Barriers to Access to Remedy
Victims of human rights abuse have a right to effective remedies, as specified for example in articles 2.3 and 14 of the International Covenant on Civil & Political Rights. Yet victims of abuse involving companies are often unable to access effective judicial remedies.
Victims of human rights abuse have a right to effective remedies. This right is specified, for example in articles 2.3 and 14 of the International Covenant on Civil & Political Rights, as well as in regional instruments such as the American Convention on Human Rights and the European Convention on Human Rights. See also General Comment No. 31  by the UN Human Rights Committee.
According to the UN Guiding Principles on Business and Human Rights, “States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy." (Principle 26) The official Commentary to the Guiding Principles identifies legal barriers such as:
- division of legal responsibility among members of a corporate group that may facilitate avoidance of accountability
- denial of justice in the country where the abuse occurred, coupled with inability to access courts in the company’s home state, regardless of the merits of the claim
- exclusion of certain groups, e.g., indigenous peoples & migrants, from legal protections that apply to the wider population
Practical barriers identified in the Commentary:
- cost of bringing a claim
- difficulty in securing legal representation
- inadequate options for aggregating claims, such as class actions and group claims (see commentary by Martyn Day, of Leigh Day law firm [UK])
- lack of resources and expertise among government prosecutors
The Commentary adds: "Many of these barriers are the result of, or compounded by, the frequent imbalances between the parties to business-related human rights claims, such as in their financial resources, access to information and expertise... Particular attention should be given to the rights and specific needs of [vulnerable and marginalised] groups or populations at each stage of the remedial process: access, procedures and outcome."
[PDF] "Injustice Incorporated: Corporate Abuses and the Human Right to Remedy", Amnesty Intl., Mar 2014
[PDF] "An International Arbitration Tribunal on Business and Human Rights", Claes Cronstedt, Rachel Chambers, Adrienne Margolis, David Rönnegard, Robert C. Thompson, Katherine Tyler, 25 Feb 2014
[PDF] "Commerce, Crime, and Human Rights: Closing the Prosecution Gaps", Intl. Corporate Accountability Roundtable, Feb 2014
“The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business”, Prof. Gwynne Skinner, Prof. Robert McCorquodale, Prof. Olivier De Schutter, Andie Lambe, for Intl. Corporate Accountability Roundtable, CORE, European Coalition for Corporate Justice, Dec 2013
- background information: "Launch of the Access to Judicial Remedy Project", March 2013; project document, including re objectives & methodology
- "Calls for a binding treaty on business & human rights - perspectives", Compiled by Business & Human Rights Resource Centre, Dec 2013
[video] "Access to Judicial Remedy: Developments in access to judicial remedy for business-related human rights impacts. A discussion on identifying barriers to remedy and ways of addressing them" - session of 2012 UN Forum on Business and Human Rights, Geneva, 4 Dec 2012, facilitated by Conectas and Intl. Federation for Human Rights (FIDH).
Translation to English available for presentations in other languages as noted below - see "Available languages" menu under video on UN Web TV site
Moderator: Elin Wrzoncki, Head of Globalization and Human Rights Desk, FIDH
- Juana Kweitel, Program Director Human Rights, Conectas Direitos Humanos (video in Spanish) - text of remarks (in Spanish) [DOC]
- Rosa Amaro, affected stakeholder, La Oroya case, Peru (video in Spanish) - presentation (in Spanish) [PPT]
- Dickay Kunda, affected stakeholder, Kilwa Mining Case, Dem. Rep. of Congo (video in French) - text of remarks (in French) [DOC]
- Antonio Sergio Escrivão Filho, Legal Advisor, Terra de Direitos (Brazil) - text of remarks [PDF]
- Naseema Fakir, Legal Adviser, Legal Resources Centre (So. Africa)
- Katherine Gallagher, Senior Attorney, Center for Constitutional Rights (USA)
- Gabriela Quijano, Amnesty International - text of remarks [PDF]
- Laurel Bellows, President, American Bar Association
"Justice Increasingly Distant for Victims of Corporate Abuse", Carey L. Biron, MintPress News (USA), 09 Dec 2013
International Commission of Jurists reports on access to justice for human rights abuses by companies:
- Access to Justice: Human Rights Abuses Involving Corporations - Democratic Republic of Congo, 01 Jun 2012
- Access to Justice: Human Rights Abuses Involving Corporations - Nigeria, 22 Feb 2012
