councilor.org
| Source | Dave Anderson |
| Date | 00/01/20/16:12 |
| This doctrine of legal standing
is a long way from being established in the courts, but these and other suits are attempting to hold companies liable for malpractices abroad and the deception of American consumers at home. Obviously, this is not what American business had in mind as "tort reform." But the legal risks are quite real for US multinationals, according to Stanford's Armin Rosencranz, an authority on international environmental law. It also opens a promising new field for trial lawyers, who took on big tobacco and showed that significant reform is still possible, despite America's stalemated politics. Reform legislation, both at the state and national level, can advance the cause by ratifying in law that foreign citizens have clear standing to sue US companies in US courts, thus pre-empting the Supreme Court's business-friendly conservatives. At the same time, Congress could require the companies to provide hard, precise data on environmental damage to those foreign communities and citizens who are usually kept in the dark about what's being done to their surroundings. Information is powerful. That's why companies don't often volunteer it. Daniel Seligman, head of the Sierra Club's responsible-trade campaign, suggests a preliminary outline: Congress could enact legal requirements that US multinationals disclose toxic releases at overseas production facilities that would parallel the existing laws for industry at home. When an oil or mining company plans to open a new project in a foreign country, it would have to prepare the equivalent of an "environmental impact" assessment and share it with the affected community. The company would be required to engage in open discussions on potential consequences, not just with the national government but with the people whose health and habitat are threatened. Furthermore, multinationals and their affiliated producers would have to disclose an annual inventory of what exactly is being dumped in the river or ground, what emissions are released into the air and, of course, what toxics are inside the factory. This does not intrude on any country's pollution standards, but it does equip citizens to act for themselves. As US environmentalists have learned from long experience, the process of enforcing pollution standards can be torturously slow and incomplete if it relies solely on government agencies. Enactment of US toxic "right to know" laws in the eighties was a crucial turning point. The information unleashed grassroots energies and compelled many companies to accelerate compliance. No one should imagine that poor people in Asia, Latin America or elsewhere are indifferent to what's happening to their local environment. The problem is that they usually have no voice in the matter. Thus, a new law would embody two fundamental reforms: First, companies would be compelled to make full disclosure of their pollution, and, second, affected foreign citizens would have the right to sue them for damages in American courts. "This has nothing to do with eco-imperialism," Seligman emphasized. "It simply holds our own firms accountable to our values. It's not dictating the levels of pollution, but it's giving communities, not just governments, the information they need to decide their own destiny." This reform should further stimulate the development of international civil society and the rule of law, both of which the business establishment claims to want. Local citizens, alarmed by the despoliation, could seek expert help from established environmental groups elsewhere in the world. If the facts are truly alarming, they could hire a lawyer to represent them in American courts. Where Are the Workers of the World? When consumer activists targeted the wages and working conditions associated with Nike and other famous brands, Mattel decided to act on its own, before Barbie dolls got caught in the same cross-hairs. Half of the Barbies are now made in China, where labor conditions are notorious and Mattel uses 300 subcontractors, according to the Asian Monitor Resource Center. Mattel developed a detailed industrial code for its producers, prescribing standards for everything from injury rates to the number of bathrooms per 100 workers. The three-member Independent Monitoring Council chosen by the company to oversee compliance includes economist Murray Weidenbaum, an antiregulation conservative and well-known apologist for business practices. PricewaterhouseCoopers, the global accounting firm, was hired to audit. No one should be surprised that their first report, in November, covering three major factories in China and some others in three other nations, gave Mattel high marks. It describes the local managers as enthusiastic about correcting certain deficiencies. Still, even Mattel's own handpicked inspectors were baffled by the payroll records at two Chinese plants--the accounting system for wages, hours worked, overtime paid. The monitoring committee admitted that it "experienced difficulty in verifying certain elements of the pay structure.... A large majority of workers...expressed a lack of understanding of their pay stubs." The workers, likewise, seemed unfamiliar with Mattel's "Global Manufacturing Principles," though the new standards were supposedly explained to them. The council noted that when some workers responded to questions, "it appeared that these were memorized answers." Nor were workers able to say much about free expression or complaints to managers. "Most of them were either not conscious or were reluctant to talk about the freedom of association or unionization issues," the report noted. A less charitable explanation of the wage-and-hour confusion was provided by the Asian Monitor Resource Center in a March 1999 report on what its citizen investigators found at twelve Chinese toy factories, including several where Mattel is active. "During the peak season, not a single worker can leave the workplace after eight hours' work," the center reported. "Most workers in these toy factories work ten to sixteen hours a day, six or seven days a week.... Since most toy workers are paid by piece rate, they never receive overtime pay." Corporate codes of conduct have led to some improvements, the center noted, including on fire safety. "However," the report added, "we still found numerous blatant violations of workers' basic labor and human rights--including flagrant violations of China's own Labor Law, even though many of the factories we investigated are subcontractors for [multinationals] having codes of conduct on paper." The Asian center, for instance, found that the Tri-S factory in Dongguan, which it identified as a Mattel and Tyco supplier, was still operating a "three in one" factory that is ostensibly illegal. Three hundred workers slept on the third floor; the second floor was full of raw materials. The issue is not Mattel's sincerity. The question is whether Americans will allow enforcement of labor rights to be "privatized"--left to the moral judgments of individual companies-- or whether these complex matters must be codified in law as clearly stated benchmarks, so that corporate claims can be tested by independent verification and, if necessary, challenged in courts of law. Even if one accepted any individual company's good intentions, that still leaves millions of peasant workers subject to low-road practices by thousands of other companies and their contractors, responding to fierce market pressures that cut costs at human expense. The first weapon is disclosure. One can collect countless horror stories on several continents, but the lack of reliable, comprehensive information