1 Introduction

By nature, MNEs operate across borders of sovereign States. Therefore, an internationally coordinated approach appears to be an appropriate way to provide an effective normative framework for regulating MNE activity and offering redress in situations of corporate human rights abuse and environmental damage.¹ However, until now the international community has been unable to establish an effective international legal framework for holding MNEs accountable. While MNEs have benefited from increased protection under investment and trade law in recent decades, this has not been matched by a necessary counterbalance in legal responsibility for the harm MNEs may cause in the course of their global operations. Furthermore, despite the various frameworks on access to justice and remedy under international law, victims of abuse involving MNEs may frequently find themselves with limited or no recourse to proceedings to secure redress for the harm they have suffered. Under international human rights law, access to justice is important for the injured individual whose human rights have been violated. In particular, the availability of effective judicial remedies under both international and national law is critical to guarantee the respect and the protection of human rights.² Similarly, in order for international and national regimes of environmental law to be effectively protective, victims of environmental damage and NGOs must be able to bring a claim before a court and have access to various remedies, such as damages and restoration. However, the adoption and implementation of the UN Framework³ and the UNGPs⁴ have attempted to close the gaps.

2 The corporate accountability gap

To date, a number of international instruments have been designed to address the human rights and environmental impacts of MNEs. However, voluntary and soft law instruments, such as the UN Global Compact and the OECD Guidelines, have been the favoured form of international regulation.⁵ Although a few international treaties require States to hold corporate actors liable for a limited number of crimes,⁶ no international instruments have imposed human rights or environmental obligations on corporations in general. This is due, in part, to the lack of consensus on the international legal personality of corporate actors and whether MNEs have rights and obligations under international law.⁷

The international legal personality of non-State actors

Under international law, ‘entities only owe responsibilities to the international community when they are considered to be subjects of law, in other words, the bearers of international legal personality’.⁸ As such, the question of whether individual persons equate to ‘subjects of international law’ is an important one.

According to a basic definition, a subject of international law is an entity capable of possessing international rights and duties.⁹ A more elaborate definition would describe a subject of international law as ‘an entity possessing international rights and obligations and having the capacity (a) to maintain its rights by bringing international claims; and (b) to be responsible for its breaches of obligation by being subjected to such claims’.¹⁰ One peculiarity of international legal personality is that ‘[it] not only denotes the quality of having rights and duties as well as certain capacities under the law, but … it also includes the competence to create the law’.¹¹ However, the existing literature disagrees on the various aspects of international legal personality, such as the modalities to acquire it or the precise consequences attached to it.¹²

Traditionally, States are considered to be the main subjects of international law.¹³ However, international courts have progressively accepted that other actors could be subjects of international law and, therefore, have international rights and obligations. In 1949, the International Court of Justice (ICJ) accepted that the UN had the capacity to bring an international claim, thus recognizing that actors other than States could possess international legal personality.¹⁴ Nonetheless, the ICJ was cautious to specify that ‘the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community’.¹⁵ Following World War II, the Nuremberg International Military Tribunal also accepted that ‘international law imposes duties and liabilities upon individuals as upon States’.¹⁶ The subsequent development of international criminal law and international human rights law has led to the acceptance that ‘the individual today has acquired a legally relevant position in international law. It has internationally been granted rights and is made subject to obligations.’¹⁷ Furthermore, international humanitarian law places duties on rebel groups to respect certain human rights of persons under their control.¹⁸

Since the period after 1945, scholars and lawyers have debated the question whether MNEs may be subjects of international law.¹⁹ Under the State-centric paradigm of public international law, MNEs are not considered to be subjects of international law. As such, they have no rights or obligations, or only some limited ones. Each member of an MNE has legal personality only under the jurisdiction of the country in which it has its statutory seat.²⁰ However, the intensification of MNE activities, as a result of the liberalization of international trade and the multiplication of foreign direct investments, has shaped new legal interactions at the international level. For example, under foreign investment law, MNEs have been granted significant rights in international investment agreements in order to protect foreign investments against interference by the host State.²¹ Furthermore, international arbitration tribunals and scholars have occasionally accepted that MNEs could be subjects of international law when they enter into investment agreements with States.²² This is the case when such agreements contain specific arbitration clauses to avoid litigation before the domestic courts of the contracting State in order to create a situation of equality between the contracting parties.²³ Such a view may lead to MNEs acquiring at least ‘partial’ or ‘qualified’ international legal personality.²⁴ At the same time, such contractual clauses do not change the nature of the contractual relationship or the legal capacity of the contracting parties.²⁵

Ultimately, the intensification of MNE activities and the transnational nature of such business activities challenge the idea that MNEs cannot have rights and obligations under public international law. Furthermore, the State-centric paradigm of public international law appears inadequate, or limited in its ability, to regulate MNEs’ activities or deal with the intricate interactions between MNEs, States, and human rights and the environment.²⁶

Scholars, lawyers, and NGOs have criticized the classical approach of public international law regarding MNEs. They have suggested that MNEs benefit from their international non-status, which ‘immunizes them from direct accountability to international legal norms and permits them to use sympathetic national governments to parry outside efforts to mould their behaviour’.²⁷ They have also formulated new theories on the rights and obligations of MNEs under international human rights and environmental law.²⁸ Such theories aim to provide solutions that allow groups to be held accountable for their negative impacts on human rights and the environment.

Corporate accountability in international and European human rights law

To this day, there is no international regime of binding norms governing the interactions between MNEs and human rights.²⁹ As a result, corporations do not have any duties towards human rights under international law. In the past, there have been several ambitious initiatives to impose some sort of legally binding obligations on MNEs, such as the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights (UN Norms).³⁰ However, in 2005 the international community rejected the UN Norms, partly as a result of the absence of international consensus on the question of binding regulation of corporate accountability.³¹

The UN treaty bodies, which are responsible for monitoring the implementation of the core international human rights treaties, have touched upon the question whether private actors have obligations under international human rights law. However, they have cautiously avoided formulating legally binding obligations on corporate actors with regard to human rights treaties. The UN Human Rights Committee (UNCCPR)³² clearly stated that, under Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR),³³ obligations are binding only on States Parties and do not have direct horizontal effect as a matter of international law.³⁴ Therefore, the ICCPR produces no direct effect for private third parties. Likewise, private actors, such as MNEs, do not have obligations under the ICCPR.³⁵

The UN Committee on Economic, Social and Cultural Rights (UNCESCR) has taken a different stance on the question of MNEs’ obligations regarding economic, social, and cultural rights. On several occasions, the UNCESCR has faced ‘the growing impact of business activities on the enjoyment of specific Covenant rights relating to health, housing, food, water, social security, the right to work, the right to just and favourable conditions of work and the right to form and join trade unions’.³⁶ In general, it has acknowledged that corporate actors have a non-binding responsibility to respect the rights protected by the ICCPR. For example, the UNCESCR stated that violations of the right to adequate food could occur through the direct action of States or other entities insufficiently regulated by States.³⁷ In particular, while only States are parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR),³⁸ and are thus ultimately accountable for compliance, all members of society, including the private business sector, have responsibilities in the realization of the right to adequate food.³⁹ Specifically, the private business sector, either national or transnational, ‘should pursue its activities within the framework of a code of conduct conducive to respect of the right to adequate food, agreed upon jointly with the Government and civil society’.⁴⁰ More recently, the UNCESCR affirmed that, ‘under international standards, business entities are expected to respect Covenant rights regardless of whether domestic laws exist or are fully enforced in practice’.⁴¹ This position is based on the UN Framework and the UNGPs, which formulate a non-binding corporate responsibility to respect human rights whose scope is defined by social expectations (or the company’s social licence to operate), as will be seen later in this book.

