In “Challenging Corporate Power,” Gearóid Ó Cuinn and Miriam Saage-Maaß, both human rights lawyers, discuss how to use human rights litigation to challenge corporate power. They emphasize using a systemic approach that combines the protection of individual rights with collective action in order to address global crises such as climate change and inequality. They advocate for innovative legal strategies to reframe how corporate responsibility is understood and to hold states, corporations and other intermediary actors accountable for human rights violations within global production networks.

What are the problems with our global economy? And how does law play a role in creating these problems?

● M.S.

Gearóid, we both are lawyers who chose to work on human rights and international law. But instead of following a more traditional career path in academia or in one of the international institutions, both of us are working in civil society organizations that take a transnational approach to human rights litigation, representing communities and individuals affected by human rights violations in European jurisdictions. We both not only address the responsibility of state actors, but also focus on the role of corporations in particular. Over the last 15 to 20 years, quite a bit of progress has been made in terms of marginalized groups using strategic litigation as an avenue for seeking justice. I am very glad that we can talk today about challenging corporate power through human rights, as well as the ambiguities and complexities of taking legal action. I’m also looking forward to discussing how we can contribute to challenging the systemic problems of corporate power.

● G.C.

Miriam, I’d like to kick us off by thinking about how to describe the current state of our ecosystems and the global economy.

● M.S.

It’s almost commonplace to say it: we are facing multiple crises. Something that people living in countries in the so-called Global South are already acquainted with is also becoming a reality for those of us living in Europe. Beyond the climate crisis and ecological degradation on a massive scale, we have just come out of a pandemic. On the one hand, the pandemic demonstrated how interconnected the world is. On the other, it exacerbated inequalities within states and at the global level. Europe and North America, for example, were unwilling to share their vaccines with the rest of the world at scale. This was a watershed moment, which once again revealed colonial legacies and Western hypocrisy. At the same time, financial markets continue to grow, and the digital world is developing at breakneck speed – all as if there were no planetary boundaries or increasing social destitution. We see an accumulation of wealth and economic and political power concentrated in the hands of very few individuals, who are skilled at avoiding accountability. In this rather dystopian scenario, what can human rights do, Gearóid? What is the role of law in all of this?

● G.C.

Well, the first thing that comes to my mind is how the current economic system is composed of two distinct realities. When it comes to generating profits for one group of people, money and capital move freely, especially when this concerns the extraction of wealth from the Global South. Poorer communities face a completely different set of circumstances, characterized by immobility, where things like pollution, violence and injustice stubbornly haunt their everyday space. You don’t have to try hard to find examples of this. We are currently working with the indigenous population in West Papua, where the Indonesian government has made it far too dangerous even for visitors to attempt to document the impacts of the mining industry, which include extrajudicial killings, land-grabbing and chronic pollution. At the same time, we see the rapid export of these commodities into our markets, bringing eye-watering profits supercharged by our bond markets. So, there’s a kind of paradoxical relationship between these two realities that ultimately produces deep inequalities. And our systems, be they economic, political or legal, do nothing to stop this. In fact, they assist. This is what is contributing to the climate and ecological catastrophes that we find ourselves facing.

● M.S.

And you see this, too, even in the renewable sector. I recently overheard business people talking about the green energy transition. They pretend as if we just need to switch our economy to “carbon-neutrality” and then we can keep on going the same way we have over the last 200 years. But, given our planetary boundaries and current social inequalities, we would simply continue to destroy the ecological world as we know it. I mean, we’re facing a huge catastrophe, and these business people just want to pivot to new technologies without considering what this means for countries where resource extraction is actually taking place. There’s such a disconnect. They don’t want to exploit the Niger delta anymore for oil. But, they’re happy to ramp up extraction in the mines of Democratic Republic of Congo, Chile and elsewhere to furnish the minerals needed for electric cars and wind and solar power. But, in fact, it’s clear we can’t maintain this consumerist way of life, where everyone needs to have a car – even if it’s electric. If we keep on like this, the world will collapse, and we will collapse along with it. Yes, I know this sounds very dystopian.

● G.C.

Yes, even in this greener model of our economic system that you sketched out, capital is still given a one-way street with few impediments. Businesses gain easy access to extract raw materials and bring them to market, while those seeking fairness, equity or some measure of accountability for wrongdoing face a gauntlet of red tape and legal hurdles. And coming back to your question about the role of law – it’s very much part of the problem, designed by the powerful to protect the powerful. Law structures both sides of this extractive economic system, but nonetheless, it still contains the potential to challenge the status quo.

● M.S.

