 This is Think Tech Hawaii, I'm Jay Fidel and more specifically his global connections. And do we have a show for you? We're gonna talk today to Jin Dan, that's Nina Mann. She's in California, and she's a special consultant for Project Expedited Justice, Expedite Justice. And she works on war crimes and crimes against humanity and the like. And we wanna know why she got into that and what she is doing and what effect it's having, you know? Okay, so let's go, Nina. How did you get involved in this and why you're taking a PhD in it in the University of Amsterdam? Not everybody I know does that. Sure, well, first, thanks for having me on the show. And for me, I always knew that I wanted to do something in human rights. When I was in high school, I learned about the dark four genocide that was going on at the time. I also started reading about water policy in Latin America and the move to privatize water and how normal people weren't able to afford what I considered a basic good because it was considered good to be traded on the market. And so I knew I wanted to work in this area but I didn't really know how at the time. And I got my bachelor's degree in development studies so that development economics, particularly studying natural resources and access by marginalized communities to natural resources. And then I took a break and said, well, how do I do what I want to do? And I lived in Latin America and Santiago and Chile for three years and while I was there, I worked for a big law firm that represented big multinational corporations, mining companies and saw how powerful the law is and how powerful I could be as a lawyer in working on these issues. Maybe from the other side than what the corporation, I mean, the law firm that I was working on does. And that's what inspired me to go back to law school and pursue particularly a career in human rights law. Wow, fabulous. Okay, and now you're consulting with a project expert, Justin, talk about that and Cynthia Tai. Sure. So in law school, I also discovered an area of law called international criminal law. And so international criminal law is specifically an international body of law that tries the most egregious crimes, genocide, crimes against humanity and war crimes. And I interned at a few different international criminal tribunals, one in Arusha and Tanzania and another one in Penampan in Cambodia. And through my boss in Cambodia, who also works for Project Expedite Justice, I made contact with Cynthia Tai, who's the director of that organization. And then I went back to do a master's because I'm always in school. And so I did a master's at University of Amsterdam as well international criminal justice. And during that time also freelance for Project Expedite Justice. And I've been working with Cynthia since then. We've been especially working on projects in the Sudan, including a complaint we filed on behalf of children in Southern Sudan who have been the victims of bombing campaigns. So. Okay, well, you know, it goes far and wide. It goes around the world. It goes through many kinds of crimes against humanity, many kinds of deprivation of human rights in so many ways. But today I'm gonna focus in on multinationals. And it goes back to your experience with multinationals. So I wanna talk about some of the things that you haven't had contact with and that you are concerned about and that you are either working on or you might work on in the future. And one of them is garments, garments in Southeast Asia. Can you talk about that? Sure. So this is, I think the garment industry is a really good example of the way that multinational corporations contribute in a way to serious human rights abuses abroad. So often, you know, the clothes that we wear, they're produced in countries like Bangladesh or Cambodia, Vietnam. And the garment factories, they are very much influenced by what the fashion brands need from them. So we have the big powerful European and North American fashion brands that want to produce high amounts of clothing, often new styles very quickly at a low cost as well. And so they exert a lot of pressure on their business partners in the global South. And, you know, as consumers here in the global North, we say, well, that's very convenient for us. We get cheap clothes, new clothes at a constant rate, but the reality is that on the production side, it often that practice leads to some pretty serious human rights abuses. So I think many people heard about the Rana Plaza collapse in 2013 in Bangladesh that killed over 1,000 people and injured over 2,500 more. And one of the reasons why that factory collapsed is because the safety standards weren't upheld. And one can argue that it was in part because of the pressures exerted on these factories to continue to produce and to produce and to produce without taking the time to stop and fix the buildings or ensure that there's sufficient exits for when there's emergencies. Similar things happened with labor issues in Afghanistan. That certainly reminds me of the Triangle Shirt Waste Fire in New York in the 19 teens, which where women were working in that factory had no way out. And when the salvage burned, they had to jump out the windows and they jumped out the windows by the hundreds and died on the street. And it would not have been recognized except for the press. And as a result, it became a turning point in labor in the country and probably the world. But let me go back to what you were saying about the collapse of the factory in Bangladesh. And you mentioned that the factory was not up to standards, safety standards. Were those Bangladeshi safety standards or safety standards from another jurisdiction