Are corporations held accountable for their human rights violations? No
These journal entries discuss the content of each source and how the source has developed my thinking on corporate accountability and human rights. The question is “are corporations held accountable for their human rights violations?” This page argues that multinational corporations are not held accountable for their human rights violations, and the avoid accountability and liability.
Corporate accountability and gutting the US Alien Tort Statute
Article: Corporate accountability and gutting the US Alien Tort Statute
26th April 2013
By Jonathan Kolieb
I came across the article and found it very interesting as it builds upon my thoughts concerning corporate accountability. Similar articles and views have been discussed previously in “Settlement Involving Niger Delta Fishermen Leaves Shell More Exposed Than Ever” and “Doors closing on judicial remedies for corporate human rights abuses”.
- US Supreme Court has made a landmark decision that will draw sighs of relief from corporate boardrooms across the world
- The case of Kiobel v. Royal Dutch Petroleum (2013) where Nigerian citizens accused RDP, Shell and their local subsidiary aided and abetted the Nigerian govt to commit serious HR abuses against the Ogoni people of the oil-rich Niger Delta in the 1990’s
- The case was brought under the Alien Tort Statute (ATS) whcih states that US courts: “have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”.
- The court has decided that you cannot employ the ATS to sue foreign companies for conduct in foreign lands in US courts any longer. A key point in the court’s reasoning was its wariness to entangle US courts in matters with “direct foreign policy consequences” for the US government
- In the past two decades, HR activists have employed ATS as a means to hold large multi-national corporations accountable for human rights abuses committed in far-flung countries.
- Another high profile case is Sarei v. Rio Tinto (2000) where allegations against a Australian mining company, Rio Tinto, for environmental destruction of Bougainville’s environment and complicity in serious human rights abuses committed by the Papua New Guinean government when it used military force to quell an island uprising. However the Kiobel decision has limited the ATS and it seems unlikely that Rio Tinto will ever need to plead their case.
- As human rights activists and victims of atrocities come to grips with the shutting down of one promising legal avenue in which to pursue justice, they will necessarily be searching for another forum in which to do so. Australian courts are a potentially fertile, but largely untested, ground for pursuing human rights litigation for corporate accountability.
- Australia is a signatory to the Rome Statute which has incorporated international law into domestic law. Australian courts have the authority to prosecute companies and hold them accountable for complicity in any such crimes committed by governments or militaries of countries where they operate.
- Many of the judicial hurdles to succeed in an ATS claim are not applicable to the Australian legal scene. Australian has a looser notion off "forum non conveniens", a principle that requires a claim to be brought in the most appropriate forum, which makes it more amenable to cases involving misconduct in foreign countries. Existing case law suggests there can be a strong presumption for the prosecution of grave international crimes.
- Therefore, it is possible that foreign-based multinational companies such as Shell and Royal Dutch Petroleum, as well as Australian-based companies such as Rio Tinto, could face the prospect of legal action against them in Australia for the very same sorts of alleged misconduct that they have had to defend in US courts. Australia has not experienced waves of human rights litigation against corporations to date.
My thoughts on Kolieb’s article are mixed. Overall the article illustrates that there has not been justice served to corporations for their human rights violations. Human rights litigation has also had a step back with the US Supreme court narrowing the scope of the ATS to be employed as an effective means of legal redress for victims of corporate human rights violations. Its unlikely Rio Tinto will ever need to plead their case before the US Supreme court; therefore corporations are getting away with human rights violations and no justice is being served.
However, positives can be taken away from this article as there is renewed motivation for human rights activists and victims seeking justice. Australian courts have the authority and the suitiable legal system to pursue and accommodate for multi-national corporations being held accountable for their human rights violations.
This article has developed my thinking concerning the approach to human rights. This article is strong evidence that reflects the world-wide approach to human rights violations concerning multi-national corporations. The US have limited the ATS so they’ll only accommodate human rights claims that involve the US which is a great example of the world’s approach: the home-state doesn't want any part in a human rights claim unless the home-state is actually involved. These thoughts have been developed from the previous article “Doors closing on judicial remedies for corporate human rights abuses”.
