Summary of Wednesday Activities
Yesterday I attended two thought-provoking sessions on supply chain issues - the first on tackling human trafficking, the second on addressing surprises and planning for future issues. I am writing something up that will be more substantial than a summary blurb and will post it next week. I hope you read it and let me know what you think. In the meantime, BSR can be found on twitter @BSRNews and conference hashtag #BSR12.
Thursday
Thursday begins with presentations by International Photographer Platon and Leontino Balbo, Jr., Head of Native Organic Products. For the morning breakout
session, I'll be attending "Reaching Into the Root of Supply Chains: Perspectives From an End User" with Barry Parkin, Global Commercial VP for the Mars Chocolate division of Mars, Inc (@MarsGlobal). In the afternoon, I'll be attending a 2-hour working session "Sustainability and Leadership Competencies." The day ends with Plenary Speaker Anne-Marie Slaughter (@SlaughterAM), Professor of Politics and International Affairs at Princeton University.
As always, feel free to tweet or DM questions to me at @CSRBella.
Thursday, October 25, 2012
Tuesday, October 23, 2012
I'm at a Conference! (Tuesday Update/Wednesday Preview)
Summary of Tuesday Training Sessions
Today was very interesting. During the morning session about the UN Guiding Principles on Business and Human Rights, we discussed how to identify human rights risks and opportunities throughout the organization, the key components of an effective human rights policy, and how to use leverage (in the form of both sanctions and incentives) to convince reluctant business partners to improve conditions and behaviors. CSR leaders working in a variety of industries discussed human rights challenges they have faced and how they approached these challenges, providing some insight in to their different philosophies about the role of corporations in society. The afternoon session about Stakeholder Engagement was useful for expanding on some of these concepts, especially developing a strategy for identifying and communicating with various stakeholder groups. Proactively identifying and strategically communicating with vulnerable stakeholder groups (as well as those who hold power over them) may provide the information necessary to prevent human rights abuses from occurring. For future research, I would like to integrate these tools with ethical leadership theories and strategic organizational development.
Without getting too wonky, that's a brief rundown of today's training workshops. I hope to expand on these concepts throughout the rest of this week. BSR can be found on twitter @BSRNews and conference hashtag #BSR12.
Wednesday
Wednesday begins the conference official. After opening remarks by Aron Cramer (@AronCramer), BSR President and CEO, and presentations by Tracy Palandjian (@TracyPalandjian), CEO and Co-founder of Social Finance (@SocFinUK and @SocialFinanceUS), and Marc Bolland, CEO of Marks and Spencer (@marksandspencer), we spend the bulk of the day in breakout sessions. The morning breakout sessions present a bit of a dilemma, as I must choose between a conversation with Jay Rasulo, the CFO of The Walt Disney Company, about integrating corporate responsibility, business value, and corporate brand (full disclosure, I worked in Disney's International Labor Standards group and love the company), "Recognizing the Risks: Modern-Day Slavery and Human Trafficking in the Supply Chain," or "Beyond Incrementalism with Justin Adams." All three are consistent with my research interests and career goals, so I may be flipping some coins on this one.
The afternoon breakout sessions were just a bit easier to narrow down. I'll be attending "Hot Spots: Identifying Future Issues in the Global Supply Chain" with Helena Helmersson, the Head of Sustainability with H&M (@hm), and Amy Hargroves, CSR Manager at Sprint Nextel (@Sprint). Next I'll attend "What All Businesses Can Learn from Privately Held Companies" with Elizabeth Seeger, Principal at KKR, and Cora Olsen, ESG Data Manager and Global TBL Management at Novo Nordisk (@NovoNordisk_GA).
The day ends with Plenary Speaker José Ramos-Horta, Nobel Peace Prize Laureate (1996) and Former President, Democratic Republic of Timor-Leste.
As always, feel free to tweet or DM questions to me at @CSRBella.
