Access to Judicial Remedies for Victims of Corporate Human Rights Violations: UK Consultation
This morning I participated to a consultation on access to judicial remedies in the UK hosted by the British Institute of International and Comparative Law. This is part of a wider project on access to judicial remedies in the UK, the United States and different jurisdictions in the European Union, with Olivier De Schutter, Andie Lambe, Robert McCorquodale and Gwynne Skinner as the lead experts. The project team also includes Marilyn Croser from CORE, Katie Shay from the International Corporate Accountability Roundtable, and Filip Gregor from the European Coalition for Corporate Justice.
The project aims to map obstacles to litigation and access to remedies and, more importantly, to propose practical ways to overcome these obstacles.
The usual, yet critical, issues of legal aid for foreign victims, access to evidence, and de facto inequality of arms between often disimpowered communities and powerful global corporations, were discussed. Other questions that I find are a lot less touched upon were also discussed, such as the consequences of EC Regulation No 864/2007 (‘Rome II’). The Regulation provides that in tort claims judges in European Union member states must apply the law of the state where the damage occurred. While the principle is now well established, I had not fully realised the practical consequences of this. It means that the onus is on the claimant to present the judge with a clear picture of what the law is in that particular country. The identification of the relevant law and its niceties can be long and costly. A related problem, also stemming from ‘Rome II’, is that the victims, if successful before British courts, can only be compensated according to the host state’s rules on the matter, not British rules, which may mean a lot less money.
We also had a fascinating discussion on ‘remedies besides money’. The nature of tort claims brought in the UK to address human rights violations calls for purely monetary compensation to selected, identifiable, individuals when remedies for the benefit of the wider community may actually be fairer in the long run and have a better chance of ensuring non repetition.
The project is timely and has the potential to move things forward in this complex area of law where many questions remain unsolved. I look forward to reading the report that will come out of it.
Investigative or Political Barriers? Dutch Prosecutor Dismisses Criminal Complicity Case Against Riwal
It is a pleasure to welcome back Valentina Azarov on Rights as Usual. Valentina heads and lectures on the Human Rights & International Law program at Al-Quds Bard College, Al-Quds University, Palestine. She worked with human rights groups in Palestine and Israel from 2008 until 2012, and has done some corporate accountability litigation and advocacy work for Al-Haq. This post is hers.
On 14 May 2013, the Dutch public prosecutor issued a decision to dismiss the case against Lima Holdings (the Dutch parent) for Riwal’s role in Israel’s construction of the Separation Wall in occupied Palestinian territory. Al-Haq, a Palestinian human rights organisation, with the help of advocate Liesbeth Zegveld, submitted the complaint to the prosecutor in March 2010, based on the Dutch International Crimes Act (Wet Internationale Misdrijven). This is the first instance of a European company being criminally prosecuted for aiding and abetting Israel’s international law violations.
The complaint described the company’s complicity on a number of counts related to the Separation Wall (which the International Court of Justice 2004 Advisory Opinion held to be unlawful), including the war crime resulting from the extensive and wanton appropriation and destruction of property, without military necessity; the war crime of indirect forcible transfer of Palestinians; and the crimes against humanity of apartheid and of persecution resulting from the discriminatory regime ensuing from the Wall. This regime consists in access restrictions on Palestinians to the territory de facto annexed by the Wall, including in the so-called “Seam Zone” (the Israeli military name for most of the Palestinian territory located between the Wall and the 1949 Armistice line/the “Green Line”). Documentation compiled by Al-Haq presented prima facie evidence of the company’s involvement in six specific instances of the Wall’s construction.
The Dutch prosecutor dismissed the case without providing any information concerning the content of documents obtained by the Dutch police in the raid of the company’s headquarters and the company executives’ homes in the Netherlands, in October 2010; and without initiating any further investigative actions through the Israel authorities. An industry news outlet reported, “In a statement, Lima said the prosecution service decided against bringing charges because it had reduced its activities in Israel and the occupied territories and because its involvement had been limited. Cranes and aerial platforms were rented for a few days and sometimes to third parties.”