- Access to Justice: Human Rights abuses involving corporations - Brazil, 02 Aug 2011
- Access to justice : human rights abuses involving corporations - India, 19 Jul 2011
- Access to Justice: Human Rights Abuses Involving Corporations - Poland, 01 Jun 2010
- Access to Justice: Human Rights Abuses Involving Corporations - South Africa, 01 Jun 2010
- Access to Justice: Human Rights Abuses Involving Corporations - Philippines, 01 Jan 2010
- Access to Justice: Human Rights Abuses Involving Corporations - The Netherlands, 01 Jan 2010
- Access to Justice: Human Rights Abuses Involving Corporations - People's Republic of China, 01 Jan 2010
"Overcoming Obstacles to Justice: Improving Access to Judicial Remedies for Business Involvement in Grave Human Rights Abuses", Mark Taylor, Robert Thompson, Prof. Anita Ramasastry, for Fafo, Amnesty Intl., Norwegian Peacebuilding Centre, 2010
- European Coalition for Corporate Justice, 10 Dec 2013
- Prof. Nadia Bernaz, Middlesex Univ. (UK), 29 May 2013
- Jonathan Kaufman, EarthRights Intl. (USA), 3 May 2013
- International Institute for Environment & Development [re Africa], 5 Apr 2013
- Adrienne Margolis, Lawyers for Better Business, 10 Jul 2012
- Lewis Gordon, Environmental Defender Law Center, Jul 2012
- Charles Abrahams (So. Africa), Sep 2008
- Jennifer Green & Beth Stephens (USA), Sep 2008
"The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business", European Coalition for Corporate Justice, 10 Dec 2013
excerpt: "The global reach of transnational businesses has significantly increased over the past thirty years...Yet, the conditions under which these businesses may be held liable for human rights abuses have not aligned with this evolution. Moreover, States have, in general, failed to fulfill their duty to protect human rights by ensuring that victims have access to effective remedies, including judicial remedies, particularly for human rights abuses that occur abroad (extraterritorially) at the hands of businesses. The resulting lack of access to judicial remedies provided by home States...in particular [for] abuses that occur extraterritorially, has a considerable impact on the effective exercise of human rights. The purpose of the Access to Judicial Remedy (A2JR) Project is to understand which barriers are most insurmountable for victims and to provide recommendations for each of the jurisdictions examined [EU, UK, USA] regarding how the States can better fulfill their duty to reduce these barriers and ensure victims have access to judicial remedies..."
"Access to Judicial Remedies for Victims of Corporate Human Rights Violations: UK Consultation", Prof. Nadia Bernaz, Middlesex Univ. (UK), on Rights as Usual blog, 29 May 2013
excerpt: "[At] a consultation on access to judicial remedies in the UK hosted by the British Institute of International and Comparative Law...usual, yet critical, issues of legal aid for foreign victims, access to evidence, and de facto inequality of arms between often disimpowered communities and powerful global corporations, were discussed. Other questions that I find are a lot less touched upon were also discussed, such as the consequences of EC Regulation No 864/2007 (‘Rome II’)...[which] provides that in tort claims judges in European Union member states must apply the law of the state where the damage occurred...[This] means that the onus is on the claimant to present the judge with a clear picture of what the law is in that particular country. The identification of the relevant law and its niceties can be long and costly. A related problem...is that the victims, if successful before British courts, can only be compensated according to the host state’s rules on the matter, not British rules, which may mean a lot less money. We also...[discussed] ‘remedies besides money’. The nature of tort claims brought in the UK to address human rights violations calls for purely monetary compensation to selected, identifiable, individuals when remedies for the benefit of the wider community may actually be fairer in the long run and have a better chance of ensuring non repetition."
"U.S. 'Approach on Business and Human Rights' Neglects Remedies for Victims", Jonathan Kaufman, EarthRights Intl., 3 May 2013
excerpt: "[The] 'U.S. Government Approach on Business and Human Rights'...[makes] enthusiastic references to the UN Guiding Principles on Business and Human Rights...[but] completely ignores the need for victims to have access to justice and glosses over the administration's troubling record on remedies...[It] is simultaneously promoting transparency and voluntary mechanisms while denying those who would use these tools a means to turn them into an effective remedy for the harms they have suffered."