Today was very interesting. During the morning session about the UN Guiding Principles on Business and Human Rights, we discussed how to identify human rights risks and opportunities throughout the organization, the key components of an effective human rights policy, and how to use leverage (in the form of both sanctions and incentives) to convince reluctant business partners to improve conditions and behaviors. CSR leaders working in a variety of industries discussed human rights challenges they have faced and how they approached these challenges, providing some insight in to their different philosophies about the role of corporations in society. The afternoon session about Stakeholder Engagement was useful for expanding on some of these concepts, especially developing a strategy for identifying and communicating with various stakeholder groups. Proactively identifying and strategically communicating with vulnerable stakeholder groups (as well as those who hold power over them) may provide the information necessary to prevent human rights abuses from occurring. For future research, I would like to integrate these tools with ethical leadership theories and strategic organizational development.
Without getting too wonky, that's a brief rundown of today's training workshops. I hope to expand on these concepts throughout the rest of this week. BSR can be found on twitter @BSRNews and conference hashtag #BSR12.
Wednesday
Wednesday begins the conference official. After opening remarks by Aron Cramer (@AronCramer), BSR President and CEO, and presentations by Tracy Palandjian (@TracyPalandjian), CEO and Co-founder of Social Finance (@SocFinUK and @SocialFinanceUS), and Marc Bolland, CEO of Marks and Spencer (@marksandspencer), we spend the bulk of the day in breakout sessions. The morning breakout sessions present a bit of a dilemma, as I must choose between a conversation with Jay Rasulo, the CFO of The Walt Disney Company, about integrating corporate responsibility, business value, and corporate brand (full disclosure, I worked in Disney's International Labor Standards group and love the company), "Recognizing the Risks: Modern-Day Slavery and Human Trafficking in the Supply Chain," or "Beyond Incrementalism with Justin Adams." All three are consistent with my research interests and career goals, so I may be flipping some coins on this one.
The afternoon breakout sessions were just a bit easier to narrow down. I'll be attending "Hot Spots: Identifying Future Issues in the Global Supply Chain" with Helena Helmersson, the Head of Sustainability with H&M (@hm), and Amy Hargroves, CSR Manager at Sprint Nextel (@Sprint). Next I'll attend "What All Businesses Can Learn from Privately Held Companies" with Elizabeth Seeger, Principal at KKR, and Cora Olsen, ESG Data Manager and Global TBL Management at Novo Nordisk (@NovoNordisk_GA).
The day ends with Plenary Speaker José Ramos-Horta, Nobel Peace Prize Laureate (1996) and Former President, Democratic Republic of Timor-Leste.
As always, feel free to tweet or DM questions to me at @CSRBella.
Monday, October 22, 2012
I'm Going to a Conference!
I'm going to this conference - the 20th Annual BSR (Business for Social Responsibility) Conference for sharing opportunities and challenges related to designing and implementing responsible business strategies. Here's one of those fancy promo videos:
I have a full schedule Tuesday through Friday and will share my thoughts here on the blog as well as on twitter (@CSRBella). BSR can be found on twitter @BSRNews and conference hashtag #BSR12.
Tuesday
Tuesday workshops are considered "pre-conference training" sessions. I expect they will be interactive, reducing my live-tweeting ability. The morning session I will attend is "Human Rights Due Diligence: Implementing the United Nations Guiding Principles." I look forward to the focus on implementation and integration of the guiding principles within systems and operations using interactive exercises, real-world examples, and a step-by-step approach. Should be interesting!
Tuesday afternoon, I will attend "Innovative Stakeholder Engagement" which will present methods to engage the wide range of corporate stakeholders (e.g., employees, investors, NGOs, public officials, communities, issue advocates, campaign groups) through case studies. Since stakeholder needs are rarely complementary, I look forward to insight regarding prioritizing needs so to develop proactive and effective business strategies.
That is the plan for Tuesday. If you have questions, feel free to tweet me at @CSRBella (or DM them if you are more comfortable).
I have a full schedule Tuesday through Friday and will share my thoughts here on the blog as well as on twitter (@CSRBella). BSR can be found on twitter @BSRNews and conference hashtag #BSR12.
Tuesday
Tuesday workshops are considered "pre-conference training" sessions. I expect they will be interactive, reducing my live-tweeting ability. The morning session I will attend is "Human Rights Due Diligence: Implementing the United Nations Guiding Principles." I look forward to the focus on implementation and integration of the guiding principles within systems and operations using interactive exercises, real-world examples, and a step-by-step approach. Should be interesting!