In Europe, private companies cannot be held responsible for human rights violations under the ECHR.⁴² This convention covers violations of rights by States and does not impose direct obligations on corporate actors. Since the ECHR does not recognize the principle of direct third-party effect, ECHR rights do not have any horizontal effect.⁴³ This situation has direct consequences on the ability of victims to bring claims raising violations by business actors before the ECtHR. An individual alleging a violation of their rights by a private company cannot raise their claim before the ECtHR.⁴⁴ Any application brought against a company is inadmissible as being incompatible ratione personae with the ECHR’s provisions.⁴⁵ Applications may be brought only against contracting States.⁴⁶ So far, the existing case law of the ECtHR in relation to private companies has been limited to cases where such actors invoke their own rights under the ECHR. Besides the lack of a direct approach for holding companies accountable for human rights abuse under the ECHR, the conservatism of the ECtHR is likely to be an obstacle to protecting human rights against private actors in Europe. Khoury suggests that judges of the ECtHR lack the awareness and/or commitment to creatively hold companies accountable for human rights abuse under the ECHR.⁴⁷

The ECtHR has nonetheless recognized that contracting States must take measures to enable the full enjoyment of ECHR rights in private relations.⁴⁸ In certain circumstances, a State may be responsible for failing to protect a right, or for tolerating the violation of that right by a private person. The ECtHR has already found that States have failed to protect ECHR rights from harmful business activities.⁴⁹ In Lόpez Ostra v Spain,⁵⁰ the ECtHR found that the nuisance and health problems caused by a private waste treatment plant had disproportionately interfered with the applicant’s right to privacy and family life. While the Spanish authorities were not directly responsible for the pollution in question, they allowed the plant to be built on public land and subsidized the plant’s construction. The ECtHR found that Spain ‘did not succeed in striking a fair balance between the interest of the town’s economic well-being – that of having a waste-treatment plant – and the applicant’s effective enjoyment of her right to respect for her home and her private and family life’.⁵¹

While States have a positive obligation to ensure the full enjoyment of ECHR rights in private relations, it is unclear whether this obligation has an extraterritorial dimension. Article 1 ECHR provides that the contracting States ‘shall secure to everyone within their jurisdiction the rights and freedoms’ of the convention. However, States have been held responsible in only a few situations for failing to protect ECHR rights in an extraterritorial context.⁵² In most cases, State responsibility was found for extraterritorial violations involving acts or omissions by State organs, not acts by private persons. Thus, it remains unclear whether a State could be held responsible for tolerating or failing to prevent the extraterritorial violation of an ECHR right abroad by a company which is under its jurisdiction.⁵³ However, scholars have argued that ‘the ECHR, as interpreted by the [ECtHR], does not in general provide a basis for State liability for failure to exercise control over the conduct abroad of business enterprises incorporated under states parties’ laws or having their headquarters in their territories, even when such conduct leads to human rights abuses’.⁵⁴

Over the past decades, there has been an extensive debate regarding whether corporate actors should have obligations under international human rights law. Scholars, lawyers, and NGOs have widely criticized the absence of human rights obligations on MNEs. For instance, Kinley and Tadaki talk of the ‘invisibility’ of MNEs’ accountability under international human rights law.⁵⁵ This situation is explained by the influence of the State-centric paradigm of public international law on the development of international human rights law. Since MNEs are not usually recognized as traditional subjects of international law, they cannot be direct bearers of legal obligations under international human rights law.⁵⁶ Furthermore, human rights were originally devised to protect individuals against the arbitrary exercise of power by the authorities of the territorial State, not non-State actors.⁵⁷ However, this traditionalist approach has been challenged by the fact that MNEs can interfere with the enjoyment of human rights as a result of the ‘enormous power’ they have acquired.⁵⁸ At the same time, States have been unable or unwilling to regulate MNEs, while MNEs have used the ‘innocent bystander rhetoric’ to avoid accountability with regard to human rights abuse.⁵⁹

Some scholars have suggested that to avoid a situation of impunity, MNEs’ increase in power should be accompanied by an increase in accountability under international human rights law.⁶⁰ It is not necessary for MNEs to possess full international legal personality, such as the one possessed by States, to be subject to human rights obligations.⁶¹ Transplanting notions of State responsibility to businesses would prove too difficult.⁶² Instead, MNEs could have ‘limited rights and responsibilities, such as the right to sue and be sued, the ability to assert a right, and the acceptance of legal responsibility in judicial forums, but not have the status as a party to intergovernmental forums or international instruments’.⁶³ This solution would constitute ‘a sound base upon which to build a regime of direct human rights responsibilities at international law, but it would also preserve the primacy of States on the international plane’.⁶⁴ Furthermore, corporate actors should not carry the same responsibilities as States, as some of these are simply impossible for companies to carry out.⁶⁵

Where there is agreement that MNEs can have duties under international human rights law, opinions diverge on the scope of obligations MNEs should be subject to. In particular, authors have various views on the normative nature (ie binding/non-binding), the type (ie respect, protect, fulfil), and the range (ie all human rights or a limited number) of human rights obligations MNEs should be subject to.

First, there are various views on the normative nature of human rights standards that could apply to MNEs. Three types of approaches are generally relevant here: (1) legally binding human rights norms imposed directly on corporate actors; (2) voluntary standards adopted through soft law instruments and private regulation initiatives; and (3) a mix of mandatory and voluntary standards. To date, most international human rights norms directly applicable to MNEs have been formulated in soft law and private regulation instruments. For some observers, soft law and private regulation have filled a normative gap when governments were unable or unwilling to assume their duty to protect human rights.⁶⁶ Furthermore, the adoption of soft law and private standards is more politically and technically feasible.⁶⁷ As a result, soft law and private instruments would have a normative impact on MNEs by calling them to respect certain conduct vis-à-vis human rights.⁶⁸

One major obstacle with soft law and private norms is that they are generally legally unenforceable, which limits, in practice, corporate compliance and the possibility for victims of corporate harm to access remedy. However, there is an emerging debate as to whether soft law norms may produce some legal effects.⁶⁹ For instance, Blecher argues that codes of conduct are not remaining voluntary or unenforceable, and are moving into legally binding, legally enforceable terrain.⁷⁰ Regarding the adoption of legally binding human rights norms on MNEs, proponents argue that such norms are more likely to produce corporate compliance as they are legally enforceable. Furthermore, some authors postulate that the international legal framework on human rights already provides the basis for ‘drawing out strong legally-binding obligations for corporations’.⁷¹ For instance, the Universal Declaration of Human Rights (UDHR)⁷² has often been quoted as ‘a potential legal source of corporate human rights responsibilities’.⁷³ However, there is disagreement on the question of whether an international instrument could impose mandatory obligations on corporate actors.⁷⁴

Second, the debate focuses on the extent of MNEs’ responsibility under international human rights law, as well as the type of human rights obligations that MNEs should bear (ie obligations to respect, protect, and fulfil). This question demonstrates at least the perception of competition between imposing obligations on either State or non-State actors under international human rights law. In general, experts agree that MNE responsibility should not exclude State responsibility. Furthermore, it is frequently held that MNEs should not simply have the same human rights obligations as States because such an approach would ‘ignore the differences between the nature and functions of States and corporations’.⁷⁵ Corporate obligations under international human rights law should therefore be modelled in the light of the characteristics of corporate activity.⁷⁶ However, there is disagreement as to the types of human rights obligation that MNEs should bear. While some authors argue that MNEs should have only an obligation to respect human rights,⁷⁷ others suggest that in certain circumstances corporate groups should also have an obligation to protect, even to fulfil, human rights.⁷⁸ For example, a company should ensure that its business partners do not abuse human rights in their own activities. Previous normative efforts to impose human rights obligations on MNEs considered the possibility that MNEs may bear other types of obligation. For instance, the UN Norms provided that, within their respective spheres of activity and influence, MNEs had the obligation ‘to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law’.⁷⁹ However, this view was rejected during the elaboration of the UN Framework, partly because of the difficulties associated with the concepts of spheres of activity and influence.⁸⁰

Third, there are various views on the question of whether the entire body of human rights law should apply directly to MNEs, and to corporations more generally. One approach accepts that MNEs should have specific international obligations only with regard to gross human rights abuses, such as the crime of genocide or crimes against humanity.⁸¹ In theory, international criminal law seems to admit that MNEs must refrain from participating in the commission of genocide.⁸² Other authors differentiate between human rights that corporations can directly infringe, and human rights that only States can directly violate. Ratner argues that the duties of the corporation with regard to the latter can only be complicity-based, and that links between the corporation and the State are a necessary factor for the derivation of corporate duties.⁸³

Corporate accountability in international environmental law

While MNEs contribute considerably to worldwide stress on the environment, their transnational nature poses a significant challenge to global environmental governance.⁸⁴ International environmental law is said to focus on the ‘transboundary effects on health and the environment, and transboundary fluxes of harmful substances’.⁸⁵ However, it appears unable to apprehend and govern harm arising from MNE transnational activities.⁸⁶ Furthermore, it fails to acknowledge MNEs’ abuse of their ‘transboundary subjectivity and structure’ to escape environmental liability.⁸⁷ As a result, international environmental law offers little assistance in solving environmental challenges created by the activities of MNEs.⁸⁸

Generally, multilateral environmental agreements (MEAs) lack a comprehensive approach to the regulation of corporate actors.⁸⁹ They mainly create State obligations and, as a result, do not directly bind companies. Provisions imposing obligations on corporate actors are usually indirect, as their implementation rests primarily on States and national courts.⁹⁰ Furthermore, other constraints, such as the restricted territorial or substantive scope of MEAs, the lack of ratification by some States, or the failure of many MEAs to enter into force, limit the ability of these agreements to impose obligations on corporate actors.⁹¹

Nevertheless, MEAs have the potential to influence corporate environmental behaviour in various ways.⁹² First, a number of MEAs create civil liability regimes in which corporate actors, where they qualify as operators in the context of specified activities, may be held liable for environmental pollution.⁹³ This is the case for a number of harmful activities, such as dumping of waste at sea, transboundary shipment of hazardous wastes, oil pollution at sea, hunting and trading in endangered species, and the use of various hazardous and ozone-depleting substances.⁹⁴ Second, some MEAs require the adoption of criminal penalties to regulate certain business conduct,⁹⁵ such as the Convention on the Protection of the Environment through Criminal Law of the CoE.⁹⁶ Other MEAs explicitly create other types of State obligations regarding corporate actors. For example, Article 10(e) of the Convention on Biological Diversity⁹⁷ requires each State to ‘encourage cooperation between its governmental authorities and its private sector in developing methods for sustainable use of biological resources’. Third, some MEAs contain provisions that may directly and indirectly affect free trade rules, or conflict with the measures contained in agreements concluded under the World Trade Organization.⁹⁸ Fourth, international environmental law has seen the development of general concepts and principles (eg the precautionary and the polluter pays principles, environmental impact assessment, transparency, etc), and policies which are directly relevant to the regulation of corporate actors.⁹⁹ However, MEAs ultimately offer only a fragmented and indirect response to the regulation of corporations and their impact on the environment.

