|
JUSTICE IN THE MAQUILADORAS - GRIEVANCES, NAFTA COMPLAINTS, LAWSUIT?
Assume a worker
named Lucia works for an electronics assembly factory that is just one of
many such plants located in several towns along the Mexican border. All the factories are in turn owned by an American, U.S.-based
multinational corporation. Because of issues that have involved
wages or safety concerns she has turned to other workers for help in
finding out how to bring about some change in her workplace. Soon she
learns that she has rights under Mexican Labor Law (which happens to be
based in the Mexican Constitution).
Lucia also realizes
that although there are things she can do under the labor arbitration
system, that there are some issues she may not be able to address by
complaining for herself. Some of the problems
are bigger than her or a few workers, like the lack of good safety clothing
or masks or ventilation and exposure by some of her co-workers to dangerous
chemicals that come in containers written in English they cannot read. She
wants to understand if there is anyway to make the employer, or the owner
of the employer, probably a huge multinational company (MNC) responsible.
She wants them to make fundamental changes.
BASED ON THIS
HYPOTHETICAL PERSON THE FOLLOWING WILL DETAIL THREE BASIC APPROACHES FOR
LUCIA TO CONSIDER IN SEEKING JUSTICE:
A) a labor grievance using the labor arbitration system set
up under Mexican law
B) an administrative complaint invoking the North American Agreement on
Labor Cooperation (NAALC), aka the 'NAFTA COMPLAINT'; and
C) a lawsuit in a U.S. court against the parent company of a maquiladora based
in Mexico.
I. THE LABOR GRIEVANCE PROCEDURE IN HER OWN COUNTRY.
1. What are the
most basic laws of Lucia's own country that may apply to her concerns for
justice against a factory?
The following are
among the most relevant:
a) The Federal Labor
Law (Ley Federal del Trabajo) http://natlex.ilo.org/scripts/natlexcgi.exe?lang=E
b) The General
Health Law (Ley General de Salud) Download
a pdf of Ley General
de Salud pdf
c) The Social
Security Law (Ley de Seguro Social) http://natlex.ilo.org/scripts/natlexcgi.exe?lang=E
d) Federal
Regulations on Safety, Health and the Workplace Reglamento Federal de Seguridad, Higiene y Medio Ambientede Trabajo
2. What kind of
help can she get under the labor law enforcement system of her own country?
A worker can file an
unfair labor practice charge before the Secretary of Labor in Mexico.
It is best if she consult a Mexican attorney who is also qualified to
practice before the labor board.
The most successful
claimants on these grievances have not acted alone in efforts to challenge
the unfair treatment by their supervisors or their unresponsive unions.
Successful workers have usually worked in community with other workers who
have had experience in filing such grievances or who support their cause. Numerous
examples of such community effort isfound in
the activities and stories of border empowerment groups like the ComitŽ Fronterizo de Obreras (CFO) (Women Workers at the Border). More about CFO
A fairly recent
example of such community action involved the claims of five workers in Piedras Negras who
were fired in the spring of 2000 by Dimmit Industries (now defunct) for
trying to organize for justice in their factory. With the help and support
of other CFO members and co-workers, the four women and one man endured
lost wages and blacklisting for over a year before the Labor Board
determined that they had been unjustly fired. An order was issued to pay
for their lost wages and severance earnings they were entitled to under the
Ley Federal del Trabajo.
II. THE NAFTA/NAO
STRUCTURE
The NAFTA complaint
process is purely administrative. It is however, a potentially powerful
organizing tool for workers. It involves the gathering of evidence and
personal testimony about the problems for workers that are illegal under
existing labor or healthy and safety laws.
The labor side
agreement to the North American Free Trade Agreement (NAFTA), known as N.A.A.L.C. (North American
Agreement on Labor Cooperation) http://www.naalc.org promises
the improvement of "working conditions and living standards in each
Party's territory."
Throughout this
section when I say "NAFTA Complaint" I am referring to the
process of invoking rights under the NAALC, the labor side agreement to
NAFTA.
A NAFTA complaint has to be made against the country in which the company
operates. In the case of maquiladoras a charge against the
Mexican government would be submitted to the National Administrative Office
(NAO) in WashingtonD.C.http://www.dol.gov/ilab/programs/nao/main.htm
The NAO's public hearings, however, can be held away from Washington.
