What the Zero Draft and Protocol Lack: Meaningful Access to Justice – a Global South Perspective

Raphaela Lopes (Justiça Global) and Arnold Kwesiga (Initiative for Social and Economic Rights), members of ESCR-Net

This blog is part of the Reflections on the Zero Draft blog series on the proposed binding treaty on business and human rights. We present this series as part of our work to highlight key developments and opportunities for change, with the aim of empowering advocates in civil society, governments and businesses with the evidence and guidance to help define their position and engagement in the treaty process. We believe this initiative is complementary to the implementation of the UN Guiding Principles, and that an inclusive and open debate is crucial to ensure these initiatives deliver for everyone, and that the business & human rights movement continues its 'unity in diversity'.

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In Uganda, female farmworkers were poisoned by a Dutch flower-exporting farm. In Brazil, entire communities were wiped from the map and people were killed and displaced by a joint venture between an Anglo-Australian and Brazilian multinational mining company. Both face the biggest challenge, also faced by many other communities thorough the world: access to justice and reparation in cases of human rights violations committed by transnational corporations.

Any attempt to tackle this complex issue must take into account two different aspects: (1) affected people lack venues to access remedies, including low or non-existent human rights standards, and (2) corporations are granted undue access to and influence over states and their organs, a reality known as “corporate capture.” In order to address both, the treaty must also consider the power imbalances between the Global North and South, and the different needs people have based on where they are rooted.

Access to justice and effective remedies for corporate abuse remains a huge challenge, particularly in developing countries. Firstly, the weakness (or lack of political will) of the State in promoting general human rights and the realization of economic social and economic rights. It has led business enterprises to fill these gaps through voluntary principles of corporate social responsibility (CSR)—using them as a social license to operate even when their activities lead to corporate abuses. Secondly, it is the issue of state capture, as the state is often complicit in corporate human rights violations. For example, government security agencies often carry out mass evictions to make way for and attract corporate investments, which begs the question, “when the state and its agencies are entangled in corporate human rights abuses, where can victims turn to access remedies?”

Therefore, the establishing of extraterritorial jurisdiction – which is specially focused on home States – is of paramount importance to address the difficulties in the access to justice. Indeed, Draft Zero addresses this in Article 5, albeit not with sufficient precision, especially when describing what should be considered “domicile” (5.2). Furthermore, the treaty lacks a clear rule to prevent states from restricting access to their domestic legal systems by affected communities abroad who have suffered from the acts of companies domiciled in their territory.

Moreover, whereas Articles 9.3 and 4 delineate clear obligations of States Parties, they need to also be extended to include extra-territorial obligations to ensure that pursuit of effective remedies is on concurrent levels. There must be an expansive framework of extra-territorial obligations, so that home states are obligated to ensure that their persons (including business enterprises) respect human rights in all their operations abroad and that where they violate the rights, they are held accountable.

Articles 11 and 12 on international cooperation, are also examples touching on the interaction between territories, and could be critical in ensuring access to remedy. The concept of sharing of information and best practices is a step in the right direction; however, the provisions currently come off as skeletal and insufficiently mandatory. What would happen if a State does not cooperate in good will? What even amounts to cooperation in good will? Since disputes involving transnational corporations usually take on a political character, this needs to be addressed before it becomes a strategy for inaction embedded in larger international politics. For example, is a state bound to cooperate, in respect to the treaty, with a state with whom they are at war? It is important for the provisions to present a more elaborate, albeit not conclusive, list of what cooperation is and what standard has to be met. If clarity is not established, we risk states claiming national security or lack of resources to avoid cooperation. If a state refuses to cooperate, the treaty must provide some sort of remedy to hold states accountable: for example, the ability for private persons and organizations to sue states for non-cooperation.

Additionally, the National Implementation Mechanism created in the recently released Optional Protocol has the potential to undermine any advances accomplished in the treaty in terms of access to remedies. And that is, because of the way it is conceived, with no reference to civil society oversight and democratic participation, as well as having the competence of receiving complaints and solving them by the issuing of recommendations and amicable settlements. It seems that this mechanism will prevail over other venues of remediation, and offer no guarantees of effective reparation for victims, thus looking a lot like other bodies that monitor CSR commitments.

As it stands, the protection promised in the Zero Draft Treaty and its Optional Protocol is weak. We need to establish a victim-centered system with enough clarity, and until then affected communities in the Global South and throughout the world will continue the struggle to access justice.