The end of an era in civil litigation for international human rights abuse
On 24 April 2018, the Supreme Court argued (5 to 4) against the use of ATS to sue multinational corporations in US courts, for alleged human rights abuses committed abroad. This is different from its precedent in Kiobel v. Royal Dutch Petroleum, 2013, in that the standard set by the justices then was actually met this time: in Jesner et.al. v. Arab Bank PLC, the Jordan-based bank had a branch in New York, so there was a strong link with the US.
This effectively puts an end to any ATS litigation against foreign corporations. The judges felt that it is not up to the judiciary to impose such corporate liability for alleged international abuses (due to complex foreign policy implications).
So the only way to revive this legal option would be if Congress were to expressly authorise the courts in this sense.
Third session of the open-ended intergovernmental working group on elaborating a legally binding instrument for business and human rights
The third session of debates on the future legally binding instrument on business and human rights took place between 23-27 October last year and marked a new phase in the process. It moved away from open debate, to actual negotiations of a set of proposed elements for the treaty, which were drawn from deliberations in the first two sessions and additional meetings and had been prepared and distributed in advance of this third one.
General statements at the beginning of the session highlighted disagreements with respect to which business enterprises should be covered by the treaty (whether transnational ones alone, or national ones as well) and on whether the instrument should allow the exercise of extraterritorial jurisdiction. On the other hand, there was agreement on the provisions on international cooperation included in the proposed elements document, as well as on general support for the existing Guiding Principles, seen as complementary to the future treaty.
On the issue of scope, there was consensus that all internationally recognised human rights should be included in the treaty, alongside nationally recognised ones. Insofar as subjects of the treaty were concerned, several delegations considered that only transnational organisations should be included, since national ones were already subject to national laws.
On prevention, there was consensus on the proposal that States require companies to adopt and implement due diligence processes (with some proposing to include environmental impacts). However, the issue of whether this should apply to subsidiaries and other related enterprises on the supply chain was left undecided, since this would raise the risk of States’ exercising extraterritorial jurisdiction improperly.
Insofar as legal liability and access to justice are concerned, it was widely recognised that criminal, civil and administrative liability should be attached to legal entities. The treaty should cover environmental, health and safety, and workers’ rights as well as state-corporate complicity; but clarification should be sought on practical issues like victims’ access to information and legal assistance, in the civil context. Some panellists highlighted the importance of enabling victims’ access to courts in the home states of transnational companies and improving their access to disclosure (to address the problem of piercing the corporate veil).
There was general agreement that a section on jurisdiction ought to be included in the elements of the treaty, as transnationals often escaped liability through jurisdictional challenges. The focus of the negotiation was the issue of whether extraterritorial jurisdiction should be included, with several delegations supporting the idea that the treaty should allow courts to consider claims arising out of activities abroad.
There was consensus on the need to stress international cooperation in the future treaty, which was seen as crucial given that transnational corporations operated in multiple jurisdictions. Further clarification and level of detail was sought on the different levels of such international cooperation.
There was also agreement on the proposal to create mechanisms to promote, implement and monitor the future legal instrument, possibly in the form of an international committee.
Finally, delegations present agreed on the importance to support victims’ participation in the process of reviewing existing but ineffective institutions and processes aimed to protect victims.
The session ended with a decision to convene a fourth session of the Working Group this year. Prior to that, the Chair would hold informal consultations with States and other stakeholders on the way further to elaborate the legal instrument, based on the revised draft arising from this session. Watch this space.
Second session of the open-ended intergovernmental working group on elaborating a legally binding instrument for business and human rights
The second session of debates on the scope and content of the future legal instrument took place between 24-28 October last year. This time the debates focus on more specific issues, like the social, economic and environmental impacts of businesses on human rights (and their legal aspects); primary obligations of states; and how to strengthen cooperation with regard to prevention, remedy and accountability; as well as concrete cases.
The only wide issue on the agenda is an “open debate on different approaches and criteria for the future definition of the scope of the international legally binding instrument”. This, of course, depends on whether the new rules will be meant for all companies, or just transnational ones (which only account for 1% from the total). And it is one of those situations where size does matter a great deal. Panellists noted, for instance, that quite a few transnationals were wealthier and more powerful than the states trying to regulate them, so they could either block the regulations through heavy lobbying or relocate (thereby leaving victims without redress).