In parallel, self-regulation of corporate actors through soft law instruments has gained in importance in international environmental law over the last decades. Some scholars argue that such an approach has contributed to the emergence of a number of standards on corporate conduct which are now rooted in international environmental law. The soft law nature of these instruments and the participation of companies in these processes have generally facilitated the development of such standards.¹⁰⁰ Although these standards are non-binding, they constitute criteria against which business activities may be measured with respect to environmental protection.¹⁰¹ In addition, the participation of corporate actors in international environmental standard-setting processes may increase the chances that companies will follow environmentally sound behaviour.¹⁰² Some authors argue that these environmental standards are now converging to a considerable extent and may be directly applicable to MNEs.¹⁰³ Furthermore, when developed in the context of international initiatives, the levels to which corporate actors respect these standards may be monitored by international mechanisms, which ‘contribute to the establishment of a coherent corporate responsibility framework’.¹⁰⁴ For some authors, international environmental law has found innovative and pragmatic normative ways to address environmental challenges arising from corporate behaviour.¹⁰⁵ However, it is also unclear whether self-regulation through soft law instruments is an effective way to prevent the occurrence of environmental damage by companies. Looking at oil spill prevention, Frynas found that there was a lack of clear evidence demonstrating causality between CSR and oil spill reduction. At the same time, causality between mandatory government regulation and oil spill reduction was much more clearly established.¹⁰⁶ Furthermore, self-regulation of corporate actors through soft law instruments does not create any obligations on corporations to conform to the voluntary norm or provide victims with a remedy.

3 Legal frameworks on access to justice

According to Francioni, ‘[i]‌n international law, as in any domestic legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is violated, access to justice is of fundamental importance for the injured individual and it is an essential component of the system of protection and enforcement of human rights.’¹⁰⁷ This section evaluates how various international and European legal frameworks consider and guarantee access to justice in the context of human rights abuse and environmental damage caused by corporations.

Access to justice in international law

In the context of this book, the question whether international law protects an individual right of access to justice is relevant. In customary international law, there is currently no right of access to justice in international proceedings.¹⁰⁸ Nonetheless, a number of international instruments in the human rights and environmental fields guarantee access to justice in the context of domestic law. They recognize that States are under an obligation to make available a system of effective remedies to all persons subject to their jurisdiction.¹⁰⁹ Furthermore, a number of human rights instruments, such as the ECHR, have established their own review mechanism to which individuals have direct access.¹¹⁰ However, the recognition of this type of mechanism and the provision of remedies rely on their ratification by States and the provision of suitable legal and procedural systems that ensure access to remedies.

Access to justice in international human rights law

The main international human rights instruments do not generally protect a right of access to justice per se.¹¹¹ An exception is the CRPD, which explicitly recognizes that States shall ensure effective access to justice for persons with disabilities on an equal basis with others.¹¹² Nonetheless, the core international human rights instruments generally recognize the right to an effective remedy by courts for acts violating human rights and/or the protection of procedural rights and guarantees to ensure the conduct of a fair trial in criminal and civil matters.

A number of international human rights instruments protect the right to an effective remedy by a competent national court or authority for acts violating the human rights they enshrine.¹¹³ Article 8 UDHR provides that ‘[e]‌veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law’. Moreover, Article 2(3)(a) ICCPR provides that each State Party undertakes to ensure that any person whose rights or freedoms recognized by the ICCPR are violated must have an effective remedy. Similarly, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) and the International Convention for the Protection of All Persons from Enforced Disappearance (CPED) oblige States to ensure that any person enjoying rights protected by those conventions have an effective remedy if their rights are violated. The ICCPR and the ICMW go further by specifying that States must ‘ensure that the competent authorities shall enforce such remedies when granted’.¹¹⁴ Under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), victims of racial discrimination have ‘the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination’.¹¹⁵

One exception is the ICESCR, which remains silent on the provision of remedy in the context of economic, social, and cultural rights violations. Given that MNEs have been found on many occasions to interfere with economic and social rights,¹¹⁶ this lack of recognition could limit the protective opportunities of the ICESCR in the context of business-related human rights abuse. In its General Comment No. 9, the UNCESCR acknowledged that, contrary to the ICCPR, the Covenant does not obligate ‘States parties to, inter alia, develop the possibilities of judicial remedy’.¹¹⁷ Nevertheless, a State party seeking to justify its failure to provide any domestic legal remedies for violations of economic, social, and cultural rights would need to show either that such remedies are not ‘appropriate means’ within the terms of Article 2(1) ICESCR or that, in view of other means used, they are unnecessary. As the UNCESCR pointed out, it would be difficult to show this and, in many cases, the other ‘means’ used could be rendered ineffective if they are not reinforced or complemented by judicial remedies.¹¹⁸

The texts of international human rights instruments show that access to justice is not perceived as a self-standing individual right. According to Francioni, it ‘is rather construed as a procedural guarantee dependant [sic] on other substantive rights and freedoms, which are protected by the same treaty and sometimes by renvoi to the constitution and the law of state parties’.¹¹⁹ Furthermore, ‘the distinction between the cause of action, which must necessarily derive from the substantive legal interest invoked by the claimant, and the right of access to justice often becomes blurred.’¹²⁰

In general, there is no indication that the acts violating the protected rights should have been committed by the State alone in order to trigger the application of the right to an effective remedy. For instance, the ICCPR provides for an effective remedy ‘notwithstanding that the violation has been committed by persons acting in an official capacity’. Therefore, victims of human rights violations committed by non-State actors, such as businesses, are, in theory, entitled to an effective remedy. According to the UNCESCR, victims may be able to sue the business either directly on the basis of the human rights instrument in jurisdictions which consider that the instrument imposes self-executing obligations on private actors, or on the basis of domestic legislation incorporating the instrument in the national legal order.¹²¹

Recently, the UNCESCR addressed the question of the State obligation to provide remedies in the context of business-related human rights abuse. It clearly provided that ‘State parties must provide means of redress to aggrieved individuals or groups and ensure corporate accountability’, and this should preferably take the form of ensuring access to independent and impartial judicial bodies.¹²² In addition, States have the duty to take the necessary steps to address the specific obstacles that victims of transnational corporate abuse face in accessing effective remedies in order to prevent a denial of justice and to ensure the right to effective remedy and reparation.¹²³

International human rights law also provides that court proceedings in criminal and civil matters must respect a number of procedural guarantees in order to ensure a fair trial. Article 14(1) ICCPR provides that, in the determination of any criminal charge against them, or of their rights and obligations in a suit at law, everyone is entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law. Among the core international human rights instruments, there is generally a strong emphasis on the protection of procedural guarantees and the rights of the defence in criminal proceedings, including the presumption of innocence,¹²⁴ the principle of the legality of criminal offences and penalties,¹²⁵ the right to remain silent and not incriminate oneself,¹²⁶ and the right to appeal,¹²⁷ to name a few. Some of these instruments also refer, albeit to a lesser extent, to procedural guarantees in the context of civil proceedings.¹²⁸

Equality before courts and tribunals is a common feature of international human rights instruments. Article 14(1) ICCPR states explicitly that all persons shall be equal before courts and tribunals. Similarly, Article 5(a) ICERD provides that States must guarantee the right of everyone to equality before the law, notably the enjoyment of the right to equal treatment before the tribunals and all other organs administering justice. In addition, some instruments call for equality for specific groups of individuals. For instance, Article 15(1) of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) provides that States shall accord to women equality with men before the law. Article 13(1) CRPD also requires States to ensure effective access to justice for persons with disabilities on an equal basis with others. The CRPD is innovative in this regard, as it requires States to provide procedural and age-appropriate accommodations, ‘in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages’. The right to equality before courts and tribunals is therefore a key element of human rights protection and serves as a procedural means to safeguard the rule of law.¹²⁹ It usually imposes a positive obligation on States to provide equal access to courts and procedural rights in their legal systems.¹³⁰

Another important feature of the right to equality before courts and tribunals, which is relevant in the context of human rights litigation against MNEs, is equality of arms. According to the UNCCPR, this means that the same procedural rights must be provided to all the parties, unless distinctions are based on law and can be justified on objective and reasonable grounds.¹³¹ In the context of civil proceedings, the principle of equality between parties demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.¹³²

Next to the core international human rights instruments, the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles on Remedy),¹³³ adopted by the UN General Assembly in 2005, articulate, in one document, the rights of victims to have access to justice and the right to reparation for their injuries. Under their obligation to respect, ensure respect for and implement international human rights and international humanitarian law, States must take appropriate measures to prevent violations; investigate violations effectively, promptly, and impartially and, where appropriate, take action against those allegedly responsible; provide victims with equal and effective access to justice irrespective of who may ultimately be the bearer of responsibility for the violation; and provide victims with effective remedies, including reparation. The victims’ right to remedies include equal and effective access to justice; adequate, effective, and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. Ultimately, the Basic Principles on Remedy provide valuable guidance for framing access to justice in the context of corporate human rights abuse.

