My friends and colleagues keep asking me how I feel about the Kiobel decision that came down last week in the Second Circuit, which decided that corporations can’t be sued under the Alien Tort Statute. Oddly, I can’t seem to get too upset about it – probably because I just got back from a conference in Bogotá hosted by the German human rights organization ECCHR and the Colectivo de Abogados Jose Alvear Restrepo (a Colombian lawyers’ collective) that gave me new hope for the ability of lawyers and activists from the North and South to do really high-quality work together. For quite awhile now, I’ve been thinking about how human rights defenders and advocates can pool resources, share expertise, and generally give each other a hand, and it’s exciting to see these sorts of collaborations beginning to materialize.
The topic of the conference was “Strategic Transnational Human Rights Litigation against Corporations,” and the focus was on a handful of case studies involving labor rights, environmental and social damage, violent human rights abuses, and privatization of basic resources. Over the course of three days, a small number of lawyers and other advocates from the U.S. and Europe sat down with local attorneys and community representatives from a dozen from all over Latin America – from Mexico to Argentina and Brazil to Peru – to develop actual strategies for elevating these cases to the international stage. We talked about litigation in home countries (i.e., the countries where multinational companies are based), complaints using international mechanisms like the OECD specific instance procedure and the Inter-American Commission on Human Rights, and effective communications and advocacy plans.
The assembled advocates included a number of remarkable, resourceful, energetic, and dedicated community representatives who had simply taken their struggle as far as it could go at home and needed help breaking the barriers to collaboration with international lawyers and experts so as to bring the fight to the companies on their own home turf. Take David Velasco, for example, whose organization, Fedepaz, is trying to find justice for Peruvian communities whose water has been polluted by a British-owned copper mine and who saw several of their members tortured by public security forces in the service of the company when they tried to protest. Rather than facing up to its obligations to end impunity for such abuses, the Peruvian government recently passed a law terminating all human rights cases against military or police officers that have continued for more than 36 months – an extremely short time when investigating complex and institutionally sensitive cases. (The government was forced to repeal the law under popular pressure just a few weeks later.) Or Javier Correa, whose quest to bring to justice the individuals and corporate actors responsible for the murders of labor activist Luciano Romero and elevan other members of the Colombian union Sinaltrainal has met with little but intimidation and delay.
At the conference, we spent much of our time working with the attorneys and activists who represent communities on the ground in their own countries, hammering out concrete recommendations and plans: What kinds of evidence are you going to need, and how are you going to get it? How do you identify plaintiffs and assess their claims? What are the best legal strategies for getting European courts to recognize foreign concepts like communal rights? What kinds of reparations can you can expect out of a Canadian court – if you win, will you just get money, or might the judge order the mining company to shut down its polluting operations? Do you need to commission expert studies, and how can you fund them?
In the field of human rights law, we talk a lot about international collaboration, but in practice it’s harder to do than you’d think. First, lawyers don’t always get along that well and can get kind of prickly when they think someone is invading their territory. Second, lawyers don’t always communicate particularly well with non-lawyers. Third, distances are far, and money is scarce, which means that face-to-face meetings happen much more rarely than they should. And fourth, it’s not always clear what your role is in a foreign country where you don’t really know the legal system and have only a partial understanding of the social context into which you’re interposing yourself.
Yet it’s clear that there are loads of cases in which multinational companies are taking advantage of their financial power and the weakness of local administrative/legal systems to operate in ways that severely prejudice the political, civil, economic, social, labor and environmental rights of communities and individuals. In such cases, there needs to be a way to internationalize both the advocacy strategy and the legal strategy that complements it. Those of us who work in this field have been placing a lot of hope in the U.S. courts to handle transnational cases, but as Kiobel shows, the U.S. judiciary alone cannot shoulder the burder of providing a forum for adjudicating human rights claims against companies that arise abroad.
That’s what makes the strategy of the ECCHR conference so brilliant: by focusing on cases involving companies from a number of different European and North American countries, we’re moving away from a strategy that relies so heavily on the U.S. and signalling that companies that abuse rights in the developing world will be pursued wherever they base themselves. So I guess Kiobel isn’t getting me down because, while I’m not giving up on holding corporations to international human rights standards to the full extent the U.S. system allows, the sheer dedication and creativity I saw in Bogotá last week tells me the legal landscape in the rest of the world is looking better and better for the good guys.