The case was dismissed on three main grounds. First, as noted in the prosecutor’s letter, the prosecutor decided that the company’s involvement was minor “taking into account the worldwide company activities”, as opposed to the other foreign companies involved in the Wall construction, whereas Dutch war crimes legislation requires a “substantial” contribution by an accomplice to such acts. The additional Dutch legal requirement of evidence of the company’s knowledge and proximity to the acts was arguably met through the company’s engagement by Dutch state officials, including the Minister of Foreign and Economic Affairs.
Second, the prosecutor mentions the restructuring of the company’s Israeli branch following the incidents in the complaint, as if such measures amount to either a remedy for victims or a manner for the company to correct its previous conduct. The prosecutor noted that “the danger of repetition (within the Dutch jurisdiction) seems to be minor”.
Finally, the prosecutor states that since the question of the company’s responsibility is “complex” it requires further investigation, which would “consume a significant amount of resources”, while consisting of protracted proceedings. Also, “lack of cooperation from the Israeli authorities” would hinder efforts to obtain further evidence.
The prosecutor’s light-handed decision to dismiss the case flies in the face of the international legal norms that require states to take effective measures to ensure that their corporate nationals are not involved in international law violations abroad. The Netherlands and other states have war crimes legislation that incorporates these norms into domestic law and makes them applicable to corporations and corporate officials. However, the attempt to activate domestic war crimes legislation, particularly in the Israel-Palestine context, is often trumped by foreign policy considerations and political interests. This was the case when the Canadian courts dismissed a corporate liability suit against a Canadian company involved in settlement construction, and more recently when the French courts rejected the case against Veolia, a French company involved in the construction of settlement infrastructure (previously discussed on this blog). The Riwal case is yet another instance where a judicial authority is reluctant to make a politically-charged decision to initiate an investigation of facts committed under Israel’s de facto authority.
Although the application of war crimes legislation is frequently subjected to political discretion, other national laws – including laws on consumer protection, proceeds of crimes, and public procurement – could be invoked to bring corporate nationals to comply with human rights and international law. Under this paradigm, Dutch national regulatory authorities could be required to undertake risk assessments of their corporate nationals’ commercial activities abroad and these companies’ ability to respect Dutch law and public policy. In making such assessments, Dutch authorities would require Israel’s routine cooperation in providing information that enables them to make such assessments correctly in accordance with Dutch law. Such an exigent need to correctly implement Dutch legal obligations would constrain Dutch authorities’ political discretion in enforcing compliance with international law and human rights upon their corporate nationals in their activities abroad.
ESIL Interest Group on Business and Human Rights – Selected Issues: OECD Guidelines and State Implementation of UN Guiding Principles
Yesterday I had the pleasure to go to Amsterdam to talk at the workshop of the European Society of International Law Interest Group on Business and Human Rights. It was a lively event, with 9 speakers and 2 panels. One focused on implementation and compliance, and the other on accountability and enforcement. I talked about the California Transparency and Supply Chain Act 2012 and discussed the effectiveness of reporting as a way to enhance companies’ human rights records. For the purposes of this post I will focus on two other papers presented during the workshop. Watch this space for more information about my paper and what I plan to do with it.
Karen Weidmann gave a presentation on the role of the OECD National Contact Points (NCP) in the area of business and human rights. Karen served on the German NCP and therefore brought her experience as a practitioner to the discussion. She made 3 main points.
First, she highlighted the fact that the OECD Guidelines for Multinational Enterprises are of increasing relevance in the business and human rights debates, not least because the language of the UN Guiding Principles is reflected in the Guidelines.
Second, she recognised that the complaint mechanism created by the Guidelines, through the setting up of National Contact Points, has an inherently limited impact. However, she argued that it has the potential to play an important role in the business and human rights sphere. This is because there is little formalism with regards to how to relate the “case” to the state of the National Contact Point. In other words, the daunting issues of jurisdiction that constantly arise in relation to the Alien Tort Statute litigation in the United States, for example, have considerably less impact when it comes to NCP cases. Also, the NCPs have a forward looking approach, which, she argued, is particularly well adapted to business and human rights where violations often come from companies having adopted wrong processes, that need to be changed for the violations to end.
