|
|
|
|
|
The Lengthy Journey towards a Treaty on Business & Human Rights
Half a decade has passed since in July 2014 the UN Human Rights Council first voted to begin negotiating a legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. The elements, scope, and substance of the Treaty have been subject to a healthy debate, which the Business & Human Rights Resource Centre has helped facilitate in our Debate the Treaty blog series.
The ongoing discussion has been marked by several key milestones; the most recent of which is the release of the Revised Draft Treaty by the government of Ecuador in July 2019. This Draft will be discussed at the UN Intergovernmental Working Group in October. We have argued elsewhere that for any Treaty to be effective it must pass three key tests: It must 1. meet the needs of vulnerable groups, 2. ensure effective access to remedy and justice, and 3. reinforce mandatory transparency and due diligence. How does the Revised Draft Treaty measure up against this criteria compared to the ‘Zero Draft’ of 2018?
Vulnerable Groups
Since 2015 we have tracked almost 2,000 killings, beatings, threats and other forms of intimidation against human rights defenders working on business-related issues. This includes judicial harassment of defenders, who are increasingly subjected to Strategic Lawsuits against Public Participation (SLAPPs). Our latest research shows that between 2015 and 2018, 12 major oil, gas and mining companies and one industry association filed at least 24 SLAPPs against 71 defenders, seeking a combined total of US$ 904 million in damages. An effective Treaty must address these defenders’ needs; and the needs of others who are at heightened risk of vulnerability in companies’ operations and supply chains.
The Revised Draft Treaty gives greater recognition and affords increased protection to human rights defenders, both in its preamble and in several operative provisions, and bears key improvements towards ensuring gender justice and to the protection of persons living under occupation and in other conflict-affected areas. The Treaty rightly acknowledges other at-risk groups such children, persons with disabilities, indigenous peoples, migrants, refugees, and internally displaced persons.
Access to Remedy and Justice
100 of the world’s largest companies received an average score of just 15% for their remedies and grievance mechanisms in the Corporate Human Rights Benchmark’s latest 2018 ranking. This indicates that most victims of corporate human rights abuse routinely do not have access to effective remedy and justice. The prevailing lack of remedial avenues is exacerbated when companies hide behind corporate structures to evade legal liability for the human rights impacts of their subsidiaries. An effective Treaty must therefore strengthen access to effective remedy and justice, both nationally and extraterritorially, piercing the ‘corporate veil’ that subsidiaries use to avoid justice.
Perhaps one of the Revised Draft’s most compelling aspects is that it “rightly places its raison d’être on victims and their protection,” as Antonella Angelini notes. The strengthened provisions on legal liability for enterprises have also been widely welcomed; including by Carlos Lopez who has highlighted their “enormous significance for the implementation of international criminal law and human rights law in relation to business enterprises.”
On the other hand, many stakeholders have rightly criticised the Draft’s lack of clarity and specificity in key provisions, such as those relating to the reversal of the burden of proof and to civil liability. While the Revised Draft requires states to establish legal liability for complicity in certain (international) crimes, Prof. Doug Cassel has rightly argued that “nothing in the draft explicitly requires “civil liability” for businesses which are complicit in human rights violations committed by states.”
Transparency and Due Diligence
Many governments have recognised that voluntary measures – while important - are insufficient to ensure companies' respect for human rights. The failure of this approach has prompted the growing movement towards mandatory human rights due diligence at the national and regional levels. In Europe, France spearheaded the movement with its duty of vigilance law in 2017; other countries including Switzerland and Austria are considering similar initiatives. The Dutch Child Labour Due Diligence Law requires companies to determine whether child labour occurs in their supply chain; and civil society in Germany has just launched a campaign for legislation on human rights and environmental due diligence. Importantly, the Finnish Government - currently holder of the EU presidency - has committed to exploring mandatory human rights due diligence legislation and to raise it at EU level.
The Treaty provides a key opportunity to accelerate and reinforce these trends, to ensure that companies take adequate action to prevent abuse. The Revised Draft includes important provisions requiring states to introduce legislation to make human rights due diligence mandatory and to oblige business to “take appropriate actions to prevent human rights violations or abuses in the context of its business activities.” While this is a particularly significant step in the right direction, advocates have gone further and called for more clarification of the relationship between the prevention and the remediation of human rights abuses. In her most recent commentary, Gabriela Quijano of Amnesty International suggests ways in which states can and must go beyond due diligence to prevent harm.
