“States must take steps to strengthen access to justice for victims of extraterritorial corporate human rights harms in Cambodia, Lao PDR, Myanmar, Thailand, and Vietnam (‘CLMTV’)”, according to dozens of human rights lawyers from the Mekong Region at a Workshop hosted by the International Commission of Jurists (ICJ) and EarthRights International on 8 and 9 September 2022 in Bangkok.
The primary objectives of the Workshop were to engage in discussions on the extraterritorial obligations of the States to prevent human rights abuses and how this obligation extends to activities of business entities. The Workshop also considered opportunities and obstacles for judicial remedies for corporate abuses, as well as redress through non-judicial grievance mechanisms. Participants considered creative ways to overcome obstacles to access to justice.
The participants included 32 lawyers from the CLMTV.
The Workshop covered basic concepts of international human rights law and standards relevant to the exercise of extraterritorial jurisdiction by a home State over the overseas activities of corporations. These included the International Convent on Economic, Social and Cultural Right (ICESCR), the Maastricht Principles on Extra-Territorial Obligations of States, the United Nations Guiding Principles on Business and Human Rights (UNGPs) and the guidance of UN treaty bodies.
While CLMTV countries are parties to most international human rights treaties, including the ICESCR, the notion that bringing cases of transnational corporate abuses to courts or other judicial mechanisms in the home State constitutes part of the protective duty under these treaties is unfamiliar to many and there is little or no guidance to legal practitioners and lawyers on how to litigate such cases.
Participants noted that victims denied access to justice and reparation in a host country where a subsidiary or partner company is based may bring the case to courts in the home country of the parent company. However, in such instances, the complainants often face language barriers, lack of understanding of the legal system of the home State, lack of financial resources, and unavailability of legal aid or local legal representation.
To illustrate the options to overcome those barriers, the workshop benefited from the experience of senior litigators from the United Kingdom, the Netherlands and Canada, who presented cases brought before national common law and civil law courts. In these cases, the courts in the home State have allowed for proceedings to hold parent companies legally liable for damage caused by their subsidiaries abroad to proceed. These cases include, Lungowe v Vedanta and Okpabi v Shell in the UK; Araya v Nevsun in Canada; and Friends of the Earth v Shell in the Netherlands.
The participants also discussed the conditions under which non-judicial grievance mechanisms could be effective means to provide victims of corporate human rights abuses with redress. Participants were introduced to several existing possibilities, such as the Special Procedures of the Human Rights Council, mechanisms tied to internationally financed projects, company Operational Grievance Mechanisms (OGM) and the Community-Driven OGM (CD-OGM) model, and other mechanisms in investing countries.
Background
There are numerous reports documenting serious misconduct by transnational corporations in the CLMTV, including forced displacement from concession areas, unfair compensation to locals for their loss of land and inappropriate resettlement packages, failure to provide for rederess for adverse environmental impacts, lack of meaningful participation in decision-making processes, and lack of access to information and ineffective environmental impact assessment processes.
Speakers at the Workshop included:
- Ben Hardman, EarthRights International
- Carlos Lopez, Senior Legal Adviser, ICJ
- East Asia expert from Front Line Defenders
- Elles ten Vergert, Lawyers, Prakken d’Oliveira
- Ian Seiderman, Legal and Policy Director, ICJ
- James Yap, President of Canadian Lawyers for International Human Rights
- Pichamon Yeophantong, UN Working Group on Business and Human Rights
- Richard Meeran, Partner, Head of International Department, Leigh Day
- Seree Nonthasoot, member, UN Committee on Economic, Social and Cultural Rights
- Sutharee Wannasiri, Accountability Counsel
- William Schulte, EarthRights International
Further reading
Contact
Sanhawan Srisod, Associate International Legal Adviser, ICJ Asia Pacific Programme; e: Sanhawan.srisod(a)icj.org