Another debate followed, on various forms the treaty could take, and on the range of human rights that it should cover – with some panellists opting for a set of core human rights covenants, whilst others arguing in favour of addressing a wider range, to include the right to development, indivisibility, equality and non-discrimination.
An important debate on the relation between the existing UN Guiding Principles and the proposed legally binding treaty highlighted the need for the latter to provide concrete and effective legal remedies. These should ensure victims’ access to court and offer ways to address existing barriers, i.e. to finance and procedure (including jurisdiction, the corporate veil, access to information, costs and levels of damages). The need for inter-country cooperation was also noted, in order to ensure effective investigation, hence the importance of multilateral agreements, effective training and support for law enforcement.
One interesting viewpoint was the EU’s insistence that any new binding instrument should focus on reinforcing and implementing existing obligations. However, the issue of how a voluntary and non-negotiated set of Guiding Principles could be turned into a universally and legally binding treaty (if indeed this was even possible) is yet to be explored.
Again, no final decisions were taken as a result of this set of debates, but important lessons were learnt about the pragmatic difficulties related to both the scope and the content of the future legally treaty. Again, a dialectics of less is more. It seems that we are in Hegelian territory with this process, where progress is made though a spiral rather than linear movement. Debates will continue at the third session, scheduled to take place later this year.
First session of the open-ended intergovernmental working group on elaborating a legally binding instrument for business and human rights
Following the Human Rights Council’s resolution 26/9 of 26 June 2014 deciding to elaborate an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, the first session of debate took place over a five-day period in July last year. Questions of the scope, content and form of the future instrument were addressed, including for instance the issue of governments’ responsibility to guarantee the respect of human rights by corporations and other enterprises in a way that covers current gaps in extraterritorial obligations, the distinction between duty (which is binding) and responsibility (which is voluntary), and the standard of corporate criminal liability.
On the latter point, one panellist highlighted the importance of holding companies accountable not only for their own conduct, but also for the conduct of their subsidiaries. The question of clearly defining wrongful conduct also arose, since talking about a legal responsibility presupposes the existence of wrongful conduct (in contravention to an obligation). Various points of view were tabled about sanctions and about forms of conduct that would count as harmful towards human rights, whether they are classified as criminal or not, and whether they already exist in national or international law.
The issue of complicity and that of directors’ individual responsibility were also debated. No final decisions were taken as a result of this first set of debates, but important progress was made on several points, such as acknowledging the fluid nature of the notion of ‘human rights’ itself (given that not all such rights are recognised in all jurisdictions), which means that no uniform standard of corporate responsibility could be established. Sometimes less is more. A negative result may constitute a useful lesson and a clear step ahead. Debates will continue at the second session, scheduled to take place later this year; before then, the Chair will have informal consultations with governments, civil society and other relevant stakeholders.
Moving towards a UN binding treaty
Last month, two resolutions (tabled by Norway, respectively Ecuador and South Africa) were tabled for UN Council’s approval, “to establish an open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights.” Whilst this may not yet signal the end of voluntary guidance and non-judicial remedies for human rights abuse by organisations (such as the UN Guiding Principles 2011), it does indicate an increased appetite for regulatory intervention.
Since the dismissal of the Alien Tort Claims Act (ATCA) last year – the last legal resort for victims of state/corporate facilitated human rights abuses to claim – there has been a gap in international law in this regard. Whilst the UN Guiding Principles may be increasingly effective at helping companies assess human right impacts, with a view to prevent abuse, they are less powerful when it comes to providing remedies when abuse is committed or solve disputes where these arise.
Annual Briefing on Corporate Legal Accountability on Human Rights
27 November 2013
The second Annual Briefing of the Business and Human Rights Resource Centre provides an overview of corporate legal accountability for human rights, summarising trends and developments in this field since their first Annual Briefing in June 2012. This briefing draws attention to the latest developments in lawsuits against companies for alleged human rights abuses around the world and looks ahead to emerging issues. The full briefing is available for download here.
