Blog: Business and Human Rights
January 29, 2015
Posted by Tyler Giannini and Susan Farbstein
The Clinic and our partners filed an opening brief yesterday in the Second Circuit in an appeal in In re South African Apartheid Litigation. The case, which is being litigated under the Alien Tort Statute, seeks relief against IBM and Ford for assisting and supporting human rights violations committed in apartheid South Africa.
Back in August, the district court dismissed the case when the court denied Plaintiffs’ motion for leave to file an amended complaint against these two U.S. Defendants. The lower court reasoned that the claims did not sufficiently “touch and concern” the territory of the United States, as required by the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, which established a presumption against extraterritoriality in ATS cases.
On appeal, Plaintiffs contend that the lower court failed to undertake the necessary inquiry into the U.S. Defendants’ own conduct in the United States, and instead focused only on actions that took place in South Africa. The proposed amended complaint contains detailed new allegations about how, from the United States, both Defendant corporations aided and abetted the South African security forces and government to commit human rights violations over several decades. Defendants will file their opposition brief in the coming months.
Clinical students Ariel Nelson, J.D. ’15, Brian Klosterboer, J.D. ’16, and Peter Stavros, J.D. ’16, contributed research and drafting for the brief.
September 17, 2014
Posted by Lily Axelrod, JD '15
One January afternoon in 2012, two hundred men and women gathered at the Captain Morgan Bar in the sunny, Mexican coastal town of Topolobampo, Sinaloa. Their spirits were strong; recruiters had arrived to sign up workers for temporary H-2 visas to the United States. In a region where unemployment is high and the minimum wage is less than $5 a day, the recruiters brought hope. Applicants handed over deposits of several hundred dollars, representing years of savings or serious debt.
Weeks went by, and then months, as recruiters promised the Sinaloans that the visas were “almost ready.” But there were no jobs, and no H-2 visas. By April, it became clear: hundreds of applicants had been defrauded.
This summer, I had the opportunity to support the Sinaloan workers as a fellow with Proyecto de Derechos Económicos, Sociales y Culturales (ProDESC), a human rights organization based in Mexico City. Having lived in Mexico and studied social movements there, I was drawn to ProDESC’s model, which balances a broad international vision with a focus on meaningful participation and leadership from local, marginalized communities. I contributed this summer to the organization’s Transnational Justice for Migrant Workers project, which seeks to promote humane, legal migration by protecting migrant workers’ human rights.
My work focused specifically on the H-2 temporary worker visa program, one of the few avenues for Mexicans to work legally in the United States without advanced degrees or immediate family members with status. ProDESC has been tackling abuses related to the program since 2007. Due to fear of reporting and lack of oversight, it is impossible to know how many applicants were promised visas and never received them, but ProDESC believes the problem is widespread. Even when job offers are legitimate, workers often go into debt to pay illegal “recruitment fees,” and fear blacklisting or violent retaliation if they speak up about their rights.
For years, both the Mexican and American governments turned a blind eye to these abuses, leaving workers vulnerable to exploitation, human trafficking, and forced labor. But ProDESC and the Sinaloan workers have been collaborating to change the status quo. In 2013, with support from ProDESC’s community organizers and attorneys, the workers formed a coalition and brought a groundbreaking collective criminal complaint against the fraudulent recruiter operating in Sinaloa. That coalition, in turn, strengthened ProDESC’s domestic and international policy advocacy to prevent abuse in the H-2 visa program overall.
Together, their activism captured the attention of both the Mexican government, which recently issued new regulations targeting recruiters, and the U.S. Departments of Labor and State, which have committed to cooperate with their Mexican counterparts and with NGOs to educate migrant workers about their rights. Continue Reading…
July 2, 2014
Fourth Circuit’s Post-Kiobel Ruling Revives ATS Claims Against U.S. Corporation for Violations Committed Abroad
Posted by Tyler Giannini and Susan Farbstein
On Monday, the Fourth Circuit Court of Appeals ruled that the presumption against extraterritoriality in Alien Tort Statute (ATS) cases, established by the April 2013 U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum, Co., does not bar claims against a U.S. contractor for torture and mistreatment of foreign nationals in Iraq.
