I grew up near Brixton and from as far back as I can remember it has always been a place of special significance. As a British person of Afro-Caribbean descent, Brixton plays an important role in my cultural narrative. It was Brixton where the first wave of Caribbean immigrants arriving in England in the late 40s laid their roots and built their lives; they brought with them their music, style and culinary traditions which transformed the town, infusing it with a distinctly West-indian feel and flavour. It was also Brixton where, in a culmination of outrage and indignation at anti- black policing and institutional discrimination in the 80s people rioted, and streets and stores were set furiously ablaze. Over the years, whilst the ethnic struggle continued, Brixton nevertheless came to be emblematic of a communal unity that transcended race. Even in the midst of chronic underfunding from both the public and private sectors resulting in pockets of poverty and high crime, Brixton represented a certain togetherness, where blacks and whites united, not by ignoring their cultural and racial distinctions, but by treating these differences as important constituents of a wider communal whole.
These somewhat halcyon days of cultural and racial unity now appear to be a thing of the past in Brixton. Like many areas in London, recent years have seen the town subjected to the invidious forces of gentrification. House prices have sky rocketed and the moneyed (predominantly white) middle-classes, looking for accommodation within reasonable distance to the city, have poured in. It isn’t that an alteration of demographics is itself a problem; London is a city that has historically undergone constant change as different peoples have mixed and mingled together throughout the ages. However, it is the tendency of gentrification to eschew cohabitation and to instead displace communities and cultures that is problematic. The rising rents in Brixton have pushed many local ethnic businesses out of the area and have forced many people, particularly poorer residents of colour, within the local community into cheaper accommodation elsewhere. The result? Brixton is becoming visibly less diverse and the racial and cultural unity that was once the hallmark of the town is fast evaporating.
On a recent visit to a pop-up restaurant and bar complex in the heart of Brixton, I was taken aback by the lack of diversity in what was once one of the most cosmopolitan parts of the town. Besides myself and a friend, the only minorities present were either serving or securing the people on the premises and the diversity of food on offer did little to disguise the conspicuous lack of diversity within the venue itself. Other observers have commented on this changing face of Brixton and remarked on what can only be described as an insidious sort of “ethnic cleansing” taking part as a result of its gentrification.
Some have argued in response to these concerns that gentrification has brought investment which has in turn improved Brixton. This argument is usually embodied by the expression that “a rising tide lifts all boats”. Whilst it is no doubt true that investment improves an area, if the original residents have been forced out of the housing and business markets, then the question is who does this investment improve the area for? As a corollary to this question, we also have to ask ourselves why does investment have to wait for new residents? Couldn’t investment in Brixton to clean up the streets and open up new commercial spaces have pre-dated the demographic shift which in turn could have created jobs and opportunities for those who needed them most? These questions cast doubt over the apparent benefits of the town’s gentrification.
The story of Brixton is indeed a tale of two towns. Unfortunately, whilst the new Brixton certainly has a veneer which is more polished than the old, these improvements have come at the expense of diversity and a slow and gradual eradication of the cultural and communal unity upon which Brixton built its name.
The claims In Re South Africa Apartheid litigation arose in 2002 following the alleged involvement of 5 major multinational corporations in gross Human Rights violations during the Apartheid era in South Africa. Mr Ntsebeza, a black South African national, along with a host of other claimants brought a class-action lawsuit in the United States alleging that Ford, Barclays, IBM, General Motors and German automotive manufacturer Daimler GM not only knowingly conducted business in South Africa during the apartheid regime, but worse, that they provided direct assistance to and acted in accordance with the South African government and security forces during their brutal oppression of blacks and other minorities over the course of Apartheid.
The claimants alleged that Ford, General Motors and Daimler GM manufactured vehicles which were used by the South African security forces to violently suppress opposition to apartheid and inflict wide spread atrocities amongst the black civilian population. These companies, who owned a multitude of factories and plants in South Africa during Apartheid, were also accused of callously retaliating against employees who were found to be participating in the anti-apartheid movement, through such means as, unfair dismissals, intimidation and even assisting with unlawful detentions and torture in collaboration with the apartheid authorities. The corporations were also accused of providing de facto support to the apartheid regime by implementing segregation within their own facilities and grossly underpaying blacks for equal work.
IBM were accused of actively assisting the Apartheid state by producing race-based identification documents which were used by the authorities to greatly restrict the movement of blacks around South Africa. These documents also allowed the authorities to implement a meticulous geographic separation of the races, whereby blacks were forced into remote and dilapidated shanty towns known as ‘Bantustans’ and obligated to live there as ‘Bantus’ deprived entirely of South African nationality and any of the corresponding rights of such citizenship.
