Treaty on business & human rights could improve access to remedy for victims, says new report

This report commissioned by a coalition of eight civil society organizations (ActionAid Netherlands, Brot für die Welt, Centre for Research on Multinational Corporations(SOMO), CIDSE, Friends of the Earth Europe, International Trade Union Confederation (ITUC), International Transport Workers’ Federation (ITF) and the Norwegian ForUM for Development and Environment (ForUM)) stresses how a treaty on business and human rights could improve access to remedy for victims of business-related human rights abuses. It proposes seven areas of reform in the draft treaty to address this issue.

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Article
7 September 2017

Leigh Day response to the ICTUR report on removing barriers to justice for victims of business-related human rights violations

Author: Benjamin Croft, Leigh Day, on Lexology

A new report by the International Centre for Trade Union Rights (ICTUR), commissioned by a group of civil society organisations, has made a series of welcome recommendations on the development of an effective UN Treaty on business and human rights.

The report identifies a number of barriers to access to justice which we at Leigh Day have identified and documented in a number of the cases we have brought. These barriers include:

  • Courts in parent companies’ home states refusing jurisdiction, such as in the recent Bebe case ;
  • Courts’ refusal to “pierce the corporate veil” to permit parent company liability for the actions of its subsidiaries;
  • The lack of enforceable standards of due diligence;
  • Barriers to accessing to the Court such the lack of funding, restrictive rules of standing and access to documents;
  • Weak enforcement mechanisms.

In our cases Leigh Day frequently confront the barriers highlighted by the ICTUR report...

ICTUR’s report is a welcome contribution to the debate and many of the proposed recommendations – particularly around jurisdiction, corporate liability and due diligence - are to be supported.

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Article
6 September 2017

Removing barriers to justice is possible - Analysis shows seven ways to create an effective UN Treaty on Business and Human Rights

Author: SOMO

A new report – commissioned by a coalition of eight civil society organisations – shows how a UN Treaty on Business and Human Rights could improve access to remedy for victims of business-related human rights abuses in future. From oil pollution by Shell in Nigeria to waste dumping by Trafigura in Côte d’Ivoire, the report delves into five well-documented cases of corporate abuse that played out partly in European courts.  In advance of crucial Treaty negotiations coming up next month at the United Nations in Geneva, the report makes seven recommendations to help create a Treaty  that would improve access to remedy for victims.

For victims of business-related human rights abuses or environmental damage, access to justice is hard to achieve...

But there is hope for the victims...

Mariëtte van Huijstee from the Centre for Research on Multinational Corporations (SOMO) said: “Such a binding instrument, or Treaty, has real potential to bring about change. It represents an opportunity to improve and coordinate policies and legal developments at the domestic level. Europe can play an important role in this process.”...

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Article
31 August 2017

Executive summary - Removing Barriers to Justice: how a treaty on business and human rights could improve access to remedy for victims

Author: Daniel Blackburn, International Centre for Trade Union Rights (ICTUR)

…The report focuses specific attention on policy and legal developments in the European Union (EU). It identifies whether and in what way a UN treaty on business and human rights could complement and improve policy development and action at the national level to address barriers to remedy, as well as setting the framework for harmonising key elements of law…

The case studies turn the spotlight on serious human rights impacts that are the result of transnational business ventures…

Analysis of the cases reveals:

  • Jurisdictional problems specific to transnational litigation, including attempts to bounce cases from  jurisdiction  to  jurisdiction,  and  the  complexity  of  attempting  to  interpret  and  apply  foreign law.
  • Legal barriers – specifically the corporate veil – shielding the parent company from responsibility for the debts and liabilities of its subsidiaries.
  • Similarly, barriers to criminal liability are shown to exist in many cases, with corporations either not indictable, or a lack of effective rules for determining intent.
  • The need for ‘due diligence’ to be placed on a solid legal footing to ensure that human rights are appropriately integrated into corporate decision-making, and to establish a duty of care rather than reliance on voluntarism.
  • Risks for human rights defenders – individuals and communities (or their representatives) who try  to  bring  legal  cases  against  multinational  companies  may  face  considerable challenges themselves as a result.
  • A set of problems grouped here as ‘access to courts’ are a crucial factor: the unequal position of  rural  farmers  and  industrial  workers  against  giant  companies  is  exacerbated  by  rules  on access to information, representation, the burden of proof and the complexity of transnational corporate structures and actions.
  • Problems  of  enforcement:  criminal  law  requiring  adaptation  and  regulatory  agencies  and  prosecutors requiring training and renewed mandates...

Download the full document here

Article
31 August 2017

Recommendations for the future treaty

Author: Daniel Blackburn, International Centre for Trade Union Rights (ICTUR)

The report identifies seven areas of reform that are explained in more detail. These include:

  1. Use the Treaty to make it easier to overcome jurisdiction barriers.
  2. Use the Treaty to remove legal barriers to corporate liability and to place upon corporations a broad duty of care.
  3. Use the Treaty to promote convergence of criminal law around basic modern approaches to corporate liability.
  4. Use the Treaty to improve corporate responsibility by giving binding legal force to the due diligence framework from the UN Guiding Principles on Business and Human Rights (UNGPs).
  5. Use the Treaty to affirm and extend protection for human rights defenders.
  6. Use the Treaty to improve access to courts.
  7. Use the Treaty to improve effectiveness of State enforcement.

Download the full document here

Report
31 August 2017

Removing Barriers to Justice: how a treaty on business and human rights could improve access to remedy for victims

Author: Daniel Blackburn, International Centre for Trade Union Rights (ICTUR)

Section 1 of this report analyses five well-known court cases, setting out with regard to each the specific legal and practical problems that serve as barriers to justice for the victims. The cases profiled here are well documented examples of some of the adverse impacts of business on human rights.

Section 2 analyses the identified barriers to justice thematically, exploring how each barrier is created, its implications for access to remedy, and the prospects for reform that are underway, with a particular focus on policy developments in European countries.

Section 3 describes the potential complementarity between a future UN Treaty and the existing international normative framework on Business and Human Rights that was created by the UNGPs in 2011. It also describes the EU's engagement with the UNGP and the Treaty to date.

Based on key problems identified in the case studies (Section 1), the legal analysis (Section 2) and the existing international normative framework (Section 3), Section 4 proposes to include seven areas of reform in the draft Treaty to address the barriers to access to remedy on the part of victims, as well as some of the structural causes of adverse business-related human rights impacts.

Download the full document here