This reminds me of a term I’ve been using recently: “organized irresponsibility.” You often encounter the notion that neoliberalism is all about liberating economic exchange from state regulation. Yet, when you look more closely, there is actually quite a lot of regulation that enables precisely this free flow of capital in the interest of very few entities. These injustices are organized through law, whether we’re speaking of corporate law, tax law or some other body of law. And this is why I think it’s important to approach economic injustice with a human rights framework. We need human rights and social rights law to expose and counterbalance the legal landscape of economic power. I think that’s the main purpose of what we’re trying to do as progressive lawyers. When law facilitates the accumulation of wealth, as well as economic and political power, then we need to mobilize human rights law to create space for those that are marginalized and exploited. Those who do not profit from the current system need avenues to demand a different life, a different way of running their economy or pursuing development. Making a human rights claim can help to create a counter-narrative. It makes the contours of the economic system of power more visible, which is often the first step toward envisioning an alternative. Some scholars say that human rights carry a promise as to how the world could be different – they have utopian potential. Even if it may not be possible for human rights to be fully realized, they provide a language for individuals, as well as for communities, to claim their interests and proclaim their vision of a dignified life in opposition to the current hegemonic economic model.

The emancipatory promise and the ambiguities of human rights

● G.C.

I think it’s key that you just mentioned how human rights claims can also be harnessed by communities to claim their interests, as this goes against what some critics of human rights law argue. They tend to say that human rights law is overly focused on Western conceptions of individual rights, and that this “individualization” reduces complex social issues like poverty and inequality to isolated incidents of individual rights violations. It seems like you’re suggesting instead that human rights can actually provide a different path toward collective action.

● M.S.

I think they can, and this is definitely something I think we should aim for, but maybe let’s first discuss this criticism of human rights law that you brought up.

● G.C.

Well, scholars suggest that, when looking at a particular problem or complex of problems through the lens of human rights, the bigger picture tends to become more fragmented. Rights in a classic liberal sense force us to focus on a particular story, in which a certain individual has rights. Typically, there are these sets of protections that protect your right to life, your privacy, your family life, and they tend to be more on the civil and political end of the spectrum, as opposed to the social and economic. But the reality is that the system is attacking, inhibiting and undermining the social and economic fabric of our lives – such as the capacity to ensure adequate water supply, housing or food. Similarly, when individuals from the Global South take legal action in a European setting to address harms experienced by their communities, they can only claim individual civil and political rights in that specific jurisdiction. The ability of the court to look beyond its home jurisdiction is extremely limited, and it can only reach across borders in exceptional circumstances. If you’re interested in taking a global view, your hands are tied behind your back due to these inherent limitations and this individualizing aspect of human rights law. Critics say this has the effect of fragmenting agency and undermining communal action. I believe that in order to properly address this criticism, we need to find ways to continuously reflect on these pitfalls and consciously avoid them in our practice. This requires innovation and the exploration of other domains of law beyond those which explicitly protect human rights.

● M.S.

Right, but this individualization also cuts both ways. Not only the affected party or victim is individualized. The harm-doer is also reduced to a singular entity – this one specific subsidiary of a major energy corporation, or that mining company, which is incorporated in one specific jurisdiction – as opposed to seeing the harm-doer for what it is in reality: a larger complex of powerful economic forces.

● G.C.

This is the bipolar legal framework as we know it. You have two entities, the harm-doer and the individual or the entity that is affected. This framework is often ill-equipped to bring justice to complex social and economic networks and realities. In a complex situation, each actor, each piece of the puzzle, is reduced to one of these two poles and isolated within a singular country or jurisdiction. This generates significant barriers to accountability. So, we have to be extremely conscious of this when thinking collectively and globally if we are to change, or at least challenge, the course of the current system, which, as you correctly point out, will continue to move in the same destructive direction if given the opportunity. So, the question becomes, how can law play a role there? And I think, Miriam, we would be in agreement that there is some potential for law, but it won’t solve everything. Would that be fair to say?

● M.S.

Yes, absolutely, if we take the thesis of Katharina Pistor and others seriously that it is law which enables corporations and financial institutions to extract so much wealth and to destroy so much of the environment, along with human life and dignity. Then, it seems to me beyond question that law would also be part of a solution. So, then the question would probably rather be: is litigation or bringing individualized claims the solution? Or do we need different approaches toward making human rights claims?

● G.C.

Are you asking if legal action inherently limits us to this individualized pathway?

● M.S.

Exactly. Is all litigation necessarily individualized? To some extent, yes. Because you need to adhere to legal frameworks and formal procedures – as you described earlier – that are already shaped in this way. But, I think if litigation is done in a clever way, then it does not necessarily need to be individualized in every case. Even if we have to frame a certain problem as a case brought by individual A against entity B, there are ways to rise above these procedural requirements of liberal legal systems.

● G.C.

