By Krishnendu Mukherjee
On the 11th September 2012, a fire at the Ali Enterprises (known as AE) garment factory in Karachi killed nearly 300 workers. The major and perhaps only buyer of apparel from the AE factory was the German retailer, KiK Textilien GmbH (hereinafter KiK). AE was therefore a first tier supplier. Whilst the cause of the fire is disputed, the high death toll could be attributed to the failure to comply with basic fire safety regulations in Pakistan. For instance, there were heavy iron bars on the windows and an alleged lack of emergency exits, whilst access to other escape routes were blocked. There are further allegations that fire alarms and fire extinguishers, did not work and no proper training on the use of the extinguishers was provided. In addition, KiK conducted audits through a private firm, UL Responsible Sourcing Inc, which had conducted several audits to ensure compliance with KiK’s Code of Conduct. Despite the auditing process, it appears the failures were not identified or addressed.
It was against the background of this case, that a joint event by the Human Rights Lawyers Association (HRLA) and the Institute of Contemporary Arts (ICA) sought to consider the ways in which such tragedies could be prevented and remedied. The multi-disciplinary panel included: Jenny Holdcroft: Assistant General Secretary at IndustriALL Global Union; Shanta Martin, a partner at Leigh Day; Christina Varvia, Deputy Director of Forensic Architecture and Dr Anil Yilmaz-Vastardis, Lecturer at the University of Essex.
Forensic Architecture, a research agency that investigates state violence and human rights violations using architectural techniques, have produced a short analysis of the AE factory which has been used to support legal proceedings in Germany. The film was presented by Christina Varvia, which graphically (and yes forensically) demonstrated how AE were negligent and how AE and KiK’s version of the safety measures in the factory could not be substantiated. Forensic Architecture have worked on a number of interesting and informative projects which seek to highlight how the public truth is hidden or distorted, including US drone attacks, migration and most recently on Grenfell Tower. This work has won it a much-deserved nomination for this year’s Turner Prize.
Dr Yilmaz-Vastardis, spoke about the KiK case and why the claimants chose to bring the claim in Germany, KiK’s home country. In particular, she stressed the difficulties in bringing the claim in Pakistan, and discussed how the evolving common law of negligence allowed a breach of duty of care to be found in non-traditional relationships, such as that between KiK and AE. Of particular importance was the fact that KiK had a Code of Conduct, which inter alia sought to ensure compliance with the health and safety standards at the workplace, where it was the majority buyer and could therefore exert power over the health and safety at AE. Shanta Martin, explained her firm’s history litigating against parent companies in the UK. Such cases were initially based on establishing that the parent company had the requisite degree of control over its subsidiary, but increasingly showing that UK-based company could be held liable through its own policies and diligence within its supply chain. Non-judicial interventions to access remedies were discussed by Jenny Holdcroft. She emphasised the importance of mechanisms such as the Bangladesh Accord, which, in response to the Rana Plaza tragedy, had brought together unions and garment manufacturers, to create a parallel system of factory inspection.
Over the wide-ranging discussion that followed between the panellists there was a recognition of the significant expense and difficulties in bringing group claims in the home state. However, operational-level grievance mechanisms had so far failed to provide any accountability to corporations. Moreover, though consumers can play a role in putting pressure on companies to improve human rights in their supply chain, companies had no justification for the pressure put on their suppliers to cut costs. Whilst there were understandably differences of opinion in relation to the effectiveness of different strategies, the panel were in complete agreement that the Governments, whether of home or host states, needed to do more. Of particular criticism was the position of the British Government.: Someone with a remit across a range of responsible business topics from the Government’s Department for Business, Energy and Industrial Strategy had been invited to the panel, but could not attend. An email exchange with a civil servant was read out during the event, which highlighted the Government’s key policies and position on human rights violations in supply chains. However, it was felt that the Government’s position revealed little of substance and was in marked contrast to its rhetorical commitment. For example, a simple step of requiring mandatory due diligence in the supply chain rather than the voluntary requirement under the Modern Slavery Act 2015, which companies have largely ignored, would be a significant step forward.
The law has not kept up with globalization. If it had then we would not be in a situation where different human rights protections are applied to the producers of the different parts of the same product. In the brave new world of business and human rights, the bottom line can no longer be profit. The bottom line has to be sustainability and that can only be ensured not only by obeying the law but also ensuring that your global business activity does not have wider negative human rights impacts.