Public interest lawyers and advocates of corporate accountability for activities that harm human rights can advance the business and human rights agenda in Ireland without having to wait for the Irish Government to publish its long-promised national action plan on business and human rights.
The Irish Government is currently preparing a national action plan on business and human rights, aimed at implementing the 2011 United Nations Guiding Principles on business and human rights. Since first announcing its intention to prepare a national action plan in October 2013, the Government has repeatedly made statements in the Dáil and before various United Nations human rights bodies reminding us that the process is underway.
In October last year, the Department of Foreign Affairs and Trade stated that the national action plan was due in “the first quarter of 2017”, but it is yet to be published. The claim made by Minister for Foreign Affairs and Trade Charlie Flanagan in December 2014 that developing a national action plan on business and human rights would “situate Ireland as a progressive leader on the issue of business and human rights”, loses even its rhetorical value in the continuing absence of the plan.
With the emergence of business and human rights as a focal point for efforts aimed at ensuring that companies respect human rights, considerable attention has been paid on the role of national actions plans. The European Commission and the UN Human Rights Council have both called on States to develop national actions plans in order to implement the UN Guiding Principles. Only a handful of States have done so to date and even then the existing plans have been weak and largely aspirational, often favoring voluntary over binding means of addressing corporate responsibility.
Advancing the business and human rights agenda, however, does not depend on the existence of a national action plan. There are other avenues available for those who may wish to try and ensure that Irish companies respect human rights throughout their operations. On more than one occasion, the various UN bodies which periodically review Ireland’s human rights record have queried the State on its efforts to ensure business respect for human rights, often after having been prompted to do so by civil society organisations. This has not been contingent on Ireland having produced a national action plan, although often the commitment to doing so has been used by the Irish Government as a means of deflecting attention and pushing such issues further down the road.
In addition to international fora, the possibility also exists for legal action in the Irish courts as a means of remedy for business-related human rights harms. The Working Outline of the national action plan that the Department of Foreign Affairs and Trade published in 2015 recognized the importance of legal remedies for victims of human rights violations connected with business activities, including those implicating Irish companies overseas. It included a commitment to review how best to ensure access remedies for potential victims of human rights abuses by Irish companies, with a focus on barriers to justice, including those of a legal, procedural or financial nature.
On the matter of domestic legal remedies, a recent conference at NUI Galway explored how civil litigation can operate as a business and human rights remedy. Speakers from the United States, England and France discussed the challenges and successes of such litigation in those jurisdictions, while consideration was also given to whether such cases might be feasible in Ireland. With business and human rights litigation still in its infancy, it was clear at the conference that there remains much to be done to advance this potential in the Irish context. Were Ireland’s national action plan to lead to a meaningful review of the prospects and barriers for such remedies in Ireland, this could certainly help spur such development, although as other jurisdictions have demonstrated, lawyers and advocates for corporate accountability need not wait for the State to take action, but can use the already existing tools at their disposal.
Dr Shane Darcy is a senior lecturer at the Irish Centre for Human Rights at NUI Galway and the runs the Business and Human Rights in Ireland blog.