Corporations Suing in Defense of Human Rights? Lessons from Arkansas

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:

A. Was McKesson ever at risk of participation in a human rights violation at all? 

The answer to this question depends in part on one’s assessment of the consistency of the death penalty, as practiced in the United States, with human rights law, in particular the ICCPR and the Convention against Torture (CAT).  The United States has maintained, notably in its 2011 report to the Human Rights Committee and 2013 report to the Committee Against Torture, that the death penalty is consistent with the ICCPR and the CAT.  The Committees, and numerous NGOs, have strongly disagreed, noting serious procedural flaws in death penalty cases as well as the possibility of severe pain during the execution.  For the rest of this post, I will assume that the death penalty in the United States violates the ICCPR due to the arbitrariness with which it is carried out.

We thus enter the legal landscape on corporate responsibility for human rights violations.  The most important elaboration of standards relevant to McKesson’s situation, the UN Guiding Principles on Business and Human Rights (UNGPs), devotes some attention to the question of corporate complicity in the conduct of other actors.  In elaborating the corporate responsibility to respect human rights (one of the three pillars of the UNGPs), Principle 13 states that businesses should, in addition to avoiding harm through their own activities, also “seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”  Principle 17 specifies that companies should carry out “due diligence” to prevent such impacts and goes on to explain various understandings of complicity.

Complicity itself has moral and legal meanings, and different legal meanings depending on the context (state vs. individual responsibility, criminal vs. civil wrongs, etc.).  In their book Complicity and Compromise, Robert Goodin and Chiara Lepora parse the various moral understanding of complicity and identify a number of gradations.  Under their view, the sale of drugs to a state with the knowledge that they are being used for executions would constitute “complicity simpliciter,” in that the acts of the drug companies “contribute causally . . . to the implementation of the principal wrongdoing [b]ut they do not in any way ‘constitute’ the principle wrongdoing.”  (pp. 42-43.)  As an international legal matter, complicity by non-state actors has multiple meanings, including the aiding and abetting concept in international criminal law (an area subject to significant disagreement, as James Stewart demonstrates well here).  Without getting too far into the weeds about actus reus and mens rea, it would seem that the knowing supply of drug for execution, assuming that executions are a human rights violation, is an example of moral and legal complicity in that violation.  So, yes, McKesson was at risk of a form of complicity.

B. What was McKesson’s duty in this situation? 

No treaty specifies a duty on corporations, or a duty on states to require corporations, to prevent their complicity in human rights violations as a general matter — although, for instance, international labor treaties impose duties on states to regulate corporate conduct that can harm individuals.  The Guiding Principles are only soft law.  Yet a number of jurisdictions have begun to give them quite a hard shell, such as the EU and requirements on conflict minerals (EU rules here; US rules here, although an appeals court found one part unconstitutional and the Securities and Exchange Commission is limiting enforcement pending a reconsideration by the current administration), and France’s recent law on due diligence across all sectors (here).  It’s important to remember that the Oklahoma prison was a purchaser of McKesson’s drugs.  For purposes of the Guiding Principles, however, the rights violation of a customer is still “directly linked to their operations, products or services by their business relationships.”  Yet  it’s certainly a different case from the acts of a contractor or a supplier.  Indeed, the new French law covers only “sous-traitants ou fournisseurs,” i.e., contractors and suppliers, which would not address customers.

The UNGPs recognize the different economic relationships between a company and those who violate human rights when they state that actions required as part of a company’s due diligence will depend upon “the extent of its leverage” (Principle 19).  And the commentary elaborates further that where the violation is only linked to company activities (without the company actively contributing to it), then the action required will turn on “the enterprise’s leverage over the entity concerned, how crucial the relationship is to the enterprise, the severity of the abuse, and whether terminating the relationship with the entity itself would have adverse human rights consequences.”  Applying these factors to McKesson, the company would seem to have significant leverage over the state prison system (as it is one of a small number of producers of the drug); the relationship with the prison does not seem crucial commercially to McKesson (one suspects it is not a major part of their business); the abuse is quite severe; and return of the drugs would not have adverse impacts.  So, in this case, McKesson’s responsibilities would extend to taking steps to stop the use of its drugs for executions, a course of action it tried through the attempt at an injunction.

C. Does it matter what McKesson’s motivations were? 

The decision of McKesson and the other drug manufacturers to prevent the use of their products for executions was probably motivated by a combination of factors.  Shareholder and some management officials probably opposed the death penalty, and the company probably feared financial consequences – perhaps even boycotts – if it failed to take a stance on the issue.  NGOs like Reprieve played a role as well.  There might even have been a sense that normative expectations about corporate conduct were changing globally after the Guiding Principles.  So moral, economic, and legal factors were probably all at play.  The juxtaposition of companies dedicated to improving human health and the use of drugs to kill the condemned was probably too much for them to handle.

Positivist approaches to law emphasize that the motivation for compliance is irrelevant to a rule’s status as law, though it’s generally a good thing for the rule of law if the legal nature of the norm had something to do with observance.  From the moral perspective, deontologists will care very much about the motivation for action – the essence of the Kantian approach to ethics — and so they might well be dissatisfied if McKesson’s actions were really driven by a concern for the bottom line.  I’m much more of a consequentialist, so the effects of McKesson’s lawsuit are the lodestar of its morality.  If it led the state to avoid using McKesson’s drugs for the execution, or even just to appeal the injunction, then it made it slightly harder for Oklahoma to violate human rights (again, accepting this view of the death penalty).

D. Is this case a precedent for a more proactive role for corporations in protecting human rights?

McKesson’s intervention provides some subsequent practice (in loose VCLT terms) on the scope of due diligence under the UNGPs.  That process extends not merely to monitoring the activities of the company and those with which it has commercial ties, but taking action, to the extent possible, to stop violations.  Here, it would seem that McKesson determined that the only way to prevent the use of its drugs for an execution was to go to court.  McKesson’s actions can at least serve as example to other companies about the strategies they can, or may need to, take to satisfy the due diligence standard.  Some companies will argue that going to court is not required by the UNGPs, and it’s possible that McKesson did more than they require.  But it still serves as a useful ratcheting up of the content of due diligence.

On the one hand, McKesson’s actions – and the decisions of Pharma to create internal procedures to prevent the use of their products for executions – result from a perfect storm of factors favoring progressive action by companies: an unambiguous norm, the ban on the death penalty, with wide support in much of the world; relative ease at developing an internal corporate plan to keep the company away from the violation; and lack of any dependence on the violator for the company’s business.  If any of those factors are absent, companies will probably be less inclined to take a leadership role in ending a human rights abuse.  It’s hard to imagine, for instance, Google going into a Chinese court to prevent the state from blocking access to certain websites in order to avoid complicity in violations of freedom of expression.  And it’s even harder to imagine Google stopping sales in China to prevent such violations.

But big Pharma’s actions show the promise of corporate leadership in other cases. Corporations can have leverage, for example when they are the only supplier of a product that the state has used to violate human rights.  By stopping sales, taking customers to court, or putting in place an internal system to prevent the use of the product, corporations can cut off violations at an early stage (though states can always seek other suppliers with fewer moral scruples).  This sort of proactive involvement clearly requires either corporate leaders with a human rights focus, or advocacy by those with influence over the bottom line — customers and shareholders — to make the business case for taking due diligence more seriously.