The Accountability and Remedy Project: Corporate Liability for Human Rights Undergoes Some Research & Development

Helen Kemp is a GJA Student Ambassador for the 2015-16 academic year. Helen is reading for her Law LLB at Edinburgh Law School. She is a fourth-year student and is writing her dissertation on the role of human rights in international environmental law.

Convincing multinational corporations to protect the rights of people involved in, or affected by, the flourishing of their business is hardly a simple task. Endless frameworks and guidelines may be available to help States induce companies to comply with human rights law, but the quality of life of factory workers in a faraway nation has not usually shown to outweigh the short-term profit brought about by their exploitation.

The United Nations Guiding Principles on Business and Human Rights (UNGP) resulted from a decades-long effort to set standards for states to address human rights violations resulting from global business activities. The initiative, which was unanimously endorsed by the UN Human Right Council, takes a three-pronged approach to implementing obligations. The framework first outlines the state duty to protect human rights, and then defines the corporate responsibility aspect of respecting human rights. Finally, it provides a guide for requiring adequate access to remedies for victims. The UNGP have been met with both praise and critique, the latter noting that a lack of mechanisms, and motivation, for enforcement renders them inadequate.

In Geneva, the end of November marked the fourth annual meeting of the United Nations Forum on Business and Human Rights, where discussions of national action plans, corporate responsibility, and other means to fulfil the expectations of the UNGP took place. While the UNGP serves as a somewhat comprehensive source of foundational principles that could be used to hold corporations liable if they commit a violation, it still lacks enough detail to fully guide enforcement. When considering the benefits of a serious violation, whether directly or indirectly perpetrated by a business, the consequences of being caught and indicted must be sufficiently material to serve as an effective deterrent. It is up to States to employ effective mechanisms to address such abuses, and it is up to international bodies to bring about coherent minimum standards.

In the days following this main conference, a multi-stakeholder consultation event was held in conjunction with the OHCHR Accountability and Remedy Project. Focused on a victim-centred approach to handling severe rights abuses, the six-part scheme hopes to use the outcomes of a global, open consultation process and a focused survey of select jurisdictions to address a lack of enforceable sanctions and remedies for corporate violations of human rights. It aims to address the brunt of this implementation problem by studying several factors, including the possibilities for improving: (1) domestic tests for corporate accountability, (2) responsibilities of States in transboundary cases, (3) financial obstacles to pursuing legal recourse, (4) civil remedies, (5) criminal sanctions, and (6) the policies of domestic prosecution bodies.

The session presented the initial results of the 130 consultation replies and 60 jurisdictional surveys to stakeholders, including NGOs and experts, and discussed the current draft of guidance and policy aims, which will ultimately serve as a “credible and concrete” guide for States. A combination of good practice indicators and policy statements were issued, explained, and scrutinised for four out of the six project components. By first clarifying the policy principles of domestic tests for corporate liability, the Draft Discussion paper provided for the conference highlights the importance of establishing consistency among States when approaching a clear set of rules and procedures. The stakeholders also assessed proposals for resolving the financial obstructions that many victims of human rights abuses face, as well as the initial findings of how criminal and civil penalties are currently, and should ideally be, applied by States. For example, the suggested Good Practice Indicators relating to criminal and quasi-criminal cases address the need for “sufficiently dissuasive” sanctions, “logical and consistent” application of sanctions between jurisdictions, and even advocate taking into account “genuine attempts by corporate defendants to identify, prevent and mitigate the adverse human rights impacts of business activities.” These indicators are important because they make solid recommendations that could potentially be transposed into international or domestic law without much revision.

Overall, the key preliminary findings for the four projects revealed two important, common themes. First, several different approaches are being taken to prevent, investigate, and punish human rights violations by the many jurisdictions surveyed, to varying degrees of success. Second, victims are not being given equal access to litigation due to financial and other resource obstacles, and when they do manage to bring a successful suit, compensation and/or other sanctions (i.e. disqualification from state funding or contract opportunities, remedial orders, etc.) are not predictable, effectively discouraging, or fair to the victims.

The scale and severity of these abuses, committed by and for so many of the major corporations that we rely on every day, demands the serious attention of States individually and collectively. These problems were also brought to attention less formally throughout the development of the UNGP, but so far the Accountability and Remedy Project has made a fruitful attempt to provide widely applicable support and direction to enforcement bodies. The project is due for completion in March 2016; hopefully the finalised guidance will bring about increased protection and enforcement of human rights globally.

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