Access to justice in international environmental law

Access to justice has gained momentum in the field of international environmental law with the proclamation of the 1992 Rio Declaration on Environment and Development (Rio Declaration). Principle 10 Rio Declaration specifically provides that:

In the Rio Declaration, access to justice is therefore perceived as being closely related to access to information and public participation in environmental governance.¹³⁴

In 1998, the UNECE adopted the Aarhus Convention,¹³⁵ which advances the notions reflected in Principle 10 Rio Declaration.¹³⁶ The Aarhus Convention generally aims to guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in order to protect the right to live in an environment adequate to human health and well-being. It has been hailed as a ‘reflection of the procedural dimension to the intersection between environmental and human rights’.¹³⁷ It should be noted that despite the fact it is a regional instrument, this convention is seen as having global significance.¹³⁸

The Aarhus Convention sees access to justice as a procedural right in the domestic context. Its provisions provide standards and criteria on access to justice to be implemented by the States Parties in their domestic jurisdiction, and which are to be made applicable for members of the public. Article 9 Aarhus Convention is the most relevant provision regarding access to justice in environmental matters. It provides access to justice in two main situations. First, Article 9(1) and (2) ensures access to justice in the context of requests for environmental information and public participation in environmental decision-making, thus strengthening the two other rights protected by the Aarhus Convention. Second, Article 9(3) guarantees access to justice for general breaches of environmental law in both horizontal and vertical relationships. Accordingly, each State Party ‘shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’. In addition, Articles 9(4) and 9(5) set out requirements applicable to all the procedures under Articles 9(1) to 9(3). For instance, administrative and judicial procedures must provide adequate and effective remedies, including injunctive relief, and must be fair, equitable, timely, and not prohibitively expensive.¹³⁹ State officials and authorities must also consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.¹⁴⁰ Finally, they must provide guidance to the public in seeking access to justice in environmental matters,¹⁴¹ most notably by informing the public of available administrative and judicial review procedures.¹⁴²

In the context of this book, it is relevant to question whether the Aarhus Convention, and its Article 9(3) in particular, could be an appropriate instrument to guarantee access to justice when corporate actors cause environmental damage, especially in a transnational context. At first glance, the scope of Article 9(3) Aarhus Convention makes it a suitable instrument for various reasons. First, this provision targets breaches of the law committed by private persons, which include corporate actors. Second, it applies to all acts and omissions contravening national law relating to the environment in a broad sense.¹⁴³ Third, its scope is not limited to environmental law per se, and the Aarhus Convention Compliance Committee (Aarhus Committee) has interpreted the term ‘relating to the environment’ in an expansive manner.¹⁴⁴ Finally, the term ‘members of the public’ is interpreted broadly enough to encompass both individuals and NGOs. Furthermore, the Aarhus Convention guarantees that the public have access to justice in environmental matters ‘without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities’.¹⁴⁵

At the same time, the relevance of Article 9(3) to access to justice for business-related environmental damage occurring extraterritorially is likely to be limited for two main reasons. First of all, access to justice must be ensured to members of the public ‘where they meet the criteria, if any laid down in [States’] national law’. Therefore, States Parties have a wide discretion in defining the meaning of standing, in other words who can initiate legal proceedings. Conditions of standing have been a recurrent issue over the years, especially for environmental NGOs.¹⁴⁶ Restrictive conditions on standing may limit their ability to seek remedies for acts and omissions harmful to public environmental interests. The Aarhus Committee has repeatedly held that States Parties can decide that members of the public must meet some criteria to challenge a decision, such as being affected by it or having an interest in it.¹⁴⁷ However, they should not introduce or maintain overly strict criteria that effectively bar members of the public, environmental NGOs in particular, from having access to effective remedies.¹⁴⁸ Second, it is unlikely that Article 9(3) would be applicable to claims raising the extraterritorial breach of a State’s national law relating to the environment. Article 9(3) specifically refers to breaches of the law of the State where the proceedings are taking place. On their face, claims raising breaches of international environmental standards or of the national environmental law of third States would seem to be outside the scope of Article 9(3). However, in past transnational environmental claims against MNEs, plaintiffs have usually raised the violation of international environmental standards and/or of the domestic environmental law of host States.

Article 9(3) could nonetheless be relevant to claims raising violations of environmental laws presenting an element of extraterritoriality, such as national law applying MEAs that provide extraterritorial reach or solving transnational issues (for example, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal).¹⁴⁹ Ultimately, it is necessary to clarify the meaning of ‘national law relating to the environment’ to understand which legal breaches by business actors in an extraterritorial context could fall under the scope of Article 9(3).

To date, litigators have not relied on or invoked the Aarhus Convention, or national implementing legislation, in the context of transnational claims against MNEs concerning environmental damage. There is also little research on the interplay between this convention and access to justice when businesses cause environmental pollution. It is unclear why the Aarhus Convention has not been considered in this regard. The public interest nature of this convention seems appropriate in the context of strategic litigation seeking to hold businesses accountable for their impacts on the environment. One suggestion is that the Aarhus Convention is perceived as a tool to challenge, first and foremost, public authorities’ own violations of environmental legislation in the context of administrative procedures. This perception may limit the potential of this convention to challenge, in the context of judicial procedures, acts and omissions by private actors, such as companies, that are detrimental to the environment. Another possible reason is the above-mentioned lack of certainty regarding the territorial meaning of ‘national law relating to the environment’. Finally, the absence of EU provisions implementing the private dimension of Article 9(3) may also explain the lack of interest in the role of this convention. The Aarhus Convention is widely ratified in Europe – including by all EU Member States – and the EU itself has approved it. The EU has adopted two directives to harmonize its Member States’ laws with regard to access to environmental information and public participation.¹⁵⁰ These directives contain provisions on access to justice that allow members of the public to have access to review procedures when their request for information is ignored or refused, or to challenge decisions regarding public participation. However, they do not implement Article 9(3) Aarhus Convention as such. Furthermore, the EU has adopted Regulation 1367/2006 (Aarhus Regulation), which requires EU institutions and bodies to implement the obligations contained in the Aarhus Convention.¹⁵¹ The Aarhus Regulation implements Article 9(3) by granting access to justice in environmental matters at Community level. However, it addresses only acts and omissions by public authorities.

The influence of the Aarhus Convention on transnational claims against MNEs should, nonetheless, not be underestimated. Until now, this convention has exerted an important influence on the development of national environmental law and practice in European countries, making it a major asset for gaining access to justice in Europe.¹⁵² Recently, in the European Green Deal Communication,¹⁵³ the European Commission (EC) committed to revise, or to consider the revision of, EU instruments pertaining to the Aarhus Convention in order to improve access to justice at both EU and national levels for citizens and NGOs. If such a revision were to take place and effectively strengthened the procedural rights of members of the public in the context of Article 9(3), it could potentially enhance the ability of victims and NGOs to gain access to justice when companies damage the environment in the future.

Access to justice in European law

In Europe, the CoE and the EU have adopted a number of standards on ensuring effective access to justice which are directly relevant in the context of transnational litigation against MNEs.

Access to justice under the European Convention on Human Rights

The ECHR does not protect a right to access to justice per se. However, it protects the right to a fair trial (Article 6) and the right to an effective remedy (Article 13).

Article 6 ECHR protects the right to a fair trial in both civil and criminal proceedings. Article 6(1) provides that, ‘[i]‌n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. In general, judgments should be pronounced publicly. Article 6(2) and (3) also require contracting States to respect a number of procedural guarantees in the context of criminal proceedings, such as the presumption of innocence and the rights to be informed promptly of the accusation and to receive legal assistance.

