It is a pleasure to welcome Alessandra De Tommaso as a guest poster on ‘Rights as Usual’. Alessandra is a PhD candidate at Middlesex University School of Law in London. She works on the challenges arising from corporate criminal liability under international criminal law. This post is hers.
On 10 April 2017, the Fundamental Rights Agency (FRA) published an Opinion on Improving access to remedy in the area of business and human rights at the EU level, providing advice on how to ensure access to remedy for victims of business-related human rights abuses. This blog post briefly presents the main aspects of the Opinion, and then focuses on the area of criminal legal remedies for victims of business-related human rights abuses. In that area, FRA recommends that existing instruments be better implemented and calls for more cooperation among states when investigating cross-border corporate crimes.
Main Aspects of the Opinion
The Opinion was sought by the Council of the European Union in its Conclusions on business and human rights of 20 June 2016. In the Opinion, FRA calls for more action to ensure access to remedies for victims of business-related human rights abuses. Too often existing legal and practical barriers leave victims without opportunity for effective remedy. The EU and its Member States are therefore advised to take all the appropriate steps to remove these obstacles and guarantee access to remedy to victims.
FRA’s analysis covers the areas of judicial and non-judicial remedies, as well as issues related to their effective implementation. Based on its findings, FRA formulated 21 specific opinions on what actions the EU should undertake to increase access to remedies in the field of business and human rights. Some of the suggestions include, for instance, facilitating access to legal aid for victims of business-related human rights abuses, improving access to remedy in extra-territorial cases, strengthening the role of non-judicial mechanisms in the business and human rights field, and improving data collection on complaints and compensation.
FRA’s findings suggest that more could be done at the EU level to ensure access to effective remedies through criminal justice in the area of business and human rights. Even though a number of existing EU instruments require Member States to criminalise some forms of serious business-related human rights violations, these instruments are not used at their intended capacity. The Opinion mentions, in particular, the Employers Sanctions Directive (2009/52/EC), which obliges EU Member States to criminalise severe forms of labour exploitation, and the Anti-Trafficking Directive (2011/36/EU), which establishes minimum rules concerning the definition of criminal offences and sanctions in the area of trafficking in human beings. Both directives oblige EU Member States to ensure that legal persons can be held accountable for offences criminalised according to these two instruments. However, research conducted by FRA into the implementation of these instruments shows a lack of states’ commitment to holding business companies to account for their involvement in severe forms of labour exploitation and trafficking in human beings. This failure to ensure full implementation of these instruments at national level is a serious issue that needs to be addressed by the EU institutions. The EU is therefore strongly advised to make “greater efforts to ensure proper implementation in the Member States of the existing EU criminal law instruments that are relevant to business and human rights.”
Another aspect that needs further consideration at the EU level is cooperation among Member States in investigating corporate crimes. Due to the often transnational nature of business-related human rights abuses, effective and specific cross-border cooperation mechanisms are essential to ensure proper investigation of corporate crimes. In this regard, the Opinion rightly underlines how the EU can play “a unique role” in facilitating cross-border investigations by making greater use of existing resources, such as Eurojust.
Overall, what is clear from the Opinion is that more needs to be done to improve victims’ access to remedies through criminal justice in the field of business and human rights. Even though advances have been made in recent years, the lack of proper implementation of existing instruments prevents victims from fully exercising their rights to remedies. The EU, therefore, must adopt a more proactive approach to ensure states’ commitment in this regard.
On 3 April 2017, the US Supreme Court granted certiorari in Jesner v Arab Bank, PLC. The issue to be decided is whether the Alien Tort Statute (ATS) “categorically forecloses corporate liability”. If the Supreme Court decides that the ATS does indeed categorically foreclose corporate liability, it will be the end of ATS-based business and human rights litigation in the United States. This is a big deal and a case that will no doubt be of great interest to human rights scholars and practitioners.
Those following business and human rights litigation in the United States will remember that the US Supreme Court granted certiorari on the same point before. This was in 2011 in the Kiobel et al v Royal Dutch Shell case. In 2010, the Court of Appeals for the Second Circuit had ruled that the Alien Tort Statute didn’t allow corporate liability. In February 2012, oral arguments were held before the Supreme Court on this point. However, unexpectedly, the Supreme Court later asked the parties to submit supplemental briefs addressing a different question, that of jurisdiction. In April 2013, the US Supreme Court held that following the presumption against the extraterritorial application of statutes, only in the rarest of circumstances will courts have jurisdiction, under the ATS, over matters which fall under the jurisdiction of another sovereign state. For the US federal courts to be able to exercise jurisdiction, the Court further noted, the case must “touch and concern the territory of the United States with sufficient force” (see my blog post on this).
As disappointing as the Kiobel decision was for the human rights community, there was at least one reason to rejoice: the principle that corporations can be sued under the Alien Tort Statute was intact. The Court refused to address the question directly but it is hard to reconcile the Kiobel decision with the idea that corporations cannot be sued at all under the Alien Tort Statute. By noting for example that “it would reach too far to say that mere corporate presence” in the United States is enough to subject a defendant to ATS liability, the Supreme Court implied that something more than corporate presence could subject corporate defendants to such liability. If it was the Court’s intention to reject corporate liability under the ATS altogether, why make this point?
Logically, therefore, the US Supreme Court should decide that the ATS does not categorically foreclose corporate liability; and the ATS should remain an important tool in the fight against corporate impunity for human rights violations. I hope I am right, as the opposite decision would be a serious blow to global business and human rights litigation.