Tuesday afternoon, I will attend "Innovative Stakeholder Engagement" which will present methods to engage the wide range of corporate stakeholders (e.g., employees, investors, NGOs, public officials, communities, issue advocates, campaign groups) through case studies. Since stakeholder needs are rarely complementary, I look forward to insight regarding prioritizing needs so to develop proactive and effective business strategies.
That is the plan for Tuesday. If you have questions, feel free to tweet me at @CSRBella (or DM them if you are more comfortable).
Saturday, October 20, 2012
Silicosis is NOT Sexy
Silicosis is an incurable, irreversible, lung disease caused by inhaling dust containing free crystalline silica, often found in mining operations, quarries, and some factories. Free crystalline silica is one of the most common minerals in the Earth’s crust. Silica dust is frequently invisible to the naked eye, so light it can remain airborne for a long time, and can travel in the air or on surfaces for long distances, potentially affecting otherwise safe populations. Inhaled silica particles damage lung tissue which inhibits normal breathing. In some cases, exposure to silica dust can lead to tuberculosis. The World Health Organization (WHO) has studied and launched programs to increase awareness and preventative measures, as well as deal with the consequences of silicosis, yet incidents continue to be reported in developed and developing nations at an alarming rate.
Silicosis in the news
Mining in South Africa - A significant case of widespread silicosis occurred in the mines of South Africa during white apartheid rule, when black laborers were not provided adequate protective equipment or health care. Tens of thousands of black miners from South Africa and neighboring countries claim to have contracted silicosis and have filed several lawsuits against western mining firms operating in South Africa during those years, including AngloGold Ashanti, Gold Fields, and Harmony. Previously, South African law limited workers’ ability to sue their employers for injury or death resulting from incidents in the workplace. However, in March 2011, after a series of appeals, the Constitutional Court of South Africa ruled in favor of an original plaintiff’s right to make his claims against the company. Unfortunately, that plaintiff, Thembekile Mankayi, died of lung disease a week prior to the decision. In what many consider a breakthrough, a related case, initiated by 18 plaintiffs against AngloGold Ashanti, will have an arbitration hearing in September 2013, to be presided over by a panel of South African justices. If this case is decided in the plaintiffs’ favor, it should open the door for the tens of thousands of suffering miners and surviving families to seek recourse against negligent employers.
Denim Sandblasting in Turkey - After a doctor discovered several hundred denim factory workers suffering from silicosis, Turkey banned denim sandblasting in 2009. Many of these workers do not have health insurance; many were also working illegally and, thus, have no access to legal recourse. So far, only workers who could provide proof of legal employment have been provided with disability funds. Despite sandblasted denim bans by H&M, Levi’s, and Target, production continues and has moved to less regulated countries, including Bangladesh, China, and Egypt.
Jewelry Factories in China - In 2010, a Chinese court awarded damages to six jewelry factory workers who contracted silicosis in their workplace. The court victory also provides precedence for other factory workers seeking damages against their employers in compensation for injury or illness resulting from violation of Chinese labor law occupational health and safety clauses.
Stone Quarries in Egypt - Silicosis has not been widely discussed related to Egypt’s numerous quarry operations (yet… post-Mubarak Egypt is working through other, more immediate, labor issues, such as wages and health insurance), however a quick scan through these pictures gives an idea as to the volume and pervasiveness of the dust produced. The workers, many of them children, are not wearing any respiratory protective equipment so they are at high risk due to prolonged exposure. Also, the dust on their clothing may be transported back to their homes and neighborhoods for others to breathe. Of course, these quarry-related issues also exist in countries other than Egypt.
How to prevent exposure
As you might imagine, limiting (let alone preventing) exposure to a dust that is often not visible presents certain challenges. WHO recommends various practices be implemented in workplaces, including making changes to production processes to reduce dust creation, installing improved ventilation systems to pull dust away from workers, providing respiratory and other personal protective equipment (as well as training for proper use and maintenance), and implementing environmental protections to prevent spread of dust outside the production areas.
What is being done?
I’m in the process of reviewing various non-governmental organization (NGO) and corporate Corporate Social Responsibility (CSR, or equivalent) reports to determine the extent of silicosis disclosures. So far, response appears to be limited to discussions about silicosis prevention (Fairmount Minerals) and acknowledgement of silicosis as a significant workforce health issue (AngloGold Ashanti Limited). As I find more information and report disclosures, I will update this post accordingly.
