Rights as Usual

This blog post by Dr Kebene Wodajo and Wangui Kimotho is part of a Blog Series on Colonization in, of and through Business and Human Rights published on Rights as Usual. Dr Kebene Wodajo is Postdoctoral (Senior Research) Fellow at the Institute for Business Ethics, University of St.Gallen (Switzerland). Wangui Kimotho is a Research Associate and PhD Candidate at the Institute for Business Ethics, University of St. Gallen (Switzerland).

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The legitimacy of the extraterritorial application of domestic measures by home states – whether this is in the form of litigation or legislation is among disputed BHR issues. Our contribution will focus on transnational litigation (“Transnational” litigation throughout this contribution is used in the context of extraterritorial human rights litigation or Foreign Direct Liability).

We argue that the current debate on transnational litigation overlooks two perspectives: 1) that corporate irresponsibility and lack of corporate accountability is a form of structural injustice (SI) that requires actions by both host and home states, and 2) the arguments for and against transnational litigation do not engage with the necessity of dismantling structural roots that enable corporate irresponsibility. The debate aside, we show how litigation against businesses in host jurisdictions has the potential to challenge these structures, whose overall impact is hindering access to justice for victims of corporate abuse.

Non-engagement with structural roots as a limitation of the transnational debate

SI originates from social and institutional systems that render people vulnerable to different forms of injustice, including vulnerability to corporate abuse. In the context of corporate irresponsibility and lack of accountability, some of the structural roots can be traced back to the colonial era and to the institutions and the mechanisms for governance that emerged (i.e., the private/public divide, state centrism; separate corporate personality and corporate veil of company law, forum non conveniens; collectively ‘Fundamental Doctrines’). These, on the one hand, facilitate corporate extraction from the Global South, while legally protecting businesses against accountability. We understand these institutions and laws as forms of structures that hinder corporate accountability and opine that addressing the structural root means transforming such laws and institutions. Such an understanding helps focus on the structures that produce or enable injustice and not only on the incident of violation. Hence, we aim to assess transnational litigation considering its ability to mitigate SI by progressively transforming such structures, and we attempt to make sense of debates on its legitimacy against such affordance. On transnational human rights litigation, see here and here.

Selected arguments against transnational litigation and implications for SI

The first point against transnational litigation is that it is a form of imperialism. This claim asserts that transnational litigation could be considered imperialistic as it may facilitate the imposition of home states’ judicial jurisdiction over host states. Its limit from a structural standpoint is that it does not place primary focus on interrogating unjust structures of global governance that sustain hegemonic domination and corporate impunity, such as procedural and substantive requirements to establish accountability for cross-border corporate impunity. It fails to effectively engage with Fundamental Doctrines.

The second argument focuses on a lack of sufficient positive international legal bases to extend extraterritorial judicial jurisdiction (barring few exceptions). Accordingly, home states do not have an international duty to adjudicate transnational wrongs committed by their companies. The limitation of this criticism, from a SI standpoint, is that if our aim is to positively transform the unjust global governance in which corporations are embedded, one would need to go beyond positive law and question the law itself as part of unjust structures.

Selected arguments in favour of transnational litigation and implications for SI

The first argument, viz. the sovereignty gap points to the functional inequality of states: sovereign equality is a legal fiction. The assumption that states have equal power to regulate business activities within their territory is misleading. Moreover, this argument problematizes the claim that extending the adjudicative jurisdiction transnationally is a breach of international law. Instead, it argues transnational human rights litigation could be understood as a form of assistance and cooperation between home and host jurisdictions. While the challenge against the formalistic account of sovereignty is well-founded, this claim has a blind spot. Justifying transnational litigation on the ground that states are functionally unequal and, hence, ‘better’ sovereigns may serve as venues for justice, entrenches existing inequality.

The second argument in favour of transnational litigation is its recognition and acceptance by host states. Evidence often used to support this position are cases like the Bhopal incident. In this case, the Union of India, as a sovereign plaintiff, sued Union Carbide and pleaded the inadequacy of the host state legal system to handle the Bhopal litigation. However, scholars reason that the goal of this endeavour was “to bring [the corporation] back under Indian jurisdiction” (p.29) and not actual acceptance of home state jurisdiction. That said, the strength of this claim rests in the way it tends to draw legitimacy from the will of the host states. One could argue that transnational litigation may be a space where the host states assert their agency. However, the slippery slope in this argument is that it turns to state-centrism by equating the consent of the state with the will of the impacted people. From a structural perspective, justifying transnational litigation on host state acceptance shifts focus back to states and ignores that people are the real victims of SI.

