Human rights litigation in the US: New approaches?

(Note to lawyers/legal scholars: Not being a lawyer, apologies in advance for any awkward legal inferences made in this blog. However, I will actually be starting law school in the fall at UC Hastings!)

An article published in the Notre Dame Law Review, "Arbitrating Human Rights," offers some interesting insights to human rights litigation in the US.

To provide some background, aside from activist campaigns of shaming corporations and divestment movements, lawyers across the world have been using the venue of US litigation to uphold corporate liability for human rights abuses.

The article starts out by questioning whether this kind of litigation can punish the actual perpetrators (often, sovereign entities), rather than just the corporations that serve as "accomplices" to the human rights abuses. Attempts to punish the states directly have largely failed due to the Foreign Sovereign Immunity Act (1976), which grants immunity to all foreign sovereign states from the jurisdiction of US courts. As a result, successful human rights litigation has targeted corporations, often suing for tortious damages incurred by the victims. I'm hoping to post more extensively on this at a later time...this gets discussed in the legal world a lot, the subject rarely comes elsewhere.

Anyway, the article goes on to suggest that litigators can potentially use the playing field of suing corporations as a trigger to indirectly punish sovereign states committing human rights abuses. In the cases where corporations are held liable for human rights abuses, they have generally engaged in contractual relationships with the entity that can claim immunity under US law. The article argues that the sovereign immunity in the US does not prevent a corporation from pressuring the sovereign state they contracted with to share liability. So as a hypothetical example, Exxon has a contract with Indonesia which establishes that the government's military will protect Exxon's oilfields. Although the victims of human rights abuses by the military cannot sue Indonesia, they can sue Exxon. What the article suggests is that there is nothing preventing Exxon from pressuring Indonesia to uphold its share of liability after the lawsuit. This can potentially be done through arbitrating the terms of the corporation's contract with the sovereign entity. So Exxon would engage Indonesia in arbitrations to try and get the government to share the blame and pay up. The article also highlights other possible tactics such as having stakeholders (such as shareholders) of the company to invoke their rights and get involved as well. This tactic is already being used by divestment movements that are trying to get shareholder meetings of companies to highlight their investments' complicity in aiding various human rights violations.

Currently, a whole swath of class action lawsuits are barraging corporations with poor human rights track records, including allegations such as from aiding the South African apartheid regime (the Supreme Court will be deciding whether to hear this case or not on Friday). It will be interesting to see if any litigators pursue these kinds of ambitious but innovative approaches to try and hold the actual perpetrators accountable, rather than just the "accomplices."