Of course, silicosis is just one of many workplace-related hazards that can be limited or avoided using stronger targeted regulations and proactive CSR initiatives to protect workers around the world. When companies say their international operations are contributing to a better life in foreign countries, I believe it is important to consider whether they are taking a proactive approach to these issues. If they haven’t evaluated the need for personal protective equipment or other safety measures, and if they haven’t included some form of health-care and retirement benefits, these companies are likely generating limited short-term benefits in exchange for long-term damage.
Silicosis in the news
Mining in South Africa - A significant case of widespread silicosis occurred in the mines of South Africa during white apartheid rule, when black laborers were not provided adequate protective equipment or health care. Tens of thousands of black miners from South Africa and neighboring countries claim to have contracted silicosis and have filed several lawsuits against western mining firms operating in South Africa during those years, including AngloGold Ashanti, Gold Fields, and Harmony. Previously, South African law limited workers’ ability to sue their employers for injury or death resulting from incidents in the workplace. However, in March 2011, after a series of appeals, the Constitutional Court of South Africa ruled in favor of an original plaintiff’s right to make his claims against the company. Unfortunately, that plaintiff, Thembekile Mankayi, died of lung disease a week prior to the decision. In what many consider a breakthrough, a related case, initiated by 18 plaintiffs against AngloGold Ashanti, will have an arbitration hearing in September 2013, to be presided over by a panel of South African justices. If this case is decided in the plaintiffs’ favor, it should open the door for the tens of thousands of suffering miners and surviving families to seek recourse against negligent employers.
Denim Sandblasting in Turkey - After a doctor discovered several hundred denim factory workers suffering from silicosis, Turkey banned denim sandblasting in 2009. Many of these workers do not have health insurance; many were also working illegally and, thus, have no access to legal recourse. So far, only workers who could provide proof of legal employment have been provided with disability funds. Despite sandblasted denim bans by H&M, Levi’s, and Target, production continues and has moved to less regulated countries, including Bangladesh, China, and Egypt.
Jewelry Factories in China - In 2010, a Chinese court awarded damages to six jewelry factory workers who contracted silicosis in their workplace. The court victory also provides precedence for other factory workers seeking damages against their employers in compensation for injury or illness resulting from violation of Chinese labor law occupational health and safety clauses.
Stone Quarries in Egypt - Silicosis has not been widely discussed related to Egypt’s numerous quarry operations (yet… post-Mubarak Egypt is working through other, more immediate, labor issues, such as wages and health insurance), however a quick scan through these pictures gives an idea as to the volume and pervasiveness of the dust produced. The workers, many of them children, are not wearing any respiratory protective equipment so they are at high risk due to prolonged exposure. Also, the dust on their clothing may be transported back to their homes and neighborhoods for others to breathe. Of course, these quarry-related issues also exist in countries other than Egypt.
How to prevent exposure
As you might imagine, limiting (let alone preventing) exposure to a dust that is often not visible presents certain challenges. WHO recommends various practices be implemented in workplaces, including making changes to production processes to reduce dust creation, installing improved ventilation systems to pull dust away from workers, providing respiratory and other personal protective equipment (as well as training for proper use and maintenance), and implementing environmental protections to prevent spread of dust outside the production areas.
What is being done?
I’m in the process of reviewing various non-governmental organization (NGO) and corporate Corporate Social Responsibility (CSR, or equivalent) reports to determine the extent of silicosis disclosures. So far, response appears to be limited to discussions about silicosis prevention (Fairmount Minerals) and acknowledgement of silicosis as a significant workforce health issue (AngloGold Ashanti Limited). As I find more information and report disclosures, I will update this post accordingly.
Of course, silicosis is just one of many workplace-related hazards that can be limited or avoided using stronger targeted regulations and proactive CSR initiatives to protect workers around the world. When companies say their international operations are contributing to a better life in foreign countries, I believe it is important to consider whether they are taking a proactive approach to these issues. If they haven’t evaluated the need for personal protective equipment or other safety measures, and if they haven’t included some form of health-care and retirement benefits, these companies are likely generating limited short-term benefits in exchange for long-term damage.
Thursday, October 18, 2012
Chocolate is Sexy...