Barclays were accused of participating and assisting in the geographic separation of the races by refusing black employees the opportunity to work in, or be transferred to branches in predominantly white areas. This practice was not mandatory under South African law at the time and thus Barclays were accused, of providing de facto support to the apartheid regime through the implementation of such policies.
The Defendant companies rejected the legal culpability for their actions but never denied their involvement in apartheid in the ways advanced by the claimants.
Claims in United States
As the Republic of South Africa was originally opposed to the litigation, the claimants elected to bring their action in the United States, alleging that the corporations concerned had all aided and abetted gross human rights violations, which was an actionable offence under the Alien Tort Statute (ATS) . The ATS is an old piece of US legislation which grants United States courts original jurisdiction over ‘any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States‘. In other words, the ATS potentially allows for a foreign claimant (a non-national and non-resident of the US) to sue a foreign defendant (also a non-national and non-resident of the US) in a United States court for gross Human Rights violations, irrespective of where these violations occurred. The ATS has been instrumental in allowing many individuals whose human rights have been violated but whom, for a variety of reasons, were not able to obtain any redress in the place where these abuses occurred, to recover damages by bringing claims in the United States.
The District Court dismissed the claims in 2004, holding that aiding and abetting was not a viable cause of action under the ATS. In 2007, the Court of Appeals for the Second Circuit reversed the decision of the lower court, holding that aiding and abetting was actionable under the ATS and remanded the case back to the District Court for further hearing. The defendant companies then appealed to the Supreme Court of the United States, asking the Court to rule definitively on the issue.
Lack of Quorum in the Supreme Court
In an extraordinary turn of events, the Supreme Court declared that it would not be able to hear the appeal, due to the fact that 4 of the 9 Justices on the Court had to withdraw from proceedings based on their financial and personal interests in the companies involved. The Court thus lacked the required Quorum (6 Justices) it needed to hear a case and was subsequently forced to affirm the ruling of the Second Circuit Court of Appeal without declaring it binding precedent. The claims against the corporations were thus able to proceed.
Impact of Kiobel v Shell
On 17 April 2013 the Supreme Court handed down its judgement in the eagerly anticipated case of Kiobel v Shell. This was a case concerning a number of Nigerian nationals, who were suing the Anglo-Dutch company Shell for its alleged complicity in torture, rape and the extra-judicial killing of activists in the Ogoni region of Nigeria. The claimants could not bring the claims in Nigeria, because they feared reprisals from powerful elements within the Nigerian Government and military, who they claim had been heavily involved in the abuses. For this reason they too, like the claimants in the In Re Apartheid cases, sought to rely on the ATS to bring their claims against Shell in the United States.
The central questions for the judges in Kiobel were whether or not:
1. The ATS applied extra-territorially to foreign defendants operating outside the US.
2. Corporations could be sued for violations of International Law.
The Court considered that the issue of paramount importance was the primary question and so re-heard the case based on this question alone.
In a unanimous decision, the court ruled that there was no definitive proof that the ATS was ever enacted to allow foreign claimants to sue foreign defendants in US courts for harms that occurred outside of the US. The decision of the judges was very much alive to the diplomatic burdens that it would place on the United States to allow harms occurring in other people’s countries to be brought before their Courts. For some, the ruling was a victory for US foreign relations but for others, particularly those who have pushed for the universal enforceability of human rights norms, the decision was a major setback which could ultimately provide carte blanche for corporations to continue to commit human rights violations abroad whilst providing no redress to victims.
The Kiobel decision has had a dramatic impact on the ensuing success of the claims in the In Re Apartheid litigation. In August 2013 The Second Circuit Court of Appeals remanded the case back down to the lower courts suggesting that the claims be dismissed in light of the Kiobel ruling. General Motors reached an earlier settlement with the plaintiffs, however, on 26 December 2013 the court of first instance held that, the claims against Daimler did not ‘touch and concern’ the US with sufficient force to rebut the presumption against extraterritoriality applied in Kiobel and thus had to be dismissed. The claims against IBM and Ford, the two remaining plaintiffs, were however not dismissed. The court instead asked the parties to produce briefs on the question of whether corporations may be liable for breaches of International Law – which was the original, unanswered question in the Kiobel v Shell case. This leaves open the possibility for corporate liability for human rights violations abroad, however, whether or not other courts and perhaps ultimately the Supreme Court, will answer this question in the affirmative remains to be seen.