There are scholars and activists, who advocate for a more holistic and community-centered approach to human rights practice, one that acknowledges the interconnections between individual and collective rights and that also takes into account the broader social, economic and political contexts in which rights violations occur. Such an approach seeks to combine the protection of individual rights with efforts to address structural inequalities and to promote social justice on a systemic level. If used strategically, human rights law serves as a powerful tool for advocacy and mobilization. It provides a language and framework that activists, organizations and affected communities can use to mobilize for social change. We should be imagining comprehensive approaches that combine legal strategies with other forms of resistance. Human rights law and practice is after all just one tool among many in the pursuit of structural justice. The reality is that legal action and advocacy often only succeed if combined with grassroots mobilization, policy reforms and transformative social movements.

● M.S.

The approach you were just describing is definitely the approach that we at the European Center for Constitutional and Human Rights (ECCHR) continue to build upon.

● G.C.

Can you expand on this approach at ECCHR?

● M.S.

Well, just take the example of the civil compensation litigation of four Indonesian islanders that we are supporting. The community living on the island of Pari, which is located off the coast of Jakarta, is existentially threatened by climate change and the impacts of rising sea levels. The lowlying parts of the island are often flooded, fresh water supplies are contaminated by salt water, the tides have become less predictable, while the main sources of income for people on the island – fishing and tourism – have become less stable. They are bringing a claim against the Swiss multinational cement firm Holcim in Swiss courts, demanding that Holcim pay its fair share for its contribution to the global climate crisis. They need to adhere to the legal form of Swiss civil procedure, so they are bringing individual claims for compensation and preventative measures under Swiss civil law, claiming a violation of their property and personality rights. Over the course of several days, my colleagues and I discussed with them why it is necessary to frame the losses that the community is facing as individual claims, in order to access Swiss courts. From what I can tell, they considered the pros and cons of this and decided on selecting four members of their community to act as individual claimants. They do not see themselves as individualized by the law. In reality, the four claimants understand themselves as representatives of their community, whose existence is threatened by climate change-induced rising sea levels. And, maybe in this way, the legal procedures even help transform these individuals into political representatives in the public eye – in this case, political representatives of a disappearing place.

● G.C.

That is a great example of how certain legal procedures can actually be used to channel a collective approach for an impacted community. It’s almost as if you’re saying that because the law will only address damage to a community when it’s expressed by individuals, then these individuals become community representatives – or maybe even political representatives in a certain sense. At the Global Legal Action Network (GLAN), this is something we try to do as well. If the law makes us adhere to certain procedures, then we try to use those procedures to illuminate a problem differently or reframe the narrative. For example, we were part of a coalition that addressed Ireland’s aggressive approach toward profitshifting away from poorer countries, arguing that it violates the rights of children in places like Ghana by robbing them of much-needed tax windfalls, which has a direct impact on child mortality rates and well-being there. Thanks to this work, the UN Committee on the Rights of the Child agreed to examine the impacts of Ireland’s tax policies on the rights of children abroad, shining an important light on the human rights impacts that tax avoidance has on future generations. In other words, tax avoidance looks much less benign when it’s seen as a cause of child mortality, and this changes how we think about it. With the right strategy, sometimes it’s possible to use legal procedures to tell a completely different story that can have significant political ramifications.

● M.S.

Exactly! Instead of seeing legal procedures only as a set of restrictions or as something that limits what can be said and how – the criticism of human rights law you mentioned before – we can actually use them in certain cases to tell a different story and reframe the narrative. And this reframing is powerful because it’s not fictional – its building blocks are legal facts. This insight is also crucial because of how it became part of our strategic toolkit. Various academic circles could capture a lot about what was wrong with human rights litigation, but they couldn’t really provide us with much of a roadmap for how progressive lawyering should surmount these obstacles, especially at the transnational level. The criticism was necessary, but shed no light on how to unlock the potential of law or how to operationalize these critical insights. Without this, it’s quite easy to talk ourselves into a static position of inaction.

● G.C.

I agree, and I think if you look at the history of how transnational legal interventions began to happen, it is clear they don’t really come from the side of theory. Progressive lawyers have to operate within parameters they’re given and find ways to tweak existing law to their advantage or even repurpose laws to different ends.

● M.S.

Let’s briefly touch on this history because it will illuminate where we’re coming from as progressive lawyers. I think you’re right to say that progressive lawyers have always had to find innovative ways to extend their work into transnational contexts. How would you describe how this began?

● G.C.