Now that I have your attention…
At a conference next week, I will attend a presentation by a major chocolate producer regarding sustainable global supply networks. In preparation, I thought I'd gather my thoughts and some recent reports about major cocoa sourcing issues:
In September 2001, the Harkin-Engel Cocoa Protocol, designed to eradicate child labor from cocoa fields supplying chocolate manufacturers, was signed in to law. During the past eleven years, the terms of the Harkin-Engel Cocoa Protocol have been watered down substantially and many of those terms that remain still have not been met by the major chocolate manufacturers. About 75% of the world’s cocoa is grown in West Africa, mostly the Ivory Coast, on small farms. Hundreds of thousands of children continue to work in cocoa fields, many harvesting cocoa beans using machetes, considered one of the worst forms of child labor by the UN due to potential injury.
In case you missed them, the CNN Freedom Project put together a fantastic series of investigative reports about child labor in the cocoa supply chain. Check them out for a fairly authentic picture of conditions for children working on cocoa farms and some insight as to why the issue is so pervasive in the Ivory Coast, specifically. This link will take you to their first report.
The following major chocolate manufacturers took significant steps this year toward meeting their obligations under the Harkin-Engel Cocoa Protocol, with a new 2020 target date.
Mondelez (Cadbury & Milka combined global market share 15.2%*)
Mondelez is the newly spun-off snack foods division (as of October 2, 2012), formerly part of Kraft, which includes chocolate products under the Cadbury label. Mondelez is the only major chocolate manufacturer that has not made a sustainable cocoa sourcing pledge. Since 2008, Cadbury has committed approximately $70 million to a Cocoa Partnership devoted to improving farming practices at source farms in Ghana, India, Indonesia, and the Caribbean. The program does not include farming operations in Ivory Coast, which Kraft claims were included in a separate initiative working in cooperation with the Ivorian government. Although Kraft, now Mondelez, claims they are the largest purchaser of certified cocoa, the amount relative to total cocoa purchasing is unclear and estimated at about 11%.
Mars (global market share 14.6%*)
Mars joined the pledge to end child slavery [FR] in their cocoa farming supply chain by 2020, along with the Nestle, Hershey, and other major global manufacturers. With a target of more than 20% certified cocoa purchases (about 90,000 metric tons) during 2012, Mars will become the largest user of certified cocoa in the world.
Nestlé (global market share 12.6%*)
During early 2012 Nestlé signed on with the Fair Labor Association (FLA) and the first project examined labor conditions in Nestlé’s cocoa supply chain in the Ivory Coast. The FLA report determined child labor exists pervasively within cocoa production in the Ivory Coast (and other African nations). In response, Nestlé developed a Cocoa Plan which includes revising their supplier code of conduct to specifically address sustainable methods for eradicating child labor from cocoa farming. The FLA will monitor progress toward goals set within the plan.
On a related note, Nestlé sponsored the September 2012 CSV (Creating Shared Value) forum “The Role of Business in Food Security and Nutrition.” Presentations and other content may be accessed through free registration.
Hershey (global market share 6.7%*)
Hershey is the latest to commit to eradicating child labor in their cocoa supply chain by 2020. This announcement can be interpreted as the result of successful targeted consumer campaigns. In August, a group of privately-owned grocers expressed concern about carrying high-end Hershey products, due to the company’s lack of responsiveness on the topic of child labor in West Africa cocoa farming. Then, in early October, the Whole Foods chain of grocery markets declared they would stop carrying the same high-end Hershey labels in response to customer complaints about Hershey’s refusal to address child labor. In addition to initiatives targeted toward moving children from cocoa fields in to schools, Hershey’s plans to expand Cocoa Link and Learn to Grow programs. These programs are designed to increase cocoa farming yields through teaching sustainable farming practices.
The above is merely background and current status of major chocolate manufacturers directly pertaining to the issue of eradicating child labor from the cocoa supply chain. I anticipate I’ll have additional thoughts after the conference.
