It was a pleasure to speak in Geneva earlier this month at a consultation hosted by the United Nations Office of the High Commissioner for Human Rights (“OHCHR“) on the scope for making businesses strictly liable for human rights abuses, and the role, if any, for human rights due diligence in that context.
The consultations were requested by the UN Human Rights Council following the publication of the important first report of the OHCHR’s Accountability and Remedy Project (“ARP“).
The ARP was launched by the OHCHR in 2014 to enhance the third pillar of the UN Guiding Principles on Business and Human Rights (the “UNGPs“), access to remedy. Its first report – ARP I – was presented to the Human Rights Council in June 2016. Like the UNGPs, ARP I concluded that effective judicial mechanisms are at the heart of access to remedy. The project’s second phase – ARP II – is currently in progress and focuses on non-judicial mechanisms.
This first OHCHR consultation following ARP I, entitled “The Relevance of Human Rights Due Diligence to Determinations of Corporate Liability”, explored the relationship between human rights due diligence (as defined in the UNGPs) and determinations of corporate liability under national law for adverse human rights impacts arising from or connected with business activities.
The panel I participated in – together with my distinguished co-panellists, Humberto Cantu Rivera (Université Paris 2 Panthéon-Assas), Krishnendu Mukherjee (Doughty Street Chambers), Sandra Cossart (SHERPA), and Elsa Savourey, Herbert Smith Freehills – explored in particular the relationship between human rights due diligence and strict liability, drawing on the conclusions of ARP I.
In England, as in many national regimes, strict liability is already available against corporations in a number of contexts, both for civil liability (such as under the Consumer Protection Act 1987 for damage caused by a defective product) and criminal liability (such as the offence under the Bribery Act 2010 for failure to prevent bribery).
Justifications for imposing strict liability in such circumstances include the difficulty of attributing “fault” in large corporate structures, deterring risk-taking and, as a matter of fairness and policy, that the cost associated with the risks deriving from a company’s activities should be borne by the company, even if the company did nothing wrong.
Many of these arguments resonate in the context of considering whether to impose strict liability for human rights abuses. But such an imposition could lead to issues of due process if we do not proceed with caution and ensure a clear and foreseeable legal framework, enabling businesses to regulate their conduct with a reasonable level of certainty. Failure to do so could risk discouraging responsible investment, which could be counter-productive.
One critical issue is the scope of “violations” or “offences” to which strict liability can be attached. The UNGPs refer to “adverse human rights impacts”, which potentially extends to adverse impacts (of any degree) on any of the human rights contained in the International Bill of Human Rights.
Attaching strict liability to a failure to prevent (as per the UK Bribery and Corruption Act) “gross” human rights violations may be an option. For example, in the UK, we already have the Criminal Finances Act 2017, which was passed in April this year, allows for the recovery in civil proceedings of property obtained through unlawful conduct that amounts, or is connected, to “gross human rights abuses”. However, such an approach assumes that the underlying offence (of committing a “gross” human rights violation) would not be subject to strict liability and can be proved.
Challenges in realising access to remedy will form the central theme of this year’s UN Forum on Business and Human Rights, at which Hogan Lovells will be co-hosting a session on regulation and litigation trends concerning access to remedy across the value chain.
The consultation was held on 6 October 2017 at the Palais des Nations at Geneva. The joint session at the 2017 UN Forum on Business and Human Rights will take place at the same location on 28 November 2017.