In a fairly recent case involving manufacturing and assembly plants for
automotive components in the Matamoros/Brownsville region (the Custom
Trim Case) http://www.dol.gov/ilab/media/reports/nao/pubrep2000-1.htm for
example, the NAO set up a public hearing in San Antonio, Texas on December
12, 2000.
When it receives a
submission under NAALC the NAO follows up with an investigation of all the
facts gathered, including the testimony at the public hearing. It then
issues within a few months a thorough report of findings on whether or not
Mexican government officials properly enforced their labor, health and
safety standards.
3. What is
involved in the filing of a NAFTA Complaint?
As described above
it is generally a complaint intended to remind the Parties to the NAFTA
that a promise was made to treat workers fairly in pursuit of free trade
and open economic borders. Because it is about labor cooperation the
hearings are meant to be public and anyone can attend, in theory, because
citizens of each country that signed NAFTA have an interest in free trade
actually fulfilling the promise of "mutual benefit."
However, critics
(and there are many) of both NAFTA and the labor side agreement known as
NAALC do not think that the promises have been fulfilled. For public review
and criticism of the effectiveness of NAALC a few years after its
implementation follow the link below.http://www.naalc.org/english/publications/review_annex5_us.htm
4. What are the
terms of NAALC that explain this public scheme of enforcement of a nation's
trade agreement?
NAALC sets out a
series of labor related "obligations" to be met by the member
countries. But, rather than enunciating specific criteria by which to judge
existing labor conditions or specific standards by which to rate law
enforcement, the Agreement, with great deference to each member nation's
laws and regulations, instead imposes minimum obligations on members.
The Agreement
primarily encourages member nations to follow their existing labor laws
"through appropriate government action", and it mandates that
persons with legally recognizable interests have recourse to their nation's
"administrative, quasi-judicial, judicial or labor tribunals" for
the enforcement of labor laws.
Finally, members are
required to ensure some adequate measure of due process (according to local
Constitutional notions of fairness as opposed to Universal standards of
fairness), including public hearings and with final decisions put into
writing. But sometimes the language of the Agreement indicates the weakness
identified by critics.
For example it states that those decisions would be "preferably"
the rationale for a ruling by the NAO.
5. Who are the
people actually enforcing this NAFTA complaint process?
The NAALC
administrative apparatus is known as the Commission
for Labor Cooperation "COMM FOR LABOR COOPERATION,"
("the Commission"). It is made up of the Ministerial Council and
the Secretariat and assisted by a National Administrative Office (or NAO)
established within each country.
The Ministerial
Council ("the Council) is staffed by cabinet level appointees from the US, Mexico,
and Canada.
As the governing
body of the Commission, the Council establishes the priorities and sets the
agenda for the Secretariat or any other groups convened by the Council.
The Secretariat
operates to support the Council, both by drafting the Commission's budget for
the Council's approval and by preparing background reports and studies on
labor issues in member countries.
6. Which is the
most important body in this whole scheme?
It is the NAO. The
charge is filed with the NAO, the NAO sets up the public hearing, an NAO
official presides at the hearing, etc. It is the NAO that will ultimately
issue an opinion.
The NAOs serve as the interface between member countries, between
the government agencies within each country, and between each country and
the Secretariat.
Each NAO in every country, also solicits public commentary on the
labor practices of other member countries, a listing of which is
periodically published.
Public participation
is further encouraged under the Agreement by allowing the creation of
national committees in each country. Citizens of each nation, including
labor and business organizations, may form a National Advisory Committee to
advise their government on issues that arise under the agreement.
Representatives of
federal, state or local governments may participate in Governmental
Committees established for the same purpose.
7. Do non-public
officials, i.e., ordinary citizens have a role to play in this process?
In theory yes, but
the Agreement doesn't explicitly encourage private citizen participation.
While private parties are thus allowed the opportunity to publicly express
their labor related concerns through the NAALC, the Agreement contains no
provisions for private parties to take direct action against any party for
compensation for their labor related injuries or to mandate the enforcement
of existing labor laws.
The NAALC instead
permits outside parties to submit their complaints to the Commission for
dispute resolution, leading possibly to the issuance of a Final Report
containing a "mutually satisfactory action plan", by which the
parties agree to resolve their dispute and carry out the recommendations of
an arbitration panel established by the Council.
8. Can a country
be filed for not abiding by the Agreement?
Only when the
country complained against is found not to be fully implementing this
action plan will monetary fines be assessed.
