Remedy

The Start of Modern Corporate Accountability Efforts - In Memory of Joel Filártiga

Commentary, 25 July 2019

It is an unfortunate reality that when human rights defenders speak against their governments, they place themselves at risk of harm. Still, some choose to speak, and in doing so they change the course of history.

Dr Joel Filártiga was one such leader.

His fight for human rights set the course for modern business and human rights litigation...

On July 5, he died in Asunción, Paraguay, aged 86. During his life, his fight for human rights set the course for modern business and human rights litigation, even while he himself did not work on the issue.

Joel was an outspoken critic of Alfredo Stroessner’s regime in Paraguay. In an effort to extract incriminating information about the rural doctor, police abducted, tortured, and killed his 17-year-old son, Joelito. Joel had also been arrested and tortured, but it was the killing of his child that became the focus of his strongest efforts at accountability.

Image: Joelito Filártiga (c/o Portal Guarani)

In Paraguay, Joel filed murder charges against Inspector General Americo Peña-Irala and his police. Unsurprisingly, this did not lead to any action.

Then, Peña-Irala moved to the US and overstayed his visitor’s visa. When Joel’s daughter Dolly, also living in the US, learned of Peña-Irala’s presence, she and her father worked with the Centre for Constitutional Rights (‘CCR’) to file a $10 million USD civil claim against Peña-Irala for his role in Joelito’s torture and murder.

US courts normally would not have (or exercise) jurisdiction over claims stemming from the murder of a foreign citizen by another foreign citizen when it took place in their common, foreign home state. But the CCR and the Filartigas argued that torture violated customary international law and the courts should hear the case under the US’s unique Alien Tort Statute (‘ATS’).

The Alien Tort Statute allows foreigners to sue in US federal courts for breaches of customary international law. In 1978, it it had never been tested in the context of human rights.

The ATS is now well known. It allows foreigners to sue in US federal courts for breaches of customary international law. In 1979, it it had never been tested in the context of human rights.

But, the Filártigas had no other avenues for accountability. At the time, neither the US nor Paraguay were party to the International Covenant on Civil and Political Rights (‘ICCPR’), let alone its accountability (individual complaints) mechanism. Paraguay would not become a party to the American Convention on Human Rights until 1989 (the Court itself would not exist until 1980). The UN Convention against Torture would not be adopted until 1984, and would not come into force for Paraguay until 1992 (for the United States, 1994).

In other words: there was no binding instrument on which the Filártigas could rely to demand accountability (and even if there were, accountability would still be unlikely).

Instead, they had to argue that torture breached customary international law, an unwritten set of binding obligations that arise from the conduct and beliefs of states.

The trial court dismissed the case, finding customary international law did not protect an individual from abuses by their home state.

The Filártigas appealed, and in 1980 the Court of Appeals agreed with them that torture was a violation of customary international law even when perpetrated by a state against its own citizens. According to the court, ‘[t]he torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind,’ justifying the US courts’ exercise of jurisdiction over the Filártigas’ claims.

The win both established Peña-Irala as a torturer, an enemy of mankind, and opened up a new pathway for protecting and enforcing human rights.

The decision was symbolic. Peña-Irala was deported and the Filártigas were unable to collect on the judgment they won.

But the win was important nonetheless. It both established Peña-Irala as a torturer, an enemy of mankind, and opened up a new pathway for protecting and enforcing human rights.

In the 1990s, claimants began to use the ATS to pursue claims against corporations involved in human rights violations. In one of the earliest and most successful cases, Unocal was sued for developing an oil pipeline with Myanmar’s military junta, the construction of which involved grave human rights violations. Thanks to the efforts of EarthRights International, the oil giant settled with the Burmese victims.

More cases were filed. As the litigation grew, detractors argued that the statute ‘could devastate global trade and investment.’ That did not happen, of course.

Instead, corporations’ home states – most notably, Germany, the UK, and the Netherlands – asserted that international comity required US courts to dismiss these cases so that they could be heard by the corporations’ home states. As the Supreme Court increasingly limited the use of the ATS, claimants began to challenge these other states’ commitment, filing new claims against their corporate nationals for a variety of abuses associated with their overseas activities. The assertion that home states have a responsibility to ensure access to remedies for victims of their corporate nationals overseas has grown and is now recognized by multiple UN treaty bodies, and is at the heart of the proposed binding treaty on business and human rights.

The ATS was more broadly ‘disruptive’: an innovation that fundamentally transformed the status quo, allowing those without power to challenge those who had dominated the system. ATS litigation gave a means by which affected communities could challenge large transnational corporations – effectively naming and shaming in a way that could carry clear consequences. It allowed for challenges of both individual business conduct and entire structures and practices that breached human rights. The litigation was rarely successful, but the pressure of the litigation created an incentive for businesses to participate in the development of the UN Guiding Principles on Business and Human Rights (‘UNGPs’). The UNGPs offered an approach that would level the playing field amongst businesses by setting a unified international expectation for business conduct regarding human rights.

The ATS is not solely responsible for the development of business and human rights, but the genealogy of our modern successes – the UNGPs, the treaty debate, the use of home state litigation – all have some roots in Joel Filártiga’s commitment to the rule of law and human rights. As such, his legacy will forever permeate international law and the global efforts of business and human rights advocates.

May he rest in power.

The ATS was more broadly ‘disruptive’: an innovation that fundamentally transformed the status quo, allowing those without power to challenge those who had dominated the system. 

 

Opening image care of Portal Guarani

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