Holding Companies to Account for Human Rights Abuses
The transnational regulation of business to protect human rights is receiving increased attention. Specific attention is turning to the use of domestic judicial mechanisms to hold companies to account for human rights abuses in third countries. In a recent study we analysed many cases in which companies based in the European Union (EU) (EU companies) are accused of human rights abuses in third countries. The study provides in-depth analysis of several such cases with the objective of elucidating how existing opportunities and barriers to holding companies to account for human rights abuses play out in concrete cases brought to courts in the Member States of the EU (EU MS). The study first maps out all relevant cases in EU MS on human rights abuses by businesses in third countries (35 cases in total) in order to assess the distribution of cases across EU MS. The mapping was based on screening specialized websites, existing mappings from other studies and consultation of academic experts via e-mail. On the basis of these sources, we drew up an inventory of existing cases and provided key information on the company involved, the EU MS in which the case took place, the nature of the abuse and the outcome.
The mapping reveals that most cases involve major multinational corporations listed in the Fortune 500 non-US companies based in only a few EU MS, notably France, Germany, the Netherlands and the United Kingdom. In addition, the mapping shows that cases are brought to court on a range of human rights issues; there is little evolution over time; a wide range of sectors are involved with a slight overrepresentation of companies in natural resources extraction (mining, forestry and petroleum); and human rights abuses occur across many third countries (21 different countries in total). Finally, and importantly, the mapping revealed that few cases lead to a decision finding the defendant company liable or an out-of-court settlement. Based on the mapping, we selected 12 cases brought before EU MS courts for further research.
The case studies were based on desk research and consultations with experts and lawyers involved. For each case, primary and secondary sources were consulted and people involved contacted. All cases were written up using an identical template which focused on (1) the legal background of the country (civil/criminal procedure available against companies and recent legal developments), (2) the history of the case (company and sector involved, nature of the human rights abuse), (3) discussion of the case and procedural history (who filed the complaint, against whom, before which court, arguments presented and description of the different steps of the procedure), (4) outcome of the case and (5) identification of opportunities and legal and practical barriers for access to justice and remedies.
For France, the study analysed three cases. The joint Amesys and Nexa case relates to alleged complicity in war crimes, crimes against humanity and acts of torture in Libya and Egypt by a surveillance equipment company. The Lafarge case concerns allegations of complicity in war crimes, crimes against humanity and financing of terrorist operations by Lafarge in Syria. In the Vinci case, allegations were put forward of forced labour, enslavement, deliberate endangerment of migrant workers' lives, as well as working conditions incompatible with human dignity by Vinci in Qatar.
For Germany, the study also analysed three cases. The KiK case relates to accusations that the German retailer KiK failed to provide a healthy and safe working environment and prevent the harm suffered by the victims of a fire that broke out in a textile factory owned by one of its suppliers in Pakistan, which resulted in the death of many workers and left dozen more injured. The Danzer case is about the alleged involvement of the German managers of the company in a number of human rights abuses committed by security forces against a forest community in the Democratic Republic of the Congo. The RWE case concerns the alleged share of responsibility of a German electricity supply company in the harmful consequences of climate change suffered by a Peruvian farmer.
For Italy, the study focused on the ENI case, which is about alleged environmental damage and human rights violations due to an oil spill arising out of the Italian company's activities in Nigeria which affected the health and the livelihood of the local community.
For the Netherlands, two cases were analysed. In the Trafigura case, the UK company was accused of having disposed of, without adequate treatment, hazardous waste in Côte d’Ivoire, which affected the health and livelihood of the residents. The Shell case is about environmental damage and human rights violations due to oil spills allegedly resulting from Shell's operations in the Niger Delta.
For Sweden, the study focused on the Boliden case in which the Swedish mining company was accused of exporting industrial waste to Chile where it was disposed of by a subcontractor of the company without being adequately processed, allegedly affecting the health of the local communities.
Finally, for the United Kingdom, the study analysed three cases. Legal proceedings were brought in the UK by another group of Nigerian citizens against Shell on the basis of the same abuses allegedly committed by the company in the case of Shell trialled in the Netherlands. The Xstrata case concerns alleged complicity, by the company, in police violence perpetrated during environmental protests in Peru, including participation in murder, injury, assault and unlawful detention. In the Vedanta case, the UK company was accused of releasing toxic effluent from its operations of the Nchanga mine in Zambia into the waterways and the local environment, which affected the lands and the livelihood of the surrounding communities. All these cases detail the barriers to use judicial mechanisms as a transnational global governance instrument to hold corporations to account.
Full study Marx, A.; Bright, C. & J. Wouters (2019) Access to legal remedies for victims of corporate human rights abuses in third countries. Brussels: European Parliament is available here.