Operating beyond borders – well, it’s a short history, but the style and the approach has rapidly evolved. I think the initial movement into the transnational space really kicked off with the Alien Tort Statute litigation in the US in the late 1980s and early 1990s. You had this seminal case of a Paraguayan torture victim’s family who apparently recognized their son’s torturer on the streets of New York. They made approaches to civil society organizations – I think it was Amnesty International and the Center for Constitutional Rights (CCR) in New York – to see if something could be done in terms of holding this person to account within the US. I believe it started with a migration issue where the torturer had overstayed his visa, and this led to him to be detained after the family brought this to the attention of authorities. But very quickly, this little-known ancient law from 1789 was dusted off, and it stated that tortious acts in breach of the laws of nations – or in other words, international law – could be heard within the US federal court system. And this was for an act that had taken place outside of the US, which did not involve any US actor. This became the starting point for a legal conversation around transnational litigation.

● M.S.

Yes, this really inspired a whole new generation of lawyers, who also borrowed approaches from pro bono lawyering, the strategic lawyering in the domestic context of the US. Since the struggle against slavery, lawyers have played a role in advancing political movements for racial, gender and social justice, making connections between the interests of particular individuals and those of the broader community. But it was really in the early 1990s when lawyers in Europe began using the law transnationally in the interest of those who suffered human rights violations. Most prominent were the transnational criminal proceedings aimed at holding former Chilean and Argentinian dictators to account. The arrest of Augusto Pinochet in London resulting from a Spanish arrest warrant made history – similar to the litigation in the US. Also in Europe, the role of corporate actors in the commission of international crimes was a topic of interest quite early on. Just think of the Dutch prosecution against Frans van Anraat for supplying the components for producing mustard gas that enabled Saddam Hussain to carry out crimes against humanity against the Kurdish population, or criminal complaints against Mercedes-Benz managers in Argentina for their involvement in the kidnapping of trade unionists who were tortured by the junta. Also, in the US, Royal Dutch Shell was sued for the murder of Nigerian activist Ken Saro Wiwa and others.

● G.C.

These cases provided a springboard for transnational litigation, as well as an initial roadmap. At first, in these sorts of incidents, such as with the torturer from Paraguay and the Alien Tort Statute litigation, lawyers from the US would have a creative idea and say: “Hey, we’ve got a way forward, we’ve got a forum, we’ve got a way to try to hold this person to account on our own turf.” Such scenarios immediately presented the lawyers involved with a number of challenges that differ from those within domestic practice. The remoteness of lawyers from where the harms took place inevitably makes it difficult to properly understand the aspirations of affected communities. Miscommunications due to linguistic and cultural barriers may work to diminish the extent to which litigation can fully align with local long-term efforts to secure change. Combined with capacity constraints, there is a constant risk of well-meaning lawyers seeking a win in their jurisdiction, while not actually promoting the social movement beyond the horizon of the case, or ensuring that the court’s decision was actually ever implemented. In the end, within the transnational context, I think we need to see ourselves as part of an overall justice-seeking strategy that includes other elements such as advocacy, political pressure and communications, among others.

How are we trying to use the law and litigation despite their limitations?

● M.S.

What are exemplary cases of this kind of transnational human rights approach that you’re involved in? Your climate change litigation at the European Court of Human Rights?

● G.C.

That’s a good example. In this case, we at GLAN are acting on behalf of six Portuguese young people who live in a climate change hotspot and who are already experiencing heat extremes that impact everything from their ability to sleep, to play and to work. For them, climate change is not abstract; it refers directly to their current exposure to record temperatures and heightened risk of wildfires. Their individual rights are certainly affected – from their right to life, to their right to privacy, a right which covers their physical and mental well-being. Within their lifetimes, Portugal could face heatwaves with temperatures exceeding 40°C that last for over a month.

So, we are alleging that individual rights are being violated, and in the process, we aim to highlight a structural failure. For this, an argument was developed to prevent states from escaping responsibility by only adopting emissions cuts, for example, which are collectively too weak to keep us from climate breakdown. Countries often try to avoid taking strong action to reduce emissions by making two main arguments. First, they claim that their efforts alone won’t solve the climate crisis, so they shouldn’t be required to do more than the basic minimum. Secondly, they argue that there is no agreed-upon method for attributing specific amounts of greenhouse gases to specific countries and, thus, for determining their fair share of mitigation efforts.

Our case argues that when multiple countries collectively create an injury, then they can share responsi-
bility for violating legal obligations. We argue that states are obligated by the European Convention on Human Rights to rapidly reduce both emissions released within their borders, as well as the contributions they make to emissions released outside their territory. As to emissions released within their borders, the case relies on the Climate Action Tracker fair share assessments to show that if every country in the world made the same effort as any individual state, global warming would reach a catastrophic 3°C or worse by 2100. Finally, in the absence of a precise method, the responsibility should fall on the respondent countries to agree on one.

● M.S.

