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The third pillar of the UN Guiding Principles on Business and Human Rights requires states to provide access to judicial remedies for violations of human rights by corporations. This pillar should be strong and secure if the rest of the framework is to be the primary global structure in dealing with these violations. Yet it is being undermined by the actions of both the states and the courts that should be upholding the pillar.
I argued in my AJIL article, Waving Not Drowning: Kiobel Outside the United States, that the decision in Kiobel is likely to have limited effect on litigation elsewhere, primarily due to a range of EU Regulations, such as the Brussels I and Rome II Regulations, the use of innovative tort claims and civil law criminal procedures, and the lack of reliance on the specific ATS developments. I cautioned that there are limitations in these non-U.S. systems, such as the difficulty in bringing collective/class actions, the applicable law usually being the states where the harm was done, and the inability to bring a claim in human rights language.
A recent report has showed that there are widespread problems in accessing judicial remedies in developed states. In The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business, my co-authors and I explored the extent to which states have placed barriers to access to judicial remedies on victims of these types of violations by corporations. The mapping exercise undertaken—which was based on consultations with those in the field, examination of case studies, and research in relevant states—shows that barriers exist across all the jurisdictions reviewed. This is despite differences in, for example, legislation (or lack of legislation), the approaches of courts, human rights protections at the national level and legal traditions. A range of recommendations are given, such as that all business enterprises should have a legal duty to ensure that their entities comply with human rights, there should be a removal of the financial barriers that prevent victims accessing judicial remedies, and there should be criminal laws to hold business enterprises accountable.
The lack of willingness by states to ensure access to judicial remedies is seen in the strategy developed by the UK government to implement the Guiding Principles. In its Action Plan on Business and Human Rights, issued in September 2013, the UK government showed great skill in bringing together all the relevant government departments (such as trade, business, development assistance and foreign affairs) and in making clear its expectations that business will comply with human rights. However, almost no new laws or procedures (such as through corporations law, public procurement or export credit) are put in place to ensure that corporations must comply (see commentary). This is a global concern because this implementation strategy—being the first one so far produced by any state—may become a template for other states and may be watered down by less supportive states.
There is a need for a strong third pillar in providing access to judicial remedies for extraterritorial violations of human rights by corporations. Yet the recent actions by states and courts have shown that, while the waves emanating from the Kiobel decision may not greatly affect non-U.S. litigation, the secure shore of access to a judicial remedy for victims is still very distant.
Professor Robert McCorquodale is the Director of the British Institute of International and Comparative Law and a Barrister in London.