Third, she defended the idea that NCPs ought to be closely linked with state administration. Indeed, she sees great potential in having NCPs formally linked to governments so that their decisions can in turn be considered as indications of state practice and opinio juris in business and human rights. Also, in her opinion, there is great value in having governments “stamping” the NCP decisions because it may make companies take the process more seriously and add political backing to the problem-solving in individual cases. I had never really thought about this in this way and I think these are interesting points.
Carmen Marquez Carrasco and Luis Rodriguez Piñero gave a presentation on the implementation of the UN Guiding Principles in Spain. Laura Iñígo Alvarez had also contributed to the research. I knew nothing of the situation there on this question so it was particularly interesting for me. They highlighted the quasi absence of so called “CSR culture” among Spanish companies and the difficulties in engaging Spanish NGOs in the debates, as they generally consider the UN Guiding Principles to be a negative development and refuse to participate to discussions on this. Finally, they mentioned the fact that three cases are currently pending before the Spanish NCP, with no final decision yet.
In the end, they raised a more fundamental question about the variety of implementation strategies for the UN Guiding Principles that EU countries seem to be working on at the moment and raised the following question: what will happen when the EU Commission realises that the 27 Member States have adopted different legislation or at least policies on this? I guess that’s the 1,000,000 million euro question!
I foresee we will hear more about this in the next months as countries hopefully start publicizing their strategies.
Bianca Jagger Speaking about Business and Human Rights at Middlesex Fairness Conference
Prof. William Schabas and Bianca Jagger
On 21, 22 and 23 May, Middlesex University is hosting a Fairness Conference, as part of our newly created Institute of Ideas.
The guest speaker on the human rights panel this morning was human rights defender Bianca Jagger, Founder and Chair of the Bianca Jagger Human Rights Foundation. She gave an inspiring talk focusing on issues of corporate human rights responsibilities and corporate crimes, calling for stricter laws to hold companies, but also CEOs and senior management, criminally liable for the human rights consequences of their actions.
She developed an interesting legal concept, that of “crimes against present and future generations”, which she campaigns to get recognised as international crimes susceptible to attract the jurisdiction of the International Criminal Court, and possibly other institutions as well. The concept is yet to be fully studied but the idea is that the offense would be phrased in a way that would catch conduct leading to gross environmental degradations, which impacts on future generations, as well as present victims. She gave several examples of the kind of conduct she thinks could fall in that category, such as the conduct of former CEO of Union Carbide Warren Anderson in relation to the Bhopal disaster.
Movie on the Bhopal Disaster Starring Martin Sheen
The one and only Martin Sheen stars in a new movie on Union Carbide’s operations in Bhopal and the Bhopal disaster called Bhopal: A Prayer for Rain. Hopefully, since Martin Sheen plays the lead role, the film will reach an even wider audience than the award-winning documentary Bhopali, which we screened at Middlesex last year. The Bhopal disaster provides a painful example of corporate human rights violations and absence of redress.
For those who want to help, I have had a long standing relationship with the Bhopal Medical Appeal, a charity that helps alleviate the suffering of the tens of thousands of people maimed by exposure to toxins released from the former pesticides factory which exploded in 1984. If you fancy, you can run the British London 10K and raise money for them. If you are not a sports enthusiast, you can at least sponsor my run.
Thank you in advance.
Report on Free Prior and Informed Consent of Indigenous Peoples & the Mining Industry Launched at Middlesex
This post is adapted from Indigenous Peoples Links’ press release. For more information please contact Andy Whitmore from PIPLinks, who is also a PhD student at Middlesex University School of Law.
Email: comms@piplinks.org
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Professor James Anaya, United Nations Special Rapporteur on the Rights of Indigenous Peoples at the launch in Barnet Town Hall
There is now a growing acceptance of the requirement for indigenous peoples’ Free Prior Informed Consent (FPIC) in many industries, including the extractive industries. This has been reflected by its incorporation into policies of an increasing number of mining companies, although admittedly sometimes in a more diluted form.
As the need for FPIC is introduced into state law, and made a requirement of financing, companies are increasingly struggling with how to implement FPIC. Yet, for indigenous peoples it is clear that their right to give or withhold FPIC should be seen in a context of them as rights-holders, rather than just yet another stake-holder. Therefore, there seemed to be a need for research to act as a basis for constructing a common ground with regard to the requirement for indigenous peoples’ FPIC.
