin-
ciples on Security and Human Rights. ExxonMobil also has an
Integrated Security Management system that includes a reference to
the protection of human rights and cultural integrity. As part of its
formal corporate governance structure, ExxonMobil has also estab-
lished a Public Issues Committee that reports to the board (http://
www2.exxonmobil.com/corporate/files/corporate/sbc.pdf, accessed
October 26, 2003).
Likewise, Talisman-sued under ATCA for its operations in
Sudan-has begun to publish a detailed social responsibility an-
nual report. In 2002, it stated that it took steps to further integrate
corporate responsibility activities into its corporate governance and
management systems. Talisman's forty-two-page Corporate Re-
sponsibility Report covers issues such as human rights, community
programs, ethical business conduct, employee relations, environ-
mental audits, waste management issues, and transparency prac-
tices. The report was certified by PriceWaterhouseCoopers (PWC),
which has provided assurances as to the accuracy of statements.
The report is structured along the suggested principles of the
Global Reporting Initiative (GRI) and follows the Triple Bottom
Line model (economic, environmental, and social reporting),
which in recent years has emerged as a blueprint for responsible
reporting. Among its human rights activities, Talisman reports that

Shamir 659
it has established a security policy to deal with the conduct of na-

tional defense forces protecting corporate facilities. Talisman re-
ported that this policy emerged out of its experience in Sudan,
where it tried to prevent the use of its oil field facilities for "non-
defensive purposes." Talisman also reports on its human rights
training initiatives and projects in Sudan and Colombia as well as
on its specific management efforts to promote peace in these two
countries (http://www.talisman-energy.com/pdfs/TLM02CFR.pdf,
accessed November 18, 2003).
In sum, the strategic maneuvering of corporations in the CSR
field consists of two basic moves: one that resists attempts to subject
MNCs to an enforceable legal framework, and another that
engages in actively consolidating a self-regulatory regime of CSR
that is based on a host of voluntary and nonenforceable instru-
ments. Transcending the particularities of any specific ATCA law-
suit, we may therefore speak of a strategy that employs powerful
ideological and practical devices designed to stabilize the field
around voluntary and legally nonbinding practices of social
responsibility.
Conclusion
The question of how to bring multinational corporations under

"political scrutiny and ethical supervision" (Bauman 2002:15) has
become a major political issue. In this article, I have designated the
field of CSR as one conceptual space where various regulatory/
disciplinary regimes are pursued and negotiated among a host of
players. In general, I have argued that the meaning of responsi-
bility, as it is negotiated in the field, tilts between the search
for external regulatory structures and the development of self-
regulatory mechanisms. I illustrate this argument by discussing
attempts to use the ATCA as one particular instrument of legal
control over corporate behavior in the field of human rights. In
particular, I focus on the corporate response to these attempts. In
so doing, I follow the idea that capitalist hegemony is never fully
secured and has to be constantly maintained by corporations and a
host of other organizations and movements (Sklair 1997). Corpo-
rations thus respond in a variety of ways to pressures such as those
exerted through the ATCA cases, and it is precisely this constant
interplay of pressure and response that constitutes the dynamic
and the trajectory of the CSR field.
I have argued that the challenge represented by ATCA claims
goes well beyond corporate concerns with punitive damages and
bad reputation. ATCA claims penetrate right into the heart of the
question of how corporations may be subjected to a global regime

