It is getting harder to seek legal redress for corporate human rights abuse in the countries where they are headquartered, and those pursuing such efforts face increased harassment. Español, Français, Ру́сский
If a company arbitrarily seizes land, pollutes water, or uses private security forces that abuse human rights, those impacted should have the right to a remedy, and to seek legal redress. The right of ‘Access to Remedy’ is one of the three key pillars of the United Nations’ Guiding Principles on Business and Human Rights.
Yet, a review of the many lawsuits against companies regarding their human rights impacts around the world for over a decade, suggests little improvement for victims hoping to access justice. Indeed, it might be getting more, not less, difficult for them to do so.
There are two key trends. Existing venues for extraterritorial claims are closing; governments of countries where multinationals are headquartered do not provide sufficient access to judicial remedy for their companies’ abuses abroad. Some new venues are emerging for raising complaints against companies, but it is still too early to tell what their impact will be. Second, legal harassment is increasing of those working to hold businesses accountable for human rights abuse.
When former prisoners of Abu Ghraib prison in Iraq sought justice for the torture and inhumane treatment they were subjected to, allegedly by private military contractors CACI and L-3 Communications, they knew that it would be impossible to obtain justice in an Iraqi court. They filed lawsuits in the country where the companies are headquartered – the United States. Like these Iraqi torture victims, many other victims of corporate abuse have no access to judicial remedy in their home country. Up to now, some have taken their cases to courts in the country where the company is headquartered (often the USA or United Kingdom). In fact, Business and Human Rights Resource Centre (BHRRC) has profiled 108 legal cases and the majority are related to extraterritorial claims – that is, claims of abuse occurring outside the country of the court hearing the case. Unfortunately, it is getting harder to bring such claims.
A turning point against extraterritorial human rights claims was the US Supreme Court’s decision in Kiobel v. Shell in April 2013. The decision in Kiobel stated that there is a presumption against extraterritorial application of US law, including the Alien Tort Claims Act (the legislation used to sue companies in the US for complicity in human rights abuse abroad). At the time of the Kiobel decision, there were at least 19 Alien Tort cases pending in US courts, alleging human rights abuses by companies. Since then, only one new Alien Tort case has been filed against a company in US court. Lower courts have dismissed a majority of the ATCA cases that were pending at the time of the Kiobel decision, using this narrower standard on extraterritoriality. The full contours of extraterritorial jurisdiction in US courts following Kiobel, however, are still evolving.
Read the full article on Open Democracy.