Confined Employment: Exploring Labor Marginalization in Workplace Safety

This chapter argues that Pakistan has never had a bona fide system of occupational safety and health (OSH) laws, policies, standards or enforcement mechanisms (“OSH infrastructure”). Instead, the country’s present OSH infrastructure remains divorced from workers’ most urgent needs and the country’s institutional capacity—effectively leaving workers without protection. This chapter traces the progress of the fire, delineates violations of OSH law and provides an account of the actions and inactions of various actors involved. In doing so, it highlights the gap between the OSH system’s deficiencies and the fatalities they caused; outlining what measures were legally required to prevent such a tragedy but they were not in place. Then, it explores the geneology of these illegalities and accompanying apathies as it traces the history of Pakistan’s OSH infrastructure back to its origins under British colonial rule and contextualises it with the overarching global (politico-economic) order in which the factory fire should perhaps be seen. Thus, it renders visible the historical trajectories and contemporary political and economic factors that have led to workers’ persistent exclusion from the politico-legal sphere, denial of their rights and their dehumanisation—specifically in Pakistan and generally in the Global South. It concludes by identifying some directions that could be taken for a renewed and vitalised mandate to govern the OSH infrastructure in Pakistan.

Toward a Strategic Engagement with the Question of the Corporation

Corporations, in their quest for the highest profit margin, have violated human rights, labour rights and environmental standards for decades, with little to no accountability. In recent years, the fight for corporate accountability under the banner of “Business and Human Rights” has come to dominate civil society’s engagement with the “question of the corporation.” This chapter aims to critically examine the political objectives underpinning the broad-church project of Business and Human Rights in its world-making aspirations, taking the Legally Binding Instrument currently under discussion at the UN Human Rights Council as a case study. Using a historical narrative approach, this article first situates the evolution of Business and Human Rights within neoliberal globalisation and, against this backdrop, attempts to think through the “dark side” of this particular strand of human rights activism. By bringing critical legal scholarship on the corporation and human rights into closer conversation with Business and Human Rights, the article aims to excavate the latter’s structural flaws, namely that it leaves the asymmetries in the global economy and the imperial corporate form unchallenged. By problematising Business and Human Rights’ presupposition of business as fact and its uncritical embrace of rights as positive change-makers, the article presents an invitation to rethink strategic political objectives vis-à-vis corporate rights abuses.

Pakistan’s “Industrial 9/11”: Transnational Rights-Based Activism in the Garment Industry and Creating Space for Future Global Struggles

This chapter is based on an internal evaluation of the of the 2012–2019 cooperation between the Pakistani National Trade Union Federation (NTUF), the German humanitarian organisation medico international, and the Berlin-based European Center for Constitutional and Human Rights (ECCHR). Written from a first-person perspective by three members of these organisations, it offers invaluable insights into the internal coordination and strategic deliberations of the partners’ evolving transnational efforts to hold the German retail company KiK and Italian social auditing firm RINA to account on behalf of the survivors and victims’ families of the 2012 Ali Enterprises factory fire. The authors elaborate on the multi-dimensional effects and aftermath of the Ali Enterprises tragedy, and recount the lessons learned from their different perspectives as trade unionists, activists, and lawyers based in both Pakistan and Germany. On this basis, the chapter then maps additional possible avenues for supporting the transnational struggles of workers around the globe. All in all, it offers rich insights into the experiences and complex debates ongoing amongst the authors and their organisations on how to develop common positions and further enhance their mutual understanding in order to collectively imagine and work towards transformative political goals.

Trade Union Approaches to Global Value Chains: The Indonesian Experience

The evident failure of voluntary corporate codes of conduct and their monitoring has further intensified debates over the purchasing practices and legal accountability of transnational corporations. This article analyses the development of International Framework Agreements as an alternative approach advanced by trade unions and describes the characteristics of these instruments, pointing out their strengths and weaknesses concerning implementation and monitoring. It specifically focuses on the Indonesian Protocol on Freedom of Association, a special framework agreement concluded between Indonesian trade unions and international sportswear firms to protect freedom of association and trade union rights in the Indonesian textile, garment and footwear industries. After presenting the protocol’s content, the article discusses findings concerning the implementation and monitoring of the agreement, based on interviews conducted by the author in Indonesia between November 2018 and January 2019. It identifies several key factors that led to the successful promotion of strong trade union rights in the formation phase of the agreement, namely public awareness due to intensive campaigning around a mega sporting event, strong support from different civil society actors and the presence of a neutral facilitator. Overall, the Indonesian Protocol on Freedom of Association is an example of a bottom-up process that strengthens the signatory trade unions and thus serves as a potential model for actors in other countries.

Introduction: Transnational Law and Advocacy Around Labour and Human Rights Litigation

In this chapter, Peer Zumbansen introduces the book. He contextualizes the Ali Enterprises Factory Fire and the movement building and activism that followed in light of current transnational legal debates as well as global value chain research and subsequently introduces each contribution.

