Corporate Accountability for Human Rights Violations: The Neglected Significance of the Rise of Domestic Courts in Emerging Systems
There is wide recognition that the response to corporate human rights violations needs to be multi-pronged. The regulation of global supply chains is a prime example, attracting a mix of responses based on hard and soft law, host or home systems, and state or private actors. Not all the possible strategies, however, receive equal attention from activists and scholars. One instance of this is the role that can be played by host country courts. There is certainly much that is sensible about focusing on the greater institutional and civil society resources in richer home or end-market systems. But the success of such approaches is certainly not so complete that we should lose interest in other options; at the same time, recent trends in domestic courts in emerging systems merit more serious engagement.
A subset of emerging system courts is playing an independent role in social and economic policy more than ever before, and this subset is also itself expanding. The subset squarely includes some key states in global supply chain debates, like India, and may be spreading to others, in different ways: the rise of the South Korean Constitutional Court, for instance, at one level in the East Asian economic constellation, or the troubled but nevertheless significant growth of rights-based litigation strategies in China, at another level. The implications of this trend for corporate activity are significant. The greatest manifestations of this trend are in relation to more traditional rights-based review of state activity – which suggests all the more reason to study it.
Developments in areas such as environmental and labour law are significant enough that serious engagement is far from premature. This trend is also greatly significant to the strategies that currently dominate attention. Domestic host system courts are a potential means of efforts to develop global or industry-wide binding or non-binding legal standards – as a source that can inform interpretation and strengthen the judiciary’s claim to be enforcing ‘law’ or to be propounding sensible policies that investors do or can accept.
Courts that understand themselves as engaged in an international human rights discourse may also be more promising agents for these global efforts than emerging system governments who may be more likely to view or paint them as interference. And courts can be a very powerful site of activity for the kinds of domestic host state actors who currently receive more attention, such as unions and local NGOs. It is therefore both useful and overdue to consider developments in international, European and OECD law, or in global non-binding approaches, in a way that places more emphasis on the variable of emerging system courts.