that should have been applied? They were Bangladeshi safety standards, but another aspect is oftentimes in the contracts and the supply contracts, there may be a sort of explicit agreement. So there is some effort on the part of the fashion brands or other companies to exert some pressure, but there's not a lot of enforcement or follow-up. Yeah, the other thing, and I know we're early in the conversation, but another thing that strikes me from that is that the whole fashion industry requires this fast and cheap and cheap labor production facility. It could not exist in the way it does right now in the world without that. So the economic pressure is an industrial economic pressure. I mean, the fashion industry. And so if you wanted to fix this, what would you do? Well, I think what's lacking is the incentive to fix it. On the one hand, I do think consumers play somewhat of a role, but not enough. And what really is the missing link is the fact that because these, for example, the fashion brands are so remotely connected to the actual harm on the ground in Bangladesh, that it's really hard to hold what we see as sort of the very influencing powerful actor in that equation accountable. And of course, if we did have mechanisms to hold them accountable, I think that they would be a little bit more incentivized to exert more pressure on their business partners to ensure that human rights are respected and protected in a different way. But at the moment, there is not a sufficient legal structure to really address these very remote connections, especially when they cross borders. The law that applies often it's tort law, domestic, personal injury law essentially, it's not designed for these transnational contexts. Yeah, so the corporate structures and the global arrangements have developed, but the law has not developed to catch up. And by the way, those two words, incentivization and accountability, they're gonna be on the final exam. Everybody who watches this has to take a final exam. But good news is that it's a short answer. It's multiple choice and it's only 10 questions. Those two words are gonna be on there. Two words. Yeah, okay, well, you had another example you wanted to give me, can you continue? Sure, so another, I think example that touches our daily lives is the example of conflict metals. So especially with the explosion of technological devices, we all have an iPhone in our pocket, those cannot be produced without certain metals. And some of these metals are mined in countries that have very dangerous mines that use child labor, slave labor in order to extract the resources. And, but at the same time, you have these big companies like Apple and Tesla and Samsung who express a commitment to not using conflict metals, but also exert excuse that it's almost impossible for them to actually trace the source of the metals that they're putting into their products. And so on the ground, especially the Democratic Republic of Congo is one of the major countries where these kinds of abuses occur. These abuses continue, but once again that connection between the powerful, usually global Northern corporation and the harms far away in the global South is very remote and there's, and it creates challenges to once again. It doesn't have to be remote though. It doesn't have to be remote. I think they want, they want deniability, right? Oh, absolutely. In order to get it done and they're gonna turn away and look away from what is really happening or not make an effort to find out what is really happening. And again, we have incentivization for accountability to make them look and make them take steps because it's hard for you and people who are concerned about this to actually achieve a better condition in the mines. But for Apple and other manufacturers who use these metals, it's not as hard and we have to make them do it. It's not, but I think the excuse is also that the infrastructure and the places where the mining occurs is very minimal. And a lot of the mining is done in an artisanal way. So it's sort of freelance miners who are entering these mines. And then yes, absolutely. There's a complex supply chain. So the metals are not sold directly from the artisanal freelance miner to Apple. They go through several partners, subsidiaries of subsidiaries before being sold to a supplier. And so these complex supply chains make it easy for the tech companies to give the excuse, well, we don't actually know where these came from. But I do think that if they had an interest and if they had an incentive, as we talked about, then they could ensure that the mining practices are safer and are not using child labor and slave labor. Slave labor, this is the year, as unless I missed my guess, we're in 2020 already. And 21 is coming soon. How can we have slave labor existing on this planet? Well, unfortunately, at this point in history, there's more slaves in the world than there ever have been in the past. And that includes people who are trafficked and also includes a lot of labor, such as bonded labor. So they are given the opportunity to have a job but are indebted to their employer because they provided them with housing or moving costs or those kinds of things. And for many people, it takes them years, if not a lifetime or even their children's lifetime in order to escape from that bondage. Oh, that's horrible. There's got to be a way to stop that. Now, the way to stop that, you would think is by governmental action. So slave labor to me represents a governmental failure. Shouldn't this be handled at a governmental foreign policy level? Well, in a lot of places where these events occur, the governments are struggling with