Commentary on the Panel “Redistribution Through Strategic Litigation”

by Elena Cirkovic

The Transregional Academy welcomed two presentations from Dr. Miriam Saage Maaß (Vice Legal Director, ECCHR Berlin) and Dr. Ulf Buermeyer (president of Gesellschaft für Freiheitsrechte/ Society for Civil rights) on the topic of redistribution through strategic litigation. For the workshop, which has focused primarily on academic endeavors and ‘thinking’ about the law, the presenters offered an important perspective of a legal practitioner. We were introduced to the German scene on strategic litigation. Dr. Saage Maaß explained the workings of ECCHR Berlin, in particular legal action on human rights violations caused by corporate activity. She discussed the emergence of transnational litigation with reference to its history, including the Alien Tort Claims Act (ATCA) in the US. Dr. Buermeyer is currently judge at the Regional Court (Landgericht) in Berlin. He introduced the audience to civil rights strategic litigation in Germany. The presentation served to evaluate the role of strategic litigation both domestically and transnationally.

Ulf Buermeyer and Miriam Saage Maaß

I would like to extract two sub-themes from their presentation and the ensuing discussion, which might be of relevance to the broader debates and themes of this year’s Academy.

First, I start with the premise that for those who practice law, it might not be very useful to be “depressed” about the legal procedure. Or rather, while they can indeed be “depressed”, practitioners still have to engage with their calling in an attempt to make a contribution to potential developments in the law. These do not have to be necessarily progressive. One also cannot argue that the Law is useless, for it is useful for whoever manages to successfully articulate their claims through the Law and obtain what they deem to be “justice”.

Second, if the alleged injustice is recognized and rectified by a Court, the decision could be viewed as a contribution to the broader society, and a demonstration of the redistributive capacities of the Law. This, however, brings us to the question of access to legal justice and fairness of legal procedures.

Regarding both points, if we consider the State as the traditional locus of distribution and re- distribution, the state of “depression” about the law in litigation on, for instance, minority rights, or of other marginalized groups in a society, could find its root causes in the difficult history of relationship between the State and the marginalized group in question. In addition, the influence of private corporate actors poses the question of how they also compete and engage with the law.

The European Center for Constitutional and Human Rights (ECCHR) states on its website that it is an independent organization that works with lawyers and groups around the world to take legal proceedings against state and non-state actors for their roles in crimes against international law. ECCHR also uses legal instruments to combat inhumane working conditions and other issues in the area of business and human rights. Part of the panel presentation and discussion focused on this contemporary, and a heavily debated question of transnational private economic actors, and their capacity to influence the internal relationships between a State and society.

The question of access to legal justice is particularly complicated in transnational settings. Part of the scholarship focusing on transnational commercial activities and corporate social responsibility has observed the activities of multinational and transnational corporations (TNCs) as operating beyond the regulatory reach of States and binding international human rights (or environmental) legal instruments. This “removal” away from the State has also emphasized the role of NGOs and professionals who are willing to engage with transnational justice (as is the example of ECCHR). In a sense, this mimics the self-regulation of corporate actors, and we could view such NGOs as progressive versions of “self-regulating”.

This brings us back again to the question regarding the existing role of State regulation. We are now aware of the interconnectedness of transnational corporate conduct and the interests of individual states, and repercussions this might have on some states. While non-state based systems may have become a more significant force in the regulation of the global economy, national authorities can abandon state laws in the face of these other regulatory systems, as well as use the leverage of private law as the site for international regulation. The influence of state sovereignty has been particularly evident in the inability of transnational litigation to overcome some obstacles emerging from a persistently statist approach, which has manifested itself through both procedural and substantive obstacles.

The most comprehensive judicial discussion of non-governmental liability under the customary international law has arisen in national courts, particularly in human rights litigation against corporations under the Alien Tort Claims Act in the US. Cases brought against TNCs in the courts of those TNC home states, however, have also demonstrated the continuation of the primacy of state sovereignty in transnational litigation. The main procedural obstacle for transnational human rights and environmental litigation in the US courts has been the doctrine of forum non conveniens (FNC). Under this common law doctrine, a US court may dismiss a suit on the grounds that a foreign forum is a more appropriate site for litigation. In Canada, for instance, the decision rests on the national courts on whether such cases are admissible.

Nevertheless, based on nationality and territoriality as preliminary justifications for the exercise of home-state regulation, states can have had the capacity to hold their nationals, including both natural and juridical persons under some formulations, accountable for their conduct abroad. The victims could thus seek redress through a civil suit in the enterprise’s home state.

The difficulties are also posed by extraterritorial application of justiciability. This is a significant obstacle because it depends on the willingness of the home states to allow for an extraterritorial application, which may constitute an infringement on their sovereignty.

Within both the arena of international human rights and corporate responsibility, much still depends on the political will of states to protect human rights and environmental concerns. What then does this mean for our engagement with litigation as a mode of redistribution? I would argue that in addition to the various successes in transnational litigation against both state and non-state actors for their crimes in international law, the “NGO-isation” of these processes poses again the question regarding the role of the State, and even broader societal responsibility (domestic, transnational, and international).

Finally, through their practices and legal arrangements governments are endorsing multi and transnational corporations with many of the elements of international legal personality required in order to assert their rights against states. Furthermore, bilateral investment treaties and other such highly institutionalized legal forms provide corporations with the legal personality required to sue states directly under international law.

 

 


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