remains a central problem. The codes of conduct, of course, further confuse the picture, since brand-name firms develop PR campaigns around them, while still refusing access to independent investigators. In fact, until quite recently, companies would typically not even reveal where their goods were made--much less how their workers were treated. Under pressure from student activists and universities, Nike folded last October. It disclosed the locations of forty-two of its 365 factories. Once again, national legislation should start with simple stuff--requiring firms to disclose information that enables citizens here and abroad to check out corporate behavior, and giving private citizens and organizations the legal standing to sue for damages if companies falsify their reports to the US government. Given the overbearing political influence of the multinationals, legal standing for private lawsuits is crucial. This much we do know: The US government cannot be trusted to enforce labor standards, since it has repeatedly failed to do so under already existing laws. One especially sickening example occurred in 1994 when Suharto still ruled Indonesia. The Clinton Administration certified the regime's improving labor policies--thus keeping Indonesia eligible for trade preferences--at the very moment Suharto was smashing a promising new labor federation, imprisoning scores of its brave leaders and charging them with subversion. An initial labor code should, obviously, require all US multinationals to identify the names and addresses of offshore factories and their subcontractor plants, the owners and principal investors. Next, the corporations would answer some fairly simple questions about each factory: the number of workers and what they make, the base pay for production workers, the factory's labor costs as a percentage of its value-added output. Finally, for every production site, the company would be required to certify the existence of well-accepted labor standards or to explain why its factory ought to be granted an exemption. Does the workplace comply with the host country's own labor laws? Does it comply with the International Labor Organization's "core labor standards," guaranteeing the right to organize, forbidding child labor and forced labor? If not, why not? A more controversial suggestion would require each company to attest that its industrial workers do at least receive a "living wage," that is, income sufficient to provide for basic subsistence in terms of their own country and culture--food, housing, clothing, health and education. If not, these powerful companies would have to explain why such a minimal benchmark for modern industrial life is too expensive for them. No one can demand that American companies alter another society's laws and customs, but once again we are separating bad guys from innocent players. It is not always the foreign government that suppresses labor rights but sometimes American companies who insist on it. My favorite example is the US semiconductor industry's production platform in Malaysia--famous names like Intel, Motorola, Texas Instruments, Hewlett-Packard. At their insistence, the electronics sector operates union-free, though Malaysia has vigorous, independent unions everywhere else. A typical reaction is: Do these foreign workers really want or need our help? Despite sometimes harsh conditions, aren't they better off with the jobs and grateful? It is true that many of the young people in poor countries, entering industrial life for the first time, are quite bewildered by their new circumstances. They have migrated from the desperate poverty of rural villages, eager for wage incomes. Many of them do not even grasp what a union is, much less understand the broader rights accorded to workers elsewhere in the global system. What many of them do understand, however, is that they are being exploited. They don't have to be told this by do-gooders from America. They know it from the sordid working conditions or from meager wages and their own disappointed hopes. That's why there are so many wildcat strikes--thousands of spontaneous strikes that occur regularly across developing nations, not organized by any unions but by workers themselves. Angry workers even strike in China, despite the real risk of imprisonment. These sporadic, local protests are seldom mentioned in the US press, but together they constitute an optimistic statement about our common humanity. Freedom and Unfreedom Nobel economist Amartya Sen begins his new book, Development as Freedom, with a provocative comparison: "The battle against the unfreedom of bound labor is important in many third world countries today for some of the same reasons the American Civil War was momentous." Is it possible that Americans are once again participating in an economic system that is half free, half unfree? The question does not seem farfetched when one examines more closely the predicament of the young women in many Chinese factories. Typically, they are recruited from remote villages by a government agency that collects a fee from them for the job. They must pay for their own travel, then place a "deposit" with factory managers, who will withhold their wages for the first month or two and frequently also take away the workers' official ID cards. Hired under three-year contracts, they cannot leave or jump to better jobs without losing their money and perhaps identity papers too. Their factory dorms are fenced and guarded, the workers cannot come and go freely, the stories of brutality by security guards are commonplace. This is not slavery, to be sure, but it does resemble a sly form of indentured servitude, imposed on people who are powerless to resist its terms. What can be done to stop it? For starters, a serious Congressional investigation that digs into the ugly facts and calls corporate CEOs to explain themselves would do more than embarrass industry. The American people, I believe, cannot bear the guilty knowledge of how their consumer trifles are produced, any more than they could live with knowledge of the racial caste system in America once the civil rights movement compelled them to confront it. This new movement has the same task of teaching and confronting. The "enhancement of human freedom," Sen argues, "is both the main object and the primary means of development." Democracy and civil rights are thus central to economic progress, but the "unfreedoms" Sen describes involve much more than legal guarantees of free speech and religion or standards for powerful corporations. Poverty also enslaves lives. So do the still-existing, precapitalist feudal systems that deny individual aspirations in some countries. So do the social hierarchies that send adolescent girls to work in the factories while the boys go to school. These confining forces and others interact with the marketplace, which sometimes liberates people and sometimes uses unfreedoms for its own ends. Human rights, in other words, pose the most profound challenge for reform because the issues go to the core nature of every society, and legislation alone cannot resolve them. Americans, above all, must remember to bring humility to this struggle. The promise of life expectancy, as Sen observes, is greater for people in some very poor nations than it is for African-American males in the United States. Our luxurious wealth, not just our values, is sometimes implicated in the unfreedom of others. As this new movement educates us about global realities, we shall see ourselves more clearly. ---------------------------------------------------------------------------- William Greider is The Nation's national affairs correspondent. |
Copyright (c) 1998, Joongpil Cho