Business & Human Rights Centre launches regional briefing on Eastern Europe and Central Asia
10 June 2013
In April 2013, the Resource Centre launched its first regional briefing for Eastern Europe and Central Asia. The briefing provides an overview of key business and human rights developments and trends in the region over the past four years, including descriptions of cases from Armenia and Bulgaria.
US Supreme Court dismisses ATS case against Shell
17 April 2013
The Supreme Court’s decision in the Kiobel v Shell case affirmed a lower court’s dismissal of the case and restricted the application of the Alien Tort Statute in cases involving allegations of abuse outside the United States.
The Kiobel lawsuit alleged that Shell was complicit in the torture, extrajudicial killings and other human rights abuses of Ogoni people in the Niger Delta. The Court’s opinion held that there was a presumption against the extraterritorial application of US law and that the plaintiffs had not overcome this presumption for purposes of the ATS. The decision significantly narrows the range of human rights cases that can be brought under the ATS in US courts based on alleged abuses outside the USA. However, the exact scope of this decision will become clearer as US courts apply this new ruling to pending ATS cases such as the lawsuits against Exxon Mobil and Rio Tinto regarding alleged human rights breaches in Indonesia and Papua New Guinea respectively.
European Commission reports and guidance on business and human rights
The European Commission is currently developing human rights guidance for three business sectors: employment and recruitment, ICT/telecommunications, and oil and gas. The guidance is expected to be completed by the end of April this year. So far, the EC has published reports on human rights and the environment (2010), Study on Responsible Supply Chain Management (2011), guidance on human rights for SMEs (new), and CSR policies (2011).
New brief from Professor Ruggie on Kiobel and Corporate Social Responsibility
4 September 2012
A new “Issues Brief” has just been published by the former UN Special Representative on business & human rights, Professor John Ruggie. The document, available for download here, addresses Shell’s arguments in Kiobel v. Royal Dutch Petroleum (Shell), the currently pending US Supreme Court case challenging the extraterritorial application of the Alien Tort Statute (ATS), under which companies have been sued over alleged human rights abuses abroad. The Supreme Court will hear oral arguments on 1 October. In this brief, Professor Ruggie asks whether a company’s corporate responsibility to respect human rights under the UN Guiding Principles on Business & Human Rights should be consistent with its litigation strategy, and whether such a strategy should “aim to destroy an entire juridical edifice for redressing gross violations of human rights, particularly where other legal grounds exist to protect the company’s interests”.
New briefing highlights human rights lawsuits against companies over alleged abuses in over 25 countries
London, 20 June 2012
The non-profit Business & Human Rights Resource Centre has launched its first annual briefing on Corporate Legal Accountability. This briefing draws attention to the latest developments in lawsuits brought by victims against companies in Argentina, Bangladesh, Canada, China, Democratic Republic of Congo, Ecuador, France, Nigeria, South Africa, UK, USA and other countries. Please click here to download the 13-page briefing.
New campaign to hold Samsung accountable for occupational cancer
2 March 2010
An international coalition held a press conference at Samsung Headquarters in Seoul, Korea to announce the formation of a campaign to demand that Samsung accept responsibility for the many deaths of its young workers from occupational cancer. The Coalition – called the “Samsung Accountability Campaign” – includes Supporters for the Health and Rights of People in the Semiconductor industry (SHARPs), Korean Metal Workers’ Union (KMWU), Asian Network for the Rights Of Occupational Accident Victims (ANROAV) and International Campaign for Responsible Technology (ICRT). The Coalition also announced an international petition campaign calling on Samsung to accept responsibility for the health of its workers, especially now that it has become a leading global brand that is promoting itself as a “green company” around the world. Click here for further details.
Apartheid Reparations lawsuits (regarding South Africa)
New York, 11 January 2010
On January 11, 2010 a US Federal Appeals Court heard the defendant companies’ appeal of the lower court’s decision allowing the case to proceed to trial. The defendants are Daimler, Ford, General Motors, IBM and Rheinmetall Group. Please click here for the full article.
Apartheid case against companies to resume in the US Court of Appeals
8 January 2010
The Khulumani support group are optimistic ahead of the trial. Click here to read the full article.