Business and Human Rights in the American legal academy
As one of four Editors-in-Chief launching the Business and Human Rights Journal (BHRJ) in Geneva at the 4th United Nations Forum on Business and Human Rights, I have recently had the chance to reflect on business and human rights scholarship within the U.S. legal academy. I concluded that until recently, U.S.-based legal scholars have taken a relatively narrow approach to the topic, and that BHRJ will allow them to learn from scholars in a wide range of fields and jurisdictions.
In the 1990s, prominent American law professors including Steven Ratner, David Weissbrodt, Ralph Steinhardt and Beth Stephens, to name a few, penned some of the early and influential scholarship focusing on business and human rights. Some of the early law review articles focused on the contested issue of corporate obligations under international law. Steven Ratner argued in a seminal article in the Yale Law Journal, about the corporate duty to respect human rights. In his article in the American Journal of International Law, David Weissbrodt focused on the possibility of international human rights norms that would apply to corporations.
While some U.S. scholarship has focused on the broader issue of what obligations corporations have with respect to human rights, much of U.S. legal scholarship has looked inward. Many law review articles have focused on developing legal doctrines and tests for corporate complicity in lawsuits under the U.S. Alien Tort Statute (ATS). It is not surprising that U.S. scholars would focus on human rights lawsuits in our federal courts. Some of the first attempts at corporate accountability took place in U.S. courts with litigation under the ATS. These cases included lawsuits brought in the mid to late 1990s against companies in the extractive sector for their alleged complicity in human rights violations abroad. Key lawsuits focused on the activities of Unocal in Myanmar, Texaco in Ecuador and Royal-Dutch Shell in Nigeria. A second set of lawsuits was brought against European banks, insurance companies and corporations with respect to human rights claims focused on corporate complicity during World War II.
Even when John Ruggie was appointed as the SRSG for Business and Human Rights, in 2005 and began a multi-year process to develop the U.N. Guiding Principles on Business and Human Rights, the ATS still occupied a significant portion of the U.S legal and scholarly landscape. The U.S. Supreme Court considered the viability and application of the ATS over nearly a decade – first with Sosa v. Alvarez Machain in 2004 and then with Kiobel v. Royal Petroleum in 2013, overlapping with Ruggie’s mandate, and causing much scholarly debate.
Until recently, U.S. legal scholars did not venture much into the realm of comparative research or outside of formal litigation as the key means to victims redress. There are notable exceptions. An example of this was Beth Stephens’s excellent article Translating Filartiga, published in the Yale Journal of International Law, focused on access to civil remedy from a comparative perspective. The fact that the U.S. Supreme Court in Kiobel, narrowed the application of the ATS to corporate defendants whose actions occur outside the U.S. (based on a “touch and concern” test), may cause U.S. scholars to examine new sources and approaches to access to remedy.
The field of business and human rights scholarship has matured. There are lawyers and scholars from multiple geographies focused on the pursuit of legal remedy in other courts and fora. We have a chance to deepen our knowledge and also to expand our own thinking beyond an Amero-centric view of access to remedy. My own research has focused on the comparative nature of business and human rights. There are emerging trends that once can discern from robust studies of comparative civil and criminal law, as well as law and procedure from common and civil law jurisdictions, as well as from developed and developing countries.
We have come a long way from the early days of the ATS when a plethora of law review articles focused on tests for corporate complicity. Lawyers from around the globe are now developing new models and theories of human rights litigation as well as use of a variety of non-judicial mechanisms, rather than using U.S. courts as the sole venue for access to remedy in cases involving corporations and human rights. In France, for example, the legal ngo Sherpa, has used the partie civile process to commence civil proceedings and to also trigger criminal investigations against French companies implicated in corporate human rights abuses. In June 2005, Argentina’s Supreme Court struck down national amnesty laws, reopening the possibility of corporate human rights litigation in Argentina for abuses committed by company officers during the dictatorship period.
U.S. lawyers and scholars can benefit from engaging in comparative discourse and learning how management scholars reflect on incentives for corporate actors to embrace human rights in their business operations. Looking outward may help us to imagine and fashion new business and human rights policies and processes within the U.S.
American scholars should also consider how to make their own research relevant to a broader audience. One wonders how scholars and lawyers from outside the U.S. view law review articles focused on cases litigated under a complicated 18th century statute (the ATS) in terms of relevance to their own experiences. What does a common law doctrine of forum non-coveniens mean to lawyers in a civil law country?
Of course there is a new wave of business and human rights scholars emerging in the U.S. and in universities globally. It is my hope that they will look to the BHRJ as an authoritative source of learning and research so that the next decade of scholarship is disseminated widely among geographies. I also hope that American legal academics will venture forth and publish in the BHRJ, so that their perspectives become part of this rich unfolding debate.
Anita Ramasastry, University of Washington School of Law.