Jan Smits and Mark Kawakami Jan Smits and Mark Kawakami Sacha Ruland

The law is not always the solution

In Society
Written by  Jos Cortenraad Wednesday, 06 November 2013 14:59
The collapse in April of a textiles factory in Bangladesh that killed 1127 workers shocked the world. Suddenly, stores like Primark, H&M, Tommy Hilfiger and G-Star turned out to be acutely interested in working conditions and safety at their suppliers’ factories. PhD candidate Mark Kawakami, who studies human rights in sweatshops, and his supervisor Jan Smits, professor of Private European Law, were not exactly surprised. “Social pressure is sometimes stronger than strict legislation.”

How do you enforce safe and humane working conditions in the countless sweatshops in Asia where most of our clothing is made? For lawyers, the answer is obvious: rules and regulations that are imposed worldwide. “That’s what you’d expect”, says Kawakami, who started his PhD research in Maastricht last year on human rights in the global supply chain. “But the question is whether the law really matters. Sometimes the law is not the solution. Of course, after just one year of research I’m still far from reaching that conclusion, but you have to wonder whether we can achieve more through other means. Every country has its own laws. It’s hard to harmonise all these laws even in Europe, let alone trying to influence a country like Bangladesh. I think the customers have greater power when it comes to bringing about change. And change can be initiated by consumers themselves: if people are no longer willing to buy ‘tainted’ clothing, this pressure could make a significant difference.”


This scepticism towards the law may sound strange coming from a lawyer with a master’s in International Business Law and a Juris Doctor in his pocket, as well as work experience at a major New York law firm. “Perhaps,” he says, “but when you’re talking about the law, you should consider economic, psychological and social factors as well. We all know that the working conditions in many factories are terrible and that people’s rights are being violated. Yet even I buy their by-products – from clothes to gadgets. Why? What would make me change my buying habits? I’ve been working with the idea of a social network to register consumers’ online buying habits, where points are awarded for socially responsible behaviour. By stroking the consumer’s ego, we can encourage behavioural change without having to rely explicitly on the law.”


Jan Smits can’t help but smile. “We’re always having these sorts of discussions in the research group”, he says. “Mark pushes the boundaries, thinks outside the box, is always coming up with new insights and ideas. Tiring? On the contrary. Law is not an exact, hard science. People like Mark get us thinking, give depth to research. Here in Maastricht there’s room for debate. I think that has to do with the university’s strong international character and its relatively short history.”
It was love that initially brought Kawakami to the Netherlands – Tilburg, to be precise – in 2008. “My girlfriend was a Tilburg alum so I ended up doing a masters there after the bar. That’s where I also met Jan and started working as his student assistant.”

Sparring partner

Last year, Kawakami returned to the Netherlands after working in New York for two years; to his girlfriend, to academia, and to Smits who, in the meantime, had relocated to the far south. “One day early last year the phone rang. It was Mark, asking if I might have a research position for him”, explains Smits. “As it happened, we’d just got some money through my endowed chair in Internationalisation of Law. And Mark was simply the best candidate. Not least because his research fits in with the field of globalisation of law, a key spearhead of my professorship. He’s a born researcher. I learn as much from him as he – I hope – learns from me. I enjoy being his sparring partner and of course now and then being the one who reins him in a bit.”


Kawakami is almost embarrassed. “I don’t think of research as work, but as something fun. I especially cherish the academic freedom here in Maastricht. No subject is taboo. I’ve studied at different universities and I know that professors with many publications and a great deal of status don’t often stray from the beaten path. Jan has that status, but he’s also very open minded and encourages meaningful discussions.”
It is clear that professor and researcher actually like one another. They get together regularly and often pick up on the discussions from the day’s work even after the day is over. “This subject really has me in its grip”, admits Kawakami. “And just to be sure I haven’t given the wrong impression: law and legislation are of course important. We also study how to help strengthen the position of sweatshop workers, how to give them legal tools. The major clothing brands hide behind contracts they draw up with their suppliers. The workers themselves can’t sue their employers and, even if they could, they wouldn't dare because they need the work. But it is possible for consumers to challenge the corporations and to hold them accountable on behalf of the exploited.”

Jan Smits (1967) studied in Leiden and Poitiers, France, and obtained his PhD in 1995. He has taught in Stellenbosch, Leiden, Tilburg and Maastricht. He has been professor of European Private Law and director of the Maastricht European Private Law Institute since 2010. Smits has published many papers, is visiting professor at various universities in Europe and the USA and is deputy judge at the court in Amsterdam.
Mark Kawakami (1983) was born in Kobe (Japan) and studied in New York, Boston, and Tilburg. He worked on competition matters for a New York law firm, and has been a researcher at the Faculty of Law in Maastricht since April 2012. 

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