of human rights, and it is in this light that the response of corpo-

rations has to be understood. I have found that corporate response
to ATCA has two distinct elements to it. On the one hand, corpo-
rations try to undermine the legitimacy of using ATCA as an
instrument of control and to cast doubt on the motives and the
identities of those who try to invoke it. To that end, corporations do
not restrict their actions to adjudication alone, but also mobilize
organizations such as USA-Engage, the International Chamber of
Commerce, and ultimately the U.S. government.
On the other hand, corporations invest considerable resources
in shaping the CSR field in general as one that should be based on
voluntary measures. To that end, I have tried to show that CSR has
become a prominent feature of that body of knowledge and prac-
tice organized around the notion of corporate governance. Not
unlike the concept of CSR, the concept of corporate governance is
also contested and may entail different analytical and normative
orientations. The point is that these different conceptions all as-
sume "the increasingly prominent role of internal control systems"
and try "to push control further into organizational structures,
inscribing it within systems which can then be audited" (Power
1997:41-2). In other words, the notion of corporate governance
signifies a decisive move in the direction of abandoning traditional
"command and control" state regulatory schemes in favor of
"responsive regulation," which is supposed to facilitate-yet not
enforce and dictate-self-regulation programs and "compliance-
oriented" regulation, which is to be carried out through corporate
consent and voluntary organizational processes of reflexive learn-
ing (Parker 2002). Corporate governance, and CSR within it, as
they are currently conceived, have thus become major forces
pressing for the privatization of regulatory structures (also see
Dezalay & Garth 1996).
Accordingly, corporate voluntarism has become the corpora-
tions' most sacred principle, a crucial frontline in the struggle over
meaning and an essential ideological locus for disseminating the
neoliberal logic of altruistic social participation that is to be gov-
erned by goodwill alone. Moreover, it seems that an entire socio-
legal scholarship lends further credibility to this trend, if merely
by suggesting the inevitability of moving away from the old-
supposedly failing-command-and-control regulatory model (e.g.,
Ayres & Braithwaite 1992; Parker 2002). This process may thus
announce a new modality of power, one that creates mechanisms
that work all by themselves, namely through the responsibilization
of subjects who are empowered to discipline themselves (see
Ferguson & Gupta 2002).
In light of the trends discussed in this article, the idea that
human rights standards will be imposed by courts (whether

Shamir 661
national or international) and the idea that corporations may be

coerced into compliance in this area through formal binding reg-
ulations (whether national or transnational) are still far on the ho-
rizon. So far, attempts to move in the direction of compulsory
regulation seem to make little headway.27 Likewise, recent attempts
to subject MNCs to the recently established International Criminal
Court on grounds that MNCs are to be held liable for violations
of international norms of human rights have also been aborted,
establishing that the jurisdiction of the International Criminal
Court would not cover "legal persons" (Clapham 2000).
It also remains to be seen whether the recent Sosa decision will
effectively curtail and limit the ability to use ATCA as means
for enforcing human rights. Still, from my adopted perspective
of a CSR field that exists above and beyond any concrete judicial
outcome, the career of the ATCA cases, by forcing the issue of
corporations and human rights into the open, already shapes
corporate behavior because it forces corporations to reflect upon, if
not to institutionalize, human rights-related issues. The extent to
which such institutionalization would merely secure the nonen-
forceability of human rights and end up "blue-washing" corporate
behavior, however, is yet to be investigated.
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Shamir 663
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Ronen Shamir - Between Self-Regulation and The Alien Tort Claims Act - On The Contested Concept of Corporate Social Responsibility

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Between Self-Regulation and the Alien Tort Claims Act: On the Contested Concept of

Corporate Social Responsibility

This content downloaded from 91.229.229.129 on Mon, 16 Jun 2014 08:03:09 AM

Between Self-Regulation and the Alien Tort

Using Alien Tort Claims Act suits against multinational corporations as an

In this article, I look at corporations' responses to attempts

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political, economic, and moral agendas, reflects and in turn shapes

This content downloaded from 91.229.229.129 on Mon, 16 Jun 2014 08:03:09 AM

The ATCA Cases: General Background

As corporations emerge as global private authorities approx-

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Since the early 1990s, dozens of MNCs have been exposed to

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violation of the law of nations or a treaty of the United States."2

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Another ATCA case was filed against Texaco.6 In this case,

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Sudanese government in a joint strategy to deploy military forces

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whatever the ultimate criteria for accepting a cause of action

thus significantly limiting the type of future claims that may be

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Situating ATCA Cases: The Field of CSR

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a host of nongovernmental organizations (NGOs) that shift their

This content downloaded from 91.229.229.129 on Mon, 16 Jun 2014 08:03:09 AM

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experts. One important locus where the notion of CSR is devel-

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bureaucratization and standardization that transforms the hereto-

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while writing that "the contemporary level of monitoring of cor-

The ATCA cases, in turn, are enabled by an underlying theory

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Ecuadorian lawyer working in the United States initiated the case

Corporate Response to ATCA Claims

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transform the issues at stake into questions of national sovereignty

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these actors' positions in the CSR field. Further, the existence of

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The latest assault on ATCA along these lines came in December

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and political inequality among states and regardless of alternative

CSR and Corporate Governance

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governance,they typically refer to the formal internal structure of

26 The Global Sullivan

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Unocal, ExxonMobil, and Royal Dutch Shell, sued under

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project of the Danish Centre for Human Rights, a widely distrib-

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it has established a security policy to deal with the conduct of na-

The question of how to bring multinational corporations under

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of human rights, and it is in this light that the response of corpo-

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national or international) and the idea that corporations may be

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