If a company arbitrarily seizes land, pollutes water, or uses private security forces that abuse human rights, those impacted should have the right to a remedy, and to seek legal redress. The right of ‘Access to Remedy’ is one of the three key pillars of the United Nations’ Guiding Principles on Business and Human Rights.
Yet, a review of the many lawsuits against companies regarding their human rights impacts around the world for over a decade, suggests little improvement for victims hoping to access justice. Indeed, it might be getting more, not less, difficult for them to do so.
There are two key trends. Existing venues for extraterritorial claims are closing; governments of countries where multinationals are headquartered do not provide sufficient access to judicial remedy for their companies’ abuses abroad. Some new venues are emerging for raising complaints against companies, but it is still too early to tell what their impact will be. Second, legal harassment is increasing of those working to hold businesses accountable for human rights abuse.
When former prisoners of Abu Ghraib prison in Iraq sought justice for the torture and inhumane treatment they were subjected to, allegedly by private military contractors CACI and L-3 Communications, they knew that it would be impossible to obtain justice in an Iraqi court. They filed lawsuits in the country where the companies are headquartered – the United States. Like these Iraqi torture victims, many other victims of corporate abuse have no access to judicial remedy in their home country. Up to now, some have taken their cases to courts in the country where the company is headquartered (often the USA or United Kingdom). In fact, Business and Human Rights Resource Centre (BHRRC) has profiled 108 legal cases and the majority are related to extraterritorial claims – that is, claims of abuse occurring outside the country of the court hearing the case. Unfortunately, it is getting harder to bring such claims.
A turning point against extraterritorial human rights claims was the US Supreme Court’s decision in Kiobel v. Shell in April 2013. The decision in Kiobel stated that there is a presumption against extraterritorial application of US law, including the Alien Tort Claims Act (the legislation used to sue companies in the US for complicity in human rights abuse abroad). At the time of the Kiobel decision, there were at least 19 Alien Tort cases pending in US courts, alleging human rights abuses by companies. Since then, only one new Alien Tort case has been filed against a company in US court. Lower courts have dismissed a majority of the ATCA cases that were pending at the time of the Kiobel decision, using this narrower standard on extraterritoriality. The full contours of extraterritorial jurisdiction in US courts following Kiobel, however, are still evolving.
Flickr/earthrightsintl (Some rights reserved)
An EarthRights International protest and press conference outside the U.S. Supreme Court during arguments in the Kiobel v. Shell case in 2012.
Victims have also long sought legal remedies against companies in English courts. However, in 2012 new legislation limited how plaintiffs’ lawyers can fund their work. Given the costly nature of transnational litigation, this change presents challenges for victims’ advocates, although as with Kiobel, just what the change means in practice is evolving. For instance, Leigh Day, the leading law firm taking on transnational corporate human rights cases in English courts, has seen the number of other firms taking on such cases dwindle to near zero. On the other hand, Leigh Day recently obtained an out of court settlement from Shell for a lawsuit brought by the Bodo community over massive oil spills in the Niger Delta.
While the scope for remedy from US and English courts is narrowing, other national courts are emerging as potential venues for extraterritorial claims. Cases have recently been filed in Canada, France, Switzerland and Germany over alleged human rights abuses by companies outside those countries. But these cases have not yet provided any redress for victims of abuse.
The law is a tool that has been sharpened for business, but dulled for human rights defenders. BHRRC has been tracking human rights lawsuits against companies for over a decade. It has analysed lawsuits alleging human rights abuse against companies headquartered in OECD countries, and filed in national courts of their home countries. What emerges is that there are far fewer lawsuits than the overall number of cases where human rights abuse are alleged against companies based in the same countries. In other words, very few victims are able to access judicial remedies in the company’s home country. Countries where companies with global operations are headquartered must do a great deal more to ensure that victims of abuses involving those companies have access to legal remedies.
When Andy Hall, a British human rights and migrant worker rights advocate based in Southeast Asia, documented violence against workers, child labour and other abuses at a Thai pineapple processing factory, he did not expect the company to file criminal and civil charges against him. But that is exactly what happened. The charges potentially carry an eight-year prison sentence and fines of over $10 million. Legal cases against human rights advocates like Andy Hall hamper victims of corporate abuse in advocating for their rights or obtaining redress. Human rights defenders are increasingly subject to legal attacks in an effort to impede their human rights work. The law is a tool that has been sharpened for business, but dulled for human rights defenders.
Human rights defenders have been targeted via legal harassment such as defamation and libel claims, tax investigations and efforts to deregister the defenders’ organizations. This harassment has a chilling effect on the activities of human rights defenders. Given the limited resources most human rights defenders have, defending themselves can be costly – at times prohibitively so. Michel Forst, the UN Special Rapporteur on Human Rights Defenders, recently highlighted the particular risks faced by human rights defenders working to hold businesses accountable for human rights abuses.
The ability to hold a company legally accountable for human rights abuses, somewhere in the world, is the lynchpin to encourage business to respect human rights. Without legal remedy to enforce human rights obligations, companies are able to operate with impunity – and too many do. Meanwhile, victims of abuse and the advocates working on their behalf are left vulnerable to legal harassment and, ultimately, without justice.