These fines may not
exceed .007 percent of the total trade in goods between the countries in
the most recent year on which data is available, and the money is to be
spent by the Council to enforce labor laws in the country complained
against. Even when this dispute system is operating efficiently, it can
take well over two years for any final resolution to occur.
9. What kinds of
labor matters does the NAO review?
Article 49 of the
NAALC defines labor matters as:
laws and regulations, or provisions
thereof, that are directly related to
(a) freedom of association and protection of the right to
organize;
(b) the right to bargain collectively;
(c) the right to strike;
(d) prohibition of forced labor;
(e) labor protections for children and young persons;
(f) minimum employment standards, such as minimum wages and overtime pay,
covering wage earners, including those not covered by collective
agreements;
(g) elimination of employment discriminationÉ.
(h) equal pay for men and women;
(i) prevention of occupational injuries and
illnesses;
(j) compensation in cases of occupational injuries and illnesses; and
(k) protection of migrant workers.
10. Are
NAFTA/NAALC complaints common?
Actually they are
not. Since the signing of the NAALC in 1994 fewer than two
dozen cases have been submitted to the NAO. One of the more recent
cases receiving considerable press was filed by current and former workers
of Auto Trim and Custom Trim/Breed Mexicana ("Custom Trim Case"pdf), the
Coalition for Justice in the Maquiladoras and more than 20
additional unions and nongovernmental organizations in Canada, Mexico and
United States.
The Custom Trim Case pdf was filed on July 3, 2000
and a decision largely in favor of the workers' complaint was rendered on
April 6, 2001. The lead attorneys worked out of the Human Rights Clinic at
St. Mary's University School of Law in San Antonio, Texas with the help of
lawyers and student attorneys at Columbia College of Law in New York City.
For over two years they worked on getting stories from workers about their
injuries and medical problems, putting them together in sworn affidavits
and using them together with scientific evidence to allege serious concerns
about safety and health conditions in the factories that were located in Matamoros and
Valle Hermoso, Tamaulipas and that
were owned by Breed Technologies based in Lakeland, Florida.
11. Was this a
complaint against Breed Technologies or against Custom Trim and Auto Trim?
No. This is the
irony of a NAALC/NAFTA complaint. The companies were not the subjects of
the complaint. While evidence and testimony may involve what goes on in a
factory owned by a multinational corporation, the complaint involves
getting the NAO to review compliance under NAFTA and NAALC by the host
country, that is by a Party to the Agreement, in this case Mexico.
12. What were the
problems raised by the workers' testimony?
The workers in the Custom Trim Case pdf claimed that they suffered
skin, respiratory, eye, central nervous system, and reproductive health
problems due to their exposure to chemicals in their work
which involved the assembly of steering wheels. They also claimed
ergonomic ailments such as carpal tunnel syndrome and back and shoulder
pain due to the repetitive nature of their work. And lastly they claimed
that the workers who suffered these conditions were not properly treated or
compensated.
13. How is the
Mexican Government charged for responsibility for these problems?
The Custom Trim Case workers
had to make a charge, not against their employers, but rather against the
Mexican Government for its failure to communicate with workers about
scheduled health and safety inspections the workers said had not been made,
about its failure to ensure that workers received training in safety and
health, medical exams, and adequate personal protective equipment; about
the plant's inadequate ventilation and improper functioning of safety and
health committees and the plants' improper reporting of workplace accidents
and illnesses.
The point of the
NAALC complaint then is to point the finger of blame towards the Mexican
government for not doing their part in the free trade deal which is to not
only invite in foreign investment but also to make sure that the companies
don't abuse the workers' right to human dignity and safety and don't
violate international human rights principles.
14. What are the
International Human Rights at stake in a case like the Custom Trim Case pdf?
In addition to the
claims involving Mexican labor and health and safety laws the petitioners
claimed that Mexico was in violation of Conventions and Recommendations 155, 161
and 170 of the International Labor Organization (ILO) http://www.ilo.org,
as well as the International
Covenant on Economic, Social and Cultural Rights, the Universal
Declaration of Human Rights, the American
Declaration of the Rights and Duties of Man , the Protocol
of San Salvador, the Constitution
of the World Health Organization pdf (WHO), and the
constitution of the Pan
American Health Organization(PAHO) pdf
15. Where can I
get a copy of the decision rendered by the NAO in response to the complaint
of the current and former workers at Custom Trim and Auto Trim?