The ECtHR has developed a rich body of case law in relation to Article 6 ECHR, which has helped to strengthen access to justice in contracting States over the years. In relation to civil proceedings, the ECtHR held that the right of access to a court¹⁵⁴ was an inherent aspect of the safeguards enshrined in Article 6,¹⁵⁵ and that it must be ‘practical and effective’.¹⁵⁶ If States Parties are not obliged to provide free legal aid in all civil disputes, they should nonetheless provide for the assistance of a lawyer when such assistance proves indispensable for effective access to a court.¹⁵⁷ Furthermore, the ECtHR has ruled that the right to a fair trial requires that litigants should have an effective judicial remedy enabling them to assert their civil rights.¹⁵⁸ It has also ruled on the principle of equality of arms, which, as will be seen later in Chapter 4 of this book, has been a source of tension in the context of transnational litigation against MNEs. Equality of arms, in the sense of a fair balance between the parties, is inherent to the right to a fair trial and the adversarial principle, and applies to both civil and criminal cases.¹⁵⁹ It implies that each party must be afforded a reasonable opportunity to present their case, including evidence, under conditions that do not place that party at a substantial disadvantage compared to the other party.¹⁶⁰ Failure to observe the equality of arms principle was found when the opposing party enjoyed significant advantages regarding access to relevant information and occupied a dominant position in the proceedings,¹⁶¹ or when the denial of legal aid deprived the parties of the opportunity to present their case effectively before the court in the face of a far wealthier opponent (in this case, an MNE).¹⁶² In relation to criminal proceedings, the ECtHR has held that Article 6(1) applies to civil-party complaints in criminal proceedings, meaning when an individual, often the victim of a criminal offence, is allowed to join the criminal proceedings as a civil party.¹⁶³ It applies from the moment the individual joins as a civil party, including during the preliminary investigation stage.¹⁶⁴ Article 6(1)’s applicability does not depend on the recognition of the formal status of a ‘party’ in domestic law.¹⁶⁵ However, the ECHR does not confer any right, as such, to have third parties prosecuted or sentenced for a criminal offence.¹⁶⁶

Article 13 ECHR also protects the right to an effective remedy. Everyone whose rights under the ECHR are violated must have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. In general, States Parties have a positive obligation to secure this right to everyone within their jurisdiction. The interpretation of Article 13 ECHR has, however, been complex, since the right guaranteed by this provision is not a freestanding right. It only arises for consideration if the applicant raises a complaint involving another substantive right under the ECHR.¹⁶⁷ Nevertheless, the ECtHR has clarified on many occasions that Article 13 guarantees the availability of a remedy at national level to enforce the substance of rights and freedoms under the ECHR in whatever form they may happen to be secured in the domestic legal order.¹⁶⁸ Article 13 requires that States provide a domestic remedy to deal with the substance of an ‘arguable complaint’¹⁶⁹ under the ECHR and grant appropriate relief. However, Article 13 does not require any particular form of remedy and States have a margin of discretion in how to comply with this obligation. Nonetheless, the remedy ‘must be “effective” in practice as well as in law’,¹⁷⁰ the term ‘effective’ meaning that the remedy must be adequate and accessible.¹⁷¹ The effectiveness of a remedy does not, however, depend on the certainty of a favourable outcome for the applicant.¹⁷²

Access to justice in the European Union

Despite the lack of clarity around access to justice as a concept in EU law,¹⁷³ some observers have pointed out the ‘constitutionalization’¹⁷⁴ of access to justice in the EU over the past years.

Until recently, the EU had little competence in the justice field. However, progressive changes in EU primary law have strengthened the role and the powers of the EU institutions to legislate in civil and criminal justice.¹⁷⁵ Pursuant to Article 4(2)(j) of the Treaty on the Functioning of the European Union (TFEU),¹⁷⁶ the EU and its Member States share competence in the areas of freedom, security, and justice. Article 67(1) TFEU specifies that the EU shall constitute an area of freedom, security, and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. Furthermore, Article 67(4) imposes a general requirement on the EU to facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.

The TFEU contains provisions pertaining to access to justice in the context of its chapters describing the EU competences on ‘judicial cooperation’ in civil and criminal matters. In civil matters, the EU is competent to develop judicial cooperation with cross-border implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases.¹⁷⁷ It must adopt measures which aim to ensure various aspects of such cooperation, including the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction, effective access to justice, or the elimination of obstacles to the proper functioning of civil proceedings.¹⁷⁸ The EU should adopt these measures particularly when necessary for the proper functioning of the internal market. In criminal matters, judicial cooperation must be based on the principle of mutual recognition of judgments and judicial decisions.¹⁷⁹ The TFEU recognizes that the EU has different types of competences in criminal matters. Of relevance here is the EU competence to establish minimum rules, by means of directives, concerning the rights of victims of crime.¹⁸⁰ The EU can also establish minimum rules concerning ‘the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis’.¹⁸¹ These areas of crime include terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime, and organized crime. Other areas of crime may potentially be identified. The EU has already used its new powers to improve specific rights related to access to justice. For instance, it enacted Directive 2012/29/EU (Victims’ Rights Directive),¹⁸² which establishes minimum standards on the rights, support, and protection of victims of crime.

Furthermore, the Treaty of Lisbon¹⁸³ gave the EU Charter¹⁸⁴ the same legal binding force as EU treaties.¹⁸⁵ As a result, the EU Charter is primary EU law. Therefore, it ‘is not a text setting out abstract values, it is an instrument to enable people to enjoy the rights enshrined within it when they are in a situation governed by Union law’.¹⁸⁶ However, the provisions of the EU Charter are addressed to the EU institutions, bodies, offices, and agencies without restriction, and to Member States only when they are implementing EU law.¹⁸⁷ For instance, this covers situations where Member States implement EU regulations and directives.¹⁸⁸

Article 47 of the EU Charter provides for the right to an effective remedy and to a fair trial, echoing Articles 6 and 13 ECHR.¹⁸⁹ Article 47 provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal. In addition, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Article 47 also provides for the right to legal advice and representation, and to legal aid when it is necessary to ensure effective access to justice. Given the status of the EU Charter, the rights protected under Article 47 have become primary law that the EU and its Member States must respect when implementing EU law. Therefore, Article 47 could play a decisive role in improving the effectiveness of rights granted under European law.¹⁹⁰ In this regard, the Court of Justice of the EU (CJEU) plays an increasing role in protecting the rights and guarantees enshrined in Article 47 and, therefore, in promoting effective access to justice in the EU.¹⁹¹ The CJEU has already guaranteed effective judicial protection and access to legal aid on the grounds of Article 47.¹⁹² However, much uncertainty remains regarding the direct horizontal effect of the EU Charter and its exact scope of applicability in EU Member States.¹⁹³ Furthermore, restrictive standing requirements before the CJEU for natural and legal persons limit the role of the court in protecting effective access to justice in the EU.¹⁹⁴

4 The UN Framework and Guiding Principles on Business and Human Rights

In 2005, John Ruggie was appointed as the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises (SRSG).¹⁹⁵ Ruggie’s mission was to move beyond the impasse created by the rejection of the UN Norms and to clarify the respective roles and responsibilities of States and businesses under public international law.

In 2008, the SRSG submitted a report to the UNHRC, in which he presented the UN Framework, meaning ‘a conceptual and policy framework to anchor the business and human rights debate, and to help guide all relevant actors’. The UN Framework aims at ‘adapting the human rights regime to provide more effective protection to individuals and communities against corporate-related human rights harm’.¹⁹⁶ It comprises three core pillars, also called principles:

The SRSG described the UN Framework as follows:

In 2011, the UN Framework was completed by the UNGPs, which provide recommendations for the implementation of the three core principles of the UN Framework. The UNGPs aim at enhancing standards and practices with regard to BHR and contributing to a socially sustainable globalization.¹⁹⁸ Nonetheless, neither the UN Framework nor the UNGPs create new international legal obligations upon States or businesses, and they are not legally binding.¹⁹⁹ Furthermore, they do not address environmental issues in the context of business activities.²⁰⁰

The UNHRC adopted the UN Framework and the UNGPs by consensus, and States and businesses gave them a positive reception. At the same time, both documents, especially the UNGPs, have generated dissatisfaction, particularly among CSOs and academics.²⁰¹ Despite the diverging views on the UN Framework and the UNGPs, these instruments have become a common reference point in the BHR field and are regularly invoked by most stakeholders, including States, businesses, CSOs, academics, and international organizations.²⁰² As such, they provide the most important policy response to the issue of corporate accountability and access to justice in recent years. It is therefore necessary to understand their added-value in the context of this book.

Pillar I: The State duty to protect human rights

According to Guiding Principle (GP) 1, ‘States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.’ The Commentary to GP 1 clarifies that the State duty to protect is a standard of conduct and that States are not per se responsible for human rights abuse by private actors. However, States may breach their international human rights obligations in various circumstances, including when they fail to take appropriate steps to prevent, investigate, punish, and redress abuse by private actors. States also have the duty to protect and promote the rule of law, including by providing for adequate accountability, legal certainty, and procedural and legal transparency. As the Commentary to GP 1 specifies, Pillar III on access to remedy outlines remedial measures.

