magnify
Home Articles posted by Steven R. Ratner

Corporations Suing in Defense of Human Rights? Lessons from Arkansas

Published on June 13, 2017        Author: 

Debates regarding corporate responsibility and human rights have centered on claims that corporations or their contractors are directly violating certain human rights or assisting states in doing so.  Whether in the extractive industries (Shell in Nigeria), the apparel industry (the Bangladesh apparel factory collapse), or even software (Google searches in China), many civil society groups see the multinational corporation as a right-violator or at least rights-violation enabler.  But a recent episode in Arkansas – the home of Bill Clinton and the 1957 school desegregation crisis, but also one of the 31 U.S. states with the death penalty — shows corporations taking the offensive for human rights.

Over the last decade, the manufactures of the drugs involved in lethal injections have adopted policies asserting that they will not sell their drugs for that purpose.  A typical example is the 2015 policy of Akorn:

“Akorn strongly objects to the use of its products to conduct or support capital punishment through lethal injection . . . . To prevent the use of our products in capital punishment, Akorn will not sell any product directly to any prison or other correctional institution and we will restrict the sale of known components of lethal injection protocols to a select group of wholesalers who agree to use their best efforts to keep these products out of correctional institutions.”

The companies’ commitment to avoid participation in lethal injection extends to creating an internal protocol in their sales practices, with a goal of keeping the drugs out of the hands of the executioners.

The stakes were raised in Arkansas in April when McKesson Medical-Surgical Inc. sued the state, seeking a preliminary injunction to obtain the return of chemicals it sold to the state corrections department or a guarantee that they would not be used for executions.  McKesson asserted that prison officials deceived the company into selling them one hundred vials of vecuronium bromide, a chemical that causes paralysis during executions.  McKesson claimed that the officials called a sales representative they knew and that McKesson filled the order without knowing their ultimate use.  The legal claims were based on state contract law as well as a violation of the takings clause in the Arkansas Constitution. The next day, a judge in Pulaski County (which covers Little Rock) issued the preliminary injunction.  The state immediately appealed the ruling to the state supreme court, which stayed the injunction.  Over the next week, Arkansas executed four prisoners using the three-drug method that includes vecuronium bromide, although the source of the drug actually used remains publicly unavailable.

McKesson’s legal case may have sounded in Arkansas contract law, but it had human rights written all over it.  Here are the key international legal issues – and some moral aspects — and implications of the case:

Read the rest of this entry…

Filed under: EJIL Analysis, Human Rights
 
 Share on Facebook Share on Twitter
Comments Off on Corporations Suing in Defense of Human Rights? Lessons from Arkansas

International Law’s Impartiality – Myth and Reality

Published on October 26, 2015        Author: 

Editor’s note: This post is a reaction to Frédéric Mégret’s article issued last week by the European Society of International Law – ESIL Reflection: In Search of International Impartiality.

Frederic Mégret offers us many questions about reconciling the project of international law with notions of impartiality. As he recognizes, impartiality is a multi-faceted concept, and our expectations for impartiality of various participants in the international legal process cannot be uniform. Mégret forces international lawyers to think hard about our biases as we “do” our lawyering. But impartiality needs to be broken down a bit more, and its institutional aspects made clearer. When this is done, some of the dilemmas and contradictions he identifies seem like less cause for existential worry among international lawyers.

Of the many ways to look at impartiality, two seem most relevant to the international lawyer.

First, there is the very general notion of impartiality as acting in a way in which we treat like cases alike: in this sense, impartiality is equivalent to the most minimal form of justice as recognized by both H.L.A. Hart (The Concept of Law, 3rd ed. (2012), p. 159) and R.M. Hare (Moral Thinking: Its Levels, Methods, and Point (1981), p. 157). This is in a certain sense the ideal of all law, domestic and international, and those who administer it.

Second, impartiality can equate with a general even-handedness and respect for the positions of two or more sides or claimants, up to the point where fidelity to other obligations – like the law – may require acting in favor of one side’s position. This sort of impartiality is expected of decision makers charged with applying the law, judicially or otherwise.

Beyond these two conceptions is the idea of impartiality at the centre of contemporary debates in moral philosophy. The impartial standpoint is one in which one’s connections to particular groups or people per se are not per se relevant to one’s judgments or actions, although such ties can be relevant if they can be justified from an impersonal standpoint. All three conceptions see impartiality as basically about not playing favorites. But of course what counts as impartial conduct depends upon a thicker theory of morality or rules of law. Read the rest of this entry…

 
 Share on Facebook Share on Twitter
Comments Off on International Law’s Impartiality – Myth and Reality

A Response to the Discussants

Published on June 5, 2015        Author: 

The responses to The Thin Justice of International law from four international lawyers and two philosophers represent a welcome continuation of the dialogue I have tried to catalyze with my book. Most of the comments were directed to the theoretical framework, rather than my individual conclusions about the justice of particular norms. So I will focus on those broad concerns. At the same time, I hope readers will also judge the framework not merely in abstracto, but by how well it handles the individual norms that it appraises. If its discussions and conclusions about the justice of the rules on force, self-determination, sovereign equality, IO membership, and other topics prove convincing or at least set some terms for future debates, then the framework will have done what I wanted it to do.

