This week I attended a wonderful event at the Law Society organized by the CORE Coalition, the Business and Human Rights Resource Center, and the British Institute for International and Comparative Law. By this point in my London-based consulting career the names and faces are familiar; the business and human rights community is welcomingly compact in this regard, and everyone I’ve met is equally motivated, passionate, collaborative and enthusiastic about effecting change. This makes it an extremely rewarding field in which to work, and I continue to wake up each morning inspired by my colleagues and energized to continue to make progress.
There is always a risk with conferences in any field that the discussions will revolve around the same intractable issues, but Thursday’s event was a breath of fresh air. The focus of the event was on access to justice, a key component of the three-pillar approach to business and human rights known as “Protect, Respect, and Remedy.” Speakers with practical experience at the top of their fields shared insights on the current lay of the land and gave useful recommendations for facilitating better access to justice. Herewith, a few of the key takeaways:
1) Access to remedy is not just about being able to bring a case in court; it is about redress for victims. When claims cannot be framed in human rights terms – for example, when rape is the underlying crime but the case must be pleaded as a civil action of trespass to person – this limits access to remedy. Yes, the facts of the case will be exposed during litigation, but many victims feel that civil tort actions do not adequately reflect the grievous human rights violations they have suffered.
2) The corporate-state relationship often impacts on a state’s willingness and ability to uphold human rights. We therefore need legal proposals that reduce the power of corporates over governments. These could include increased disclosure into lobbying activities, and disclosure and analysis of pre-investment agreements and land acquisition agreements from a human rights perspective. This will also aid victims by increasing their access to information, without which their power is limited.
3) At least one major setback in terms of litigation arises from the changes to the UK legal aid system. The recent reforms introduced the concept of proportionality to cases, meaning that the cost of litigation should be proportionate to the value of the case. Human rights cases where the harm occurred abroad and the defendant is a multinational corporate are very expensive to run, not least of all because defendants fight them tooth and nail. Damages are assessed on a local level so they tend to be low, making proportionality a near-impossible metric to achieve.
4) A French legislative proposal is leading the way in terms of framing a parent company’s duty of care to victims of human rights abuses. By imposing a rebuttable presumption that the parent company is responsible, the burden shifts to that parent company to show that it has adequate human rights due diligence processes in place. The draft bill has received wide support in France and will be an interesting test case for legislative reform.
5) In terms of community grievance mechanisms as alternatives to litigation, the UNGPs set out a list of aspirational characteristics that they ought to embody, but above all, timing is absolutely key. Disputes between a community and a corporation can often be amicably resolved as long as they are addressed promptly.