Moreover, pursuant to GP 2, ‘States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.’ Specifically, the Commentary to GP 2 provides that States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. At the same time, they are not prohibited from doing so where a recognized basis for jurisdiction exists. For instance, States have adopted a range of approaches in this regard, such as direct extraterritorial legislation and enforcement through criminal regimes that allow for prosecution based on the nationality of the perpetrator regardless of where the offence occurs. In general, there is ‘increasing encouragement at the international level, including from the treaty bodies, for home States to take regulatory action to prevent abuse by their companies overseas’.²⁰³

Pillar I on the State duty to protect human rights has produced mixed feelings from scholars. Bernaz argues that the SRSG ‘settled for a middle-of-the-road position’ regarding the extraterritorial nature of State obligations under international human rights law.²⁰⁴ In the opinion of a number of scholars, the UNGPs fail to reflect recognition by various international bodies of the legal obligation for States to take action to prevent abuses by their companies overseas.²⁰⁵ For De Schutter, the UNGPs set the bar below the current state of international human rights law when it comes to the extraterritorial human rights obligations of States.²⁰⁶ Furthermore, the SRSG missed the opportunity to recognize an extraterritorial State obligation to protect, which would have bridged the protection gap that currently exists in some host countries and would have prevented ‘relocations of convenience’, meaning the situation where companies decide to register in countries which do not subject them to regulations that protect human rights.²⁰⁷ Another weakness of the UNGPs is that they provide little indication of the nature and scope of potential extraterritorial measures (eg domestic measures with extraterritorial implications or direct extraterritorial legislation and enforcement). At the same time, other authors have challenged the notion that States have an extraterritorial obligation to protect against human rights abuse by corporate actors. Methven O’Brien argues that the current state of international human rights treaties cannot lead to the conclusion that States have a positive obligation to prevent abuses by MNEs beyond national borders. As a result, ‘the position articulated by the UNGPs, that states may be entitled, but are not obliged as a matter of human rights law, or indeed public international law, generally to regulate their companies’ extraterritorial activities or human rights impacts, remains a correct one.’²⁰⁸

Pillar II: The corporate responsibility to respect human rights

The SRSG rejected the view that companies, where they have influence, should have the same range of responsibilities as States.²⁰⁹ Companies are economic actors and, as such, their responsibilities ‘cannot and should not simply mirror the duties of States’.²¹⁰ Furthermore, the SRSG rejected that idea that companies should have responsibilities for a limited list of human rights. Since businesses can have an impact on the entire spectrum of internationally recognized rights,²¹¹ limiting the rights for which they may be responsible would have negative consequences in particular instances.²¹² Businesses should, at least, respect internationally recognized human rights.²¹³ As a result, the UN Framework and the UNGPs rest on ‘differentiated but complementary responsibilities’ in relation to all human rights.²¹⁴

The UN Framework and the UNGPs recognize the corporate responsibility to respect human rights, which exists independently of States’ duties.²¹⁵ According to GP 11, business enterprises should respect human rights. They should avoid infringing the human rights of others and should address adverse human rights impacts with which they are involved. The term ‘responsibility’ was preferred to ‘duty’ to indicate that respecting human rights is not currently an obligation that international human rights law generally imposes directly on companies. The Commentary to GP 11 explains that the responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It ‘exists over and above compliance with national laws and regulations protecting human rights’.²¹⁶ Companies should respect human rights ‘because it is the basic expectation society has of business’.²¹⁷ As a result, the UN Framework and the UNGPs define corporate responsibility on the basis of social expectations (the social licence of companies to operate) and not legal standards.²¹⁸

Importantly, GP 15 provides that, in order to meet their responsibility to respect human rights, business enterprises should have an HRDD process in place to identify, prevent, mitigate, and account for how they address their impacts on human rights. The HRDD process ‘should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed’.²¹⁹ Therefore, HRDD refers to the steps a company must take to become aware of, prevent, and address adverse human rights impacts. The UNGPs develop the parameters and components for HRDD in more detail.²²⁰ It is important to note the potential impact of the HRDD process in the context of liability claims. The SRSG noted that, to discharge its responsibility to respect, a company should carry out due diligence.²²¹ ‘Conducting appropriate human rights due diligence should help business enterprises address the risk of legal claims against them by showing that they took every reasonable step to avoid involvement with an alleged human rights abuse.’ At the same time, ‘business enterprises conducting such due diligence should not assume that, by itself, this will automatically and fully absolve them from liability for causing or contributing to human rights abuses.’²²²

If the UN Framework and the UNGPs have been acknowledged as representing an important step in setting out corporate responsibility for human rights, they have not closed the long-running debate about corporations and the demands for international legal obligations and corporate accountability.²²³ In particular, scholars and CSOs have criticized the voluntary nature of corporate responsibility to respect human rights.²²⁴ Both instruments emphatically emphasize the role of the State as the sole duty-bearer of human rights obligations while avoiding the establishment of clear international standards and/or obligations for companies. As a result, the ‘rather minimalist take’ on corporate responsibility leads to missed opportunities and weaknesses, especially since companies are already legally obliged not to perpetrate, aid, or abet international crimes.²²⁵ Scholars have also pointed out that ‘it is difficult to see how, without the complement of international legal obligations, this privatized voluntary process will be significantly more effective than other voluntary self-regulation regimes in regulating and enforcing the compliance of corporations with human rights norms’.²²⁶

Furthermore, they have criticized the scope of the corporate responsibility to respect, arguing that ‘corporate obligations should not only involve “negative” obligations to avoid harm but also include a “duty to fulfil”: obligations to contribute actively to the realisation of fundamental rights’.²²⁷ Scholars have also pointed out that the SRSG failed to acknowledge that corporations may have an obligation to realize human rights based on their social function.²²⁸ At the same time, the SRSG’s views of the ambit of the corporate responsibility to respect, especially the HRDD process, is sometimes ambiguous. At times, the SRSG seems to imply that corporations may have a positive duty to protect human rights against abuse by third parties, which is similar to the State obligation to protect under international human rights law.²²⁹ Commentators have also criticized the practical approach to corporate HRDD.²³⁰ For instance, the absence of any template or indicative methodology for the production of accurate HRDD makes it difficult for outsiders to evaluate whether a company respects human rights, or for companies to learn and share best practice with each other.²³¹

At the same time, other authors have argued that the corporate responsibility to respect is an important improvement in comparison with what existed previously. Despite its soft law nature, it may nonetheless produce ‘real legal consequences’.²³² Some authors have posited that, in general, the UNGPs are gaining legal effect through law, regulation, contracts, and dispute resolution processes as a result of their increasing inclusion in instruments that produce legal effects, such as bilateral investment treaties, project finance agreements, and so on.²³³ To date, the corporate responsibility to respect has been welcomed by various actors with competing interests and, in the long term, it may be universally accepted as an international standard.²³⁴

Moreover, HRDD may create a direct duty of care upon businesses either where they have voluntarily accepted to carry it out,²³⁵ or where States have enacted statutes governing the HRDD of companies. As will be seen in Chapter 7, the HRDD process under the UNGPs has influenced the adoption of statutory norms imposing mandatory due diligence upon businesses. In 2017, France enacted the first legislation forcing certain companies to establish an HRDD process within their group activities. Furthermore, when properly conducted, HRDD can help companies to demonstrate that they took every reasonable step to avoid involvement in a human rights violation, and can provide protection against mismanagement claims by shareholders.²³⁶ The implementation of HRDD also encourages companies to depart from an exclusive shareholder-based corporate governance model towards a more stakeholder-based model, which allows the interests of victims of business-related human rights abuse to be represented in the decision-making processes of companies.²³⁷

Pillar III: Effective access to remedy

The UN Framework recognizes that ‘[e]‌ven where institutions operate optimally, disputes over the human rights impact of companies are likely to occur’.²³⁸ In such a context, it is crucial that victims have effective access to remedy. However, despite the existence of a ‘patchwork’ of judicial and non-judicial mechanisms, a considerable number of individuals whose human rights are impacted by corporations still lack effective access to remedy. The UN Framework acknowledges two main issues in this regard: access to formal judicial systems is often difficult, especially in places where the need is greatest; and non-judicial mechanisms are seriously underdeveloped at various levels (corporate, national, and international).²³⁹ It therefore suggests improving both judicial and non-judicial mechanisms.