In addition to those discussed above, I am including links to a couple organizations with targeted campaigns or programs aimed at eradicating child labor from cocoa supply chains in Ivory Coast, Western Africa, and beyond:
- ILRF Cocoa Campaign – includes a breakdown of major chocolate manufacturer commitments
- Slave Free Chocolate – includes a list of certified sourcing chocolate manufacturers
- ILO Public-Private Partnership (from September 2011)
* global market share percentages from a January 14, 2010 Bloomberg BusinessWeek report
Sunday, September 30, 2012
Human Rights, Multinational Corporations, the Supreme Court, and Your Vote
Update (10/6/2012): Based on early analysis
of oral
arguments on Monday (October 1st), it appears the Justices are not prepared to completely
restrict the jurisdiction reach of ATS but rather provide some vague guidelines
or limitations
for when it might be applied to extraterritorial human
rights violations. There was no indication as to whether the Justices were
also prepared to extend or restrict ATS applicability to corporations. Thus, we
will all wait for the decision to be handed down in early 2013.
(original post dated September 30, 2012)
The Supreme Court of the United States (henceforth affectionately referred to as SCOTUS) will rehear arguments tomorrow (October 1, 2012) regarding Kiobel v. Royal Dutch Petroleum, a federal lawsuit originally filed in 2002 by twelve Nigerians, including Esther Kiobel, against Royal Dutch/Shell (a British/Dutch oil multinational) pursuant to the 1789 Alien Tort Statute (ATS). The suit alleges from 1992 through 1995 Shell used, or was complicit to actions by, the Nigerian military to suppress resistance by activist group Movement for the Survival of Ogoni People (MOSOP) through illegal detention, torture, and extra-judicial executions. MOSOP was protesting alleged environmental damage caused by oil exploration and production operations in the Ogoni region of the Niger Delta in Nigeria. For more detailed analysis of this case, I recommend starting with this Case Profile by the Business and Human Rights Resource Centre and this Issues Brief by John Ruggie, former United Nations Secretary-General’s Special Representative for Business and Human Rights.
Nigeria? Why is this case being heard in the U.S.?
Funny you should ask, because that is the same question several of our Justices asked during the initial Kiobel hearing on February 28th. I am not a lawyer, and this gets pretty complicated, but I will do my best to give the basics, starting with the ATS. According to Dr. Ruggie and legal experts, the ATS “permits foreign nationals to bring civil suit in U.S. federal courts for violations of the law of nations and U.S. treaty obligations.” In 1980, a Federal Court of Appeals ruled that U.S. jurisdiction under ATS could be applied to a torture case that occurred in Paraguay because the accused was found living in New York City. During the mid-1990s, human rights lawyers were somewhat successful in extending the ATS to sue corporations as “legal persons.” As a result, charges have been brought against several corporations for complicity in human rights violations and many of those cases settled prior to a court challenge regarding jurisdiction.
Kiobel is the first of these cases to come before SCOTUS after an appeals court determined international law was not clear regarding whether corporations could be sued for human rights violations. Thus, Kiobel was to be heard by SCOTUS on that question: whether ATS applied to corporate entities (as legal persons) or only to human beings (as natural persons). However, Justices Kennedy, Alito and Roberts were more focused on the issue of extraterritorial reach, that is: “Whether and under what circumstances the Alien Tort Statute allows courts to recognize a cause of action for violations of law of nations occurring within the territory of a sovereign other than the United States.” Since this specific question was not included in the original SCOTUS hearing briefs, the February hearing was postponed, allowing all sides to prepare to address extraterritorial jurisdiction. Therefore, we do not know yet if the case can be heard in the U.S. and we do not know if SCOTUS will address the original question of applicability to corporations.
Not to sound melodramatic, but the decisions on these questions, when and if they come, will impact current and future attempts by countless victims to seek legal remedy for human rights abuses perpetrated against them, their loved ones, and their communities. For many reasons (including, for example: weak or nonexistent legal system, lack of infrastructure and resources, use of threats and intimidation, and general corruption in the country where abuses occurred), a lawsuit filed in the U.S. pursuant to the ATS may be their only legitimate option. For those wishing to read something more detailed, I recommend this legal analysis by Lyle Denniston over at SCOTUSblog. I’ve also included a link to all the briefs at the top.
Corporations are people, my friend?
