Boimah Flomo v Firestone… continued

July 19, 2011

A decision on the Boimah Flomo case was reached on July 11th 2011 by the US Court of Appeal for the 7th Circuit (The decision can be found here). It is worth mentioning because it significantly contradicted the findings of the Indiana’s District Court which dismissed the claim on the ground that the plaintiffs had “failed to establish a legally cognizable claim because no corporate liability exists under the ATS” (See my previous note here). The case is also noteworthy because of its conclusions on child labour.

On corporate liability

Establishing corporate liability was a major issue for the tribunal, which nonetheless provided a fairly clear reasoning and achieved a very acceptable conclusion. It overall rejected Firestone’s (the respondent) argument that “conduct by a corporation or any other entity that doesn’t have a heart-beat can never be a violation of customary international law, no matter how heinous the conduct” (p5), and by the same token clearly rejected the analysis of corporate liability provided in Kiobel, which it clearly deemed ‘incorrect’ (p6).

The Court overall suggested that there had to be a first time for litigation to enforce a norm, especially considering that there is no compelling reason to justify that corporations have rarely been prosecuted criminally or civilly for violating customary international law (p7-8)

On child labour

The tribunal’s conclusions on the child labour allegations are more delicate to handle and will most likely be the object of many comments, not to say criticism.

The Court, indeed, did not conclude that child labour was obviously problematic in this case, or at least that the elements at its disposal were sufficient to establish the existence of a genuine breach of the international law rules on the matter.

The Court rather found that that Firestone’s employees are very well paid by contrast with the average local salary, and suggested that child labour was not a matter of exploiting cheap labour. Because of their salaries, the Court found, the employees could have well hired extra cheap labour force to help them achieving their objectives, without being forced to rely on their family or children to do the job. Child labour, as a result, was not realted to a systematic or generalised policy, although it admitted that it was hard to know whether the company is actually prevented it:(p21-22)

“Remember too that Firestone doesn’t employ children; the argument rather is that by imposing tough quotas it induces its employees to enlist their children as helpers. The plaintiffs’ basic objection seems therefore to be to the quotas. This implies that courts must in a case such as this determine on an employer-by-employer basis what level of production quotas violates customary international law by encouraging oppressive child labor”

The Court, as a result, concluded that it had not been given an adequate basis for inferring a violation of customary international law, bearing and decided that the suit would have to fail. (p23).

Conclusions

Although the Court’s decision on corporate liability is satisfactory to the extent that it brings a certain level of clarity with regard to a very debated point, its contribution to child labour prevention is rather debatable. By leaving to the plaintiffs the burden of proving that the company had a child labour exploitation policy, and by failing the case on the ground that it did not have sufficient elements to decide, the Court also gives the impression that it did not actually try to find what had really happened and is playing with fire. Surely, many pro-human rights advocates will criticise the decision for resulting in protecting corporate interests to the detriment of child protections.

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