Transcript Corporate Accountability

Corporate Accountability &
Social Justice
Challenging Private Power
through Transnational Litigation:
Khulumani Support Group
Thinking through Social Justice
• Social justice is about collective solutions
to deprivation (Jan Theron)
• Most survivors of apartheid gross human
rights violations live in situations of
deprivation.
• States have reparations obligations – to
oblige the wrongdoing party to redress the
damage caused to the injured party. These
obligations have not been met.
Business Violating Human Rights
• Businesses failed at the TRC to take
responsibility for their involvement in helping to
sustain apartheid rule with its associated human
righrts abuses.
• Certain businesses helped to design and
implement apartheid policies.
• Other businesses benefited from cooperating
with the security apparatus of the former state
through lucrative contracts & inflated returns on
investment.
• No ‘foreign’ business came forward to engage
with the TRC.
Business as Powerful &
Unregulated
• Growing private power - The rise of the
modern corporation has brought a
concentration of economic power which
can compete on equal terms with (or even
supersede) the modern state. Berle &
Means, 1932
• By 1998, 51 of the largest 100 economies
in the world were corporations
Provisions of International Law
• United Nations Basic Principles & Guidelines on
the Right to a Remedy & Reparations for
Violations of International Human Rights and
Humanitarian Law, adopted 2005
• Ruggie Guiding Principles on Business &
Human Rights, adopted June 2011
• Discussion about expanding the mandate of the
ICC to include private enterprise (ICC Review
Conference 2010)
The Reality - Failures of Regulation
• The state has mostly become hesitant to
regulate corporate activity in contemporary
society.
• The modern transnational corporation can
act almost free from regulation and
accountability, while having enormous
influence on public policy processes
nationally & internationally to advance
their own business interests.
Efforts to Hold Private Power
Accountable
• Adoption of the Ruggie Framework of Guiding
Principles on Business & Human Rights by UN
member states unanimously in June 2011 as a
framework for judging business behaviour
• Construction of a foundation for future rulemaking by states
• A maintenance of the status quo? They merely
encourage private power to respect human
rights (Human Rights Watch)
Ruggie’s Three Pillars
• State duty to protect against human rights
abuses by third parties through appropriate
policies, regulation and adjudication.
• Corporate responsibility to respect human rights,
by acting with due diligence to avoid infringing
on the rights of others & to address adverse
impacts caused by their operations.
• Greater access by victims to effective remedy,
both judicial and non-judicial
Challenging Historical Crimes
• Include measures to deal with economic
crimes in the mandates of agreed
transitional justice mechanisms.
• Use available civil litigation processes –
the ATS – the Khulumani Lawsuit (the
South Africa Apartheid Litigation)
Threats to the Use of the ATS
• Interventions by the US government in federal
court proceedings through submissions in
attempts to restrict the use of the statute.
• The politicisation of the US Supreme Court of
Appeal – five of its nine current justices
including Chief Justice Roberts & Justices Alito,
Kennedy, Scalia & Thomas have used their
power to “score big points for corporate power”
& overturned decisions, thrown out precedent &
periodically tossed out rulings that essentially
make law.” (Hightower, AlterNet).
US Government Arguments to
Restrict Use of ATS
• Courts may not hear claims arising for human
rights abuses that occurred abroad. (State briefs
2006 & 2007) The ICCPR art. 2(3) to obliges
states to provide a remedy to “any person.”
• Those who aid & abet human rights abuses
may not be held liable in civil litigation (US
government briefs 2008 & 2009). Immunizing
abettors of violations gives a free pass to those
who encourage & assist human rights violations
& is inconsistent with international law.
US Government Efforts to Limit
Use of ATS
• Defendants cannot be held civilly liable
under the ATS for conspiring to commit
violations of customary international law
(State briefs 2007 & 2009)d civilly liable
under the ATS for conspiring to commit
violations of customary international law.
Conspiracy liability is critical for combating
human rights abuses.
US Government Efforts to Limit
Use of ATS
• Foreign victims of human rights abuses
must first “exhaust” domestic remedies
before filing a suit in US courts, even if the
defendant is a US citizen. (2006)
• US government contractors should not
be held liable for human rights abuses that
violate international law (2006)
US Government Efforts to Limit
Use of ATS
• Cases that present conflicts with US
foreign policy should not be allowed
• Suits that may reveal “state secrets”
should be dismissed – The case of
complicity of a corporation in abetting
torture in the US “extraordinary rendition”
program, because the case could reveal
“state secrets.” (2009)
Potential Impact of State Trends
• Deeming corporations immune from liability
would be contrary to the fundamental principles
of US jurisprudence.
• Excluding corporations from the reach of the
ATS would move lawsuits charging corporate
complicity from the federal courts to the state
courts.
• Diminishing corporations’ responsibility for their
participation in gross abuses would lessen the
effectiveness of US economic engagement as a
tool for promoting reform with repressive
regimes.
2009 Additional Briefing Order
• No court has ruled that corporations
cannot be sued under the ATS, but one
court did recently question whether
corporations could be held liable, and
asked for supplemental briefing on the
issue.
• Additional Briefing Order, Balintulo v.
Daimler AG, Nos. 09-2778-cv et al. (2d Cir.
Dec. 4, 2009).
Doe v Exxon July 2011
Extracts for a Doe v Exxon Decision:
We conclude that aiding and abetting liability is well
established under the ATS. We further conclude that
this court should address Exxon’s contention on
appeal of corporate immunity and … we hold that
neither the text, history, nor purpose of the ATS
supports corporate immunity for torts based on
heinous conduct allegedly committed by its agents in
violation of the law of nations.
Returning to Normalcy Report
An overview of ATS cases to date:
Courts have dismissed cases more often than they have
allowed them to proceed.
Few ATS cases have reached trial, including only five
cases against corporations.
A handful of cases have resulted in settlements.
The ATS remains an important tool for reining in the worst
offenders, who commit or are complicit in the most
egregious violations of international law.
Earthrights International, 2010
When cycles of ‘abuse of power for
private benefit’ goes unpunished
• In South Africa, patterns of old practices
continue to replicate themselves – the
choice to fundamentally break these
cycles has not been made.
• Social justice imperatives have been
subsumed to agendas of private
accummulation, acquisition of personal
power & neotraditionalism.
Legal Activism as Dis-abling?
When moral claims are given a legal form, their power is
diluted:
• Law may limited recognition of the harm needing redress
or the need requiring fulfilment (The law allows for rights
to be restricted if it is reasonable)
• Moral claims become transformed into bureaucratic
technical legal problems (Bond)
• The adjudicating institutions are embedded in the status
quo
• The space for political contestation is closed won.
Conclusion
• The Khulumani case is a pivotal point in efforts
to advance corporate accountability – it has
highlighted the violations by corporations, the
alignment of the South African and US states,
and the importance of ATCA.
• Khulumani remains hopeful of ‘getting its day in
court’ to have the issues fully explored.
Examining Shaky Foundations
When conditions are so unseemly even the blind are made
aghast and police are firing rubber bullets in defence of the
indefensible, it is time to reassess your gains and efforts – your
measuring rods, to question your values.
You cannot construct an edifice on dishonest roots cannot hope
it will stand: Structures built on shards or crumbled fragments of
tortured bone must, of necessity, crumble.
Structures built on deceit and lies, such structures cannot
survive: in the harsh light of everyday under scrutiny they will not
survive.
Dennis Brutus, April 2009
A Way Forward
• New forms of organisation & new forms of
activism with intergenerational learning
• Speaking truth to power & making choices
for solidarity and the public provision of
goods.