Thirty years ago, the expressions “human rights” and “business” very rarely formed part of the same sentence. Human rights were the business of States, whereas companies just had to mind their own business.
In the past decade, however, the expression “corporate social responsibility” (CSR) has been on everyone’s lips. The COVID-19 crisis has accentuated the flaws of the current financial and economic system and recalled the urgent need for accountability on the part of economic players. More and more, CSR is rightly understood as encompassing respect for internationally recognized human rights. Hundreds of multinational corporations have publicly recognised the need to respect human rights at all times and wherever they operate. Tools have developed to help businesses understand what human rights mean in their daily operations as they recognize the need to assess potential risks stemming from human rights abuses, in order to ensure the viability of their businesses. Major corporations have recognised that profit is closely linked to the respect of human rights.
Yet, the discourse, strategies and practices put forward by companies have to be matched with concrete changes in practice. On every continent, victims of human rights violations and serious environmental damage, directly linked to the economic activities of multinational corporations, confront major obstacles when seeking justice.
At the time of writing, due to insufficient precautionary measures and regulatory enforcement by the relevant authorities, the consequences of the rupture of the tailing dam operated by Vale in Brumadinho, Brazil, are immeasurable. The toxic mine waste took nearly 300 lives and moved down rivers, destroying life and biodiversity and wiping out entire towns. In Uganda, human rights defenders working on the abuses of the oil and gas industry are repeatedly harrassed, abusively arrested, intimidated and attacked for carrying out their legitimate work. Others, in Mexico, Colombia, Guatemala or Honduras are regularly assassinated. From the Philippines to Peru, indigenous peoples’ right to be consulted in relation to investment projects in the extractive industry continues to be ignored and is becoming an important factor of political and social destabilization. Information technology (IT) companies have recently been under the spotlight for their questionable acquiescence in requests made by certain authoritarian regimes to restrict access to information or for selling surveillance technologies being used by repressive regimes as tools for repression.
Close to forty years after the Bhopal tragedy, in which toxic gases leaked from a pesticide plant owned by the Union Carbide Corporation, thousands of surviving victims are still waiting for fair compensation, adequate medical treatment and rehabilitation and the plant site has still not been cleaned up. In Ecuador, despite the favourable decision on the historic class-action lawsuit against the oil company Chevron due to the refusal of US jurisdictions to execute the Ecuadorian decision, victims are still awaiting compensation for the damages suffered from water contamination, while the Ecuadorian state was condemned before an arbitral tribunal and an emblematic lawyer who worked on the case is subject to a retaliatory SLAPP action in the United States. The list goes on. In all parts of the world, human rights and environmental abuses are taking place as a result of the direct or indirect action of corporations.
Various reasons can explain such denial of justice to victims. The “governance gaps” identified by former UN Special Representative on business and human rights, John Ruggie, remain blatant realities: corruption, lack of judicial independence, the unwillingness or inability of host States to ensure foreign companies operating on their territory respect environmental and social standards while at the same time hastily concluding trade and investment agreements largely protecting investors’ rights, to name only a few examples of the gaps which impede access to justice. Other gaps include the absence of adequate judicial systems allowing victims to seek justice in home States (i.e. where the parent company is based), legal obstacles due to the complex structure of multinational corporations and the inconsistency between what is permissible under corporate law and what is required under human rights law. In addition to States failing to take measures to ensure the fulfilment of their international human rights obligations, the scope of the responsibility directly imposed on businesses has yet to be clearly defined in law. In the face of these structural obstacles at the national level, there is no forum available at the international level for victims to directly address the responsibility of corporations.
Governments have slowly started to tackle these issues. In recent years, intiatives to move from a policy-making centred on voluntary commitments and soft-law instruments to an approach favouring binding obligations and access to justice have been taken. This has been the case at the UN level since June 2014, when the Human Rights Council adopted a resolution calling for the establishment of an Intergovernmental Working Group (IGWG) “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”. In May 2020, the European Union Commissioner for Justice, Mr. Didier Reynders, in turn announced for the first time that the European Commission would propose a legislative initiative on mandatory human rights and environmental due diligence in 2021, as part of its effort to promote sustainable corporate governance. These developments have also taken place at national level, with the notable adoption of the French « Duty of vigilance law » in 2017, which establishes a duty for large companies to implement human rights and environmental due diligence procedures and furthers access to justice for rights holders in such companies’ value chains.
But still too often, real accountability is the exception, and impunity the rule.