A new report by the International Centre for Trade Union Rights (ICTUR), commissioned by a group of civil society organisations, has made a series of welcome recommendations on the development of an effective UN Treaty on business and human rights.
The report identifies a number of barriers to access to justice which we at Leigh Day have identified and documented in a number of the cases we have brought. These barriers include:
- Courts in parent companies’ home states refusing jurisdiction, such as in the recent Bebe case ;
- Courts’ refusal to “pierce the corporate veil” to permit parent company liability for the actions of its subsidiaries;
- The lack of enforceable standards of due diligence;
- Barriers to accessing to the Court such the lack of funding, restrictive rules of standing and access to documents;
- Weak enforcement mechanisms.
In our cases Leigh Day frequently confront the barriers highlighted by the ICTUR report. Important advances in the law on multinational home court jurisdiction and parent company duty of care have been achieved through cases we have brought, including Lubbe v Cape, Connelly v Rio Tinto, Chandler v Cape and Shell Nigeria. However, substantial obstacles to justice remain for individuals and communities who have suffered from human rights violations at the hands of transnational corporations.
The report highlights how a new Treaty, complementing the UN Guiding Principles can assist in breaking down these barriers and makes a number of concrete recommendations including:
- Establishing a basic consensus, supported by domestic law, for home states to ordinarily recognize jurisdiction over companies domiciled in those states;
- Statutory reforms to introduce a statutory duty of care to require parent companies to be responsible for the conduct and impact of their subsidiaries;
- The introduction of legally binding requirements for companies to conduct due diligence;
- The establishment of a global oversight body on business and human rights based on the UN supervisory bodies that oversee the compliance of States with international human rights obligations.
In addition to litigation strategies to improve access to justice, Leigh Day has participated in a variety of initiatives to raise awareness of deficiencies in access to justice including acting as experts and presenters to the UN Human Rights Council’s working group currently elaborating an international legally binding instrument to regulate the activities of transnational corporations and other business enterprises; presenting to the UN Committee on Economic, Social and Cultural Rights on access to remedy obligations of states arising from the activities of business at the and Cultural Rights; giving evidence to the Parliamentary Joint Select Committee on Human Rights as it examined the UK's compliance with international guidance on business and human rights.
ICTUR’s report is a welcome contribution to the debate and many of the proposed recommendations – particularly around jurisdiction, corporate liability and due diligence - are to be supported.