The report, Making Free Prior & Informed Consent a Reality: Indigenous Peoples and the Extractive Sector seeks to do just that. Authored by Cathal Doyle, PhD graduate from Middlesex and Jill Carino from the Philippine Task Force for Indigenous Peoples Rights, it advocates for multinational mining companies, the investor community, and state actors to understand the importance of the FPIC principle from ethical, sustainability and economic perspectives. Fundamentally it argues that it is essential to understand FPIC from an indigenous peoples’ rights-based perspective in order to effectively implement it in a manner which is in accordance with indigenous peoples’ exercising their right to self-determination.
The report was launched at Middlesex University on 2nd May, involving a round-table discussion of the report’s contents by indigenous peoples, representatives of the mining industry and invited experts. This was followed by a public launch, at which a number of the indigenous peoples spoke about what FPIC meant to them, following on from a keynote address by the UN Special Rapporteur on Indigenous Peoples, Professor James Anaya. Professor Anaya stressed the importance of FPIC as part of a bundle of rights, and yet how, so far, its implementation was often far from adequate. He noted how both the round-table, and the report itself, were an excellent push forward in the implementation of FPIC.
Anne Marie Sam of the Nak’azdli First Nation in Canada stressed what the concept meant to her. Her elders had noted that the “souls of our ancestors are on the land. You take care of the land and the land takes care of you. Our identity comes from the land”. She joined other speakers in passionately advocating for their right to decide their own fate. They stressed the growing importance of indigenous peoples organising, so that they could assert these rights. They also spoke to the emerging theme of indigenous communities defining their own culturally appropriate guidelines for implementing FPIC, which is reviewed – with the aid of case studies – in the report.
The research was conducted on behalf of a consortium of organisations, including Indigenous Peoples Links (PIPLinks), Ecumenical Council for Corporate Responsibility (ECCR), and Middlesex University School of Law, but backed by a larger number of indigenous advisors and organisations.
London’s ‘Secret Slavery Shame’ Walking Tour
Memorial to the abolition of slavery - Fen Court
Yesterday we held the now traditional PhD seminar at Middlesex University School of Law. It was an exciting day with a mix of staff and student presentations about their research. On a personal level it was heartening to see so much knowledge and excitement in the room. As our heads were still buzzing from this full day of work and exchange, we all headed to central London to participate in a Slavery Walking Tour of London by Historian Dr William Pettigrew of the University of Kent.
It was a truly unforgettable experience, covering the theme of slavery from the Roman times of London until the present day. A significant part of the tour focused on the great abolitionist movement, in many ways the first successful large-scale business and human rights campaign. Among a variety of other interesting facts, he mentioned that the former headquarter of the now defunct Royal African Company, which shipped more African slaves to America than any other single organisation in the history of the transatlantic slave trade (about 150,000), is now an LA Fitness branch. He currently is in discussions with them to get a plaque on the wall so that this important historical fact does not get forgotten. Apparently LA Fitness is not so keen on the idea…
Dr Pettigrew also highlighted that the fight against the traffic in human beings is far from over, as slaves still live in London and are typically found in houses of diplomats, where they work as domestic workers.
I highly recommend the tour, as being able to put historical events in context is priceless. It was great fun, despite the extremely serious subject.
Research Workshop on Business and Human Rights at ESIL Conference – 23 May 2013
On 23 May I will speak at the research workshop organised by the European Society of International Law Interest Group on Business and Human Rights. Below is the programme. More info from my colleague Dr Olga Martin-Ortega (University of Greenwich) on the interest group’s website.
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European Society of International Law Interest Group on
Business and Human Rights
2nd Research Workshop:
BUSINESS AND HUMAN RIGHTS: FROM THEORY TO PRACTICE
Amsterdam, 23rd May 2013 (13:00-16:00)
VENUE: Oudemanhuispoort 4 (main building of the Faculty of Law), University of Amsterdam Room: D118A. Directions here.
