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How the UN treaty on Business and Human Rights can improve access to justice for victims

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Friends of the Earth Europe, SOMO, Bread for the World and other civil society organisations have published a report with recommendations on key policy reforms to improve access to justice for victims of corporate abuse. Parties in the UN negotiations for a binding treaty on business and human rights should seize the opportunity to deal with these issues in order to effectively address persistent remedy gaps, the report concludes.

In June 2014, the UN Human Rights Council (HRC) adopted a ground-breaking Resolution which triggered the process of developing “an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights”. The resolution marked a watershed in the history of endeavours to regulate human rights and environmental impacts linked to transnational corporations. It was also received as a clear opportunity to address the obstacles faced by victims of corporate abuse worldwide in their struggle for justice.

The HRC Resolution also established an Open-Ended Intergovernmental Working Group (IGWG) to carry out the task. Seeking to contribute to the group's mandate, Friends of the Earth Europe, Centre for Research on Multinational Corporations (SOMO), Bread for the World, and other five civil society organisations have commissioned a report which puts forward a set of recommendations to improve access to justice for victims of corporate-related human rights impacts. Titled “Removing Barriers to Justice - How a treaty on business and human rights could improve access to remedy for victims”, the report draws from the analysis of five well-documented cases of business-related human rights abuse.

Enduring obstacles for access to justice

The selected case studies provide concrete evidence of persistent practical and legal obstacles which prevent victims from obtaining justice. Some of the most important hurdles identified include jurisdictional problems specific to transnational litigation; legal barriers (especially the “corporate veil”) shielding the parent company from responsibility regarding acts of its subsidiaries or business relations; the absence of mandatory “due diligence” in legal systems, or procedural difficulties (access to information, burden of proof and others) which place victims on an unequal footing with respect to powerful corporate actors.

Some of these barriers affect both civil and criminal law, while the latter presents other specific problems concerning corporate liability and law enforcement. The report also sheds light on practical obstacles such as the highly expensive and time-consuming nature of transnational litigations, or the challenges faced by communities which decide to take legal action against companies.

Key recommendations for policy reforms

The report pays specific attention to policy and legal developments in the European Union. It identifies whether – and in what way – a UN treaty on business and human rights could complement and improve policy development and action at the national level, as  well as setting the framework for harmonising key elements of law across EU member states and globally.

In short, the document concludes recommending that the UN Treaty should:

  • Help to overcome jurisdiction barriers; by enabling domestic courts to exercise jurisdiction and choice of law over human rights violations by their companies overseas;

  •  Remove legal barriers to corporate liability and place upon corporations a broad duty of care, setting the bases to hold parent companies liable for their subsidiaries’ conduct;

  • Give legal force to the due diligence framework established by the UN Guiding Principles on Business and Human Rights (HRC, 2011);

  • Help to improve access to courts removing practical and procedural barriers by means of measures such as financial aid, reversal of the burden of proof, or better rules for disclosure of documents;

  • Promote a convergence of criminal law around basic modern approaches to corporate liability;

  • Improve effectiveness of State law enforcement at both domestic and international levels by means of measures such as judicial cooperation and mutual recognition and enforcement of judicial decisions;

  • Affirm and extend the protection of human rights defenders (HRDs) by introducing models of judicial protection for whistle-blowers and HRDs, or strengthening mechanisms to consult communities affected by corporate conducted projects.

Though most of the identified necessary reforms concern directly changes at domestic level, the report concludes that the ongoing UN Treaty negotiations represent a clear opportunity to push these reforms forward and to set a framework for harmonizing key elements of law across EU member states and globally.

The report was written by Daniel Blackburn (International Centre for Trade Union Rights), and commissioned by eight civil society organisations: ActionAid Netherlands, Brot für die Welt, Centre for Research on Multinational Corporations  (SOMO), CIDSE, Friends of the Earth Europe, International Trade Union Confederation (ITUC), International Transport Workers’ Federation (ITF) and the Norwegian ForUM for Development and Environment (ForUM).

The need for substantial reforms to address the “remedy gap” has gained wide attention. Moreover, a clear consensus appears to be emerging among the international community of scholars, experts, civil society organisations as well EU Human Rights bodies in this field.  Last 4th September, Amnesty International and Business and Human Rights Resource Centre published a briefing on legal solutions to improve access to justice which shares to a great extend the diagnosis and solutions presented by the "Removing Barriers to Access Report".

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