So, you chose a classic human rights approach – to go before the European Court of Human Rights – but you make a twist to the argument, right? The more traditional climate litigation approaches are: individual claimants go up against their own governments with the claim that these governments are not sufficiently protecting their own citizens within their territory from climate change. Here, instead, you deliberately went up against 32 member states of the European Convention on Human Rights. Why? Was this in order to show how dispersed responsibility for the climate crisis is and to highlight the necessity of joint action and systemic change at a larger regional level, and not just at the scale of one nation?

● G.C.

Exactly. It is because of the failures of all these states to sufficiently reduce their greenhouse gas emissions that you have these detrimental effects on the well-being of people in Portugal. As judgments of the ECtHR are legally binding, a legal precedent would obligate states to develop an emissions-reduction system, and to coordinate and clarify which state should do what. In other words, we would secure the equivalent of a regional treaty compelling each country to speed up their mitigation efforts. As things currently stand, it’s just left up to each state to decide for itself. In this way, the case couples an individual lens of rights violations with demands for specific, but very structural, changes that are capable of addressing the climate crisis. Here, the tactic is to use individual rights violations as a means of generating a systemic approach, which we try to pursue by widening the number of states that we make responsible for the individual rights violation. We want to show that responsibility for the climate crisis is divided between many actors, and that they all need to act in coordination. Effectively, we are making a political claim about collective rights and collective responsibility and hope to create systemic change. I guess you could call this a kind of “tactical individualization.”

● M.S.

Right, a tactical individualization. You zero in on the details of particular climate harms for people in a particular place, but you do it in a way that actually illuminates how these harms are perpetrated by a larger system of interlocking actors and enablers – in this case, the member states within the European Convention on Human Rights system. I think this is key because, as we were discussing before, individualization cuts both ways. In a bipolar legal framework, the harm-doer and the affected party are both individualized. But here, when you start the process of individualizing the harm-doer – asking questions such as: who is actually responsible for these heat extremes and wildfires, or which decision-making bodies failed to mitigate these harms – then you end up with a larger, more-intricate network of actors. In a sense, just by adhering to the rules of litigation, you are forced to put a face and a name on the harm-doer, even if that harm-doer is a complex system. So, in your climate case, you actually manage to demonstrate the complexity and still fit that complexity into the classic procedures – using features of the system to disrupt it in a certain sense.

● G.C.

Yes, and the hope is that in this way, you knock down some of the barriers to accountability we spoke of before – cases isolated in separate jurisdictions whose connection is prevented by the purposefully fragmented nature of our legal systems.

More corporate accountability is needed!

● M.S.

The case you just described concerns state obligations, but what about economic actors? I don’t always buy the argument that governments are “captured” by corporations because I think governments happily give away a lot of their functions. I would say that states turn corporations, financial institutions and other economic entities into very powerful actors that can have a lot of political influence. And if that is the case, if these private entities have been granted so much power, shouldn’t they be held to human rights standards in these respects? This is why I think it’s important to focus on corporate accountability in addition to state responsibility. This is similar to the idea introduced by the prosecutors at Nuremberg: the Nazi atrocities were not only committed by political and military leaders. Other important actors within civil society, including industrialists, were needed to actually carry out these state-organized atrocities at such a massive scale. Therefore, you also need to address these actors and their economic interests as part of the perpetration of exploitation and international crimes. In reality, of course, the prosecutors of Nuremberg were not able to fully realize this idea, but we can still learn from the principles behind it. So, beyond addressing the responsibility of states, there is value in pointing out the responsibility of companies in global supply chains and how they profit from outsourcing, production and exploitation because they are neglecting labor standards. They are neglecting environmental standards. They subcontract the responsibility to other economic entities downstream in their supply chains, but still extract the profits.

● G.C.

I agree. As our world is significantly shaped by the pursuit of business interests, businesses, due to their economic power and global reach, can have both positive and negative impacts on human rights. The concept of business and human rights began to gain traction in the 1990s, marked by concerns over labor conditions, environmental impacts and the social responsibilities of corporations. Since then, a number of assumptions have been steadily dismantled. Business and human rights are no longer seen as separate spheres with minimal overlap, and in fact, enterprises have an obligation to respect these standards. Now, the assumption that businesses are only responsible for their direct actions has been challenged by the recognition that they are embedded within complex global supply chains. Even if they don’t directly control every step of the process, businesses are still potentially implicated in harms that occur within these supply chains – something which increasingly can be leveraged to create change across different geographies.

● M.S.