The decision is
available at http://www.dol.gov/ilab/media/reports/nao/pubrep2000-1.htm
III. TAKING LEGAL ACTION IN THE COURTS AGAINST CORPORATE ABUSE IN THE
MAQUILADORAS
16.
Can an employer that is a subsidiary of a U.S.-American based multinational
corporation be sued in the U.S. by Mexican workers?
This is not an easy
answer. There are actually a number of ways a worker can try to seek
justice against an American company that doesn't involve going through the
Mexican legal system. As noted earlier, one involves the filing of a
grievance under the labor law scheme of her own country's laws; another
involves the filing of a "NAFTA (or NAALC Complaint)."
The third approach
involves filing a lawsuit in a U.S. court against the parent company of the
factory in Mexico, and it is usually headquartered on U.S. domestic soil.
This is clearly the most difficult, the most expensive, the most complicated but if it could be done it
would be the most satisfactory.
The litigation route
involves getting an attorney to represent workers in a lawsuit directly
against the factories and their owners. This can be expensive and very time
consuming. If successful, however, it could provide direct relief to
workers for their injuries or possibly even accomplish important changes by
the employers in how they treat their workers.
But such lawsuits
are not easy. Aside from the huge expenses that are involved in trying to
prove a connection between the worker's health concerns and the employer's
actions, there are difficult technical issues to consider. Her lawyers have
to get the case filed in the right court, at the right time and with the
confidence they can prove the claimed legal theories. These considerations
are also very important - they involve witnesses, credibility, and expenses
for gathering the scientific evidence and of course travel expenses.
A very typical
technical hurdle involves questions of jurisdiction and venue, which are
discussed below. A more political obstacle lies in the unfriendliness in
general of American legal culture towards suits by non-citizens for alleged
corporate abuse that happens outside of the U.S. And then there is the
plain fact that so many maquiladoras are subsidiaries of very
large, powerful and extremely well represented multinational corporations.
17. What kind of
legal claims might a maquiladora worker make against the parent
company of the factory she works for in Mexico?
In theory the
employee can sue for what is called a toxic tort. This is a claim of
personal injuries to her body, mental health and her sense of well being. In such a lawsuit the complainant, called
the Plaintiff, alleges that she believes her problems are the cause of an
employer (or his representatives - called agents) being careless or
reckless in how they run a factory. Specifically it is a suit where she
would try to prove to the courts that the way in which she works, is
treated or is exposed to materials, machinery or dangerous chemicals by the
Defendant (the employer or agents) violated her right to work in a safer
environment. She has to show that the law says she is entitled to that
safer environment.
18. What is the
end goal of a personal injury lawsuit?
Usually the person
suing in a civil suit, known as the plaintiff, wants the corporation, known
as the defendant, to pay for the injuries caused to her and sometimes to
pay for medical treatments so she can get better. Often such lawsuits also
seek an order from the court that the employer has to clean up their act -
literally improve the workplace by providing better prevention materials
(safety gear) or training.
19. Can such
lawsuits be brought on behalf of large numbers of employees?
Yes. Although not
easily handled because of the complex evidence questions raised, the
"class action" lawsuit accomplishes the goal of having one or a
few people state that their situation is like that of many others in the
factory who are being injured by the same or similar problematic work
environments.
20. Suppose there
is a maquiladora worker in a factory in Reynosa, Tamaulipas who
has been doing soldering for a few years on her job. She learns through
friends and other contacts that the factory she works for is actually owned
by a very large corporation that has factories around the whole world. The
"parent" corporation of these hundreds of plants (subsidiaries)
is headquartered in the state of Pennsylvania. She complains that five
years ago she was in good health but that over the years she felt her
breathing got bad because of fumes she breathes in from the machinery she
uses to do her job. What possibilities exist for her to make a personal
injury claim against her employer?
First the worker is
going to have to gather strong evidence that her medical problems are
linked to her working conditions. This means showing that the contaminants
that injure one's lungs are in the air that she is breathing in and around
her workstation. Then she has to prove that those contaminants in fact
caused her own medical problems. She would need to be examined by an
independent doctor who knows about these contaminants and who could say
that the direct cause of her medical problems relate back to her work.
21. Where would
such a lawsuit be filed?
The most likely
place to start may be in the state courts where the factory's parent
corporation conducts business.
