Opening Remarks: ‘Exploring litigation as a business and human rights remedy’ conference

On 24 March 2017, the Irish Centre for Human Rights hosted a one-day conference at NUI Galway entitled: ‘Exploring litigation as a business and human rights remedy’. The conference looked at civil litigation in comparative perspective, remedies and barriers in the Irish context and potential avenues for litigating corporate human rights harms in Ireland. I reproduce below my opening remarks from the event.

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A very warm welcome to Galway and to this one-day business and human rights conference. I would like to take just a few minutes to set the scene for today’s event, the purpose of which is to examine the opportunities, challenges and barriers to pursuing cases in Irish courts against companies implicated in human rights violations.

In considering the potential for such litigation and its role as a business and human rights remedy, it is important to consider international policy developments, the experience of other jurisdictions, as well as the Irish legal and even political context.

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As many of you will be aware, the United Nations Human Rights Council unanimously endorsed the Guiding Principles on business and human rights in 2011. The Guiding Principles constitute an authoritative a policy framework, grounded in international human rights law, which seeks to address a long-standing concern of the UN regarding activities by business enterprises which may harm human rights.

The UN Guiding Principles recognise the parallel though differing responsibilities of States and companies to ensuring that human rights are not negatively impacted by business activities. The Principles emphasise a State’s duty to protect human rights from being violated by third parties, including by business enterprises, a corporate responsibility for human rights to be respected throughout business operations, and the need to ensure remedies when human rights abuses occur.

States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.

This third pillar is key for today’s discussion. It sets out that: “States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy”. While the Guiding Principles note the range of mechanisms: State & non-State, judicial and otherwise, they note that State-based judicial mechanisms are “at the core of ensuring access to remedy”. The Principles also identify some of the legal and practical barriers that may prevent access to a remedy, especially in cross-border cases:

  • how legal responsibility is attributed among members of a corporate group under the prevailing law
  • Where claimants are denied justice in a host State and cannot access home State courts
  • Excessive costs of bringing claims, compounded by problems with legal aid, or legal fee structures
  • Difficulty in securing legal representation, due to a lack of resources or of other incentives for lawyers to advise claimants in this area;
  • Inadequate options for aggregating claims or enabling representative proceedings, such as class actions and other collective action procedures

While the Guiding Principles highlighted these obstacles, rather than seek to suggest ways around them, recent efforts by the OHCHR and others have proposed solutions, some of which we will heard about later today.

* * *

What relevance do the Guiding Principles on business and human rights have in the Irish context? Since being endorsed, the Human Rights Council and the European Commission have encouraged States to take action to give effect to them. The Irish Government has expressed strong support for the Guiding Principles, and on international human rights day, 10 December 2015, Minister for Foreign Affairs and Trade Charlie Flanagan reaffirmed Ireland’s commitment to “placing human rights firmly on the business agenda”. He clamed that Ireland could become “a leader” in the area of business and human rights.

The principle vehicle for implementation the Guiding Principles has been through the adoption of national action plans on business and human rights. While we still await the final Irish national action plan, the Working Outline that was published in 2015 did recognise the importance of remedies for victims of human rights violations connected with business activities. Action point 49 (of 54) set out a commitment to review how best to ensure remedy for potential victims of human rights abuses by Irish companies overseas, with a focus on barriers to justice, including those of a legal, procedural or financial nature.

It is clear that there are potential victims of abuses implicating Irish companies overseas, whether through the activities of subsidiary companies or linked in other ways to their business dealings. Fyffes have been recently accused of labour abuses in Central America, while software sold by Irish tech companies has been used for repression in Syria, for example. For several years, it has been asked whether Irish construction firms can avoid being implicated in forced labour in Qatar, where many are undertaking infrastructure projects in the lead up to the World Cup 2022. And the supply chain for products sold in Ireland, such as clothing manufactured in Bangladesh and sold in chains, like Penneys, is replete with poor and at times deadly working conditions.

* * *

These are not unique issues for Ireland, so we start by considering how remedies and civil litigation have been addressed in other countries. Our first panel will give us a flavour of business and human rights litigation in other jurisdictions, including the United States, the United Kingdom, more specifically England and Wales, and France. How have the courts dealt with issues like extraterritoriality, the distinct legal personalities of parents and subsidiaries, and forum non conveniens, to mention a few? Have recent legislative developments helped or hindered the use of civil litigation as a business and human rights remedy?

Our second panel will turn to remedies in the Irish context: what are the State’s human rights obligations with regard to remedies, are there EU-specific legal and practical barriers which may prevent remedies for business-related human rights harms, and how they might be overcome, and what are the challenges of pursuing human rights litigation in Ireland.

Our third and final panel, explores potential avenues for business and human rights litigation in Ireland. Our speakers will consider potential causes of action and how claims might be put forward in cross-border cases. Other questions which arise are whether such litigation is commercially viable in this jurisdiction, and if not, can it be undertaken in a pro bono basis? How might law firms deal with their own clients who may be implicated in human rights violations, bearing in mind that law firms, as businesses themselves, have a responsibility to respect human rights according to the Guiding Principles. Both the International Bar Association and the Law Society in the UK have produced practical guidance in recent years to the Guiding Principles.

 * * *

We have great diversity in our audience today, with representation from legal practice, academia, civil society, various State bodies and departments and students. We have consciously set aside time during each panel for questions and answers, and I look forward to fruitful discussion and to your engagement throughout the day.

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