What is the difference between helping companies become only a little bit better in these respects versus really changing the way they actually engage with the economy and the rest of society? I don’t think it’s fair to say that all accountability efforts only look at the “excesses” within business practices and therefore cannot make any substantial changes. Of course, some companies simply incorporate the costs that occur from litigation into their budgets. But, as you rightly said, the way business is done has changed in some industries quite a bit. There were times when textile brands claimed that knowing your supply chain would be an impossibility – not to mention contributing to improvements in the working conditions within it. Over time, due to much campaigning and public pressure from the side of labor and civil society, companies have acquired substantial knowledge, along with tools, that can contribute to improvements for workers. Now, we have a German supply chain law. There’s a similar French law. There are currently debates about implementing such a law at the EU level. These pieces of legislation create legal obligations for companies to move beyond profit and economic considerations in their business decisions. Companies are legally obliged to analyze the human rights risks within their supply chains, and they need to take effective preventative and remedial measures.

● G.C.

Similarly, in the UK, you have jurisprudence on parent/subsidiary liability, which entails that businesses are much more responsible for what’s happening in their subsidiaries, and they’re measured by their own external and internal environmental and social standards. I am also cautiously optimistic about the Corporate Sustainability Due Diligence Directive, which is currently being negotiated within the European Union. This would require large companies to conduct mandatory human rights and environmental due diligence throughout their operations and supply chains. This means that companies would have to identify, prevent and mitigate any potential negative impacts on human rights and the environment that their activities may cause. It is unclear to what extent this will apply to the financial sector, and the details are still being negotiated. Financial actors have a unique and powerful ability to persuade companies to implement standards that respect human rights, and their full inclusion is critical. In the end, the effectiveness of this law will require ongoing engagement on many levels, including beyond the courtroom, by unions, communities, politicians, government agencies and those fighting for the rights of people affected by corporate conduct in third countries.

A new approach to transnational lawyering

● M.S.

While you were describing this approach, I had to think of two concrete examples. One is the approach of the Mexican organization PRODESC that is supporting an indigenous community in their struggle against a wind energy park. The park was supposed to be built on their land, but their right to free, prior and informed consent was not respected. They pursue what they called an integral strategy, which means that the legal strategy is part of the community’s wider political strategy and is geared towards ensuring that the community’s overall interests are met, regardless of the case’s outcome. Here, the legal approach is only one of several, which is quite powerful because then you’re not entirely dependent on whether or not a court rules in your favor. This is similar to the experience we had while collaborating with Pakistani unions and the Affectees association in the case of the Ali Enterprises factory fire in Pakistan in September 2012, where 258 workers died due to lack of adequate emergency exits. This was the second example that came to mind. We worked with them to bring civil litigation in German courts against the German textile company KiK, which had been sourcing products from the factory. It was very clear that they had their own political and legal strategies with regard to the Pakistani government for improving workplace safety, and also compensating the victims’ families. They also had a negotiation strategy for compensation from KiK, in addition to the court proceedings here in Germany. For me personally, this was a very powerful experience of learning how to align legal strategies with other strategies. This really requires a different type of lawyer, with a different kind of self-understanding. For this, lawyers need more humility, in order to understand their role within a larger integrated strategy. You need to recognize the limitations and pitfalls of the law, as we outlined earlier, but not be paralyzed by them. For lawyers like us from Europe, we also need an understanding of how we are positioned in relation to those we work with. Again, this should not paralyze our efforts, but we need to grapple with the fact that we come from a situation of privilege. This should motivate us to find ways to use our privilege – our access to and knowledge about European justice systems, for example – so that we can engage in transnational struggles for justice from a standpoint of solidarity and not saviorism.

● G.C.

That’s it, yes. This really contrasts to how law is generally portrayed on television and in the news, where news headlines are typically captured by this sort of “justice-has-been-served moment” on the courthouse steps. That’s what Helen Duffy calls the “champagne moment,” when the law has triumphed and victory has been secured.

● M.S.

The heroic lawyers that fought it through.

● G.C.

Yes, these kinds of charismatic, ego-driven lawyers who doggedly pursue a case for a long time and then win despite the odds. You almost need an epiphany to realize that law will not be the silver bullet in these complex, multidimensional situations we’re talking about. Especially when you’re dealing with a supply chain, the interests and the actors are so diverse that no singular action will address or solve all the problems within this complexity of behaviors. But for a lawyer to admit that they’re not putting all their faith in the decision of a court, as you said, can be strange. Then, one might ask: why is the lawyer involved? I suppose that even while recognizing that the prospects for failure are high, there is still a power in mobilizing the lawyers, the claimants and other supporters towards that decision. It’s also the potential for success and the power that comes from tapping into the legitimacy of your claim that will continue to produce results long after the case has reached its conclusion.

● M.S.

I recently had a discussion on litigation with a group that wants to work with us. They’re sort of saying: “Okay, it doesn’t matter, we will lose the case anyways, but this is actually what we want to show. We want to show how bad the system is.” I would disagree with that. We may want to engage in cases with slim chances of winning, but not only to show how unjust the system is. Like you said, I think it’s about expressing the legitimacy of the claim. There’s a value in framing a situation in legal language, telling the stories of people and the injustices they suffer, and then asserting a claim of how things should be. This can also have effects in forums beyond legal discourse.