The rules that
govern the civil lawsuit process (civil litigation) require that a claim be
brought in a court that has the power to hear such a case. This is known as
"appropriate jurisdiction." It is an extremely important first
step in the process because if the lawyer doesn't choose the right court or
doesn't invoke the right law that has been violated then the corporation's
lawyers can get the complaint kicked out of court (dismissed).
22. Which would
be the courts that would most likely have appropriate jurisdiction over a
claim by a maquiladora worker?
There are two court
systems to consider for a U.S. lawsuit - the state court system and the
federal court system. In the state courts the plaintiff would be filing a
personal injury lawsuit. Some of the proof issues would probably involve
identifying whether the person sued is in fact authorized to act on behalf
of the defendant (is an agent). These are known as agency issues and they
relate to the corporate structure from the top leaders and CEOs down to the
lowest level factory supervisor.
23. Example: Suppose
the factory in Reynosa has a main office in Pittsburgh,
Pennsylvania and business managers in Dallas, Texas, a factory VP in Mexico
City, and several U.S. citizen factory supervisors in Reynosa,
including the head manager who rents a house in Reynosa, and has his
permanent home in San Antonio, Texas.
A suit could
hypothetically be brought either in Pennsylvania, in Dallas or in San
Antonio, that is wherever there is someone who represents the company, is
authorized to take actions that have an impact in the factory in Reynosa and
is actually doing business there on behalf of the company. Ultimately the
lawyer representing the worker might decide where to file based on the ease
or difficulty of getting evidence. Unfortunately, questions of jurisdiction
are not always easy, especially when one is thinking of filing against a
company that does business in so many places.
Venue
Jurisdiction can
also involve the actual physical location where the case is to be filed.
This is called proper venue. One should make a choice of venue that makes
sense given the facts of the case. For example, in the hypothetical Reynosafactory case, there might be jurisdiction in
Pennsylvania and in Texas, but venue might make more sense in Dallas than
in Pittsburgh because it is closer and more convenient to the witnesses in Reynosa.
The main
jurisdictional question raised for maquiladora workers is the
fact that they are not U.S. citizens and they happen to work for a factory
that might be located in Mexico. Yet those with the power to do things like
increase wages or improve benefits or working conditions might not be in
Mexico or even anywhere near the border at all.
Forum Non Conveniens
There is still one
final issue that surrounds questions of jurisdiction and venue. It is an
issue that comes up a lot in cases involving trans-national companies, and
it is the doctrine of "forum non conveniens."
This is a legal theory that says if the party who is suing (plaintiff) has
alternative choices of where to sue (forum) then it may not matter that the
court where her lawyer chose to file the complaint has appropriate
jurisdiction. On its own, or at the request of the defendant, the judge has
the power to dismiss the case on grounds of forum non conveniens.
The bottom line of
such a dismissal is that there's another court that is better suited for
handling this particular lawsuit. Arguments are made to the judge about
what requires this court to get rid of the case; for example that it's too
expensive, too cumbersome for the courts or somehow unfair to the
defendant. This kind of motion is always a potential risk in cases
involving multinational corporations as defendants.
24. Is the issue
of forum non conveniens one
that maquiladora workers and their lawyers really need to worry
about?
Probably. Every
state has its own rules about how and when a court will apply the doctrine
of forum non conveniens.
The move to dismiss based on forum non conveniens can
happen because the judge decided so on his own or because he thought the
corporation's lawyer made the better argument that a different court has
better venue.
On a more positive
note, it is the responsibility of the corporation's lawyers to make a
strong case for dismissing on grounds of forum non conveniens. Judges know that there is a presumed
right of the plaintiff to choose the court as long as there is appropriate
jurisdiction.
25. If the corporate
defendant does make such a motion to get a worker's case kicked out; does that mean she has nowhere to go?
Absolutely not. It
means the judge must be convinced that there is another place where the
worker can take her case. Justice requires that before the case is taken
from one court, that it be appropriately heard in another.
26. Can the
worker's attorney argue against sending the case to another court?
Yes, the worker's
attorney would have to argue that an alternate forum isn't available. Forum
non conveniens is
a theory that depends on there being more than one place where a worker
could file a lawsuit. The obvious "other place" for a Mexican
worker would be a court in Mexico since that is where she works and that is
where the problems are taking place.
27. What kinds of
arguments might be made to show that the case shouldn't be heard in a
Mexican court?