How multinational companies keep avoiding the threat of regulation
Article: How multinational companies keep avoiding the threat of regulation
17th March 2015
By Flor Gonzalez Correa
This article stuck out to me as it addresses the key issue of corporation accountability. The author addresses the issue on companies avoiding the threat of regulation giving cases that provide evidence for her findings. She also discusses ways of litigation to solve the “governance gap”.
Bolivia, Cuba, Ecuador, South Africa and Venezuela proposed a treaty to regulate transnational corporations last year. It’s been a long and complicated road to control dominating global corporations that’s been on the UN’s agenda for around 40 years.
The Draft Code of Conduct on Transnational Corporations and the draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights were never finalised due to disagreement between developing and developed countries. When the norms were presented for approval in 2004, they received a fatal blow: the Human Rights Council said that it had never requested such a document and that the norms had “no legal standing”.
In 2011 John Ruggie wrote a replacement for the norms: the Protect, Respect and Remedy Framework for Business and Human Rights and the Guiding Principles. These required business to respect human rights and hand states the responsibility of protecting them and providing access to effective remedy when they are violated. The Human Rights Council unanimously endorsed both documents however, some prominent human rights organisations were less optimistic and continued to push for the creation of a binding treaty.
According to the guiding principles, the state has the responsibility to create and enforce national regulations to protect the human rights of its citizens against corporate abuses; however states are not always willing or able to create and enforce such regulations. Ruggie’s documents were intended to be an interpretation of existing international human rights instruments, and they were not aimed at creating new regulations or filling any legal gaps. That is why a treaty could be useful: to create new regulations to cope with current challenges.
To be of any use, a treaty on transnational corporations will need the support of most states, so far, most of them have refused to even entertain the idea of a treaty. Fourteen countries, including France, Germany, Japan, the UK and the US voted against Ecuador’s resolution and another 20 abstained. Many states insist on building upon the guiding principles, which you suspect they are aware can only take us so far.
In truth, what we are likely to see in the near future is the same story we have witnessed for 40 years. Business keeps opposing any prospect of binding international rules, however necessary. We cannot expect a credible commitment to better rules if the governments who are supposed to create and enforce them have such a close relationship with the business sector. As long as countries place the economic interests of their companies well before human rights, then efforts like that proposed by Bolivia, Cuba, Ecuador, South Africa and Venezuela will continue to be overshadowed.
The principles have political and diplomatic merit. The principles certainly have political and diplomatic merit. They made explicit the human rights responsibilities of corporations and by securing the approval of the business community, making it more difficult to claim ignorance when human rights are violated. They also serve as a tool for NGO’s to pursue corporate accountability. However, the fact that the principles are non-legally binding creates an ever present risk that signatories could back off with few consequences beyond a bruised public image.
A treaty, if supported by most states, could force companies and states to put human rights considerations above monetary profits and would allow big corporations to be held accountable for their human rights violations.
Qatar’s response to abuse of migrants on World Cup 2022 is ‘woeful’ says Amnesty International
Article: Qatar’s response to abuse of migrants on World Cup 2022 is ‘woeful’ says Amnesty International
14th November 2014
By Ben Rumsby
This article provides evidence of human rights violations committed by not only a multinational corporation, but the government as well.
- Amnesty International claim that Qatar is guilty of a ‘woefully insufficient’ response to the death and inhumane abuse of migrant workers helping to prepare for the World Cup
- It’s been suggested that hundreds of workers have died, tens of thousands have been victims of routine abuse, as well as human trafficking and forced labour while building the tournament infrastructure
- Many workers lived in labour camps that slept up to fifteen in a room, with no electricity, running water or air conditioning, and with sewage leaking from the streets
- There have been multiple reports of physical abuse and blackmail
- This report has built in Amnesty International’s report from last year that contained a year’s worth of evidence of human right abuse. A year on from that and their latest report claims there has been little progress
Qatar is luring migrant workers to work within the World Cup under slave labour. Once they have lured the workers in, they are unable to leave because Qatar make it impossible to leave the labour camp without an exit permit that must be signed by the worker’s employer. Qatar knows exactly what they’re doing by violating human rights: they feel as if they can take advantage of migrant workers believing them to have little human rights because they don’t possess national membership. They’re not only exploiting vulnerable individuals that are searching for employment, they’re also inhumanely abusing them within their workplace.
