Can the law solve global business and human rights challenges?

I recently attended a talk by Professor Horatio Muir Watt at King’s University, who are running a series of events around Transnational Law. It’s funny how quickly you forget after leaving university what it’s like to listen to a highly academic discussion on research of an equally high academic nature. In fact, the beginning of the discussion took me even further back to my International Baccalaureate “Theory of Knowledge” days.

I won’t deny that it took a few minutes for my brain to settle, but through the thick of shifting paradigms, the identification of the global function of the law, and adjusting legal method to new world visions, there were some very important practical points being touched on. Namely how can the legal discipline and its range of tools be adapted to effectively address the challenges presented by an increasingly globalised world? It was noted that our traditional notion of how the law solves problems isn’t working and is generating a gap, where, for example, global wrongs are happening and remaining unaddressed. Nonetheless, Watt mentioned that our current way of thinking continues to seek judicial solutions to the challenges that are arising.

To illustrate her points, Watt raised the example of the Alien Tort Act and how that has over time been reinterpreted to address modern issues. In particular, she focused on a recent decision by a Court of Appeal in California, Doe v Nestle Inc.

As a bit of background the Alien Tort Statute has been engaged to target corporate misconduct outside US territory. Following the decision in Filártiga v. Peña-Irala in 1980 , US courts started holding US companies responsible for alleged human rights abuses even where:
• involvement was indirect, and
• the incident in question took place outside the jurisdiction

However, in 2011 the US Supreme Court declated that it would hear an appeal in the Alien Tort Claims Act lawsuit Kiobel v. Royal Dutch Petroleum, Co. (Shell) . It was the first time this court reviewed a human rights claim against a corporation under this statute. We have previously covered in this blog how this decision was seen to massively reduce the potential for successfully engaging the Alien Tort Claims Act in cases involving allegations of abuse outside the United States.

Nonetheless, in September 2014 the majority in the US Court of Appeals for the Ninth District in California took a different view. The Court found in the class action case Doe v Nestle Inc that the defendants (several multinationals representing a range of household chocolate brands) aided and abetted child slavery on cocoa farms in the Ivory Coast. The Court held that the defendants profited from the use of child slavery in the region and inferred from their failure to act that “they intended to keep that system in place”. It was held that jointly the defendants had sufficient leverage over the production chain and the Ivorian cocoa market to stop or inhibit child slavery. The fact that the accused companies had lobbied against U.S. federal legislation requiring the certification of chocolate as “slave free” served to “corroborate the inference of purpose.”

It was pointed out that in some way the court relied on traditional reasoning, for example, by turning to a discussion around mens rea (in other words, the existence of intent). However, the court was also flexible –by looking to different precedents from international criminal law as highly persuasive, countering the presumption against extraterritoriality and, arguably, entering into the remits of foreign policy.

To what extent will the reasoning adopted by the Court hold in future cases? This isn’t entirely certain, particularly given the position expressed by the Supreme Court in Kiobel. Some members of the audience expressed frustration because while academics, governments, and judiciaries alike are figuring out how best to use the law and its tools to address international crimes and inculcate non-state actors, those crimes continue to happen on an increasing scale.

Nonetheless, the decision in Doe has important implications for business: where a crime as heinous as child slavery is being committed, there is potential for Courts to start taking more proactive responses to rectify global wrongs, and that includes looking at production chains as a whole and assigning responsibility where there is awareness and leverage.

Watch this space!