One argument is that
the Mexican courts may not have authority to provide the full relief in
Mexico, especially where it can be proved that although the factory is
incorporated in Mexico, most of the shares of stock are being held by a
U.S. company.
An argument can also
be made that the Mexican courts aren't equipped to handle this kind of case
because of a conflict of interest in public policy - that is between
wanting foreign investors to come to Mexico and between issuing judgments
against them that would encourage them to go away.
A final argument
might be that the courts are too embroiled in politics themselves and may
be corrupt and thus unable to render justice for the maquiladora workers.
Although it's
unlikely that a US Court would publicly condemn the Mexican judicial system
in order to grant a forum non conveniens motion
solely on this basis, there are cases showing that some expert testimony
can help in raising discreetly the problems with suing in the country where
the subsidiary is operating (and therefore letting the plaintiff keep her
case in a U.S. court). (See Bhatnagar v. Surendra Overseas, Ltd. pdf (3rd Cir. 1995)). This could be a good strategy
for opposing the corporation's motion to dismiss a worker's case.
Fil‡rtiga v.
Pe–a-Irala,pdf 630
F.2d 876 (U.S. App. , 1980)
28. What other
things is a judge looking at before s/he decides a motion of forum non conveniens?
Mainly it has to
balance public and private interests. The judge will consider -
Who's affected by this and how?
How easy is it for the parties to get the evidence they need,
Or how easy or difficult will it be to get witnesses to and from court?
In other words the judge is interested in making the case easy,
expeditious, and inexpensive. It wants to make sure that staying in one
court versus another isn't going to cause a lot of practical problems for
either party.
As a matter of
public interest the judge is also going to see how much of an impact there
is on the court administration. Sometimes there is a really good reason to
keep a case locally, where the action is happening; sometimes it is good to
have it removed (i.e., if the parties feel the threat of violence from
people at the local level).
All of these kinds
of questions go into the analysis of what to do with a forum non conveniens motion.
Other things to consider would be, what's the law at stake, is there going
to be a conflict of laws between nations that impacts on the
health and safety of the worker?
Remember that a
judge has the power to decide that she doesn't want to hear this case
because the American courts can't be "trying to right all the wrongs
of the world."
But it could also be
argued that judges shouldn't be afraid of taking a role in regulating the
socially irresponsible conduct engaged in by corporations, that they play a
crucial role in preventing negligent or criminal acts or arrogant behavior
by corporations who think they can just avoid justice by moving a few feet
or hundred miles across the border.
In other words, it
should also be argued that valuable profits, and taxes, flow into this
country through the operations of the Mexican subsidiaries, so it would be
a false argument to say, "it's not our concern because the defendant
is over there - meaning Mexico."
Why shouldn't a
worker who knows that her labor is making profits for a company and
shareholders who live in the U.S., and whose money and taxes support its
legal system, have the right to enjoy the benefits of that very legal
system that is sustained by the general wealth of these U.S. beneficiaries
of overseas/transnational operations?
Perhaps in the wake
of the Enron hearings, and at least from a public relations standpoint, the
US courts will begin to be more receptive to arguments implicating stronger
corporate accountability.
International
Comity
29. Is it at all
possible that a court would dismiss a case out of considerations of
international comity (i.e., a policy of mutual respect for another legal
system?)
No judge wants to
find herself in direct contention with the Mexican government over law and
policy matters. Under the doctrine of international comity, one nation
allows within its borders the legislative, executive, or judicial acts of
another nation. Courts of one nation generally accord deference to the
official position of a foreign state.
But the analysis of
international comity goes much like the questions for forum non conveniens. It has to
consider where there is an alternate forum and whether the defendant can be
sued in the Mexican courts or wants to be sued there. Before the judge dismisses
the case she's going to want to be sure that the defendant agrees to be
sued in an adequate foreign forum, unless there is something extremely
important standing in the way of trying the lawsuit outside of the U.S.
30. You said
earlier that there are two court systems to consider for lawsuits against
multinationals, the state courts and the federal courts. What's the
difference between suing in federal court versus state courts?
The main difference
is that the federal court system covers larger territories and the federal
courts only hear specific kinds of cases. (This is called limited
jurisdiction - as opposed to general jurisdiction which state courts have).
Their judicial power is set by a specific part of the U.S. Constitution
- Article III. Very generally, the most typical limitation on a
federal court deciding the case is that it should involve a federal law, a
treaty, an international human right or some section of the constitution.