This developed my thinking on the topic because it opened my eyes up to the fact that not only are corporations violating human rights, but the governments who are supposed to be protecting people's human rights are violating them as well.
Oil for lives? When governments help bad corporations
Article: Oil for lives? When governments help bad corporations
24th June 2012
By Rosaria Burchielli & Annie Delaney
Big corporations have been publicly named and shamed for their participation in violating human rights, and they are not always held to account. John Ruggie’s 2009 report on business and human rights noted governance gaps have appeared which create a “permissive environment” allowing corporations to act with impunity.
During the Kiobel v. Royal Dutch Petroleum case, three Western governments (UK, Germany and the Netherlands) supported Shell in the US Supreme Court, in its attempt to fight off accusations of human rights violations.
Kiobel v. Royal Dutch Petroleum is a human rights case that is currently before the US Supreme Court. Shell Oil is accused of being complicit with the Nigerian government in committing war crimes against the Ogoni tribe who were opposing oil extraction in their territory in the 1990s. The case is being heard under the Alien Tort Statute (ATS) which allows foreign plaintiffs to seek justice for acts in breach of international law.
The UK, German and Dutch governments filed amici curiae briefs with the US Supreme Court, supporting Shell Oil and urging the rejection of this human rights case. The term amici curiae, literally means a “friend of the court”, providing unsolicited evidence to assist in the hearing of a specific case.
We all know that corporations provide jobs; we all understand that governments have to encourage business and economic activity; we are all clear on the fact that governments want to be re-elected, and they, therefore, do not want to annoy powerful stakeholders. But we expect democratic governments to honour their duty to represent the complexity and diversity of voices. So, when governments provide unsolicited support that promotes corporate interests at the expense of human rights accountability, it is clear that these governments are making a mistake-one which befriends the powerful corporations at the expense of anyone else.
Ruggie’s 2009 report gives a clear and accurate description of today’s “governance gap” which allows corporations to act with impunity. The situation worsens as well when amici curiae briefs are being used in cases in order for corporation to misinform the US Supreme Court’s considerations and avoid liability. This is an error against human rights principles by the governments and they’re breaching their duty to protect human rights. Governments that have endorsed the UN Guiding Principles on Business and Human Rights must behave in ways that are compatible with human rights protection and national foreign policy. If not, they contradict their fundamental obligations and support those who are seeking profit above the lives of human beings.
If powerful corporations and governments cooperate with one-another to avoid accountability for human rights violations, then the “governance gap” is not only going to stick around, it’s actually going to get bigger.
Doors closing on judicial remedies for corporate human rights abuses
Article: Doors closing on judicial remedies for corporate human rights abuses
26th January 2015
By Sif Thorgeirsson
This article discusses the increasing lack of judicial remedies available for victims of human rights violations. The author discusses the trends and factors affecting this growing lack of remedies.
- If companies abuse human rights, those impacted should have the right to remedy and seek legal redress
- The right of ‘Access to Remedy’ is one of three key pillars of the UN’s Guiding Principles on Business and Human Rights
- However, the review of lawsuits against companies within the last decade shows little improvement for victims hoping to access justice, and it’s continuing to get worse.
- The two key trends are:
- The venues where human rights claims take place are closing and multinational companies move away to new venues. The home state doesn’t provide sufficient access to judicial remedy for their companies’ abuses abroad, as a result there is no justice
- Legal harassment is increased of those working to hold businesses accountable for human rights abuses
- Many victims of corporate abuse have no judicial access to remedy in their own country, so they file lawsuits in the country where the company is headquartered (home state)
- Business and Human Rights Resource Centre (BHRRC) has profiled 108 legal cases of human rights abuse with a vast majority being extraterritorial claims
- A detrimental turning point against extraterritorial human rights claims was the US Supreme Court’s decision in Kiobel v Shell , which led to only one out of nineteen extraterritorial human rights claims being heard in US courts. The other eighteen were dismissed because of this presumption against extraterritorial claims
- Victims seeking legal remedy in UK courts have been challenged by the 2012 new legislation which limits the funding of extraterritorial claims
- Leigh Day, a leading law firm taking on transnational corporate human rights cases in English courts, says the number of cases being heard are near zero, however there has been some out of court settlements, like Shell’s payout to the Bodo community over oil spills (as discussed in the previous journal)
- Even though the scope for remedy from US and English courts has been narrowed, there has been an increased in the number of cases filed in Canada, France, Switzerland and Germany
- The second trend is the legal harassment of human rights defender. They are increasingly subject to legal attacks in an effort to impede their work, for example Andy Hall, a British human rights and migrant worker rights advocate based in Southeast Asia, who documented violence against workers, child labour and other abuses at a Thai pineapple processing factory. The company filed criminal and civil charges against him that carried an eight-year prison sentence and fines of over $10 million.
