Developing Countries of Latin America have been subject to colonialism by the developed countries and they are filled with terror at the thought of doing business with any multinational of a developed economy (Furtado, 2018). Acting on this fear of the underdeveloped countries of being exploited in terms of labour and wage, UN came up with the concept of social responsibility of corporations (Shwartz, 2017). The concept emphasizes on a level playing field for the developed and underdeveloped countries and ensures that no country is treated adversely based on their economic strength. Latin America has been in a socially exploited condition for want of economic resources. Latin America has a long history of being at the receiving end of socialist and Marxist culture and therefore they fear being exploited by the multinationals to come to their company to do business without any regard to the host countries culture, laws or resources. The fear of being exploited is natural because of the long standing historic disparity that they have faced. Whilst developing a factory in Latin America, the duty will be to assure the employees of a healthy working environment with regard to safety as well as provide training. The emphasis should be on recognizing the essence of their culture, the history of the workers and laws that govern them. Strict adherence to the OECD Code of Conduct has to be maintained to ensure standards of employment, consumer interest, maintain a safe working environment, penalize bribery and encourage a technologically rich work place (Schrempf, Palazzo & Phillips, 2016). UN Global Compact sets down standards of human rights and labour concerns that look after the ethical and social aspect of employee rights. Levi Strauss was the first multinational to develop codes of conduct for employees of an underdeveloped country. These Codes are a prerequisite because if importance is not attached to the employees, they will have no confidence to work. The codes of Conduct apply to any firm that plans to do business in an economically backward country to uphold the rights of their employees (McIntosh, Waddock & Kell, 2017).
The present case is related to the concept of extra-territoriality, that is, the possibility of a country to pass laws outside its territory (Parrish, 2017). Extraterritoriality can only be enforced in cases of mutual agreements between the two countries. Extraterritoriality is applied in cases of grave emergencies like trafficking, slavery, terrorism (Curley & Stanley, 2016). In cases of heinous crimes the Universality principle is applied, as was applied in the United States v Ramsey Yousuf case where the court held that though the act occurred outside the United States, but it was consistent with customary principles of international law (Werle & Jessberger, 2014). Applying the same principle of territoriality, the Korean National will be prosecuted by the United States for knowingly using inferior parts in the flight to cause a flight crash. The Alien Tort Statute is applied for an action of tort in cases of violation of international law. Sosa v Alvarez-Machain is a landmark judgment based on the concept of Alien Tort Statue where the Supreme Court held that the abduction by the United States did not cause any violation of international law If there is a strict compliance with the international regulations and frameworks, no case of violation can succeed. The International Law only recognizes three offences under the ATS- violation of safe conduct, infringement of the rights of the ambassadors and piracy on the seas (Christensen & Hausman, 2016). In the present case, the Korean National can only succeed in a case if it can prove a violation of the above three conditions.
International Conventions lay down guidelines for ethics and human rights standards. Multinational Companies are guided by these rules which ensure that no unlawful activities take place that are against the basic tenets of international law. The United States are guided by Foreign Corrupt Practices Act, whereby any company or individual held to be indulging in illegal or corrupt activities will be held liable (Choi & Davis, 2014). If in the process of obtaining unfavorable profit, any multinational company indulges in unlawful activities harming human rights or environment or the like, the company shall be penalized. Adherence to environment protection is mandatory; hence option will not vary according to the viability of laws but a general strict environment protection guideline (Della Porta, 2017).
Environment protection is a prerequisite to ensure a company or a factory does not harm the atmosphere (Plater et al. 2016). With the growing concern over environmental protection it is a mandate that a factory maintains all the relevant protocol that is essential for the safety of the humans as well nature. There are various liabilities attached to a company willing to set up a factory without placing any regard on the environment. Article 14 of the North American Agreement on Environment Cooperation asserts that strict penalties will be attracted to a company failing to meet the environment standards (Kirton & Maclaren, 2018). Article 14(1) mandates that a Party should submit that it is failing to adhere to the regulations. The Toxic Substances Control Act has banned various toxic substances globally and domestically (Bowes & Palmer, 2017). The Basel Convention prevents the transportation of substances that can harm the environment. The Montreal Protocol restricts any substance that has the ability to harm the ozone layer. The Polluter Pays Principle is for the polluters who releases toxins or environmentally harmful products that have the ability to harm the nature (De Sadeleer,2014). The basic essence of this Principle is that whoever pollutes will have to pay the price of harming the atmosphere. By attaching strict penalties, it becomes easier to implement laws because unless liability is adjudged, no polluter mends their way. Therefore, as mentioned above, by building a plant in a country which does not have regards for environment shall make him liable to pay huge compensation for the health hazard it will pose.