so many issues that this is not really on their agenda right now. There's other, you know, more pressing political instability sometimes or conflicts. And so this isn't really their priority. And also for them, you know, this is a source of revenue to sell these resources. And so to meddle with that system is, it's tricky for them. Well, it's tricky for Apple too. And because Apple couldn't say to us, okay, we didn't really, we turned away before, but now we're really, really, really committed. On the other hand, these metals are commodities. They're commodity markets. They could go around the world. They could be fungible. They are fungible. They could be sold and resold and marketed and auctioned at what have you. Very, very hard to trace them. And Apple would be legitimate if it said, yeah, we just can't do it because we don't know what's happening there under the surface. So my question to you is let's assume that Apple really wants to, you know, solve this problem. What could it do? What could it do to trace this in the commodity market and make sure there's no slave labor mining it? It's not an easy task and it requires a sufficient amount of resources. Absolutely. But I do think that some of these big tech companies have the resources, but it's a matter of striking that balance between impacting their profit margin and affecting the shareholders, you know, level of satisfaction and doing the right thing. And if they're not, you know, there's recently in the DC circuit court in the federal district, there was, I think, as far as I know, one of the first cases filed against Apple, Google, Dell, I think Microsoft and Tesla on behalf of children in the DRC for the mining of conflict metals. So we'll see how this case goes. These kinds of incentives may drive them to actually pay more attention to their supply chains and pay more attention to where the metals come from rather than just paying lip service and not actually walking the walk. No, that's interesting because you know they'll defend it. There's big money for them. And the cost of correction is big money and between those companies you name, they have the big money. And I wonder where the media fits, you know, as in the Triangle Shirt Waste Fire, back in the early 20th century in New York, the press made the difference. The press revealed things that people didn't know about and they were horrified. Has the press been doing a job on this now? I think not enough. I remember when I was a kid, there was a lot of scandal about slave labor and Nike shoe factories. And there was a lot of people who said, okay, this is gonna make the difference. This is gonna be the push. But this was when I was a child. And I think not very much has changed in that industry. Nike definitely got bad press, a bad rap for a few years. But I think the media picks up on stories sometimes like this, but then we move on, especially in today's world where there's always new stories, always new things to worry about. Yeah, well, the stakes are really high. The stakes are high for the amount of money to pay to the people who work on the metals, for example. And for that matter, whatever compensation goes away to the goes to the slaves. The stakes are high for Apple. I mean, Apple and all the other you mentioned it. They have huge reserves of cash, part of that cash comes from this exact process. And we have stockholders who are making a lot of money. Those stocks have done very well. And it's not just a design we see in Silicon Valley. It's the manufacturers where they actually make the money. So it strikes me that they have every reason to defend these cases. And they're gonna defend these cases vigorously and they're gonna talk about those defenses that we don't know where it is. And they're gonna be talking about, they're gonna preserve the, or try really hard to preserve limitation of liability for corporations. And in my mind, that all raises the question of whether the corporate model, the capital model, the multinational corporate capital model that we have working in the world today is adequate to deal with the human rights violations that are taking place. Don't you think we need to change that model? I think so. And there's a different ways to go about changing it. But I think you're really right to say that they'll defend themselves. And I think the way that the laws design you now, they have a pretty adequate defense. Because if I was Apple, I would point out that that Apple company, they didn't cause the child or slave labor. And so there's no causal connection. However, there is arguably a lot of contribution because if they, many times they're the primary purchaser, the primary buyer, if they didn't buy these metals, unless different standards were kept, then these terms wouldn't happen. But they can always just say, well, we didn't cause it, the connection is too remote. I don't think that we can change the current corporate model, especially the transnational corporate model with the complex business structures of subsidiaries and parent companies where they limit liability among each other or very extended supply chains. And they do have their benefits as well. I think we can all agree that the reason that we've experienced so much economic growth in the last 100 years really is because of the way that we have creatively structured our business organizations. But if we are going to do that, then we also need a legal system that matches it. In a domestic context, we have it. If you encounter problems in the domestic context where a business is responsible for causing harm, you can sue them. Now, why can't we have that at an international level? Especially in