- The law is a tool that has been sharpened for business, but dulled for human rights defenders.
There are far fewer lawsuits than the number of cases of human rights abuse, this shows that there are very few victims that are able to access judicial remedies in the company’s homes state. Homes states must do more to ensure that victims of abuses have access to legal remedies. Without legal remedy to enforce human rights obligations, companies are able to operate with impunity and too many do. Meanwhile victims of abuse and advocate on their behalf are left vulnerable to legal harassment and without justice.
Building on the thoughts from last week, this shows the big picture of how little justice there is in concern to human rights abuses by multinational corporations. Companies can act with no consequences in all corners round the world, and the majority of the time get away with it.
Gold Rush: Striking inequality in rural Tanzania
Article: Gold Rush: Striking inequality in rural Tanzania
8th January 2014
By Tony J Spence
This article builds on my knowledge of real life cases concerning human rights and business. It will help develop my thinking illustrated in my portfolio.
- Tanzania is one the largest producers of gold in Africa. It is estimated that the production of gold counts for 3% of Tanzania’s GDP. Small-scale mining, called artisan mining, is responsible for a sizeable percentage of all exports, but with a distinct lack of regulation in this sector local communities are exposed.
- The scale of productivity of this industry paints a positive picture of high and rising revenues and high employment, but what is hidden below the surface is a structure that benefits the rich while the poor stay in a steady state of poverty
- The origins of the Mining Act 1979 and the Mining Act 1998 aimed to establish stricter regulations and better environmental and safety standards for artisan miners
- However Tanzania’s artisan towns demonstrate that these policies have been forgotten:
- Miners are working 24 hour backbreaking days using nothing but hand tools to break their way through solid rock
- Miners frequently find themselves falling down deep dark pits
- Drug and alcohol abuse is also rife as the chosen method to ease the gruelling workload and blunt the awareness of danger
- Disease, illness and serious accidents are a part of the mining process from toxic gases and particles, as well as the lack of safety precautions
- Life as an artisan miner means working in perilous and unhealthy conditions everyday with no safety equipment or regulation, consequently creating an unsettling atmosphere which nurtures a life of substance abuse
- The mining land is controlled by a local director and an exterior investor which results in drastically low wages, deception and months on end with no pay
- The artisan miners’ lack of power results in profound violation of their rights. The level of hierarchy suppresses the voices of the miners and renders them powerless
- Many local communities are reliant on mining as a source of income-this leaves entire populations dependent on an industry that cannot provide their basic needs or future opportunities
- The investors of the minors are meant to help the communities according to the Government, but this is extremely rare. Some communities are given zero access to water despite the plentiful supply is pumped by the mine only a few kilometres away
- Lack of Government regulation has led to the exploitation of artisan minersàthe Mining Act 1998 prioritised medium and large miners to increase gold production and encouraged free trade movement which aimed to increase individual and state welfare, but this has led to an unequal system where the Government is unable/refuses to monitor it
- An immense amount of capital is generated from the mining industry but an unfair structure established by unchecked power of private owners constitutes an unequal distribution of wealth
Wealth is not going to be distributed fairly if the poor and marginalised people in the mining society keep having their civil rights denied. Not only is the unequal distribution of wealth and the worsening of poverty in mining communities the fault of private owners, but that of the Government’s as well for turning a blind eye to these breaches of human rights and not addressing them before. It is vital that the voices of the artisan miners are heard and that the Tanzanian Government must renew their focus on enforcing policies that regulate and improve the artisan mining industry.
If Tanzania wants to move forward as a country and an economy, then there needs to be reform throughout many of the Government policies in order to move towards a brighter future that is poverty free