"Gaining Ground? Report sheds light on demand for accountability amid resistance to land deals in Africa", Intl. Institute for Environment & Development, 5 Apr 2013
excerpt: "People who feel wronged by large scale land deals in Africa are taking a variety of steps to seek justice...[New] research...asks whether legal empowerment offers citizens scope to expect fairer outcomes...The research...analyses legal frameworks in 12 African countries and reviews the cases of 16 large scale land deals. Large scale land deals can bring benefits...but they can also dispossess people of land and other resources and can spark conflict...The report shows too that few legal options are available to local groups and that there is an imbalance in the way laws protect investors, governments and communities. Meanwhile, many of the smaller land deals pass unnoticed, leaving even fewer options for redress."
"Routes to redress", Adrienne Margolis, Lawyers for Better Business (L4BB), 10 Jul 2012
excerpt: "The uncertainty over the fate of the US Alien Tort Statute and the recent withdrawal of legal aid in the UK for cases brought against multinational companies has prompted a debate about avenues to redress for corporate harm...Lawyers and NGOs warned that the withdrawal of legal aid funding in the UK would create a barrier to justice for victims of grave human rights abuses...In the EU, Brussels 1 regulations on the jurisdiction of the courts set the rules for when courts can accept legal actions raised by victims from third countries..." [full item quotes Richard Meeran of Leigh Day, Jonathan Kaufman of EarthRights Intl.]
"Using domestic courts to hold corporations accountable for harm to the environment and human rights" [PDF], Lewis Gordon, Environmental Defender Law Center, July 2012
excerpt: "Victims considering bringing [human rights] cases...often face difficult obstacles. If a case is brought in the courts of the country where the harm occurs, these obstacles may include close ties between corporations and host governments; corrupt judiciaries; the limited availability of lawyers willing and able to bring these cases; the nearly unlimited financial resources of many corporate defendants; and the risk of institutional racism and retaliation, especially as to indigenous victims. If a case is brought in the courts of the country where the parent corporation is domiciled, obstacles may include the difficulty of holding a parent corporation liable for the acts of its foreign subsidiary; the risk of a judge dismissing the case under the 'inconvenient forum' rule; the logisti cal difficulties and expense of bringing a case arising in one country in the courts of another; and finding lawyers willing to bring the case..." [full text of commentary offers "Solutions"]
"Corporate legal accountability for human rights abuses in South Africa" [PDF], Charles Abrahams, Abrahams Kiewitz Attorneys (So. Africa), September 2008
excerpt: "Plaintiffs...do not have the financial means to bring...[major cases against companies] before South African courts to impact the lives of thousands of others. As a result, public interest lawyers play an important role by taking these cases on risk, meaning on a contingency basis....However, other than public interest organizations such as the Legal Resources Centre and Lawyers for Human Rights...public interest law among South African lawyers has dwindled since 1994. Generally young black lawyers are enticed to take up lucrative positions in huge South African commercial firms formerly dominated by whites , whilst the number of medium-scale black firms decrease...The...public interest lawyers who do take on these cases generally come from very small law practices and are completely out-resourced as far as their counterpart defendant firms are concerned. Law firms acting on behalf of big mining corporations are...well endowed with infrastructure, resources and capacity..."
"Human Rights Litigation and the Corporate Accountability Movement" [PDF], Jennifer Green, Center for Constitutional Rights, and Beth Stephens, Rutgers Univ. School of Law (USA), September 2008
excerpt: "[Cases against companies in their home country] often face daunting logistical, practical and even emotional hurdles. Plaintiffs are usually in a foreign country, often in a rural area that is difficult to reach and often in an ongoing situation of war and other security problems...[L]ogistics of travel, communication and translation can be very difficult. The facts may be difficult to sort out. Moreover, plaintiffs who have survived human rights abuses or lost relatives to such abuses are often traumatized and may require ongoing emotional support. They must be prepared to stay with litigation that may drag on for years. Finally, corporate defendants have seemingly endless resources to pour into legal defense. Lawyers and community groups interested in pursuing corporate-defendant human rights litigation should be clear about the underlying facts, about the plaintiffs’ long-term commitment to the lawsuit, and about the resources available to support the case