For their part, Shell’s defense briefs indicate the company will not be satisfied with mere case dismissal and are instead aiming to take the bite out of the ATS, claiming lawsuits like Kiobel provide “a platform for plaintiffs or their proxies to engage in aggressive public-relations campaigns that inflict significant reputational harm on corporate defendants.” I am unaware of any such lawsuits and equally unaware of these types of alleged PR strategies, so am unable to opine about the validity of this claim. However, based on my experience, there are several more efficient and cost-effective ways to destroy a corporate reputation than a ten-year legal battle (if that were your goal). Shell’s defense brief continues: “Indeed, the mere filing of an ATS suit can have an adverse effect on a company’s stock price and debt rating.” These briefs are written for SCOTUS and legal scholars, so I will ignore what appears to be vacuous insensitivity toward the serious human rights abuses alleged in this case in favor of complaints about financial matters. I will, however, point out the confusion that would likely occur throughout the judicial system if short-term financial benchmarks are considered justifiable cause for denying a case be filed against any entity, corporate or human. As for any long-term "reputational damage", I can think of a few fantastic ways to repair or avoid this, but more on that at a later date.
It is worth noting here, if the Court finds that ATS is not applicable to corporations, many legal scholars will be examining and analyzing how the Justices reconcile that decision with the Citizens United decision, in which the Court held that corporations have First Amendment rights as if they are natural persons.
What's my point?
What is my point? Well, for one, SCOTUS decisions matter within and beyond our shores. For another, due to the age of several Justices, the next President will likely have the opportunity to shift the direction of the Court in a decisive way with long-term impact. Your vote matters.
On his September 28th Hardball, Chris Matthews discussed the potential changes to the Court under a 2nd Obama term vs. a Romney administration(with Jeffrey Toobin and Sam Stein):
Chris Hayes at MSNBC devoted a significant portion of his show to SCOTUS and what is at stake in this Presidential election. I highly recommend watching all eight segments if you haven't already. I posted the opening segment below (with Jeffrey Toobin, Barbara Arnwine, Akhil Amar, and Nan Aron):
If you are interested, The Nation magazine has devoted an entire issue to the Supreme Court.
(original post dated September 30, 2012)
The Supreme Court of the United States (henceforth affectionately referred to as SCOTUS) will rehear arguments tomorrow (October 1, 2012) regarding Kiobel v. Royal Dutch Petroleum, a federal lawsuit originally filed in 2002 by twelve Nigerians, including Esther Kiobel, against Royal Dutch/Shell (a British/Dutch oil multinational) pursuant to the 1789 Alien Tort Statute (ATS). The suit alleges from 1992 through 1995 Shell used, or was complicit to actions by, the Nigerian military to suppress resistance by activist group Movement for the Survival of Ogoni People (MOSOP) through illegal detention, torture, and extra-judicial executions. MOSOP was protesting alleged environmental damage caused by oil exploration and production operations in the Ogoni region of the Niger Delta in Nigeria. For more detailed analysis of this case, I recommend starting with this Case Profile by the Business and Human Rights Resource Centre and this Issues Brief by John Ruggie, former United Nations Secretary-General’s Special Representative for Business and Human Rights.
Nigeria? Why is this case being heard in the U.S.?
Funny you should ask, because that is the same question several of our Justices asked during the initial Kiobel hearing on February 28th. I am not a lawyer, and this gets pretty complicated, but I will do my best to give the basics, starting with the ATS. According to Dr. Ruggie and legal experts, the ATS “permits foreign nationals to bring civil suit in U.S. federal courts for violations of the law of nations and U.S. treaty obligations.” In 1980, a Federal Court of Appeals ruled that U.S. jurisdiction under ATS could be applied to a torture case that occurred in Paraguay because the accused was found living in New York City. During the mid-1990s, human rights lawyers were somewhat successful in extending the ATS to sue corporations as “legal persons.” As a result, charges have been brought against several corporations for complicity in human rights violations and many of those cases settled prior to a court challenge regarding jurisdiction.
Kiobel is the first of these cases to come before SCOTUS after an appeals court determined international law was not clear regarding whether corporations could be sued for human rights violations. Thus, Kiobel was to be heard by SCOTUS on that question: whether ATS applied to corporate entities (as legal persons) or only to human beings (as natural persons). However, Justices Kennedy, Alito and Roberts were more focused on the issue of extraterritorial reach, that is: “Whether and under what circumstances the Alien Tort Statute allows courts to recognize a cause of action for violations of law of nations occurring within the territory of a sovereign other than the United States.” Since this specific question was not included in the original SCOTUS hearing briefs, the February hearing was postponed, allowing all sides to prepare to address extraterritorial jurisdiction. Therefore, we do not know yet if the case can be heard in the U.S. and we do not know if SCOTUS will address the original question of applicability to corporations.
