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Opinion

Corporate Human Rights Litigation: Trends from 200 Seminal Lawsuits

Business & Human Rights Resource Centre

For the past 12 years, Business & Human Rights Resource Centre has tracked lawsuits brought against companies around the world to redress their negative human rights impacts. This December, we launched our Lawsuits Database, which includes the 200 cases we have profiled to date. These case profiles are but a small sample of the countless lawsuits brought against companies in an effort to hold them legally accountable and have been selected based on multiple factors including the salience of the alleged abuse, the relevance and nature of the litigation strategy, and the potential for setting legal precedent.

While our database cannot paint a complete picture of strategic litigation globally, it does provide a glimpse into trends for litigating corporate human rights harm around the world. Here’s a brief look into what our database tells us about litigation as a strategic tool for corporate legal accountability.

Extractives companies face the largest number of lawsuits

BHRRC

Nearly half (45%) the cases Business & Human Rights Resource Centre has profiled were brought against mining or oil & gas companies. Extractives companies are the most prevalent in our database by far – followed by the agricultural and food sectors (13%) and the Tech sector (6%). The database includes ground-breaking cases, such as the lawsuit filed against mining company Vedanta in the United Kingdom for water contamination in Zambia and the lawsuit filed against Nevsun Resources in Canada for complicity in the use of forced labour in Eritrea (which was settled earlier this year).

The extractives industry has consistently proven to be an extremely high-risk sector for corporate human rights abuse. Our latest Human Rights Defenders & Business Snapshot identified the mining sector as the sector with the highest number of attacks against human rights defenders in 2019. Of the 572 attacks recorded against defenders that year, 143 were perpetrated by mining companies. An additional 38 attacks were carried out by oil & gas companies, making oil & gas the fifth most high-risk sector for human rights defenders. Since the start of the COVID-19 pandemic, we recorded an average of one attack per day against defenders standing up for human rights or environmental protection, a third of which were linked to mining.

Going forward, the demand for minerals required for the transition to a net-zero carbon economy is likely to increase, (see our Transition Minerals Tracker for further information), meaning as we transition to a net-zero carbon economy the human rights risks associated with the mining sector remain a top concern. 

Affected community members and workers are leading the majority of lawsuits

Eight in ten cases we profiled were filed by workers and affected community members (including Indigenous peoples and ethnic groups) – indicating that those at heightened risk of human rights abuse within a company’s sphere of influence are also the ones that have the most to gain by resorting to the courts to remedy these abuses. The remaining cases were brought by other stakeholders such as consumers, shareholders and human rights defenders.  

Business generally enjoys vast privilege of power and wealth over the communities and workers in their operations and supply chains. Despite this inequality, the high percentage of cases filed by affected communities and workers points to three important trends we are seeing across our research and global work:

  1. Affected communities and workers are using litigation as a key strategic tool to fight corporate impunity and assert their rights.
  2. Strategic litigation creates important opportunities to develop new legal standards through caselaw and allows communities and workers to organise and gain collective power.
  3. Access to courts and binding legal frameworks are key in correcting the imbalance of power between business and the communities and workers their operations and supply chains rely on.

BHRRC

Victims are using transnational litigation to pursue justice 

BHRRC

Over half (54%) of cases profiled in the database are transnational, meaning they are filed in a different country from where the alleged abuse occurred. The most recent example is a lawsuit filed in South Africa in October 2020 against Anglo American South Africa for human rights abuses that occurred in Zambia. The suit alleges that for almost 50 years, the company failed to take adequate measures to prevent lead poisoning in the area surrounding one of its former mines. Tens of thousands of Kabwe residents, including children, are estimated to have suffered severe health conditions, intellectual behavioural and/or brain damage or died.

The database also includes many other cases in which both victims and advocates attempt to hold parent companies accountable for their subsidiaries’ or joint ventures’ action. To fully support transnational lawsuits, governments must shape critical legal frameworks, both at the national and international levels, including mandatory human rights due diligence legislation with a legal right for victims to access effective judicial remedy. Our database shows these transnational lawsuits are already taking place in many jurisdictions. Due diligence laws could play a much-needed role in clearly establishing a binding framework and avoiding years of costly litigation spent on the sole question of jurisdiction (which was the case for most of the above-mentioned lawsuits, including those brought against Vedanta in the UK and Nevsun Resources in Canada).

Looking ahead

Taking a sampling of cases from the rich field of corporate legal accountability has illuminated key developments and causes for concern, such as the major offenders of human rights abuse and main paths to legal remedy sought by victims. However, there is still much more to learn from these lawsuits. Further analysis is needed before we can confidently assess which legal arguments, approaches and jurisdictions result in the best outcomes for those facing human rights abuse. Looking towards the future, such analysis is essential to enrich legal advocates’ and civil society’s understanding of corporate accountability.

For more information, please visit our Lawsuits Database.