Activists seek sharp swords in human rights battle | Globalization | DW | 09.12.2013
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Activists seek sharp swords in human rights battle

Human rights sometimes suffer when companies extract oil, mine the earth or produce cheap clothing. When those affected take the matter to court, they often have little hope of compensation or support.

Human rights organizations were bitterly disappointed when the United States Supreme Court rejected legal claims made by the family of Nigerian activist Barinem Kiobel against oil multinational Shell earlier this year. Kiobel and eight other activists had been sentenced to death and executed in 1995 for protesting against oil extraction in the Niger Delta. The plaintiffs in the case had accused the company of colluding with the Nigerian government in the activists' deaths.

The Kiobel v. Shell case was prosecuted in the United States as a result of the Alien Tort Statute (ATS), which allows foreigners to seek compensation for human rights violations there, regardless of where the alleged abuses occurred. More than 100 cases have been adjudicated under ATS, including crimes committed during Apartheid-era South Africa and under Argentina's dictatorship.

The ATS had long been considered the sharp sword in the battle against human rights violations. But then the court rejected the claims in the Kiobel case, saying they lacked a strong enough connection to the US. Human rights activists are concerned that if a connection to the US is now considered important, victims of human rights abuses won't be able to count on the ATS.

High hurdles

Who should victims turn to in order to hold companies accountable for human rights abuses? Whether they advance in their own countries' courts or in those of the countries where the firms are headquartered, both avenues are difficult, says Michael Windfuhr, deputy director of the German Institute for Human Rights.

Michael Windfuhr

Windfuhr believes legal hurdles are too high for victims of human rights violations

In the German legal system, for example, non-European plaintiffs have to pay a bond equal to the defendant's expected legal costs even before the case is pursued. That could amount to hundreds of thousands of euros. "How is someone from the Niger Delta supposed to come up with that kind of money?" Windfuhr asks.

In addition, cases tried in Germany often apply the laws of the plaintiff's country of origin. "If that country is a dictatorship, it is not particularly easy to provide proof of damage."

A lawsuit filed in the plaintiff's home country can be even more difficult. Although European laws guarantee human rights, other countries - for example in Africa or South America - have weaker laws or don't enforce their laws.

But human rights victims do still have some legal recourse in Germany, says Heiko Willems of the Federation of German Industry. He describes the German legal system as "good and accessible" for foreign plaintiffs who want to sue companies over human rights violations.

In Willems' view, the reason there has never been such a case in Germany is due to the fact that, until the rejection of the Kiobel v. Shell case, it had been easier to use the ATS to prosecute abuses in US courts. Also, US courts are seen as relatively plaintiff-friendly, partly because they don't require the plaintiff to take a large financial risk.

New hope

Windfuhr hopes that the United Nations guiding principles on business and human rights will afford people who have suffered human rights abuses more opportunity to bring their cases to court. All UN countries agreed in 2011 to implement the principles. They set out new rules for states - such as requiring them to reduce barriers to lawsuits - and for companies - which are obliged not only to observe human rights themselves but to ensure that companies they partner with do so as well.

Woman sewing at a factory in Bangladesh

The hope is that human rights can be ensured all along the value chain

Windfuhr said that this may at first appear a tall task, given that many companies have thousands of suppliers and subcontractors. But if it's possible to ensure quality standards along entire supply chains, the thinking goes, it should also be possible to ensure human rights standards are upheld.

Many German companies are trying to reach this goal, Windfuhr said, "also because their employees want them to."

Binding treaty versus 'soft laws'

Heiko Willems points out that companies have an interest in assuring that human rights violations aren't associated with them, which is why they draft codes of conduct and try to impress them on suppliers. But, he added, a "company can't always be held responsible for working conditions that are in some countries worse than those in Europe." It is the job of states to provide a level playing field and improve standards, he says.

It's still not clear whether the UN principles, also known as 'soft laws,' will be effective because they are not legally binding. That's why international law expert Jochen von Bernstorff believes the answer is an internationally binding treaty that requires states to open up their civil and criminal legal systems to human rights complaints against transnational corporations. That would prevent companies in the developing world - at least in those countries party to the treaty - from gaining a competitive advantage at the cost of environmental or worker protection.

Such a treaty could also determine to what extent companies are responsible for their suppliers and sub-contractors. "It would be a relief for companies to know what they're liable for - which is at this point completely unclear," Bernstorff said.

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