The comments raise so many points that I can only address them briefly here. I will try to tackle them thematically, in a way accessible to readers of both blogs.

  Read the rest of this entry…

Filed under: EJIL Book Discussion
 

Introducing The Thin Justice of International Law

Published on June 1, 2015        Author: 

I begin with thanks to the editors of the two blogs that have organized this mini-symposium and to the five authors, from ethics and international law, who have agreed to comment on my book. I hope this experiment in interdisciplinary blogging will be the start of something bigger.

The project that eventually became The Thin Justice of International Law began out of a sense of frustration that two of the core disciplines central to developing ideas and norms of global justice – philosophical ethics and international law – were not engaging with each other. Political and moral philosophy can give us the carefully worked out ideas for improving the existing world order. Yet much of it lacks institutional awareness. In particular, I saw a dominant trend among philosophers to dismiss existing rules of international law as lacking in moral stature, as if their origin in power politics or compromise meant they could not have any independent moral grounding; or simply to ignore legal rules and institutions in their theorizing about global justice.

Read the rest of this entry…

Filed under: EJIL Book Discussion
 

Beyond Courtroom Arguments: Why International Lawyers Need to Focus More on Persuasion, Part II

Published on September 11, 2013        Author: 

PersuasionIn my last post, I noted several gaps in the literature on legal persuasion, notably the reasons actors make legal arguments, the forms those arguments take, and their effectiveness.  In this post, I want to express a few views on the first two of these questions, based on research that reflects my experience in-house at several international institutions whose mission includes encouraging compliance with international norms.  In brief,  I’ve tried to develop a theory under which an international actor (government, NGO, non-state actor, corporation, etc.) seeking to persuade another actor to comply makes decisions about the sort of strategy it will use based on four inputs:

  • Ÿ the nature of the compliance dispute;
  • Ÿ the parties to the dispute;
  • Ÿ the institutional setting for the persuasive process; and
  • Ÿ the traits and sense of identity of the persuading entity.

These inputs will affect all aspects of its persuasive strategy — the timing of the intervention (i.e., the ripeness issue), the specific institutional players it will deploy (e.g., high vs. low-level actors), as well as the substantive content of the argumentation — including, of course, its legal component. (image: illustration of a scene from the novel Persuasion, entitled, “The Unwelcome Hints of Mr. Shepherd, His Agent,” credit)

The legal arguments used by the persuader – the outputs — will also fall along four dimensions.  Those arguments will vary according to what I have termed their:

  • publicity (from secret all the way to public);
  • density (from sparse in terms of detailed legal interpretation all the way to thick with it);
  • tone (from gentle and educative all the way to confrontational); and, most critically for our purposes,
  • directness.

By directness, I mean the centrality that law will assume within the argument for compliance.  The concept of directness helps us understand the nuances of legal argumentation as a way to promote law compliance.  Three options for directness are possible, where, let’s say, X is the behavior required by the law. (I am simplifying based on a notion of law as imposing obligations.) Read the rest of this entry…

 
 Share on Facebook Share on Twitter
Comments Off on Beyond Courtroom Arguments: Why International Lawyers Need to Focus More on Persuasion, Part II

Beyond Courtroom Arguments: Why International Lawyers Need to Focus More on Persuasion, Part I

Published on September 10, 2013        Author: 

Steve RatnerSteven Ratner is the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School.

Persuasion is at the heart of the lawyer’s – including the international lawyer’s – task.  The lawyer may be persuading a decisionmaker of the merits of her client’s case; or persuading another party, or even her own client, of the need to follow the law; or persuading lawyers on the other side, or even her own side, of the best legal strategy to pursue to resolve a problem.  For the international lawyer, like the domestic lawyer, most of that persuasion takes place outside any courtroom, whether in negotiations, hearings, private meetings, or public statements.  Those institutions or individuals making the decisions on a client’s interests are far more likely to be regulatory or political actors than they are to be judges – particularly in the international context, where the nuts and bolts of legal claim and counterclaim are still beyond judicial scrutiny. Critical to the lawyer’s role in that process of persuasion is the question of whether, in those settings, a legal argument really works – whether it actually convinces the audience.

Lawyers do not generally ask this question when it comes to courts.  We assume that international and domestic courts will be persuaded by legal arguments because their mandate is to decide cases based on the law alone – such that we’d question their legitimacy if they overtly set aside legal arguments in favor of non-legal arguments (moral, economic, or otherwise, though there can be recourse to ex aequo et bono).  And we would all be guilty of malpractice if we did not present that best legal argument to a court.

But what about the lawyer’s role in persuading all those non-judicial actors – the ones that are more likely to make a difference to the client’s interest?  In the international realm, whatever the client, lawyers have to persuade governments, international organizations, powerful nonstate actors, and the general public.  Beyond the client’s interests, as international lawyers, we are also presumably committed to the idea that international actors follow the rules.  If an actor is violating the law or contemplating doing so, do we know what works to convince it to stop doing so?  How helpful is legal argumentation? Read the rest of this entry…