Tort Law and Human Rights

Abstract

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.