The Al Shimari v. CACI ruling is a major decision in the ongoing battle over the meaning and interpretation of Kiobel. Kiobel held that there is a presumption against extraterritoriality in ATS cases unless the “claims touch and concern the territory of the United States with sufficient force,” in which case the presumption can be displaced. In Kiobel, the Supreme Court found the “mere corporate presence” of the defendant in the United States did not overcome the presumption.
The Fourth Circuit compared the factual circumstances in Kiobel with those in Al Shimari, and concluded that the corporate defendant had a much more significant connection to the United States than mere presence. In so ruling, it became the first appellate court to hold that the plaintiffs’ claims sufficiently “touch and concern” U.S. territory to displace the presumption.
In the wake of the Kiobel decision, lower courts across the country have wrestled with how to interpret the new “touch and concern” standard given the limited guidance provided by the Supreme Court. Some courts have avoided the complexities of the Kiobel presumption altogether. However, the Fourth Circuit embraced the challenge:
Although the “touch and concern” language in Kiobel may be explained in greater detail in future Supreme Court decisions, we conclude that this language provides current guidance to federal courts when ATS claims involve substantial ties to United States territory. We have such a case before us now, and we cannot decline to consider the Supreme Court’s guidance simply because it does not state a precise formula for our analysis. Continue Reading…
April 8, 2014
“The Future of Corporate Impact Litigation After Chevron”
A Discussion with Steven Donziger
12:00 – 1:00 p.m.
Please join us for a discussion with Steven Donziger, JD ’91, a New York based lawyer who has advised indigenous and farmer communities for two decades in their struggle to hold Chevron accountable for oil contamination in the Amazon. In 2013, Ecuador’s Supreme Court affirmed a trial court ruling ordering Chevron to pay $9.5 billion in damages. Chevron fought back, recently securing a controversial ruling from a U.S. federal judge in a non-jury trial that Ecuador’s entire judicial system is unworthy of respect and that the case was marred by fraud. That case is currently under appeal to the Second Circuit while enforcement actions based on the Ecuador judgment continue against Chevron in Canada, Brazil, and Argentina. The case raises profound questions that touch on international law, comity, human rights, indigenous rights, freedom of expression, professional ethics, and the limits of litigating against corporate wrongdoers.
November 6, 2013
Posted by Betsey Boutelle, JD '14
The International Human Rights Clinic filed an amici curiae brief yesterday on behalf of legal historians in one of the first major Alien Tort Statute (ATS) cases to reach a court of appeals since the U.S. Supreme Court ruled in Kiobel v. Royal Dutch Petroleum Co in April.
The case, Al Shimari v. CACI Premier Technology, Inc., alleges that employees of CACI, a private military contractor, participated in the torture and degrading treatment of detainees at Iraq’s Abu Ghraib prison in 2003 and 2004. The four plaintiffs in the case were detained in Abu Ghraib during that time and allege that they suffered abuses at the express command of several CACI employees operating in the prison.
In June, a Virginia district court dismissed the plaintiffs’ claims. The court believed that Kiobel foreclosed ATS liability for international law violations committed outside the United States—even when the defendants are American. The Al Shimari plaintiffs have now appealed to the Fourth Circuit, arguing that Kiobel’s limit on extraterritorial ATS claims does not apply, because their case involves U.S. defendants operating in American-controlled territory.
Six professors of legal history signed the amicus brief, arguing that the history and purpose of the ATS clearly indicates that the Founders would have allowed claims against U.S. citizens. Jurisprudence dating back to the 17th century shows that sovereign nations were expected to provide a remedy when their subjects committed violations of the law of nations, wherever the wrongs occurred.
The Founders knew the consequences of condoning violations by U.S. actors. Failure to provide redress could cause conflict and even war, and thus threaten the young nation. The ATS was one important mechanism to help avoid conflict and to bring the fledgling Republic in line with the expectations of the community of nations. In the brief, amici argue that to exclude violations by U.S. actors, wherever they might occur, would contravene the aims of the Founders when they enacted the statute.
The brief was signed by professors of legal history William R. Casto (Texas Tech University School of Law), Martin S. Flaherty (Fordham Law School), Nasser Hussain (Amherst College), Stanley M. Katz (Princeton University), Michael Lobban (London School of Economics), and Jenny S. Martinez (Stanford Law School).
