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1 Dec 2014

Eniko Horvath, Business & Human Rights Resource Centre,
Eniko Horvath(譯:周學謙), 企業與人權資源中心,
Eniko Horvath(译:周学谦), 企业与人权资源中心

Pleas to strengthen access to remedy for victims of abuses echo throughout first day of UN Forum

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Coverage of UN Forum: Day 1, Day 2, Day 3

Impassioned pleas from victims and strong voices from advocates for effective access to remedy characterised the first day of the UN Forum on Business and Human Rights, the biggest gathering of the business & human rights community in Geneva this week.  Commitments and reassurances from governments and the business sectors about progress were well received, but voices calling for further improvements will surely resonate throughout the Forum.

Victims of business-related human rights abuses are facing serious obstacles to effective remedy, as discussed at a panel on the third pillar of the UN Guiding Principles.  Judicial routes may be impeded by a lack of independent judiciary in host countries or limited access to courts in home countries.  The latter is especially a concern after the 2013 Kiobel v. Shell decision limited extraterritorial claims in the USA.  As Business & Human Rights Resource Centre’s Sif Thorgeirsson comments, “At the time of the Kiobel decision, there were at least 19 corporate Alien Tort cases pending in US courts.  Since then, only one new Alien Tort case has been filed against a company in US court.” 

In many examples brought up by indigenous groups at a panel discussion today, both company grievance mechanisms and state protection failed local communities.  Aurelio Chino, leader of an indigenous group in Peru passionately spoke of the failure to obtain fair compensation by PlusPetrol alleging the company used local land without consultation and polluted local water supply.  The communities hold that the company’s compensation package is inadequate, while the company says it has been “trying to re-establish dialogue with the community”. Aurelio is disappointed in results achieved via routes in his own country so far: “We are tired of pleading with our government directly to take responsibility, which is why we have come to the UN”, he says.

A packed room of participants were also reminded that preventing abuses is essential as some losses can never be adequately compensated. “They will never be able to give my children their father back”, a Guatemalan indigenous woman shared her story courageously fighting back tears in an intervention.  “We often hear that companies bring development, but we don’t see that..[our] biggest problem  is international companies,” she added.  Projects require genuine consultations – dialogues rather than monologues, as a Malaysian indigenous leader put it – and rigorous human rights impact assessments that take into account all affected stakeholders.  People opposed to projects must not be threatened or harmed.

At a panel discussing case studies in Colombia and Philippines, representatives from local communities recounted their struggle to address negative impacts of the Hidrosogamoso dam and the Tampakan Copper-Gold mine projects respectively.  Richard Howitt, member of European Parliament, noted that there was a clear power imbalance in these cases, as well as in others, in which the size and economic power of companies and governments makes it difficult for local communities to get a level playing field in obtaining remedies.  

Some avenues showing potential progress for improving access to remedy include:

  • Bills in Switzerland and France on extraterritorial jurisdiction;
  • Danish OECD National Contact Point's use of mediation between companies and groups raising allegations;
  • Brazilian NGOs using administrative mechanisms for conflict resolution for environmental disputes and lobbying for more effective Ombudsman mechanism at Brazilian development bank BNDES;
  • Adidas’ recently updated complaints mechanism;
  • The UN Working Group’s new guidance document on National Action Plans, which emphasises the importance for states to integrate access to remedy into their approach to business and human rights.

These examples give some food for thought for advocates, but do not diminish the need to keep victims’ voices at the top of our minds as efforts continue to improve access to remedy in business and human rights.