Pillar III of the UN Framework is operationalized in Guiding Principles 25 to 31 of the UNGPs. GP 25 is the ‘foundational principle’ of Pillar III while the other GPs are ‘operational principles’. They are divided as follows:

From the outset, GP 25 provides that:

The SRSG linked the concept of ‘access to effective remedy’ (Pillar III) to the State duty to protect against business-related human rights abuse (Pillar I). GP 25 recognizes that States must adopt measures to ensure victims have access to remedy when human rights abuses occur within their territory and/or jurisdiction. Remedy may include apologies, restitution, rehabilitation, financial or non-financial compensation, and punitive criminal or administrative sanctions. Remedy could also include the prevention of harm through injunctions or guarantees of non-repetition. According to the Commentary to GP 25, State-based judicial and non-judicial grievance mechanisms should form the foundation of a wider system of remedy. The GPs use the term ‘grievance mechanism’ to indicate ‘any routinized, State-based or non-State-based, judicial or non-judicial process through which grievances concerning business-related human rights abuse can be raised and remedy can be sought’.

At first glance, Pillar III on access to remedy is characterized by the predominant role of States in ensuring that victims have access to effective remedy and a strong emphasis of the UN Framework and the UNGPs on non-judicial grievance mechanisms. Several factors influenced the SRSG’s vision of Pillar III. First, the SRSG accepted from the beginning that remedy must be part of the BHR discussion, as ‘human rights without meaningful remedies are effectively nullities’.²⁴⁰ Second, States and businesses have different functions and should, therefore, have different responsibilities. Third, the SRSG saw importance in non-judicial grievance mechanisms, and corporate-level grievance mechanisms in particular.²⁴¹ However, as will be seen below, aspects of this vision, such as the strong emphasis on non-judicial grievance mechanisms, have received a cold reception from many CSOs and academics.

Framing effective access to remedy in the BHR context

Both the UN Framework and the UNGPs recognize that judicial mechanisms are often under-equipped to provide effective remedies for victims of corporate abuse. Importantly, they acknowledge obstacles specific to transnational litigation against MNEs.

The UN Framework states that victims of corporate abuse have sought remedy outside the State where the harm occurred, particularly through home State courts, but have faced obstacles (eg prohibitive costs, absence of legal aid, lack of legal standing for non-citizens, etc). Matters are further complicated when they seek redress from a parent corporation for actions by a foreign subsidiary. As a result, these obstacles may deter claims and prevent victims from gaining access to remedy.²⁴² Therefore, the UN Framework calls States to ‘strengthen judicial capacity to hear complaints and enforce remedies against all corporations operating or based in their territory, while also protecting against frivolous claims’.²⁴³ Furthermore, ‘States should address obstacles to access to justice, including for foreign plaintiffs – especially where alleged abuses reach the level of widespread and systematic human rights violations.’²⁴⁴

GP 26 aims to operationalize access to remedy in the context of State-based judicial mechanisms. It provides that:

The Commentary to GP 26 emphasizes that States should ensure that they do not erect barriers to prevent legitimate cases from being brought before the courts in situations where judicial recourse is an essential part of accessing remedy, or where alternative sources of effective remedy are unavailable. Barriers may be of a legal nature. For instance, the distribution of liability within a corporate group may lead to ‘avoidance of appropriate accountability’, or plaintiffs may not be able to access home State courts and thereby face a denial of justice in a host State. Certain vulnerable groups, such as indigenous peoples and migrants, may not receive the same level of legal protection for human rights as applies to the wider population. The Commentary to GP 26 also recognizes that practical and procedural barriers may arise, such as the high costs of litigation, difficulty accessing legal representation, unavailability of group actions, or inadequate resources of prosecution services. Importantly, it acknowledges the asymmetry between victims and businesses in legal proceedings. It provides that ‘[m]‌any of the barriers victims face are the result of, or compounded by, the frequent imbalances between the parties to business-related human rights claims, such as in their financial resources, access to information and expertise’. Furthermore, vulnerable and/or marginalized groups are more likely to face additional obstacles impeding their ability to access remedy.

The UN Framework clearly states that non-judicial mechanisms play an important role alongside judicial processes.²⁴⁵ They are essential both in countries where courts are unable to provide adequate and effective access to remedy and in countries with well-functioning rule-of-law institutions but where non-judicial mechanisms may provide a more immediate, accessible, affordable, and adaptable recourse.²⁴⁶ Non-judicial mechanisms may be set up by States,²⁴⁷ companies,²⁴⁸ industry associations, multi-stakeholder organizations, or international and regional human rights bodies.²⁴⁹ The considerable recognition gained by non-judicial mechanisms is visible in the UNGPs in which five GPs are fully dedicated to the development of these procedures. Importantly, the UN Framework and the UNGPs list a number of principles, or criteria, that non-judicial mechanisms must meet in order to be credible and effective. In particular, they must be legitimate; accessible; predictable; equitable; rights-compatible; transparent; a source of continuous learning; and, in the context of operational-level mechanisms, based on engagement and dialogue.²⁵⁰ It is important to note that the SRSG did not include a similar list in relation to judicial mechanisms, which appears to be a significant oversight.

Added-value of Pillar III

The insertion of a pillar solely dedicated to access to remedy should be welcomed. The UNGPs stress the need to employ multiple grievance mechanisms to make companies accountable and list a number of options that should be available to victims (State/non-State; judicial/non-judicial).²⁵¹ The UNGPs also recognize the various types of barriers that victims may face, including those that will have a greater impact on vulnerable individuals and groups. Acknowledgement of the asymmetry of resources and, ultimately, power between victims and businesses is a crucial step forward from an access to justice perspective.

Nonetheless, despite these qualities, the formulation of Pillar III has disappointed a significant number of CSOs and academics. The access to remedy pillar has often been labelled as the weakest of the three pillars, and the SRSG has been criticized for having particularly neglected the formulation of access to judicial remedy.²⁵² As Deva pointed out, the vision of access to remedy as flowing from the State duty to protect instead of being a self-standing human right obligation contributes to diminishing the added-value of Pillar III.²⁵³

From an access to justice perspective, some criticisms can be made of the formulation of Pillar III. First, the language used by the SRSG is, on several occasions, problematic.²⁵⁴ In general, the SRSG has carefully chosen the words used in the UN Framework and UNGPs, employing a seemingly depoliticized vocabulary and avoiding words with perceived strong legal meaning. If the UNGPs’ vocabulary at times presents ‘transformative potential’ (eg the expression ‘human rights impacts’),²⁵⁵ it can also weaken the normative strength of the UNGPs’ assertions. This is particularly visible with Pillar III. For instance, the UNGPs define the concept of ‘grievance’ when discussing the various ‘grievance mechanisms’ that should be available to victims. A grievance should be understood as ‘a perceived injustice evoking an individual’s or a group’s sense of entitlement, which may be based on law, contract, explicit or implicit promises, customary practice, or general notions of fairness of aggrieved communities’. One strength of this definition is that its scope is broad enough to cover a wide range of situations where individuals and groups have suffered loss from business activities. At the same time, it is unclear how the concept of grievance can translate into a valid cause for action when victims bring a claim against companies. Furthermore, the use of words such as ‘perceived injustice’ and ‘sense of entitlement’ risks watering down the reality of the harm suffered by victims of gross human rights abuse.²⁵⁶ In the context of transnational claims against MNEs, plaintiffs have alleged the direct and indirect involvement of businesses in some of the worst human rights violations, including forced labour, torture, murder, rape, and child labour. In such a context, the fact that the system of remedy under the UN Framework and the UNGPs appears to be built on the availability of mechanisms that solve disputes on ‘a perceived injustice evoking an individual’s or a group’s sense of entitlement’ is questionable. Such a vision ignores the social justice dimension of most claims brought against businesses as well as the discourse of a large number of CSOs advocating for stronger corporate accountability and access to justice norms.

The language of the UNGPs is also problematic in other circumstances. The concept of ‘access to justice’ is practically absent from the text of the UN Framework and the UNGPs. There is one reference to ‘access to justice’ in the UN Framework in relation to judicial mechanisms. Accordingly, States should address obstacles to access to justice, especially where alleged abuses reach the level of widespread and systematic human rights violations.²⁵⁷ However, the UNGPs do not follow up on this aspect. Furthermore, while GP 25 provides that States ‘must’ take judicial, administrative, legislative, or other appropriate steps to ensure access to an effective remedy, GP 26 merely recommends that States ‘should’ consider ways to reduce legal, practical, and other relevant barriers that could lead to a denial of access to remedy. Referring to GP 26, Deva rightly asks why States should not be obliged to remove some of the well-known obstacles that have hampered victims of human rights abuses by businesses in seeking redress.²⁵⁸ Ultimately, this choice of words limits the ‘transformative potential’ of the UNGPs when it comes to access to remedy.