Welcome and IG update: Olga Martin-Ortega
Panel 1: Implementation and Compliance
Chair: Freya Baetens
Nadia Bernaz, “Addressing Slave Labour in Supply Chains through Reporting“
Karin Buhmann, ““Responsible sourcing of natural resources: Enriching EU environmental and trade policies and law through the UN Framework and UN Guiding Principles“
Karen Weidmann, “Monitoring Business Compliance with Human Rights Standards: The Role of the
National Contact Points for the OECD-Guidelines for Multinational Enterprises“
Carmen Marquez Carrasco, Luis Rodríguez Piñero and Laura Iñígo Alvarez, “The implementation of the UN Guiding Principles in Spain”
Panel 2: Accountability and Enforcement
Chair: Olga Martin-Ortega
Angelica Bonfanti, “Extraterritorial Jurisdiction as a Remedy for Victims of Business-related Human Rights Abuses: European and US Perspectives“
Shannon Dobson, “Corporate Liability in the United States: The Kiobel Case in International Perspective”
Julieanne Hughes-Jennett, “Is litigation before national courts the best response to purported human rights violations involving multinational corporations in developing countries?”
Alessandro Costa, Antonella Sarro, Marta Bordignon, Bandini Chhichhia and Giada Lepore, “Accountability of Banks for Human Rights Violations”
Next steps and activities: Freya Baetens
Backtracking on Responsibility: French Court Absolves Veolia for Unlawful Railway Construction in Occupied Territory
It is a pleasure to welcome Valentina Azarov on Rights as Usual. Valentina heads and lectures on the Human Rights & International Law program at Al-Quds Bard College, Al-Quds University, Palestine. She has worked with human rights groups in Palestine and Israel from 2008 until 2012, and has done some corporate accountability litigation and advocacy work for Al-Haq. This post is hers.
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On 22 March 2013 (a decision that became public more recently), the Versailles Court of Appeal dismissed the case against two French companies, Alstom and Veolia, for their involvement in a contract for the construction of a light railway between illegal Israeli settlements located in East Jerusalem, inside the Palestinian territory of the West Bank, and West Jerusalem, territory located inside Israel’s internationally-recognised borders.
The case was first submitted by the France Palestine Solidarity Association (AFPS) and the Palestine Liberation Organization (PLO) in February 2007 to the Nanterre Court of First Instance requesting the annulment of the contract concluded between the Israeli authorities and the French companies, due to the contract’s unlawful purpose of facilitating the establishment of Israel’s illegal settlements in occupied territory and the movement of Israeli Jewish settlers between Israel and their residences in occupied territory.
In May 2011, following several hearings, the Nanterre Court of ‘Grande Instance’ held that the conventional and customary international law invoked by the claimants – including provisions of the Geneva Conventions and Additional Protocol I thereto, including peremptory norms of international law (jus cogens) – did not create obligations that are “directly applicable” to private companies. It added that the violations in question were those of the Israeli state; international law violations did not invalidate the contract between the companies, which was governed by Israeli, and not French civil law. The Court also concluded that the claimants failed to demonstrate the proximity and causal link of the company’s actions to the Israeli authorities’ internationally unlawful conduct.
The recent March 2013 decision on appeal confirms and builds on this position, absolving the companies of any responsibility for their involvement in internationally unlawful acts, and maintaining the contracts’ validity under French law. Probably the most damning conclusion of the recent judgment on appeal is that the international law provisions relied on “do not create direct obligations that may be placed upon private companies.” The decision holds that private companies are not subjects of international law and do not have international legal personality – beyond the realm of economic and commercial acts governed by certain international instruments. As such, the international legal obligations relied on by the claimants were neither directly applicable to private companies, nor did they give rise to rights that can be claimed by individuals.
The Court then proceeded to dismiss the legal character and relevance of the companies’ obligations under their own voluntary codes, as well as the UN Global Compact. In so doing, the Court adopts a position that strikingly backtracks on the important international developments concerning the responsibility of multinational companies under international law, including to ‘protect, respect and remedy’ human rights. It also undoes what has come to be a commonly accepted position of international lawyers, as well as political and economic experts concerning multinational companies’ advanced international legal personality, which is oftentimes much more developed than other non-state subjects of international law, also due to the growing influence of companies over political and social realities worldwide.
