Lawyers’ insights on corporate legal accountability: Shankar Limbu, Community Law Firm, Nepal
1. What are the biggest challenges you face in your corporate legal accountability work?
Firstly, there is a lack of de facto recognition of Indigenous Peoples' identities, and collective rights in the business-related activities initiated by the state and non-state actors in the name of development. Nepal is a party to the ILO Convention No. 169, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), ICCPR, ICESCR, CRC, etc. that recognise individual and collective rights, but these rights remain on paper, not in practice. The corporate sectors outright reject Indigenous Peoples' collective rights and inter alia their customary rights over lands, territories, and natural resources. The existing remedial mechanisms, including the courts, take a selective approach to dealing with the case of collective human rights violation. These mechanisms are based either in the capital city or in cities, which are hardly accessible to the victims. They must be physically present in court and human rights institutions to file a formal complaint to before these institutions.
Secondly, Indigenous Peoples, Dalits, and voiceless local communities, are victims of racism, systemic discrimination, subjugation, and marginalisation that make them less valued, second-class citizens.. These peoples’ issues are systematically ignored or disregarded in most cases. Generally, a narrative such as "development is a prime necessity for the public interest, and individual rights do not prevail over the public interest" envelopes human rights violations cases against these groups. Lawyers and human rights defenders are accused of being anti-development and misleading the community when they defend community rights against the development aggression of state and private companies.
Thirdly, protection from blatant attacks on affected people with mobilisation of security forces to carry out development aggression is challenging. Another challenge is the government and corporate entities strategically trapping innocent people into false cases to silence the voices against injustices.
Fourth, "Ignorance of the law is no excuse." The legal presumption means everyone is a lawyer for oneself, knows the law, and possesses the capability to defend one’s own rights when deemed necessary. Section 24 of Nepal’s Civil Code (2018) provides every individual with the right to protect their own life, the lives of others, and their property against any illegal damage. Any action to protect life and property is not a criminal offence. In reality, most communities are unaware of these types of legal provisions, and the letter of the law remains dead law in practice. The dead law comes alive when the affected community uses it to defend their rights in an effective manner. It can lead to amicably resolving problems or creating an environment that discourages perpetrators of human rights violations or brings legal action against the perpetrators.
Fifth, there are loopholes in the system to take effective action against the state agencies and companies that do not respect court decisions or orders, including interim orders in relation to development aggression. The judicial and non-judicial institutions, including the National Human Rights Commission, are not effective enough to promote, protect, and defend human rights and fundamental freedoms in the developmental arena. Their decisions and recommendations are not seriously respected by the concerned parties. On the other hand, these institutions have not put their full effort to internalise the UN Guiding Principles on Business and Human Rights (UNGPs) under their respective jurisdiction.
Sixth, companies or the corporate sectors do not pay attention to the UNGPs and other human rights instruments. For them it is just a formality to mention them in the Environmental Impact Assessment (EIA) or other types of documents and not to translate into the practice. Most of the accountability mechanisms of international financial institutions are not friendly to affected communities, it seems, like a toothless tiger, even when it bites it doesn't hurt, it only tickles.
2. What key opportunities do you see for promoting corporate legal accountability (at the national, regional, or international levels)?
Despite huge challenges, there are number of opportunities. Nepal is a party to various legally or morally binding international instruments, including the UNGPs, that provide avenues for legal litigation and empower communities to promote, defend, and respect human rights. There are national laws, including the Constitution, that guarantee the fundamental rights of citizens. A petition for writ can be filed if those fundamental rights are violated. The safeguard policies of international financial institutions are also helpful to safeguard the rights of communities and individuals who are affected by the project and funded by respective international financial institutions.
The national remedial mechanisms (judicial and non-judicial) are functioning even though there is a question of their effectiveness. Among others, international remedial mechanisms also exist, such as the UN Chartered-based and Treaty-based bodies, including the UN Working Groups on Business and Human Rights, UN Special Rapporteur on the Rights of Indigenous Peoples (Specific mandate holders for the rights of Indigenous Peoples), etc. Similarly, the International Labour Organization's complaint mechanism and monitoring processes can be other avenues to bring forward violations of Indigenous Peoples’ fundamental and labour rights.
The accountability mechanism of international financial institutions offers an another avenue, such as the World Bank Inspection Panel, Dispute Resolution Service (which is relatively new), Asian Development Bank complaint mechanism, European Investment Bank complaint mechanisms, etc. Similarly, there area number of international organisations—such as the International Working Group for Indigenous Peoples (IWGIA), Accountability Counsel, and the Forest Peoples Program— partnering with human rights organisations to promote and safeguard the rights of affected people. These mechanisms are remarkable opportunities in corporate legal accountability efforts.
Importantly, a collective legal accountability action taken together with affected voiceless and Indigenous Peoples which respects their customary laws and justice administration not only make legal action pragmatic, but also helps resolve problems amicably and sustainably.
3. What key lesson(s) have you learned in your efforts to advance corporate legal accountability?
Obtaining a landmark decision from the courts that will set precedent is a kind of success, but the ultimate success lies in the due implementation of such a decision where human rights and fundamental freedoms are respected by state and business entities. In this regard, affected Indigenous Peoples, and local communities themselves, are the vanguards for their human rights. Their proactive action can play a constructive role in creating an environment that discourages human rights violation and makes their voices heard.
In my experience as a lawyer defending the rights of Indigenous Peoples and vulnerable communities, we need to be highly alert and highly sensitive to the safety and security of the affected communities before taking any action. We need to bring human rights violations in front of the courts and human rights institutions, but even more importantly, we have to put more effort outside courtrooms and complaint mechanisms before litigating a case. It is challenging to get a positive outcome if the judiciary is not independent and competent. In this situation, we have to frame the case carefully; otherwise, we may receive a negative outcome. I have experience in litigating successful cases relating to business and human rights but the question of implementation always remains. In order to deal with this situation, we have to use multiple options such as international networking, international mechanisms, sharing experiences, and working with media.
Last but not least, there is a famous saying in the community that I would like to borrow "Shyalko shikar garna ho bhane baghko shikarlai chahine sardam hunu parcha". It means, “if you go to hunt a jackal, you need skills, gear, and ammunition for hunting a tiger.” Success depends upon the appropriate use of legal skill, preparation, and instruments in tandem with affected communities.