Loss and Legibility: A Conversation with Saeeda Khatoon

Saeeda Khatoon rose as a prominent figure and main voice of the Ali Enterprises Factory Fire Affectees Association (AEFFAA). She lost her son in the fire of 11 September 2012 and was one of the four petitioners in the German case against KiK. In this interview, she speaks to Palvasha Shahab about the events unfolding from her perspective as well as strategic decisions and collective organizing in light of the transnational lawsuits she was involved in.

Tort Law and Human Rights

The article explores the relationship between tort law and human rights. It explains the potential inherent in holding corporations liable in tort for human rights violations along the supply chain, such as the 2013 Rana Plaza collapse in Bangladesh. On a theoretical level, it devises a legal framework of tort liability that is optimal from the standpoint of social welfare. Such an optimal liability system would make manufacturers internalise the full cost of production, including harm caused to workers, third parties and the environment. In contrast, the present global liability situation is characterised by legal fragmentation and enforcement deficits. These factors provide the explanation for the large-scale externalisation of production risks we witness today, leading to an inflated global demand. In principle, tort law is well suited to offer a remedy, as the interests protected by human rights and national tort law broadly overlap. Furthermore, the duty of care which is the core requirement for shifting losses to others via tort law is a flexible concept that may even be stretched to accommodate cross-border human rights policies. The new French “devoir de vigilance,” or human rights due diligence, as well the UK Supreme Court’s recent jurisprudence, aim to tap this potential. On the other hand, the article raises doubt in relation to the adverse economic incentives and market shifts if such duties are imposed selectively, i.e. only in some jurisdictions, but not in others. After all, private international law often stands in the way of a global application of national tort law. Finally, alternative mechanisms of enforcement are assessed and examined with a view to their comparative effectiveness. This analysis casts doubt on the usefulness of tort law as a means to further the human rights cause.

Legal Interventions and Transnational Alliances in the Ali Enterprises Case: Struggles for Workers’ Rights in Global Supply Chains

This article highlights the persistence of exploitative working conditions in global supply chains resulting from the constant need to externalise costs and increase consumption with a view to sustaining the “imperial lifestyle” of people in the Global North. While the law structures today’s global value chains and is designed to secure the economic interests of Global North companies that sit at the top of most of such chains, it also bears considerable potential for transformation and empowerment. The different legal interventions around the 2012 Ali Enterprises factory fire demonstrate that law is not only a direct product of dominant class interests, but that it can also open up opportunities for resistance and emancipatory struggle. Written from the perspective of one of the actors closely involved in the legal struggle for justice that followed the Ali Enterprises factory fire, both in terms of building transnational alliances as well as in the litigation itself, this chapter critically reflects on the achievements of the legal interventions carried out and also attempts to develop criteria for a holistic approach to what is often called strategic litigation.

Transnational Labour Law? “Corporate Social Responsibility” and the Law

The article traces the development of transnational concepts of corporate social responsibility (CSR), particularly in relation to International Labour Organization (ILO) standards. It analyses the relationship between transnational private law instruments, and national and international law. It points out opportunities and limits of new enforcement mechanisms, emphasising the role of national legal systems: It will only be possible to prevent the law from becoming a pawn in corporate strategies if CSR instruments become sufficiently effective.

Paradoxes of Strategic Labour Rights Litigation: Insights from the Baldia Factory Fire Litigation

This chapter focuses on the legal activism that followed the Ali Enterprises factory fire and its aftermath in Pakistan. This chapter has two purposes: firstly, it documents the legal proceedings that were initiated and pursued in the courts of Pakistan as well as its interconnected developments. Secondly, I aim to use this engagement with the legal proceedings of the Baldia factory fire aftermath as an opportunity for an in-depth reflection on the capacity and, finally, suitability of the judicial process to bring about justice in struggles over human and labour rights. Providing a rare and insider account of the legal proceedings in the Pakistani courts and its interconnected developments, I hope to lay the empirical foundation for the theoretical and strategic claims of this study. It is against the background and based on the experience with the litigation and legal advocacy following the Baldia fire that I examine the two what I perceive as “paradoxes” at the heart of the litigation. The first is the inseparability of the “limited justice” that may result from such litigation on one hand, and the “structural injustice” that informs and determines the conditions the litigation seeks to address—and transform—on the other hand. The second paradox concerns the inseparability of both law and lawlessness as regards the legal context of the litigation, advocacy and policy proposal elements that are here in play.My argument is that these apparently contradictory phenomena not only coexist alongside one another but that they guarantee each other’s existence. This analysis leads me to the conclusion that in order to understand and improve such forms of strategic litigation, it is necessary to measure its success and failure in terms of three distinct but interconnected criteria. These are the tactical, strategic and structural impacts of the litigation. Ultimately, I will argue for rejecting what is often perceived by involved stakeholders to be an unavoidable choice between nihilism, euphoria or incremental reform in this context. But, to the contrary, I will argue for a conception of legal struggles as a means of building sustainable and fruitful forms of resistance and of change based on the recognition and exploitation of these irreconcilable paradoxes rather than fruitless attempts to ignore or transcend these irreconcilable contradictions.