Difficult days for business and human rights in the courts

The United States Supreme Court.

This past few weeks have been tough for human rights advocates taking on companies in court. Most prominent was the United States Supreme Court decision in Kiobel v. Shell, where the Court restricted the scope of the Alien Torts Statute. Litigants had previously used the Statute to take claims against multinational corporations implicated in human rights violations around the world, but the decision now seems to restrict it to United States companies.

In France, the Versailles Court of Appeals dismissed a case against two French companies, Alstom and Veolia, arising from their involvement in the construction of a railway connecting illegal settlements in the West Bank to Israel. According to Valentina Azarov’s report on the case, the higher court held that private actors did not have any direct obligations under international law. The Court also claimed that Israel was not prohibited from building a tramway, even though its obvious purpose is to serve settlements that are unlawful under the 1949 Fourth Geneva Convention. Valentina rightly asks:

Who, if not the EU, and its Member States, will ensure that the international legal order is not rendered into disrepute and that private actors operating from within the jurisdiction of the EU are not involved or contributing in any way to violations of international law by foreign authorities?

In another case related to Palestine, the Dutch Public Prosecutor announced that it was not going ahead with criminal proceedings Riwal_case_-_update2against the parent company of Riwal, which had supplied construction machinery in Israel. This machinery had been used in the construction of the ‘Separation Barrier’, declared unlawful by the International Court of Justice, and formed the basis of the war crimes case taken by the NGO Al-Haq. Business premises had been raided by the Dutch National Crime Squad in the course of the investigation, but in the end the Prosecutor deemed it had insufficient resources to proceed and was unlikely to receive cooperation from Israel in its investigation.

A Swiss prosecutor also declined to proceed in a case against Nestlé alleging the company’s complicity in the death of a Colombian trade unionist Luciano Romero. The European Centre for Constitutional and Human Rights, which had taken the case with several Colombian organisations, concluded that Swiss law “makes it effectively impossible for non-European victims of Swiss firms … to enforce their rights before the courts”. Nestlé denies any wrongdoing.

Last week, the United States Supreme Court ruled in favour of Monsanto in what was billed as a landmark David v. Goliath case. The Court held unanimously that a farmer, Vernon Bowman, could not use genetically modified soybean seeds patented by Monsanto “to create new seeds without paying the company”. The Guardian reports that Monsanto has 144 lawsuits pending against over 450 farmers and small business for patent infringement. Monsanto has become notorious for its attempts to patent numerous common plant varieties and for developing so-called “terminator technology”, which prevents seed saving and requires farmers to buy new seed stock each year. The company pledged in 1999 that it had never developed or sold such seeds, or that it had plans to do so.

All in all, a difficult and disappointing few weeks for business and human rights advocates. The cases demonstrate some of the difficulties inherent in transnational litigation and the challenges of facing down powerful multinationals in court. There are a few positive aspects. The United States Supreme Court did not rule out completely the extraterritorial reach of the Alien Torts Statute, and the narrowing of the scope might actually help those litigating the complicity of United States companies. Salma Karma-Ayyoub, a Palestinian barrister involved in the Riwal case, saw the proceedings as a step in the right direction in spite of their premature end. The case shows the potential for criminal prosecution of companies and might serve to “deter other companies from complicity with Israel’s illegal and criminal occupation practices”. These setbacks are unlikely to deter advocates from seeking accountability for corporate abuses of human rights through the courts, and nor should they, even if there are inherent risks and limitations in criminal and civil proceedings.

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