2021 Symposium Keynote Speech

Professor Michael Fakhri

Summary

Professor Michael Fakhri’s keynote speech emphasizes corporate accountability and the legal tools that can be used to change the power dynamics of large corporations to better respect human rights. Professor Fakhri is a United Nations Special Rapporteur on Right to Food, where he has prioritized meeting with social movements and advocacy groups to understand how the struggle over food and agriculture interacts with anti-imperial ideals.

Legal tools that can be used to not only hold corporations accountable but to potentially alter power structures include: corporate social responsibility, corporate law, and the Alien Torts Statute (ATS). Related to corporate social responsibility, Professor Fakhri emphasizes the UN Guiding Principles on Business and Human Rights, which are voluntary guidelines that depend on governments being willing to act to protect human rights. These guidelines develop a three-pillar framework consisting of states having a duty to protect human rights, corporations’ responsibility to respect and protect human rights, and remedies available if rights are not respected. Next, corporations can be reformed internally to further protect human rights from abuses of corporate power. Some such options include broadening fiduciary duties, allowing community stakeholders to take part of the corporation’s management, and expanding the legal obligation of a corporation to include international law rather than just domestic law. Finally, Professor Fakhri discusses the ATS as a potential tool to hold individuals around the world accountable for human rights violations. Unfortunately, the Supreme Court has slowly whittled away much of the Alien Tort Statute by, but it is still a powerful tool to be used to hold corporations liable. Professor Fakhri expands on the use of the ATS in a discussion of the Kiobel case on wrongs done by Royal Dutch Shell to the Ogoni people in the Niger Delta in Nigeria.

Overall, Professor Fakhri offers that, by reframing our stories and changing our relationships, we can make a difference. The framing of a story matters and situating it within the context of the larger social struggle can show the broader progress that has been made on a social issue over time.

Select Quotes:

“Working in the broad world of social justice can be grueling. You rarely win in the institutional sense…. But the point is to think in terms of historical time and as part of a broader movement. So for me the way change happens, how change happens, comes from new relationships. The way people change their mind, change their priorities and perspective and the way people empower themselves, is by changing their relationships. . . . So I define political success as creating the conditions that enable people to come after me. To continue the struggle and advance the struggle.”

“I’m coming from a tradition where the point is that lawyers often de-radicalize the claims made by social movements. And so the idea is, how can lawyers take radical claims from social movements, their demands and their own words, articulate them in legal terms and not de-radicalize the power behind them?”

“Now, there’s a longstanding debate over what’s the purpose of a corporation. What’s the corporation’s objective? And there is no predetermined legal answer. Every corporation, and you know this is a debate, but I think every corporation has a different purpose. And then different shareholders hold different principles and values. Lynn Stout . . . wrote: “Maximizing shareholder value is not a managerial obligation; it is a managerial choice.” I think that just captures everything. So that’s to say maximizing shareholder value is a very particular moment that we’re in. And it starts in the 1970s, especially in North America. This idea of maximizing shareholder wealth has become almost like a prime directive.”

“I’m going to focus on the UN Guiding Principles because it’s one of the most well-known and comes out of the Human Rights Council. . . . [T]he Guiding Principles do is they provide a three pillar framework. It focuses on states and corporations. It says “states, you must protect. You must protect people’s human rights. You have a duty to protect people’s human rights.” … The second pillar, and the one I’ll focus a bit on, is a corporate responsibility to respect. And what this does is this pillar outlines a process for companies to know and show that they are meeting their responsibility. [The] third pillar is about remedies. So the idea is that there must be access to a remedy if rights are not respected. And so states are responsible to provide access to legal remedy, and corporations must not prevent or remediate and they must remediate any infringement on rights. “

“[T]he last legal tool I’ll touch upon is the Alien Tort Statute. Modern Alien Tort Statute cases started off with a bang in 1984, with the Filartiga case. . . . U.S. courts become potentially a place to hold anyone in the world liable for human rights violations. Then with the Sosa case in 2004, the U.S. Supreme Court starts to set limits. And then with Kiobel in 2013, the focus really becomes on corporate liability. “Can the ATS be used to hold corporations liable for human right violations” becomes where a lot of the energies at the Supreme Court. . . .
Now, if you only focus on Alien Tort Statute, you’ll get depressed, right?… But if you situate Kiobel within the Niger Delta, it’s a slightly different story. . . .
Kiobel stems from the struggle of the Ogoni people in the Niger Delta against Royal Dutch Shell. . . . They lost in the U.S. courts, but then what they ended up doing is they managed to force Shell and Nigeria’s national oil company to commit to a billion-dollar cleanup of Ogoni land in the Delta…. They’re still in it. Kiobel did not weaken this struggle. They are stronger and they continue today.”

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