light of the fact that the kinds of harms we see internationally are much more grave. We're seeing crimes against humanity, slavery, genocide. And so we should have the laws to match what the economic reality is. Yeah, just to take a moment and parse that out. Crimes against humanity, genocide, human rights, I guess, and there must be more of those kinds of crime. Can you say they're all the same? They're all connected? War crimes is another example. Are they all connected? Do we have to unpack that into different procedures, proceedings, different statutes, different international agreements? Or are they all merged somehow in the international, what do you wanna call it, human rights enforcement? So a lot of my research is I'm trying to figure out a way where we can take these international human rights standards and adapt them in a way where we can use domestic law so that they are a little bit more flat. You can use the same domestic law. So for example, argue negligence of Apple. Whether that is because they are supplying from a supplier who uses slave labor or whether the factory where the supplies are getting from is protected by a paramilitary organization that is committing violent crimes against the local community or even in the context of environmental crimes sometimes. So that's an idea that I have in terms of being able to use domestic law existing structures to go after these crimes because international human rights law is fantastic but it's challenges, it has a hard time with private actors and binding private actors. States are obligated to uphold certain rights. They're also obligated to investigate and punish violations that occur in their territories but they don't sign the human rights. It's very hard to enforce international law. I mean, look at the South China Sea's decision by the court and the Chinese who are a member of that organization law that I'm not sure what organization it is but the organization that gives rise to that court they blew it off. And so it's very hard to enforce international law of any kind, including law of the sea. So I wanna talk about the US alien tort statute. Let's refer to it as AIS. Because that's a domestic, what is it not? ATS. ATS, I'm sorry. A federal law be used by human rights advocates. And so it seems to me that if I'm a multinational doing American multinational or a multinational with its roots, its headquarters and place of origin, what have you in the US that should prevent me from doing human rights violations overseas. Does it, is it working? Does it need to be amended in order to achieve what you're talking about in a sort of transnational approach? Yeah. So the ATS is a very interesting law. It was enacted in 1789 and nobody's quite sure what the idea behind it was. It's a law that allows aliens, so non-US persons to bring a claim in federal court for, and this is an old fashioned term, the violation of the laws of nations, which basically just means violations of international law. And it lay a very dormant for many years. And in 1980, a human rights lawyer realized, wait a minute, this can be used for certain human rights violations. And since then it's really experienced an explosion in federal courts as a tool to particularly go after corporations for their involvement in human rights abuses abroad. However, with time and especially recently, its scope has been narrowed quite a lot. And so in 2018, the Supreme Court heard a case where they decided that foreign corporations cannot be sued under the ATS. And the rationale behind it was that the foreign defendant in this case, Arab Bank, worked closely with foreign governments and therefore if the courts were allowed to render decisions on foreign corporate activities, that would implicate foreign policy in a way that would actually impact the separation of powers, because it's up to the executive branch, the president's branch to engage in our foreign relations. So it's a very interesting way. At the time was your friend Donald Trump in 2018. In 2018, yes. But even before that, there was a lot of efforts and there was a case in the Second Circuit to the New York court that also said no corporate liability. So there's been a lot of push to limit corporate liability. Does that work, Nina? I mean, stand aside. Don't be a human rights advocate for a moment. Just be a lawyer who knows all the things you know. Does that argument really work to have them hide behind a foreign policy argument and excuse themselves on that basis? I don't think so. And you look at other jurisdictions. So for example, Canada recently had a really interesting case where they allow foreign law to be used for tort claims and you look at European jurisdictions that allow both civil and criminal cases to be brought against foreign corporations. And there seems to be a pretty comfortable approach. You know, they're pretty comfortable with allowing that. The way I see it is, I think this was a way to limit liability. It's troublesome because it troubles them because it has constitutional overtones to it. And if that argument prevails on a plenary basis, well, wow, we've been cut off from enforcing that international law against companies that are American or do business in the US. That's very troublesome. So let's assume it's right for a moment. And I would like to think it's not. I agree with you. But what then is the MO? How do you proceed against this kind of violation in the absence of a statute like the ATS alien tort statute? Well, there's at least one other statute I can think of off the top of my head, which is the Anti-Terrorism Act. So if there are crimes that are related to terrorist financing, that's a way to