On 11 September 2012, a fire broke out in Ali Enterprises garment factory in the district of Baldia in Karachi (the largest city in Pakistan). The lack of appropriate health and safety measures and poor management by the factory owners contributed to the loss of more than 250 human lives and left at least 55 severely injured. Ali Enterprises was an active supplier to transnational corporations involved in the apparel business including KiK Textilien, a German company that bought 70 per cent of the garments produced by the factory. The incident and its aftermath raised several questions regarding the lack of occupational health and safety measures (OHSM) in global value chains (GVCs) along with access to remedy through national and transnational litigation systems for the victims and their families. It also illustrates how a collaborative effort may be helpful for the victims to achieve common goals. The book Transnational Legal Activism in Global Value Chains: Ali Enterprises Factory Fire and the Struggle for Justice critically examines this collaborative effort including transnational human rights litigation and advocacy campaigns in the aftermath of Ali Enterprises factory fire. Using the KiK case, it explores the possibilities of improving protection and enforcement of labour rights through litigation in the Global South.
The book offers a case study in the broader context of reforms in national and transnational litigation, advocacy, and legal and political systems. It will benefit business and human rights scholars, legal practitioners, and human rights activists by helping them understand various dimensions of human rights protection in GVCs. The book is divided into three parts, with chapters authored by different academics and activists. In the first part the book presents the litigation, campaigning and transnational collaboration in the aftermath of the Ali Enterprises factory fire. In the second part, some experiences of litigation and accountability measures from other jurisdictions in the Global South are examined, along with different legal avenues for justice using labour, tort and human rights law. The third part critically analyses such experiences and assesses strategic transnational litigation.
Part I includes accounts of first-hand experiences of people affected by the incident and those involved in national and transnational litigation and campaigning processes. It identifies the difficulties that a common person may face in understanding complicated legal frameworks and dealing with various stakeholders. The chapters authored by Miriam Saage-Maaß and Faisal Siddiqi offer a critical reflection on the legal interventions and transnational alliances initiated after the 2012 Ali Enterprises factory fire. Saage-Maaß contends that legal interventions can potentially be an effective tool for promoting workers’ rights in GVCs. How to improve access to remedy through compensation via strategic litigation is well explained in the chapter, but the effects of such litigation on improving working conditions in GVCs is not discussed. This shortcoming is evident from Faisal Siddiqi’s chapter, which explains that the effect of litigation can only lead to tactical success rather than strategic success. This means that while legal interventions after such incidents may lead to monetary compensation for the victims, they have a limited effect on improving working conditions. Using the example of legal interventions in the aftermath of the Ali Enterprises incident, he identifies two key issues at the heart of litigation: limited justice and structural injustice are inseparable, and so are law and lawlessness. According to Siddiqi, although strategic litigation has the potential to be a successful instrument for promoting workers’ rights in GVCs, it also presents shortcomings that can undermine its effectiveness. It can achieve (limited) justice but at the cost of structural injustice. For instance, in the case of Ali Enterprises, although victims received some monetary compensation, there were no structural changes in the legal or political systems. This problem co‑exists with another one: the existence of laws but at the cost of lawlessness. Siddiqi argues that laws protecting labour rights can exist if these laws are not enforced against those who hold power. He concludes that Pakistan’s legal system is not able to provide justice through strategic labour rights litigation. In the context of Pakistan, litigation alone cannot have a structural impact guaranteeing safe working conditions in GVCs.
Part II of the book covers different legal interventions through tort law, human rights law and labour law for the protection of labour rights, and evaluates voluntary corporate codes of conduct. The Accord on fire and building safety in Bangladesh (Bangladesh Accord) and the Indonesian protocol on Freedom of Association are taken as examples. The inefficiency of labour law, tort law and human rights law to protect labour rights in the Global South is evident from the discussions. Vanpeperstraete’s assessment of interventions in Bangladesh after the Rana Plaza disaster in 2013 is a befitting study of how governments in the Global South tend to only act in reaction to disasters. He argues that to counter this reactionary approach by governments, a preventive strategy from the labour unions is required. In order to achieve a better protection of labour rights, they must bring transnational corporations to the table. The failure of voluntary corporate codes of conduct to protect labour rights is discussed by Reingard Zimmer, who identifies an alternative approach, namely international framework agreements between trade unions and transnational corporations. She uses the example of the Indonesian Protocol on Freedom of Association, a framework agreement between Indonesian Trade Unions and international sportswear firms. Although promising in the Indonesian example, her proposal will only work in states where trade unions are more independent, which might not be the case in other South Asian states like Pakistan. Gerhard Wagner’s assessment of using tort law mechanisms for human rights protection (specifically the remedy part) offers a very interesting read. Wagner asserts that national tort law is a good avenue for protecting human rights, but using it in transnational human rights protection comes with an array of difficulties. The major problem identified is the uneven application of the law to all business entities in transnational litigation. This conclusion may be ahead of its time as there are limited data available regarding the effectiveness of tort laws in transnational litigation. The impact of relatively new corporate due diligence laws adopted by states in the Global North such as France, Germany and Norway along with the Corporate Sustainability Due Diligence Directive proposal in the EU is yet to be seen.
Part III provides a critical assessment of laws and post-colonial developments in the Global South to address human rights violations in GVCs. Chapters by Palvasha Shahab and Muhammad Azeem describe the inadequacy of colonial labour laws for the protection of labour rights in the post-colonial era and how the lack of social security systems in the Global South impacts the protection of marginalized communities. The chapters analyse the unchanging nature of labour laws in Pakistan and how they affect the protection of labour rights. They also emphasize the socio-political intricacies of the legal systems in the Global South where litigation may only temporarily result in structural change. In the latter chapters, Andreas Fischer-Lescano and Michael Bader highlight the inadequacy of strategic litigation in changing the laws to achieve better protection of vulnerable people. It is argued that an over-emphasis on strategic litigation fails to support the broader business and human rights agenda, namely bringing policy-based changes.
The main theme of the book is to assess transnational litigation as a tool to implement the business and human rights agenda. The focus on protection and enforcement of labour rights in GVCs through various aspects of transnational litigation and other relevant processes including the efficacy of soft law mechanisms and other stakeholder initiatives such as the framework agreements between trade unions and transnational corporations are well debated. Using examples from the Global South, the book assesses litigation as a mere reactionary process. As a result, national and transnational litigation becomes non-efficient because it can only be useful in providing compensation to the victims in some cases while neglecting structural legal changes to better protect workers. The politico-social set-up in the Global South will not be hampered by the litigation process in a way that could lead to change in enforcement of OHSM in GVCs. The analyses conducted in the book, however, are based on practices within the industry mostly prior to the adoption of corporate due diligence laws in the Global North – for example the upcoming EU Corporate Sustainability Due Diligence Directive – which may pave the way for more effective transnational litigation. The effectiveness of litigation used only in reaction to disasters in the Global South might be impacted by these new developments in the Global North, as changes in labour rights protection laws may become inevitable for attracting more investments. Having said this, the arguments provided in the book rightly identify that reliance of the business and human rights approach on transnational litigation may not be fruitful unless a socio-political change within the Global South emerges, accepting the value of labour rights in GVCs.
The book is thought-provoking and analytically helpful. It provides a compelling analysis of an overwhelming reliance on transnational litigation by BHR academics and human rights organizations in the Global North to achieve the greater goal of changing OHSM practices within the Global South. Furthermore, it also offers a good picture of how law comes into effect in the Global South. It is inspiring in the sense that it highlights possibilities of achieving success if one accepts and uses the intricacies within a given legal system.