Final Observations
The Revised Treaty brings with it many improvements, some of which have been outlined above. Two additional improvements are worth noting: The widened scope of the Revised Draft applies to all businesses, transnational and local; and the preamble explicitly refers to the UN Guiding Principles on Business and Human Rights (UNGPs). This is an important affirmation of the complementarity of the treaty process with the UNGPs, which can and must reinforce each other as an international system that pursues genuine protection and remedy for victims.
Some concerns remain to be addressed in the upcoming negotiations. These include the issues outlined above, and several others, including the Draft’s lack of recognition of direct human rights obligations by companies. With that said, there seems to be a consensus among lawyers, scholars and civil society that overall the Revised Draft is stronger than the ‘Zero Draft’, “both politically and substantially”. We are hopeful that the upcoming round of negotiations will be yet another step in the lengthy journey towards an effective treaty.
***
Check out our Binding Treaty Portal and our Debate the Treaty Blog, which includes reflections by diverse thought-leaders on the Treaty Elements & Process, the Zero Draft and the Revised Draft. An unofficial summary of the Revised Draft is available here.
|
|
New Blog series: Reflections on the Revised Draft Treaty
A new draft Business and Human Rights treaty and a promising direction of travel, Gabriela Quijano, Amnesty International, 10 Sep 2019
Five ways the new draft treaty on business and human rights can be strengthened, Doug Cassel, Emeritus Professor of Law, University of Notre Dame, 2 Sep 2019
What the draft treaty's definition of “victim” means for access to remedy, Antonella Angelini, Human Rights Institute, Columbia University, 2 Sep 2019
Ecuador’s Revised Draft Treaty: Getting Down to Business, Doug Cassel, Emeritus Professor of Law, University of Notre Dame, 2 Sep 2019
Slow Progress in Times of Dynamic Change? Feminist Perspectives on the Road to the Binding Treaty, Felogene Anumo, AWID, 27 Aug 2019
Revised draft UN treaty on business and human rights: A few steps forward, a few unanswered questions, Isedua Oribhabor, Access Now, 20 Aug 2019
Keeping Perspective - Article 30 Commentary on the Revised Draft of the Proposed BHR Treaty,Dr. Matthew Mullen, Founder, Article 30, 20 Aug 2019
|
|
New case profiles
Lawsuit against Globe Metals & Mining (re lack of resettlement & compensation in Malawi): In 2006, Globe Metals and Mining launched a mining project to extract minerals in the Kanyika Area, occupied and used by the Kanyika community for hundreds of years. The Kanyika community claims that Globe Metals did not consult them about mining operations. On 28 August 2017, the members of the community filed a lawsuit against Globe Metals in the High Court of Malawi over the lack of compensation and resettlement. On 31 August 2018, after mediation proceedings, Globe Metals agreed to compensate the community members who lost their land and were adversely affected by the mining operations.
Lawsuit by Inversiones Cobra & CXI (re illegal invasion of territory & burning of palm oil, Guatemala): On 4 February 2017, indigenous Maya Q'eqchi' land defender Abelino Chub Caal was arrested and placed in pre-trial detention following a complaint by Inversiones Cobra and CXI. The companies accused Chub of inciting community members to set fire to palm oil crops, and of unlawful association for acting as a mediator during an eviction by police of peaceful protestors defending their lands. On 8 May 2018, Chub was formally charged. A year later, on 26 April 2019, he was released and acquitted of all charges by the High-Risk Court A of Guatemala. The judge accused the companies of using the criminal justice system to criminalise the defender, unjustly accusing him of crimes without presenting any substantive evidence.
Lawsuit by Socfin & Socapalm (re defamation by NGOs & media outlets, France): On 29 May 2016, multinational agribusiness company Socfin and its Cameroonian subsidiary Socapalm sued three French media outlets (Mediapart, L’Obs, Le Point) and two NGOs (Sherpa and ReAct) for defamation over allegations of land grab by the two companies in Cameroon. Socfin and Socapalm denied the allegations. On 29 March 2018, the High Court of Paris discharged the defendants, but agreed with the public prosecutor that the allegations were defamatory. It noted however that a defamatory claim can be justified if it pursues a legitimate interest and is unaccompanied by personal animosity. On 13 February 2019, Socfin and Socapalm withdrew their appeal to the decision and the case is now closed.