Led by Clinical Professor Tyler Giannini and Poppy Alexander, JD ’12, clinical students Betsey Boutelle, JD ’14, Avery Halfon, JD ’15, Lynnette Miner, JD ’14, Ariel Nelson, JD ’15, and Oded Oren, JD ’15, all contributed many long hours to the effort.
August 22, 2013
Posted by Cara Solomon
This past spring, more than 70 people gathered to celebrate the launch of the Institute for Multi-Stakeholder Initiative Integrity (MSI Integrity), a business and human rights organization founded by Clinic alumna Amelia Evans, LLM ’11. It was a momentous occasion: MSI Integrity is one of the first non-profits to come out of the Clinical and Pro-Bono Program at Harvard Law School (HLS). In her comments, HLS Dean Martha Minow described its mission as both essential and exciting.
Recently, we sat down with Amelia to talk about the origins of MSI Integrity, and where it fits into the landscape of business and human rights.
Congratulations on the launch, Amelia. Before we start talking about the work of the organization, tell me a bit about how you get interested in the field of business and human rights in the first place.
Well, back in New Zealand, I was occupying two different worlds — I had dabbled in investment banking and commercial law, but was also an advocate at a domestic violence shelter. I felt really alienated from both of these spaces. At the firms, I felt that everybody was judging me for being part of a feminist collective, and when I was a participant in the collective, everyone was very skeptical of my commercial interests. It was frustrating that these two worlds just couldn’t be bridged, that they didn’t speak to each other in any way. At some point, I realized that the connection between the two was business and human rights, and I wanted to learn more about that.
Through my research, I saw the work that Tyler Giannini had done, so I applied to Harvard Law School hoping to work with him in the Clinic. Clinical education isn’t something that’s offered in New Zealand, and I was very eager to experience it. As soon as I got into HLS, I emailed Tyler to ask about getting involved in the Clinic in the fall, and he told me there were limited spots for LLMs. So I spent a lot of time crafting my application, and once I got in, I just tried to devote as many hours and credits to it as I could. I’m fairly certain no one could have taken more clinical credits than I did….I just loved it so much.
What kind of work did you do in the Clinic?
I was involved in three different business and human rights projects. One was the Kiobel v. Royal Dutch Petroleum Co. case, at the appellate level, with the legal historians’ amicus brief. The second was a corporate accountability case looking at remediation for survivors of human rights abuses. And the third was about multi-stakeholder initiatives or MSIs, which are these voluntary organizations that address human rights concerns within a given industry. Basically, they bring together different actors—civil society, government, rights holders, and businesses themselves—in an attempt to strengthen human rights within that industry.
The goal of our clinical project was to understand how effective these MSIs were, and to do that by creating ways to evaluate that effectiveness from a human rights perspective.
Why the focus on MSIs?
They’ve become a go-to mechanism for corporate accountability given the governance gap that exists in today’s globalized economy. It’s really difficult to get a treaty developed, or to get legislation passed that applies with extraterritorial effect, so the response has often been, “Let’s try to do something voluntarily.”
Enter MSIs. They’ve exploded in number over the past decade. Name a major global industry, name a geographic area, name a human rights issue, and there’s an MSI that applies. Most consumers have never heard of them, but the fact is that we interact with the work of MSIs on a regular basis. The label that says it’s fair trade, the certification of diamonds as conflict or blood-free — this is all the work of MSIs.
In the Clinic, we saw MSIs as an innovative way to get at business and human rights issues. But the questions were: are they working? Are they leading to improved human rights outcomes? Or are they actually, in some ways, stopping improvement in human rights? Continue Reading…
April 17, 2013
April 17, 2013
“MSI Integrity: A New Business and Human Rights Organization”
Drinks will be served!
Join the International Human Rights Clinic for the launch of the Institute for Multi-Stakeholder Initiative Integrity, a non-profit organization the Clinic has helped get off the ground. MSI Integrity aims to strengthen the ability of multi-stakeholder initiatives, like Fairtrade and the Kimberley Process, to respect human rights, prevent violations, and remedy abuses.