To deal in a product that is environmentally objectionable is a ground for penalty. If a plant has no regulatory mechanism, it will eventually harm the environment and it was clearly laid down in the case of Canadian Lobster. If a product violates the environment or adjoining water bodies, it will be restricted. The Toxic Substances Control Act mandates that the Environment Protection Agency has to be notified of any chemical substance that the factory will be indulging in (Ringquist, 2016). Dealing in environmentally damaging substances will attract various liabilities and the parties shall be made to pay a huge amount of money to compensate for the loss accrued. Using toxic substances will impair the water bodies, human life and environment (Finbow, 2017). The Environment Protection Agency aims to reduce all pollutants and restrict the functioning of the factories that deal in environmentally damaging products. Non State entities and factories dealing in harmful substances have the maximum responsibility to undo the harm they cause by indulging in toxins that have debilitating effects on the environment. By setting up a plant that releases toxins into the environment, the plant will be liable under GATT, Montreal Treaty, Berne Convention and will be held accountable for all the damage caused (Beresford et al., 2016). These international legislations are for bringing the polluters to book by attaching strict penalties on them. The goal of these acts is to ascertain the damage and find out ways to make policies that will help in curbing the pollution. They check environmental impact of these plants and based on their survey allow the license of a project.
References
Beresford, A. E., Buchanan, G. M., Sanderson, F. J., Jefferson, R., & Donald, P. F. (2016). The contributions of the EU nature directives to the CBD and other multilateral environmental agreements. Conservation Letters, 9(6), 479-488.
Bowes, M. D., & Palmer, K. L. (2017). Using economic incentives to regulate toxic substances. Routledge.
Choi, S. J., & Davis, K. E. (2014). Foreign Affairs and Enforcement of the Foreign Corrupt Practices Act. Journal of Empirical Legal Studies, 11(3), 409-445.
Christensen, D., & Hausman, D. K. (2016). Measuring the Economic Effect of Alien Tort Statute Liability. The Journal of Law, Economics, and Organization, 32(4), 794-815.
Curley, M., & Stanley, E. (2016). Extraterritorial Jurisdiction, Criminal Law and Transnational Crime: Insights from the Application of Australia’s Child Sex Tourism Offences. Bond L. Rev., 28, 169.
De Sadeleer, N. (2014). Polluter pays principle. Essential concepts of global environmental governance, 155-156.
Della Porta, D. (2017). Corrupt exchanges: Actors, resources, and mechanisms of political corruption. Routledge.
Finbow, R. G. (2017). The limits of regionalism: NAFTA’s labour accord. Routledge.
Furtado, C. (2018). Economic Development of Latin America. In Promise Of Development (pp. 124-148). Routledge.
Kirton, J. J., & Maclaren, V. W. (2018). Linking trade, environment, and social cohesion: NAFTA experiences, global challenges. Routledge.
McIntosh, M., Waddock, S., & Kell, G. (Eds.). (2017). Learning to talk: Corporate citizenship and the development of the UN Global Compact. Routledge
Parrish, A. (2017). The Interplay Between Extraterritoriality, Sovereignty, and the Foundations of International Law.
Plater, Z. J., Abrams, R. H., Graham, R. L., Heinzerling, L., Wirth, D. A., Hall, N. D., … & Graham, R. L. (2016). Environmental law and policy: Nature, law, and society. Wolters Kluwer Law & Business.
Ringquist, E. J. (2016). Environmental Protection at the State Level: Politics and Progress in Controlling Pollution: Politics and Progress in Controlling Pollution. Routledge.
Schrempf-Stirling, J., Palazzo, G., & Phillips, R. A. (2016). Historic corporate social responsibility. Academy of Management Review, 41(4), 700-719.
Schwartz, M. S. (2017). Corporate social responsibility. Routledge.
Werle, G., & Jessberger, F. (2014). Principles of international criminal law. OUP Oxford.
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