Updates to existing case profiles
Lawsuits against CACI (re torture in Abu Ghraib prison): On 23 August 2019, a US Court of Appeals rejected the appeal of CACI. The company invoked its sovereign immunity and claimed the court therefore lacked jurisdiction. The case, filed over 10 years ago, can now proceed to trial.
Lawsuit against gold mining companies (re silicosis disease in South Africa): On 26 July 2019, the Johannesburg High Court approved the 5 billion rands (USD 353 million) class-action settlement between the mining companies and the law firms representing thousands of miners suffering from lung diseases.
Lawsuit against Hudbay Minerals (re alleged rapes in Guatemala): In a hearing on 17 September 2019, 11 Q’eqchi’ women amended the Statement of Claim to provide further details on the allegations against Skye Resources (now part of Hudbay Minerals). The lawsuit alleges that the company was involved in the violent eviction of their community in January 2007, and that the security guards they hired gang raped the women.
Lawsuit against Samsung (re misleading advertising & labour rights abuses): On 17 April 2019, an investigating judge of a Paris Tribunal indicted Samsung Electronic France for misleading advertising. The lawsuit alleges that Samsung's public ethical commitments constitute misleading advertising in light of alleged human rights abuses in several of the company's factories.
Lawsuit against Shell (re oil spills & Ogale & Bille communities in Nigeria - Okpabi v Shell): In May 2019, civil society organizations asked the UK Supreme Court to allow the fishing communities to appeal against the 2017 ruling claiming that Shell did not hold a duty of care towards them. On 24 July 2019, the UK Supreme Court granted a permission to appeal.
Lawsuit against Tahoe Resources (re alleged injuries in Guatemalan protest): Pan American Silver acquired Tahoe Resources in February 2019. On 30 July 2019, the company reached a settlement with the Guatemalan plaintiffs and publicly apologised to the victims and the community.
Lawsuit against Unilever (re ethnic violence in Kenya): On 17 July 2019, the UK Supreme Court refused the claimants’ application for permission to appeal the judgment of the Court of Appeal. The Court of Appeal did not find sufficient evidence to demonstrate that Unilever PLC dictated or advised upon the terms of Unilever Tea Kenya’s crisis management plan.
|
|
From Business & Human Rights Resource Centre
Silencing the Critics: How big polluters try to paralyse environmental & human rights advocacy through the courts, Sep 2019
Reports, articles & guidance by leading experts & organisations
Commentary: Samsung's Indictment in France: Fighting Transnational Corporation's Human Rights' Violations Through Consumer Law, Sherpa, on Freedom Fund Blog, 9 Sep 2019
Zambian victims to file class action lawsuit against Anglo American South Africa over suffering caused by lead poisoning, Leigh Day; African mining market, 23 Aug 2019
American Bar Association unanimously endorses & urges business enterprises to implement framework in "Shared Space Under Pressure", American Bar Association Center for Human Rights, 13 Aug 2019
Business and Human Rights Journal focuses on agribusiness, pesticides & accountability:·
Expert commentaries on Jul 2019 Revised Draft of proposed treaty on business & human rights:
- Includes blogs by Nicolás Carrillo Santarelli, La Sabana University; Peter Hood & Julianne Hughes-Jennett, Hogan Lovells; Nadia Bernaz, Right as Usual
- Additional commentaries are available at on the Business and Human Rights Journal Blog as part of its symposium on the revised draft of a binding treaty on business and human rights.
Poland: ClientEarth wins shareholder lawsuit against Enea in landmark climate risk case, ClientEarth; Reuters, 1 Aug 2019
|
|
|
If you would like to submit an entry for consideration in the next Update, give us feedback, know someone who would like to receive it, or wish to unsubscribe, please contact Elodie Aba, Senior Legal Researcher, at aba [at] business-humanrights.org.
|
|
|
DISCLAIMER:
We take no position on views by commentators, organizations & companies in the materials in this email: https://www.business-humanrights.org/en/about-us/disclaimer
|
|
|
|
|
|
|
