Creating a Paradigm Shift: Legal Solutions to Improve Access to Remedy for Corporate Human Rights Abuse

While companies can be a force for good, many are implicated in human rights abuses in different contexts around the world. When companies cause or contribute to human rights abuses, adequate accountability and redress rarely occur. This is especially so when abuses are committed across borders. Systems of accountability that operate predominantly within state borders have not kept pace with the global nature of corporate operations. Victims of corporate abuse face serious obstacles to obtaining a legal remedy both in the jurisdiction where the harm occurred (“host state”) as well as where multinational companies are headquartered (“home state”). When multinational companies commit human right abuses in host countries, host state courts often remain the preferred forum for pursuing legal redress. However, for various reasons which include a lack of due process, political interference, mistrust of the courts or lack of affordable legal assistance, a claim in the host state may not be a viable option. In these instances, legal options in the home state also need to be leveraged to ensure justice.

It is now well known that human rights claims in home states are also affected by many barriers. These barriers have been extensively documented over the past few years. As a result, our collective understanding of the existing challenges to accessing remedy in cases of human rights abuses involving companies has grown considerably.

Instances of corporate abuse often reveal that legal changes are needed in relation to the specific case. However, legal change is also needed in relation to systemic issues such as parent company liability, duty of care and human rights due diligence.

Under international human rights law, states have a duty to prevent and redress human rights abuses by companies, including when companies operate across borders. While the UN Guiding Principles on Business and Human Rights (UNGPs), endorsed by the UN Human Rights Council in 2011, were a positive development and recognised these legal duties, six years on meaningful state enforcement remains limited.

 

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