Addressing structures that shield corporate impunity through host state adjudicative jurisdictions

As shown above, debates on transnational litigation (with few exceptions), while registering reasonable worries, have limitations in addressing SI that make people in the Global South vulnerable to lack of access to justice for corporate harm. Neither side reaches the core, that lack of corporate accountability is predominantly structural, hence, the need to question transnational litigation from that perspective. As participants in the systems of international governance, economy and related affairs, host, and home states, BHR advocates and other stakeholders are enjoined in overcoming the unjust structures. One way is by strengthening and recognizing the value of jurisdictions beyond the West. This is important given the likelihood of realizing transnational litigation exists for only a miniscule number of cases: the possibility of litigation in host states must become the norm. While host state litigation will not overcome all the aforementioned structural challenges, an increase would signal that host states are expanding their capacity to protect against corporate human rights abuse and, thereby, contributing towards overcoming structural barriers to access justice. We demonstrate this premise through two examples of host state litigation.

The first is the case of Institute for Human Rights and Development in Africa and others versus Democratic Republic of Congo (or Anvil Mining case). The case involved the 2004 killing of tens of people and numerous other human rights violations by the DRC army with logistical support from Anvil Mining, which had operations in Kilwa, the site of the offensive. The case went to the African Commission on Human and Peoples’ Rights (ACHPR) after failed efforts to secure justice through host and home state mechanisms, a total of three jurisdictions – DRC, Canada and Australia. Criminal cases brought in host and home states were unsuccessful due to government interference and acquittal of defendants in DRC, insufficient evidence in Australia, and the prolonged investigation process in Canada. Civil cases brought in Canada failed due to lack of jurisdiction, and one brought in Australia also failed as Congolese lawyers and NGOs experienced difficulties (including death threats) in accessing evidence and moving out of the country. In its decision issued in 2017, the ACHPR, while finding that the DRC government had failed in its obligation to protect, also denounced the company, stating that it had the responsibility to uphold human rights and could, therefore, not violate the rights of the communities where it operated. The ACHPR called for new investigations and prosecution of those responsible in the military and Anvil Mining. Furthermore, it also required the DRC government to compensate the claimants and, in recognition of collective violations suffered by the whole community, ordered collective remedies for the Kilwa community. While recommendations by the ACHPR are not binding, and enforcement remains a key challenge, this case is important for two reasons. (1) It provides evidence that host states’ regional mechanisms can be venues that enable overcoming structural barriers. The victims’ journey to justice shows that transnational litigation is not a panacea for corporate accountability, and there are institutionalized barriers (structures) both in home and host state justice mechanisms. (2) It introduces creative remedies informed by local context and traditions – e.g., collective, not just individual remedies, can be/are part of adequate and effective remedies.

Motaung v Samasource Kenya & 2 others, an ongoing case, was brought by a South African national who had been employed in Kenya, by the first defendant, Samasource, as a content moderator for the social media platform Facebook, owned by tech giant Meta, who are enjoined to the case as the second and third defendants. The plaintiff alleges, among others, to have been fired for leading attempts to unionise for better pay and working conditions. Meta’s preliminary objection challenges the court’s jurisdiction on the basis that it is a foreign company and it was not properly served. Disallowing Meta’s motion, the High Court reaffirmed that under the Kenyan Constitution, any person who violates or threatens to violate another’s rights can be sued and that striking out Meta without determining the ‘weighty matters’ of jurisdiction would be premature. The next phase of the case is determination of jurisdiction which, if confirmed, could turn the tides of transnational litigation as a host state court will be determining if Meta, a foreign company can be legally responsible for violations of human rights under Kenyan law.

In summary, we may not need to pit transnational litigation against host state litigation but rather put forward the best of both accounts at the service of overcoming structural hurdles enabling corporate impunity and blocking access to justice. Transforming unjust structures would mean strengthening the capacity to overcome structural barriers and building confidence in local justice systems while preserving accessibility to transnational litigation for victims that might need it.