get these into courts. But what I'm really exploring is using more sort of common tort laws, especially negligence, which is the law that's very often used when there's an accident or some sort of personal injury situation. And I'm curious to see whether we can make the argument that these companies have a duty of care. So for example, Apple owes the employees and minors in DRC a duty of care. And when they breach that by exerting pressure and creating this situation in which there's a demand for very cheap metals, maybe there's a way to start using the law creatively. But this is an area that's very underexplored and still needs a lot of work. Yeah, and there's also the possibility is they're not using the law of other nations in the courts of other nations. It's not beyond an American lawyer to go to the courts in France, for example, and enforce international law or French law against a multinational there, which may give you more leverage. Am I right? In some cases, yes, particularly if it's so, but it depends if there's jurisdiction. So often multinational corporations, they have their domicile in another country and you can definitely go to those countries. However, if you're going to countries where the harm occurred, a lot of times the available defendant is the, for example, subsidiary company. And the problem with that is oftentimes the parent company, when its subsidiary faces a lawsuit, will just dissolve it, dissolve the subsidiary or empty its coffers. So it has nothing to give. And so that's why it is desirable to go after the top level actor that cannot run away, cannot just dissolve and disappear. But definitely if there is jurisdiction, so if a company is based in another country, for example, there's a big case in the Netherlands against Shell for harms in Nigeria or also a case in France against BNP Paribas for harms and allegedly that occurred in the Sudan. Well, you know, it's really all about holding their feet to the fire. Feet to the fire is also going to be in the final exam. And I just wonder, I mean, at the end of the day, the way people in general, maybe not you and me, but or Project Expedite Justice sees it, the way people see it is at least a balance here because we have to keep on doing business. These multinationals are not only making a profit, they're providing goods and services, they're filling needs of the people on the planet. And so we can't be too heavy handed about throwing them out of school. We have to find a way to do this in kind of a nuanced fashion. Do you agree with that? And what is the nuanced fashion if you do? I do agree with that. I think that that is a really important balance. The world looks the way it does because we have allowed international trade to flourish. And we are in a lot of ways better off. But at the same time, I think we can all agree that when we hear about these cases, about these situations in which harms are occurring just because we want cheaper clothes or a new iPhone, our gut is to say, well, I think these powerful actors should be responsible in some way. And if there is a mechanism to hold them responsible, maybe they will change their behavior. Yeah, years back, I'm not talking about more than say 10 or 15 there, there's been a move to encourage investors to invest in impact investing. In other words, you don't invest your money in companies that do violations of fairness and equity and human rights. And I don't know the status of that now. I don't know how much leverage they have or they can get with the investing public because the investing public in large part wants to make a return on its investment. They're not too concerned about the impact aspect. But what about that? Is that a viable way to weigh in on this? You know, I think you would need a critical mass in order to have that actually change the times. And I think unfortunately that the majority of investors is either just not on their radar or like you said, they prefer to have high returns rather than make socially responsible investments. So even though there are investors who do take the time and do care about where their money goes, there's enough that don't. And as long as there's enough that don't, I don't think behavior is gonna change. There are some legal things that can happen. So in Europe, there's a new push for what they're calling human rights due diligence laws. I believe Switzerland or France was the first to pass it. And since then, there's been quite a few other European countries that have laws that require big companies to do human rights due diligence. So they have to check to make sure that their business partners and their subsidiaries are not abusing human rights. And they have to, and just in the practice of doing the due diligence of checking to make sure and monitoring it constantly. And that's already a big difference. And so with these laws, perhaps investors have a little bit more of a system in which to check whether their companies are being responsible or not based on their reporting under the due diligence laws. Yeah, and derivative suits, I guess. So you need to hold the directors and the management responsible. Otherwise, the thing disappears behind the corporate fail. And that's a whole new discussion we could have. I think one thing is that people who are interested in human rights in this planet, they need to get on shows like this one and talk about it. That's what I think. And therefore, I think we'd like to do some more shows with you and follow your adventures in so many places around the world. Thank you very much, Nina Mann. We really appreciate your coming on. Well, thank you so much. I've really enjoyed chatting. Aloha.