● G.C.

Yes, the process has a social power. You are tapping into external standards and aligning your complaint with them. But maybe even more importantly, you’re putting things in terms that other actors from other jurisdictions can understand. It’s an attempt at storytelling that can be comprehensible to the international community. And this is where I think you can unlock power – when a community is then no longer isolated in its story. It can align itself with and seek support from other NGOs or other communities facing a similar situation. If their interests are affected by the same company, for example, they can work together and present this to the media, and suddenly, it’s no longer just a domestic issue on either side. This becomes way more interesting for journalists. In what would normally only be a story about domestic labor exploitation, here such everyday exploitation is shown to have another dimension when you see it through the lens of the globalized economic system. It brings oxygen to the story.

● M.S.

Right, and another point which just occurred to me: when you have to put a claim in the form of legal language, it also allows for some play, if done in a strategic way. The form of the law actually allows claimants and corporations to be on an equal footing before the law – even though this is obviously not the case in reality. It is precisely the “fiction” of the law that portrays the mother of a victim in the Ali Enterprises factory fire in Pakistan as equal to the CEO of a large textile brand. Of course, they are not equal in any material sense, but nonetheless, she has the power to force the CEO to show up in the courtroom and defend himself against the claim. I think that in itself creates something quite powerful that I’m not exactly sure how to frame. It’s not really the law itself or the legal result. It is something sociological that’s happening.

● G.C.

Most definitely. And this again demonstrates that it’s about the story you can create through litigation. When you start to expose the inconsistencies of companies that are presenting themselves as ethical actors, this of course can have legal consequences and reputational costs that affect their ability to conduct business or attract investment. Legal storytelling fishes out very particular types of information; it’s designed in a very specific manner to have multiple future consequences. I’m now thinking about a case where we used anti-money-laundering legislation to target the importation of cotton produced with forced labor. This area of law is typically applied to target the proceeds of financial and organized crime. There have been some attempts to expand this regime of law to wildlife and the illegal timber trade, but even within these areas, consistency in the approach has been slow to emerge in practice. We challenged the notion that cotton produced by Uyghur forced labor from China should flow freely into the UK, and during the proceedings, it was accepted that such cotton could be treated as “criminal property” under the Proceeds of Crime Act. This means that anyone who is knowingly involved in the transferring, concealing or trading of these goods would themselves be committing an offense. We are interested in broadening the scope of such anti-money-laundering laws so that they may also bite into the proceeds resulting from environmental harms. This brings a criminal narrative to bear on economic actors. If successful, it would bring the risk of being branded a criminal to the doorstep of many multinational actors and their staff who enable such activity.

● M.S.

Which brings us back to tactical individualization again: using procedural restrictions to open up new areas where the law can be applied and focus on different kinds of actors.

New frontiers: Tackling economic enablers

● M.S.

So, what should be the focus of our work in the coming years?

● G.C.

We need to develop more systemic approaches. If we go back to the Alien Tort Statute litigation, there we had a bipolar or maybe even tri-polar situation. You have the harm-doer, the victim and you had a court. Now, we are contending with an array of intermediary actors and economic enablers who are part of the story: they sit between multinational corporations that take advantage of their power at the expense of ecologically rich environments and affected communities. Banks lend money to the companies which destroy communities and plunder their resources, bond and stock markets allow these companies to raise additional money, and commodities exchanges allow mined goods to be sold internationally. Auditors, accountants and lawyers facilitate and “sanitize” each interaction between these institutions and illicit commodities, which is how they end up within technology, cars and other consumer products. In other words, large-scale injustices are made possible by these economic enablers, which are constitutive elements of global economic infrastructure that provide access to legitimate international markets. For GLAN and many of our colleagues as well, there’s a growing interest in tackling these enablers. We need to address all these third parties who are complicit in many different ways and to varying degrees in the production of harm. So, I think multipolarity needs to become a feature of transnational litigation. We need to look at all of the complexities involved and tackle actors who we previously considered to be benign and transactional.

● M.S.

Yes, and for this, we need a more finetoothed political-economic analysis. The more classic approach to corporate accountability for human rights violations and environmental destruction focused on singular, disastrous events and aimed at bringing litigation against the one corporate actor that was most clearly implicated. But for a systemic approach, we need to widen our view. It’s not just about exposing, for example, the company that sources grotesque amounts of cotton connected to forced labor from Xinjiang, China. More importantly, it’s about illuminating those who are behind the mechanisms and enabling services that, with complete impunity, allow multiple companies to do this at scale. So, instead of taking what one could call a “spotlight” approach that focuses on specific events of rights violations committed by a specific actor, we should engage more in a “floodlight” approach, mapping all the relationships between economic actors that profit from environmental and labor exploitation. Here, it’s less about perpetrators and victims and much more about underlying structures, patterns and materialities that undergird how global value chains operate. With a nuanced political-economic analysis, this grid of power structures and asymmetries, which dilute how corporate actors are directly involved in producing harms, can be visualized. When we can see how all the pieces connect, then we can see where the legal choke points and vulnerabilities in global commodity and value chains lie. These become the sites where we need to apply pressure and hold the actors involved to account.