31. So, can a
non-U.S. citizen use the federal courts to sue a parent corporation?
Sure. Most likely a
claim for personal injuries could be brought under a federal law known as
the Alien Torts Claims Act (ATCA) (1789), which must be filed in a federal
district court. The Alien Torts Claim Act, an old law that was revived in 1980 in
the groundbreaking case of Fil‡rtiga v. Pe–a-Irala1 held
that U.S. federal courts can try cases involving a non-citizen
who charges a defendant with tortuous personal injury that violated
international law. It is an amazing power given to U.S. federal courts to
take a case where the plaintiff is a foreign citizen who is alleging the
violation of "universally accepted norms of the internationally
accepted law of human rights" by a foreign defendant.
The most
successful" alien torts" have involved outrageous violations of
individual human rights, such as genocide and war crimes. (In the facts of
the Fil‡rtiga case pdf the plaintiff was a
non-citizen living in New York City who had been the victim of torture
connected to political oppression. Years later she discovered that she and
the person who had tortured her were now working side by side in the same
company as part of a janitorial crew!).
32. What is
required to make a successful complaint under the ATCA?
A number of lawsuits
since Filartiga have summarized the
requirements as
1) the plaintiff being an alien-non-citizen;
2) there is a claim for a tort;
3) The tort is committed in violation of the law of nations or an
international treaty.
33. As a
practical matter how would a maquiladora worker fit into these
requirements for federal court jurisdiction in an ATCA case?
Requirement 1 is
easy since most maquiladora workers are non-citizens; Requirement
2 says that the complaint must be based in tort, meaning a civil claim in
which the relief sought involves "damages" (money to pay for the
injuries and treatment); Requirement 3 is probably the most difficult test.
34. Why?
In Requirement 3 the
Plaintiff has to allege that the defendant (here a hypothetical
corporation) or his representatives (called "agents), clearly
committed a violation of international law; and this is often a hotly
contested subject. A lot of scholars have made arguments that the real
purpose of the Alien Tort Claims Act is
to give the government more control over foreign policy matters, and that
enforcement of "international law" is therefore not the business
of individual persons rather it is the business of governments and states.
In contrast, other
scholars believe that the language of the Alien Tort Claims Act is
quite clear and that it gives rights to individuals. Of course, to avoid
having the case dismissed, she has to allege facts that sufficiently show
the defendant violated well established principles
of international law. This part could be quite tricky in the case of
multinational companies. Their lawyers are bound to make very strong
arguments against the idea that just because a worker in another factory
doesn't make U.S. level wages she is the victim of human rights abuse.
35. Are you
saying that transnational companies can't be sued for violations of
international law?
No. They can be
sued. But the basis for a lawsuit has gotten narrower in the last twenty
years. Before the courts will say that a defendant has violated
international law it has to be convinced that what is at stake is a
"well-established, universally recognized norms of international
law."
This is probably
more obvious where the charge is a claim of genocide or torture. It's much
more difficult where it is an allegation that the corporate defendant
conspired with the worker's own country to not pay her very well. A lot of
people would see that is wrong and maybe unethical but not necessarily as a
crime or as a human rights problem.
Are there some labor
issues that could easily be seen as violations of human rights by corporate
subsidiaries doing business in Mexico?
Yes, there are two
such situations. One is the possibility of showing that the employer is
reckless in hiring children in violation of International labor conventions
that have been incorporated in Mexico's labor law: (Ley para la protecci—n de los derechos de ni–as, ni–os y adolescentes) For more information visit http://natlex.ilo.org/scripts/natlexcgi.exe?lang=E
Another situation
would be to show that workers are paid so little and worked so long that
they are virtually engaged in slavery, in violation of international labor
conventions and human rights principles. Some maquiladora workers
have complained about companies coming in for short terms and offering jobs
to very young workers, only to leave abruptly after a few weeks without
notice and leaving behind unpaid workers.
Stories about such
cases were revealed in May 2002 in a workshop between CFO organizers and
young women in Nuevo Laredo who had friends that had been victims of
employers in the "coupon industry." If such a case could be
proved it would probably constitute a clear case of illegal slave labor in
violation of international human rights law.
** -
The author is greatly indebted to the valuable research assistance of
Edward Campbell, 2003 Graduate of the Northern Illinois University College
of Law. His in-depth memorandum is included here for interested readers. CLICK HERE pdf for
Legal Research Memorandum by Ed Campbell (March 2003).
|