Finally, although the Court ruled that the “occupying power can and should re-establish a normal public activity within the occupied country through administrative measures in the usual areas addressed by State services” and that as such “the building of a tramway by Israel is not prohibited”, it did not mention or discuss the fact that the railway was built for the purpose of linking illegal Israeli settlements in the occupied Palestinian territory of East Jerusalem with West Jerusalem, a service that neither benefits the Palestinian population, nor purports to do so. Since the Israeli government was not present in the proceedings, the Court stated that it cannot accept the petitioners’ claim that the contract between the French and the Israeli company constructing the railway had been concluded to further an ‘illicit’ purpose (that of Israel’s settlement project in occupied territory).
The Veolia case is also an interesting case study for the variety of means and methods used to promote and bring about respect for human rights and international law by corporations – including campaigning, advocacy and litigation. Many of these measures bore fruit, with early on in 2011 being an important turning-point, when, following overwhelming pressure, Veolia withdrew from the railway project. More recently, in February 2013, a top Norwegian financial adviser noted in a presentation to the largest pension fund in the UK, Hermes Investment Management, that Veolia is an outstanding example of a company that has suffered “expensive damage”, including loss of large contracts and reputational costs, due to its involvement in internationally unlawful acts in the occupied Palestinian territory. In 2012, Veolia was excluded from public contracts with UK local councils, under UK and EU procurement law, due to its involvement in the international law violations. Despite these successes, Veolia continues to provide services to the Israeli authorities involved in international law violations. It is servicing a landfill in the Jordan Valley area of the occupied West Bank, near the illegal Israeli settlement of Masua, and it continues to provide Veolia buses to transport settlers from illegal settlements in occupied territory to Israel.
The recent Versailles Court’s decision unsettles, if not significantly undermines, the position of a group of French parliamentarians and a report commissioned by the French National Assembly’s Foreign Affairs Commission, condemning Israel’s creation of a spatial and racial “apartheid” in the Palestinian territory of the West Bank. It also puts the French government in an uncompromisingly awkward position vis-à-vis its, and the EU institutions’, existing foreign policy and legal commitments, including that of ensuring respect for “human rights and fundamental freedoms” and the “rule of law” (Article 6 of the EU Treaty), also set out in the ‘EU guidelines on the promotion of compliance with international humanitarian law’ in third countries. In this sense, the Court’s conclusions create both a legal and political dissonance for their apparent incompatibility with the stern condemnations made by French and EU institutions of Israeli settlements in occupied territory and their institutional practice vis-à-vis settlements in terms of EU-Israel relations.
Who, if not the EU, and its Member States, will ensure that the international legal order is not rendered into disrepute and that private actors operating from within the jurisdiction of the EU are not involved or contributing in any way to violations of international law by foreign authorities? It is undoubtedly in the interests of both France and the EU to ensure that their multinational companies do not undermine, or act in blatant contradiction of, the EU’s commitment to its proclaimed foreign policy and to the rule of law, international and internal.
Valentina Azarov, Al-Quds Bard College, Al-Quds University, Palestine.
Fairness Conference at Middlesex University on 21-23 May
The current climate of economic and political strife across Europe makes the need for fairness in society more pressing than ever. But is our society fair? Middlesex University is bringing together its top thinkers, researchers and academics from across disciplines – joined by a range of external speakers – to shine a light on the issue.
This cross-cutting conference will unpick the notion of what is fair in society, and how it impacts individuals, businesses and countries. Fairness in politics, our human rights, how fairness affects creative industries, health care and the environment will all be amongst the topics on the agenda. Given the speakers lined up for the conference, I expect business and human rights to come up during the discussions.
The three-day conference is packed with external experts including columnist Will Hutton, John Redwood MP, and legendary human rights defender Bianca Jagger.
The conference is aimed at anyone with an interest in the issue of fairness – from public sector managers, academics and business leaders to the general public.
You can send an email to ideas@mdx.ac.uk with any questions about the conference, or book your free place directly.
Nadia Bernaz is programme leader for Middlesex University's pioneering MA Human Rights and Business.
Email me at: n.bernaz@mdx.ac.uk