● G.C.

Systemic change requires systemic action, which means that multiple legal pressure points need to be identified and acted on in a coordinated, multipronged strategic manner. One way would be to concentrate our efforts on multiple supply chains linked to specific geographic areas, which we call “microcosms.” In essence, microcosms are situations that readily reveal global capitalism’s role in causing devastating harm to humans and the environment, often through supply chains and investment flows. Investigations of harms within these “microcosms” could reveal multiple international legal pressure points, or choke points as you call them, that can be used to target a vast array of economic enablers. In West Papua and Guinea, which I spoke of earlier, you have microcosms, where, between the harms associated with rapacious mining activities and the markets where these minerals appear, there is a complex chain of enabling actors that work to conceal or ignore said harms while maintaining the flow of profits. Our goal is to find vulnerabilities with several of these actors and launch coordinated litigation efforts in multiple jurisdictions at the same time.

● M.S.

Such an approach needs more than lawyers! It needs a consortium of people with different sets of expertise: research skills, as well as local and scientific knowledge regarding environmental and human rights impacts, economic expertise, political analysis and knowledge of how to trace financial and commodity flows. All these kinds of specific expertise need to be brought into dialogue with rights holders and their communities to develop a concerted strategy to counter corporate and financial power.

● G.C.

Yes, and this requires even more sophistication in the choreography of our legal actions at an inter-jurisdictional level. If we pace things right, a legal action in Ireland could reinforce a legal action in Germany so that, hypothetically, investigations into harms in other countries occur in a manner that will support litigation in an entirely different country, as well as international advocacy efforts. If we couple this mode of storytelling with a new type of self-understanding on the part of lawyers that we discussed earlier, I think we’ve entered the realm of systemic action. And then the question becomes whether the change that this legal work produces is radical enough.

Biographies

● Gearóid Ó Cuinn is Founding Director of the Global Legal Action Network (GLAN) and an adjunct lecturer at the Irish Centre for Human Rights. His work focuses on developing innovative legal actions across borders that challenge states and other powerful actors involved with human rights violations. For more information, visit ↘ www.glanlawhttps://.org

● Miriam Saage-Maaß is a lawyer based in Berlin and Legal Director of the European Center for Constitutional and Human Rights (ECCHR). She has more than 10 years of experience in building cases against corporate actors and holding them to account for their involvement in human rights violations globally. For more information, visit ↘ www.ecchrhttps://.eu

Sources

Duffy, Helen: Strategic Human Rights Litigation: ‘Bursting the Bubble on the Champagne Moment’, *Leiden 2017, ↘ www.universiteitleidenhttps://.nl/binaries/content/assets/rechtsgeleerdheid/instituuthttps://-voor-publiekrecht/grotius-centre/oratie-helen-duffy-spreekversie.pdf [accessed August 14, 2023].

For more information about the lawsuit by Pari island residents against the Holcim Group, visit: ↘ www.ecchrhttps://.eu/en/case/indonesia-climate-change-pari/ [accessed August 14, 2023].

For more information about the case of the Ali Enterprises factory fire, visit: ↘ www.ecchrhttps://.eu/en/case/more-for-show-than-safety-certificates-in-the-textile-industry/ [accessed August 14, 2023].

For more information about the Youth for Climate Justice case, visit: ↘ www.youthhttps://4climatejustice.org/ [accessed August 14, 2023].

Pistor, Katharina: The Code of Capital: How the Law Creates Wealth and Inequality, Princeton 2019.

Publisher

European Center for Constitutional and Human Rights eV (ECCHR)
General Secretary Wolfgang Kaleck (V.i.s.d.P.), Zossener Straße 55-58, Staircase D, 10961 Berlin, Germany,
info@ecchr.eu

Authors

Gearóid Ó Cuinn
Miriam Saage-Maaß

Editorial Manager

Rieke Ernst

Copyediting & Editorial Supervision

David Youssef

Design Concept

Nils Krüger and Maja Redlin (Print)
in collaboration with Karen Czock, Marcel Strauß and Fabian Wohlfart (Digital) as part of the Arbeitsgruppe Informationsdesign (AI)

ISBN (print)

978-3-9825802-1-0

© 2023 ECCHR and the authors. All rights reserved.