ADR & Business-Related Human Rights Violations (Part 1/2)

By Charlotte Tran

Business-related human rights abuses have always been a major and complex problem. The human rights community have made tremendous efforts in pushing back and eventually eradicate corporate malpractice leading to human rights abuses. From disposing toxic chemicals into the rivers to discrimination and exploitation of (migrant) workers, yet big corporations decide to proceed with such practice. This leads to the question whether judicial mechanisms are sufficient or non-judicial mechanism (such as ADR) is needed for providing adequate outcomes for the victimes.

In May 2013, the Office of the United Nations High Commisioner for Human Rights (‘OHCHR’) published a report shedding lights on this particular issue and accordingly analyse the effectiveness domestic justice system on business-related human rights violations.[1] The report explicitly emphasizes that corporate is rarely to be accused of directly commiting a gross human rights violation.[2] In most cases, a corporation is an alleged complicit in a gross human rights violation committed by a third party such as private security force or government armed force.[3] This is particularly relevant for extractive industry where corporates (Shell, Total, Unical, …) intentionally support or directly engage in the violence to facilitate their extraction of the resources.[4] In the famous Kiobel case[5], plaintiffs alleged that Shell had funded the Nigerian government to violently repress protests against their drilling operations. In 2002, the oil company Total, is alleged of providing logistic, financial and military support for Myanmar to proceed with the forced labor, deportations and other gross human rights abuses.[6] Importantly, victims who suffer the adverse impacts of human rights violation, tend to face multiple obstacles to access the judicial or non-judicial mechanisms.[7] The access to judicial mechanisms is extremely important, especially at a local level. On a different note, non-judicial mechanisms have proven its relevance and effectiveness in filling the gaps in the provisions of remedy for business-related human rights abuses.[8] According to the OHCHR Commentaries on the Guiding Principles, non-judicial mechanisms in such cases are state-sanctioned or alternative dispute resolution (‘ADR’), such as concilliation or mediation. In the human rights and business setting, mediation and negotiation can prove its importance by addressing human rights disputes.[9] This is particularly relevant for companies operating in jurisdictions which do not fully reflect or even conflict with the international human rights standards.[10] For instance, the prohibition on wokers to freely join associations/unions or gender discrimination at workplace.[11] In these instances, companies have no choice but to abide by the domestic law. Nevertheless, they tend to use creative approaches through mediation/negotiation to uphold the spirits of international human rights community. According to many experts and researchers, mediation embodies the element of compromise and good will, which empower the claimants to be fully involved in the process of seeking justice for their rights.[12] In its essence, ADR allows to make use of an independent and impartial to resolve the disputes between companies and individuals. In a human right setting, the process aims to facilitate the parties to reach a mutual understanding and cooperative and practical measures for the issues at hands. Despite many advantages, there exists many challenges and controversy around the use of ADR in human rights disputes. Explicitly, many academics and practitioners believe that ADR mechanisms are not suitable for certain law enforcement context where serious abuses amounting to criminality and sanctions are required following the violations of legal standards.[13] Furthermore, public authority plays an important role in preventing victimes of adverse business-related human rights abuses from increased risks of vulnerability.

In conclusion, business-related human rights abuses are extremely complex problems and require adequate attention from the international community. Along with judicial mechanism, ADR is believed to be an effective complementary means to empower victims to seek for justice and positive outcomes. It is also worth highlighting that ADR indeed cannot replace the role of judicial remedy for severe human right violations amounting to crimes and breaches of legal standards. Nevertheless, it can also hold a very promising role in resolving human rights disputes related to business and mitigating its danages and relavant risks. This will be further explained in the next edition of this topic, where I will share more insights on (international) arbitration in business-related human rights disputes.

Stay Tuned!

[1] Michael Kourabas, ‘Alternative Dispute Resolution and the Business and Human Rights Justice Gap’ (Triple Pundit) https://www.triplepundit.com/story/2014/alternative-dispute-resolution-and-business-and-human-rights-justice-gap/45391 accessed 15 September 2021.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013).

[6] Kourabas (n 1).

[7] UNCHR, ‘Access to remedy for business-related human rights abuses’ (17 February 2017).

[8] Ibid.

[9] Caroline Rees, ‘Mediation in Business-Related Human Rights Disputes: Objections, Opportunities and Challenges’ (Harvard University) https://www.hks.harvard.edu/sites/default/files/centers/mrcbg/programs/cri/files/workingpaper_56_rees.pdf accessed 15 September 2021.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] UNCHR (n 7).