Published 2 years ago.
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On day two of the UN Forum on Business and Human Rights, delegates discussed how environmental damage is being viewed as a human rights violation in a growing number of court cases around the world — and that the UN Guiding Principles may increasingly be criteria in court judgements.
The threat of legal action against corporations on human rights grounds is a
recognition that judicial solutions must always be part of access to remedy for
victims, but also risks businesses retrenching back into their law departments
rather than going outwards into their supply chains.
An update on current legal cases is always part of the annual UN Forum on
Business and Human Rights, but this year is
being portrayed as a landmark for corporate human rights litigation.
In May, The Hague District Court ordered Royal Dutch Shell to
drastically deepen its planned greenhouse gas emission
Shell plans to appeal the judgment, but the ruling has sent a shockwave through
The finding itself is significant in the fight against climate change, but a
lesser understood significance is that the claim was made on human rights
grounds and directly cites the UN Guiding Principles on Business and Human
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from the Grantham Research Institute reports five further similar cases in
the last year.
Mexican academic Humberto Cantú told the Forum that an upcoming study will
show the UNGP referred to in multiple cases since 2016 across Mexico,
Argentina, Colombia and Peru.
These cases forge a strong link for environmental damage to be viewed as a human
rights violation. They also suggest that the ‘soft law’ of the UNGP may
increasingly be referred to by courts in ‘hard law’ judgements.
Meanwhile, there has been an equal trend towards companies’ duty of care being
used in court actions on human rights abuse.
in September, France’s Supreme Court, the Cour de Cassation, upheld the
indictment of the French company, Lafarge, for complicity in crimes against
in Syria. The case is interesting in that the company was found to be an
‘accomplice,’ even though the prior ‘intention’ was not proven.
Sandra Codsart, Director of French law association
Sherpa, told the Forum that two further French
cases — action against the supermarket chain Casino for sourcing beef
allegedly linked to deforestation in the
and a climate action against oil company Total — have both passed the hurdle
of being confined to commercial courts and will now be tried in civil courts.
In March, the Federal Court of Australia upheld a lawsuit against oil
company PTTEP, to pay compensation to Indonesian seaweed farmers whose
livelihoods were affected by an oil spill. The case, however, had taken 12 years
to reach a conclusion.
Yet, each of these cases is notable for allowing prosecutions in developed
countries against parent companies in favour of victims in less developed
countries overseas. The focus on France is also no coincidence, given the
country’s early adoption of human rights due diligence law, the ‘devoir de
As proposals for mandatory due diligence advance in Europe and elsewhere
globally, extra impetus already exists for companies to root out human rights
abuses in their supply
However, not all the trends are in one direction.
A US Supreme Court case brought by six Malian cocoa farm workers in the
Côte D'Ivoire failed this year, on the basis that there was insufficient
connection with the United States.
British human rights lawyer Richard Meeran told the Forum that there was now
a ‘demise’ in the ability to bring third-country cases brought under the US’
South African academic Thandeka Kathi also pointed to the increasing use
of strategic lawsuits against public participation (SLAPPs), to silence
criticism or protests against companies. The Business and Human Rights
Resource Centre has recorded 355 such cases in the last six years.
For Kathi, this calls for “creative lawyery” — and building better networks
between the small number of lawyers able to be active in these cases and local
communities affected by them.
Karen Adams, from the Human Rights Law Centre in Melbourne, told the
Forum that Australia has led the way in the development of litigation
funders, citing the Grata Fund as an example of
not-for-profit action to ensure potential claimants can pursue claims which they
could not otherwise afford, and allowing public interest cases to be mounted.
Surya Deva, Chair of the UN Working Group on Business and Human Rights, questioned how far the large number of confidential settlements before cases
ever come to court prevent precedent-setting, benefitting victims but not wider
stakeholders or actions in other companies. However, evidence presented to the
Forum suggest that these cases can still have a deterrent effect — with other
companies wanting to avoid legal claims leading to complex, costly and
potentially damaging cases on the same issues.
All of these cases remain dependent on the operation of independent and
impartial justice systems, present in some but not all countries of the world.
“You can’t take cases against multinational companies based in China,”
Meeran said. Adams suggested that cross-border cooperation allowing detailed
research on supply chains could still make that a reality. Work has already
begun to identify companies profiting from Uyghur forced
The prospect of litigation will never be an easy one for companies.
The Office of the High Commissioner for Human Rights was said in the Forum to
consider legal cases to be part of a ‘bouquet of remedies’ on business and human
Today’s debate suggested the scent is becoming more distinct but will still
divide delegates on whether it is more sweet — or more pungent.
Published Nov 30, 2021 4pm EST / 1pm PST / 9pm GMT / 10pm CET
Richard Howitt is a strategic adviser on Corporate Responsibility and Sustainability, Business and Human Rights. He is also a Board member, lecturer at Audencia Business School and host of the Frank Bold ‘Frankly Speaking’ responsible business podcast. Richard was Member of the European Parliament responsible for the EU’s first rules on corporate sustainability reporting and subsequently Chief Executive Officer of the International Integrated Reporting Council.