Access to Remedy and Corporate Human Rights Impacts
As explored within this blog series, access to remedy is a rapidly improving, though still fundamentally weak, area of business of human rights (BHR) regulation. This post highlights the rights impacts of non-violative corporate acts, an area for which both remedy and regulation is frequently lacking.
Previous posts have explored new remedial options across diverse contexts. Surya Deva argues that the rights-holder must be central to any remedial package, and that a variety of options, tactics and engagements are needed for remedy to be effective. Gabriela Quijano and Elodie Aba highlight the importance of domestic legal changes, including holding parent companies accountable for human rights abuses, and improving disclosure rules. Daniel Aguirre describes how Myanmar’s legal system frequently fails victims of business related human rights abuses, and recommends increasing non-judicial and operational grievance mechanisms, echoing the UN Working Group’s ‘bouquet of remedies’ approach. Roper Cleland describes some of the pros and cons of local grievance mechanisms, and Lukasz Czerwinski explores a similar topic in relation to land rights. Remedial methods are evolving with state, non-state, non-judicial, and operational-level grievance mechanisms all embedding and improving. The third pillar may still be shaky, but it is surely no longer forgotten.
However, the acts warranting remedial processes are less discussed, and are usually designated as ‘violations’ or ‘abuses’. The Working Group contrasts access to remedy: ‘individualized remedies offered for a given set of human rights abuses’, and access to justice: ‘larger issues of injustice that… require more fundamental changes in social, political or economic structures (para.16)’. The former consists generally of violations constituting overt wrongdoing, the latter refers to structural injustices such as global poverty and famine, for which no single actor is reasonably culpable.
I wonder if there is not an unexplored middle ground of relevance to BHR. Between the violation and structural issues lie non-violative corporate acts with repercussive rights impacts. Herein, we can trace a particular harm to a specific corporate act, yet the act itself was not a human rights violation. Particularly common are corporate acts which risk serious regressions under the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Olivier De Schutter, as UN Special Rapporteur on the Right to Food, noted that private investors exacerbated the 2008 global food crisis through large-scale land leasing, by turning from food production to biofuels, and through stock market speculation on essential foodstuffs.
Automation of factories, self-driving cars, and AI threaten major harm to the right to work, particularly for states dependent on manufacturing, like Bangladesh. It is estimated that two thirds of jobs in developing countries are vulnerable to automation in the coming years. Google recently announced a $1 billion fund for re-training in an automated world, acknowledging the problem, but offering private philanthropy, rather than a human rights-based policy.
House prices are a major issue threatening the right to housing in many cities today, increasing homelessness, debt, and rupturing communities. In the UK, the problem is closely tied to the housing market, increased buy-to-lets, and big commercial developers failing to build enough social housing. Nationally, 250,000 people are homeless, and Londoners spend on average 70% of their income on rent and bills. The number of people made homeless after failing to pay rent trebled from 2010-2016.
Tax avoidance provides another example. Avoidance of corporation tax costs the EU alone €60bn per year, and the equivalent of 10% of global GDP is held offshore by rich individuals. The research priorities of medical research firms, and market-driven prices of drugs, also have potentially serious rights impacts.
Such issues are generally not considered human rights violations. They are permitted, market-driven decisions, which may only present human rights issues when performed en masse. One automated garment factory is no problem, the sudden automation of them all would be catastrophic. Concurrently, automation, as well as industrialized food production, has enormous positive potential, and it would be highly regressive to label it a prima facie violation.
These problems nonetheless produce a multitude of victims: those dying because medication is too expensive; those in states whose health and education budgets are dwarfed by domestic corporate tax avoidance; those driven from their homes by market forces; those of the post-automation ‘useless class’; and those whose right to food depends on capricious investment choices. Remedial options focusing on paradigmatic violations cannot address these problems, no matter how egregious the harm.
The UN Guiding Principles on Business and Human Rights appear to leave room to deal with such issues. They do not mention violations, instead adopting the term ‘impacts’. Principle 22 states: ‘Where business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation’. This at least allows normative pressure to be placed on corporations to consider the full range of human rights impacts that their business choices will have. Human rights due diligence (which in practice prioritizes legal and reputational risk) should include discussion with stakeholders around such impacts, and operational-level grievance mechanisms could provide a channel for complaints.
A right without a remedy is no right at all, yet rights to work, food, health, housing and living standards are increasingly prey to market decisions for which remedy is frequently unavailable. Directly rights-violative acts may be more normatively powerful and therefore an entirely understandable focus at this still nascent stage of BHR. Nonetheless, if the movement seeks to humanize business in a holistic sense, we may need to go beyond relational violations, and look more closely at the full range of human rights impacts presented by corporations.
David Birchall is a PhD Candidate at City University of Hong Kong, and Fellow of the Business and Human Rights Journal.