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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 Ambiente de 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 is found in the activities and stories of border empowerment
groups like the Comité 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 Washington
D.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 discrimination….
(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 Reynosa
factory 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.
Filártiga
v. Peña-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 Filártiga v. Peña-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 Filártiga
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
protección de los
derechos de niñas, niños 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).
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