Not to sound melodramatic, but the decisions on these questions, when and if they come, will impact current and future attempts by countless victims to seek legal remedy for human rights abuses perpetrated against them, their loved ones, and their communities. For many reasons (including, for example: weak or nonexistent legal system, lack of infrastructure and resources, use of threats and intimidation, and general corruption in the country where abuses occurred), a lawsuit filed in the U.S. pursuant to the ATS may be their only legitimate option. For those wishing to read something more detailed, I recommend this legal analysis by Lyle Denniston over at SCOTUSblog. I’ve also included a link to all the briefs at the top.
Corporations are people, my friend?
For their part, Shell’s defense briefs indicate the company will not be satisfied with mere case dismissal and are instead aiming to take the bite out of the ATS, claiming lawsuits like Kiobel provide “a platform for plaintiffs or their proxies to engage in aggressive public-relations campaigns that inflict significant reputational harm on corporate defendants.” I am unaware of any such lawsuits and equally unaware of these types of alleged PR strategies, so am unable to opine about the validity of this claim. However, based on my experience, there are several more efficient and cost-effective ways to destroy a corporate reputation than a ten-year legal battle (if that were your goal). Shell’s defense brief continues: “Indeed, the mere filing of an ATS suit can have an adverse effect on a company’s stock price and debt rating.” These briefs are written for SCOTUS and legal scholars, so I will ignore what appears to be vacuous insensitivity toward the serious human rights abuses alleged in this case in favor of complaints about financial matters. I will, however, point out the confusion that would likely occur throughout the judicial system if short-term financial benchmarks are considered justifiable cause for denying a case be filed against any entity, corporate or human. As for any long-term "reputational damage", I can think of a few fantastic ways to repair or avoid this, but more on that at a later date.
It is worth noting here, if the Court finds that ATS is not applicable to corporations, many legal scholars will be examining and analyzing how the Justices reconcile that decision with the Citizens United decision, in which the Court held that corporations have First Amendment rights as if they are natural persons.
What's my point?
What is my point? Well, for one, SCOTUS decisions matter within and beyond our shores. For another, due to the age of several Justices, the next President will likely have the opportunity to shift the direction of the Court in a decisive way with long-term impact. Your vote matters.
On his September 28th Hardball, Chris Matthews discussed the potential changes to the Court under a 2nd Obama term vs. a Romney administration(with Jeffrey Toobin and Sam Stein):
Chris Hayes at MSNBC devoted a significant portion of his show to SCOTUS and what is at stake in this Presidential election. I highly recommend watching all eight segments if you haven't already. I posted the opening segment below (with Jeffrey Toobin, Barbara Arnwine, Akhil Amar, and Nan Aron):
If you are interested, The Nation magazine has devoted an entire issue to the Supreme Court.
Sunday, August 19, 2012
Update
So obviously I didn't blog during Comic-Con, but I did take some fantastic pictures (all of which can be found here). My random thoughts during the Con seemed to make their way to Twitter, but lack of sleep and connectivity made blogging more difficult venture, for me anyway. I know other people do it successfully, so will try to blog something less ambitious next time.
I am currently working on a post related to a Strategic Management paper I had hoped to "finish" today. Looks like life events will delay that to tomorrow, at which point I shall post a specific portion of the paper. The purpose of this is (a) this section of the paper has been particularly troublesome, thus I am looking for comment of really any type and (b) this is a test for what I plan to do with equally troublesome portions of my literature review, which I am trying to "finish" by the end of August. So stay tuned...
I am currently working on a post related to a Strategic Management paper I had hoped to "finish" today. Looks like life events will delay that to tomorrow, at which point I shall post a specific portion of the paper. The purpose of this is (a) this section of the paper has been particularly troublesome, thus I am looking for comment of really any type and (b) this is a test for what I plan to do with equally troublesome portions of my literature review, which I am trying to "finish" by the end of August. So stay tuned...
Subscribe to:
Posts (Atom)