Beyond the language issue, other criticisms can be addressed to the content of Pillar III. For instance, several aspects of the UNGPs relevant to access to remedy are unclear. GP 25 states that access to effective remedy has both procedural and substantive aspects. However, the UNGPs do not detail what these aspects specifically entail. Furthermore, the UN Framework and the UNGPs do not provide clear solutions to addressing obstacles preventing effective access to remedy, which is possibly one of their most important weaknesses.²⁵⁹ With regard to judicial mechanisms, the UNGPs, which are supposed to operationalize the UN Framework, keep repeating a list of obstacles already identified in the UN Framework without suggesting a way to actually deal with them. This is particularly visible when looking at the content of GPs 25 and 26. Moreover, in relation to transnational litigation against MNEs, the UNGPs do not offer guidance to victims on the ways in which to gain access to courts in home States.²⁶⁰

As will be seen later in this book, the shortcomings in the way access to remedy was framed in the UN Framework and the UNGPs, and the lack of practical guidance on how to carry out Pillar III, have led to an insufficient implementation of this pillar to date. Such shortcomings have strengthened calls for a legally binding instrument on BHR.

Reception of the UNGPs in Europe

The EU and the CoE welcomed the adoption of the UNGPs and pledged to support their implementation in Europe. The EU has stated that it is a ‘strong supporter’ of the UNGPs, which it regards as ‘the authoritative policy framework’ in the BHR field.²⁶¹ However, while it has stated its commitment to implementing the UNGPs, the EU has never adopted a formal BHR strategy to do so. It has instead included a limited number of specific actions on BHR and the UNGPs in its EU Action Plans on Human Rights and Democracy.²⁶² In response to the lack of a general EU strategy on the UNGPs, the Responsible Business Conduct Working Group (RBC WG), an informal and cross-party group of Members of the European Parliament (EP), adopted the ‘Shadow EU Action Plan on the Implementation of the UNGPs within the EU’.²⁶³

Nonetheless, the EU institutions have adopted separate policy documents on BHR and the implementation of the UNGPs. Shortly after the UNGPs were adopted in 2011, the EC adopted a new CSR policy called Renewed EU Strategy 2011–2014 for Corporate Social Responsibility (2011 CSR Strategy).²⁶⁴ In this document, the EC revised its CSR policy to reflect various aspects of the UNGPs, such as the corporate responsibility to respect and the concept of due diligence. In general, the EC has used a voluntary approach to encourage companies to respect human rights. The EC has also released two Staff Working Documents detailing previous and ongoing efforts to implement and streamline the UNGPs in EU activities.²⁶⁵ In parallel, the Council of the EU adopted its Conclusions on Business and Human Rights in 2016, which provided guidance on how the UNGPs should be implemented.²⁶⁶ Furthermore, while the EP has not passed a resolution on the UNGPs specifically, it has passed a number of resolutions on BHR-related issues.²⁶⁷ The EU has also considered, to some extent, the implementation of Pillar III of the UNGPs on access to remedy. Following a request from the Council of the EU, in 2017, the EU FRA issued an opinion on improving access to remedy in the area of BHR at the EU level.²⁶⁸ The EU FRA concluded that ‘more could be done to ensure effective access to remedy for business-related human rights abuse within the EU’.

In general, the EU has supported the implementation of the UNGPs through several legal and policy initiatives addressing BHR issues both directly and indirectly. For example, as early as 2011 the EC was encouraging its Member States to develop National Action Plans (NAPs) on BHR.²⁶⁹ Furthermore, the EU has addressed BHR-related issues in sectoral policy and legal instruments (eg adoption of Directive 2014/95/EU on corporate disclosure of non-financial information).²⁷⁰ The EU has also promoted adherence to the UNGPs in its internal and external policies and programmes.²⁷¹

The EU has been active in implementing the UNGPs. However, as a result of a lack of a general strategy on BHR, it has taken a piecemeal approach, which raises the risk of incoherence. Furthermore, despite the EU’s competence in company law and the primary legal value of fundamental rights, it has primarily used a voluntary approach to encourage companies to respect human rights. It has also failed to include Pillar III on access to remedy into its legal and policy initiatives in the justice sector.

Following the adoption of the UNGPs, the CoE began to consider how its activities could address business-related human rights abuse. An important step in this process was the CoE Steering Committee for Human Rights’ recognition that the ECHR posed serious limitations in preventing human rights violations by private companies and ensuring victims of corporate abuse access to remedies.²⁷² Furthermore, in 2014 the Committee of Ministers of the CoE adopted the Declaration on the UNGPs,²⁷³ in which it recognized the UNGPs ‘as the current globally agreed baseline for its own work in the field of business and human rights’. It also emphasized that effective implementation of the UNGPs, both by States and business enterprises, is essential to ensure respect for human rights in the business context, and expressed ‘its willingness to contribute to their effective implementation at the European level, by identifying and analysing specific gaps and proposing appropriate solutions’.

While a specific legally binding instrument on BHR was initially considered, the Committee of Ministers ultimately adopted a non-binding document on the subject, namely the Recommendation on human rights and business (2016 Recommendation).²⁷⁴ In general, this Recommendation calls for Member States to effectively implement the UNGPs, including through the adoption of NAPs. It also recommends a number of actions for Member States to take in order to implement each of the UNGPs’ pillars. For example, ‘Member States should apply additional measures to require business enterprises to respect human rights, including, where appropriate, by carrying out HRDD.’²⁷⁵ In relation to access to remedy, the 2016 Recommendation suggests that Member States ensure the effective implementation of their obligations under Articles 6 and 13 ECHR to grant everyone access to a court in the determination of their civil rights, and to everyone whose rights have been violated an effective remedy before a national authority, including where such violation arises from business activity. It also recommends the adoption of measures to ensure civil and criminal liability for business-related human rights abuses.²⁷⁶ Efforts to implement the UNGPs have so far focused on Member States implementing the 2016 Recommendation. There have been no specific initiatives launched to develop a new regional legal framework on BHR or to address the ECHR’s limitations in the context of access to justice for business-related human rights violations.

5 Conclusions

This chapter has discussed the relevant legal frameworks on corporate accountability and access to justice at international and European levels.

Generally speaking, there is a normative gap in ensuring corporate accountability. Under the traditional State-centric approach to international law, only States have international rights and obligations. Non-State actors, such as MNEs, lack international legal personality, which means they have neither rights nor obligations and cannot be held accountable for violations of international law obligations, such as human rights or environmental ones. This view limits the effectiveness of public international law to protect human rights and the environment against interference from businesses in their transnational commercial activities.²⁷⁷ Furthermore, it ignores the fact that MNEs have some rights and may be subject to certain obligations under various areas of international law, such as international investment law. To date, no international instruments impose international human rights and environmental obligations on MNEs.

If the core international human rights instruments do not recognize a right to access to justice per se, they provide, for the most part, for the right to an effective remedy for the violation of the human rights they enshrine. They also articulate procedural safeguards crucial to ensuring the right to a fair trial. In Europe, the ECHR and the EU Charter create a solid legal framework on access to justice, which ensures the rights to a fair trial and to an effective remedy to victims of human rights abuse. Moreover, progressive changes in EU primary law have strengthened the role and the powers of the EU institutions to legislate in civil and criminal justice in recent years. However, the direct applicability of international and European standards on access to justice in domestic law is not necessarily guaranteed. Furthermore, until the adoption of the UN Framework and the UNGPs, international and European instruments on access to justice had failed to consider the specificity of access to justice in the BHR context.

The UN Framework and the UNGPs have been a major breakthrough in the BHR sphere. They recognize the corporate responsibility to respect human rights and the need for access to remedy in the context of corporate-related human rights abuse. However, they espouse a vision far removed from that of access to justice centred on the realization of corporate accountability standards and effective access to remedy, as advocated by a number of CSOs and academics. On the contrary, Pillar III focuses overwhelmingly on concepts that risk watering down the experience of victims and on non-judicial grievance mechanisms led by companies, and provides little guidance as to what to do to effectively address barriers to access to justice, particularly when it comes to judicial mechanisms.

More generally, the content, implementation, and added-value of the UNGPs have dominated scholarly and policy discussions since 2010. For a number of scholars and CSOs, the UNGPs do not fully reflect the state of international human rights law in many respects, and the SRSG sacrificed ‘principle for the purposes of achieving agreements’.²⁷⁸ As a result, the UNGPs did not put an end to the doctrinal debates of the extraterritoriality dimension of the State duty to protect or the obligations of business actors under international human rights law. Furthermore, the normative added-value of the UNGPs has generally been called into question. They do not create new international legal obligations for States or businesses. Instead they are a series of practical recommendations that elaborate on the implications of existing international obligations.²⁷⁹ The vague details provided by the UNGPs for the implementation of the three pillars have led to legitimate questions as to how best to proceed with them. At the same time, the UNGPs have become ‘the reference’ in the BHR sphere and beyond, and have influenced policies and discourses at international, regional, and national level. They are also gaining legal effect through their inclusion in legally binding instruments. An example of this influence is the growing adoption of mandatory HRDD standards in various countries. Moreover, NGOs, which have criticized both the drafting process and the content of the UNGPs, are nonetheless using this instrument to call out States and corporations to protect and respect human rights respectively.

Chapter 3 gives an account of the emergence of transnational litigation against MNEs in common law countries and its development in European civil law countries, with an emphasis on cases in France and the Netherlands.