April 9, 2013
by Shane Darcy, Visiting Fellow, Human Rights Program
Lecturer in Law, Irish Centre for Human Rights
Over the past several years, the topic of corporate behavior has moved from the periphery of the human rights discussion to become an area of concerted focus for international organizations and human rights NGOs. States and companies are paying closer attention to calls for enhanced accountability for corporate activities that impact on human rights, from child labor to internet censorship.
As a lecturer at the Irish Centre for Human Rights, I have been teaching a course on business and human rights for the past few years, focusing on international developments but also exploring how Ireland fits into this trend.
Ireland was recently found to be the world’s third “most globalized economy,” after Singapore and Hong Kong. It is home to the European headquarters of some of the largest multinational corporations, including Apple, Facebook and Google, no strangers to human rights controversies. Shell’s gas pipeline in Mayo has probably been the most notable case recently of corporate activities clashing with community interests in Ireland. And yet, the topic of business and human rights in the country has not been given the attention it deserves.
With that in mind, last month I started a blog, Business and Human Rights in Ireland, which will track and analyze developments from an Irish perspective, with an eye also to the international context. I’ll address legal and policy issues in the blog, as well as highlight human rights concerns from the activities of Irish companies or multinational corporations based in Ireland.
I’ll also use this forum to highlight any developments arising from a 2012 Irish Centre for Human Rights report, ‘Business and Human Rights in Ireland,’ which I co-authored. That report drew on the UN Framework and Guiding Principles and made a list of recommendations for the Irish Government, companies and civil society. I hope that visitors enjoy the blog.
March 28, 2013
Recap of International Law Journal Panel: Environmental, Human Rights, and Development Issues in International Investment Arbitration
Posted by Cara Solomon
A few weeks ago, as part of the 2013 Harvard International Law Journal symposium, Tyler moderated a panel entitled “Addressing Environmental, Human Rights and Development Issues in International Investment Arbitration.” Cecilia Vogel wrote a recap of the panel, which ILJ recently posted on its site. Thanks to ILJ for letting us repost it here:
ILJ’s 2013 symposium wrapped up with a lively discussion about the role of environmental and human rights in international investment arbitration. Tyler Giannini, Clinical Professor of Law for the Human Rights Program and International Human Rights Clinic at HLS, moderated the panel in the form of a question and answer session. The panelists, hailing from across the globe and with experience as counsel, arbitrators, advisers, and academics, represented a variety of international viewpoints on the topic.
Professor Giannini began the conversation by asking panelists to address how the international investment regime relates to or differs from the human rights regime. Professor Joost Pauwelyn explained that protections for international investors and human rights do share a common root, although investment protection began first. Both regimes seek the protection of rights against abuse. However, Professor Pauwelyn drew the distinction that the investment regime’s purpose—to facilitate investment—is more utilitarian. The investment regime only protects certain classes of people, i.e. alien investors of certain nationalities, while we are all born into human rights. Continue Reading…
March 24, 2013
Posted by Tyler Giannini
Earlier this month, the recently appointed UN Independent Expert on Human Rights and the Environment, John Knox, presented his preliminary report to the Human Rights Council. For those of us who have worked in the field of human rights and the environment since the early 1990s, the fact that this report is even being presented to the Council is a major advance.
In the early 1990s, the mention of a link between human rights and the environment raised eyebrows in many circles. Today, that’s no longer the case. Instead, the international community and the Independent Expert have moved on to other questions, such as: what is the precise legal relationship between human rights and the environment? In his comments before the Human Rights Council, Knox described an urgent need for such clarification, saying it was necessary “for States and others to better understand what those obligations require and ensure that they are fully met, at every level from the local to the global.”
Within the arena of human rights and the environment, we have seen specific issues gain major traction over the past two decades. Take the right to water. A recent seminar organized with Prof. Mathias Risse of Harvard Kennedy School and Sharmila Murthy of the Carr Center for Human Rights Policy shows just how many disciplines (law, philosophy, urban planning, geography, engineering, public health and economics) today think about the right to water. We designed the seminar to provoke debate and discussion around four themes: nature of the rights to water and sanitation; content of the human rights to water and sanitation; strategies for accountability; and community perspective and bottom-up critique of human rights. It did just that. Our final report from the seminar shows just how far the discourse around human and the environment has come.