BY AMREETA MATHAI
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As globalization has transformed the way (and where, and with whom) we do business, major steps have been taken to ensure that corporations find it more difficult to exploit international tax loopholes. But loopholes that allow corporate activities to benefit from and perhaps contribute to serious instances of widespread human suffering are comparatively plentiful.
From IBM’s alleged sale of computers used to implement apartheid policies in South Africa, to Western technology firms’ alleged active role in tracking Chinese political and religious dissidents, the field remains one that many see as crying out for both litigation and policymaking. In an attempt to tackle the legal, political, and ethical parameters of this evolving issue, the Harvard Human Rights Journal hosted a symposium on Thursday, February 18th, on the subject of corporate accountability for human rights abuses in developing nations.
The keynote speaker for the five hour event was Professor John Ruggie, Berthold Beitz Professor of International Affairs at the Kennedy School of Government and an Affiliated Professor in International Legal Studies at Harvard Law School. Since 2005, Professor Ruggie has been serving as the UN Secretary-General’s Special Representative for Business and Human Rights, and it’s in this position that he developed his “Three Pillar” framework outlining responsible corporate involvement in nations with compromised human rights records.
Professor Ruggie’s 2009 Report to the UN laid out the principles as follows: “The framework rests on three pillars: the State duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human rights, which in essence means to act with due diligence to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial.”
An audience of about a hundred listened as Ruggie outlined his framework, and explained the often fraught process of bringing human rights NGOs around to the point of view that this sort of “loose standard” based on general principles of corporate involvement was preferable to the more specifically outlined UN standard that it had replaced. That system could be summarized as “if X is occurring, corporations should keep as far away as possible.” He also shared his own initial skepticism that a systematic approach from the corporate side would bear any fruit. But in the end, he said, he’s witnessed a partial transformation in the way that corporate investments in developing nations are discussed. This is in part because his framework offers a lexicon for activist shareholders, PR departments, and other human rights-conscious elements of corporate decision making to frame their concerns in the universal dialect of commercial self-interest.
Following Professor Ruggie’s keynote presentation of the framework, two panels addressed practical aspects of implementing the ideas and encouraging their adoption by corporations as a framework for country investment analyses. The first, on corporate accountability litigation, drew connections between the state and corporate duties to protect and respect human rights and some of the notable failings of corporations to do so.
The panel of human rights lawyers summarized the various forms of on-going litigation around the issue in which they were involved. These ranged from claims against Western firms that had assisted South Africa’s apartheid regime (as in the case of IBM, mentioned above), to those against international lenders to and financial supporters of Argentina’s former military junta of the “Dirty War” years. Each of the lawyers expressed frustration at the difficulties in tying state abuses by collapsed regimes to the actions of corporations often operating behind a dual veil of governmental and corporate secrecy. The role of the mens rea standard for corporate involvement in human rights abuses was a particular point of focus – for U.S.-based Alien Torts Statute claims in the 2nd Circuit, the standard appears to be purpose at the moment; but in the 9th Circuit, it’s still an easier-to-satisfy “knowing” standard.
There was even some speculation that upcoming decisions may exempt corporations from being susceptible to ATS claims at all – not a thought that sits well with practitioners seeking to translate corporate accountability principles into actual legal liability for injuries aided by corporate investment overseas. Panel moderator Terri Marsh, senior litigation partner with the NGO Human Rights Law Foundation in Washington DC, expressed her hope that the ATS litigation would at least be able to continue, emphasizing the multiple purposes of such lawyering; “Even in cases we lose, there’s a huge effect. I’ve had people in prison in China tell me that their treatment changed for the better when we were litigating issues around the abuses that they’d suffered.”