Bonita Meyersfeld

Surya Deva Regulating Corporate Human Rights Violations: Humanizing Business (2012)

The debate regarding the most effective regulatory approach to corporate malfeasance is as rich as it is divided. It reminds me in many ways of a showdown between the fans of two football teams. It is intense: with fans of both sides absolute in their belief and unwavering in their commitment to a particular side. Similiarly, the business and human rights paradigm has triggered intense debate within the business and human rights scholarship. Deva is a leading voice in this scholarship and, while his writing leaves no doubt as to his position in this area of law, his presentation of his views is rigorous, dignified and moored in fact and logic. The result is that Deva’s work, Humanizing Business, is one of the most important contributions to the business and human rights debates to date. The first important contribution from Deva is his point of departure. There is a proud and constant point of reference, his ‘true north’. This is the human impact of corporate malfeasance. The sub-title of his book is the first tantalising suggestion of this focus area and continues throughout the book as a point of departure, a point of reference and a point of destination. It is not often that the human remains the constant focus of a work of such rich academic and scholarly content. The injection of the ‘human’ into the business and human rights debate is claimed by many academics but achieved by few. Deva’s ability to ground his theoretical position in the paradigm of reality and human suffering is particularly unusual given his position of relative privilege. Academics writing about human rights, too often are myopic about the connection between their academic work and the remedial relief required by victims of human rights violations. Deva bridges the gap between his own academic position and the reality of people whom he may have never met. This is human rights authorship at its most robust and honest. This alone is worthy of significant admiration: Deva is not an abstract theorist, but a theorist dedicated to the human condition. This is not to say that Deva’s work is in any way compromising in respect of theory and logic. On the contrary, Deva’s arguments are structured, accessible and singularly unique. Deva weaves an argument based on three interrelated questions: ‘why’ corporations should be responsible for human rights violations; ‘what’ constitutes the scope of a corporation’s responsibility; and ‘how’ should corporations be held to account when they breach their human rights mandate? As regards the question of ‘why’, Deva reviews and challenges the notion that the purpose of the corporation is solely about profit. This is an argument, which is often aspirational rather than factual; we may want this to be the status quo but it is not how corporations are either structured or regulated. Deva’s analysis skates close to the edge of aspirational but he does so honestly. He is correct in his analysis that corporations have a human rights mandate. However, what the content of that mandate actually is, is a point of dispute. For example, multinational corporations may present their human rights mandate as the creation of jobs and the allocation of a small percentage of their profits to some form of development in an otherwise indigent setting. What happens, however, when multinational corporations deliberately target states with high levels of poverty and

Lessons from Kiobel v Royal Dutch Petroleum Company : developing homegrown lawyering strategies around corporate accountability

Abstract In April 2013, the United States Supreme Court handed down the long-awaited judgment in Kiobel v Royal Dutch Petroleum Company, a case alleging corporate exploitation of communities in an oil-rich area of Nigeria. The case examined the Alien Tort Statute (ATS), an old statute allowing non-US citizens to bring claims in US courts for violations of the law of nations. In its judgment, the court limited the application of the ATS.This article explores the holding and reasoning of Kiobel in light of previous ATS jurisprudence, and set against the geopolitical considerations of international human rights frameworks within the US, with a particular focus on what this case means for South Africa and the region. The article queries the continuing need for countries in the Global South, including South Africa, to rely on foreign courts for corporate accountability, particularly given robust domestic legal frameworks that are under-utilised. South Africa, in particular, is best placed to begin the regional dialogue regarding law reform and corporate accountability. Local lawyers and law students must be encouraged to develop creative lawyering strategies in the area of corporate accountability. Finally, the article highlights the need to support communities and individuals most affected by corporate abuse to construct and share their narratives as part of their broader quest for meaningful political and economic justice.

Forced and servile marriage: a proposal for law reform in the Commonwealth

This article analyses the constitutive elements of forced and servile marriage and proposes a nuanced and multi-faceted approach. I discuss the meaning of forced and servile marriage, distinguishing it from sham or arranged marriages. In this regard I underscore the relevance of consent in identifying such marriages and the development of the legal understanding of consent in international law. I also engage the international instruments that address forced and servile marriage and that are binding on Commonwealth member states. I identify three forms of forced and servile marriage: trans-border forced marriage, domestic forced and servile marriage and forced and servile marriage that occurs in armed conflict. Bearing in mind the cultural context in which many instances of forced and servile marriage occur, I propose a three-part approach to a multi-state response. These are: a legal response, in terms of which I advocate for effective civil rather than criminal sanctions; the allocation of resources to c...This article analyses the constitutive elements of forced and servile marriage and proposes a nuanced and multi-faceted approach. I discuss the meaning of forced and servile marriage, distinguishing it from sham or arranged marriages. In this regard I underscore the relevance of consent in identifying such marriages and the development of the legal understanding of consent in international law. I also engage the international instruments that address forced and servile marriage and that are binding on Commonwealth member states. I identify three forms of forced and servile marriage: trans-border forced marriage, domestic forced and servile marriage and forced and servile marriage that occurs in armed conflict. Bearing in mind the cultural context in which many instances of forced and servile marriage occur, I propose a three-part approach to a multi-state response. These are: a legal response, in terms of which I advocate for effective civil rather than criminal sanctions; the allocation of resources to community organisations and education initiatives; and, finally, political steps, such as inter-state collaboration, the establishment of specialised forced and servile marriage units and the acceptance of forced and servile marriage as a basis for asylum.