Source: Marquise Kamanke
Trade Policy Division, Department of Commerce, Government of India*
*The views and opinions expressed in this article are those of the author.
The Vedanta case and the Nigeria Shell case are some of the most celebrated cases where victims have exercised their right of access to remedy by approaching the appropriate forum to prevent, investigate, punish and redress business-related human rights abuses such as causing injuries, death, environmental damages, etc. The right of victims to have access to remedy is one of the central notions for establishing corporate accountability and is also widely acknowledged under the UN Guiding Principles on Business and Human Rights. The open-ended UN intergovernmental working group (OEIGWG) that is entrusted with the task to elaborate an international legally binding instrument on Business and Human Rights, released a Second Revised Draft legally binding instrument on business activities and human rights on 6th August 2020 (Second Revised Draft). The Second Revised Draft has incorporated the concept of ‘access to remedy’ under its several operative clauses laying down substantial and procedural requirements for State Parties and corporations to ensure effective access to remedy for victims.
This contribution addresses this concept of access to remedy from the perspective of the individual victim’s rights. The article first examines who can exercise this right to access to remedy and secondly, it looks into the provision of the Second Revised Draft which lays down the specific rights of victims to get remedy. The article is limited to the analysis of the right of the victim for accessing remedy and not on the corresponding obligations of State Parties to provide access to remedy.
Victims who can Exercise Access to Remedy
It is important to understand the notion of ‘victim’ for assessing who can exercise the right of access to remedy under the Second Revised Draft before looking into the nature and scope of such right.
The Second Revised Draft has taken a robust approach in defining the term ‘victims’ under its Article 1(1). The definition of victims is not only limited to a person or group of persons who have suffered physical harm but also those experiencing mental injury and emotional suffering. A significant improvement is made in the Second Revised Draft by including ‘immediate family members or dependents of the direct victim, and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization’ in the definition of ‘victim’. The Second Revised Draft has made a progressive development by including even persons who have suffered harm while assisting victims in distress or to prevent victimization. Another strong approach taken in the Second Revised Draft is that even if the perpetrators are not identified, the rights available to victims under the draft will be available to them.
The definition of the victim goes beyond the framework of Article 1(1) and can be interpreted to take into account the rights of the disproportionately impacted person or group of persons as well as those who are more prone to human rights abuse. The Preamble, as well as the operative clauses, emphasize the disproportionately affected people; for instance, Article 16 states that while implementing the draft, the State shall give special attention to those who face heightened risks of human rights abuse such as- women, children, migrants etc.
Such forward-looking definition of victim is a notable approach and will potentially guide other human rights instruments to include this broader concept of the victim.
The Right of Victims of Access to Remedy
The Second Revised Draft in its several provisions helps to ensure effective access to remedy against human rights abuse. The Second Draft has allotted a separate provision dealing with the ‘Access to Remedy’ (Article 7). For rights of victims also, the Second Revised Draft has made progress by including a stronger stand on accessing remedies in easier and effective ways. Article 4 titled ‘Rights of Victims’ lays down several rights to victims which makes way for access to an effective remedy, such as: guaranteeing the right of access to effective justice and remedy including compensation, guaranteeing the right to submit claims to courts and non-judicial grievance mechanisms, etc.
The noteworthy features of this provision relate to the inclusion of three novel concepts in the draft. Firstly, the Second Revised Draft has introduced the concept of class action lawsuit as a way to submit claims against human rights abuse by corporations under Article 4(2)(d). A class action lawsuit is often considered as one of the most effective tools -- particularly for economically deprived victims -- due to its ability to make even small claims, and providing a solution to costly legal proceedings by combining several similar claims into one suit.
Secondly, the inclusion of a gender-inclusive approach in access to remedy under Article 4(2)(e) aims towards the realization of the rights of women in the context of business-related human rights abuses. The clause lays down gender-responsive protective and support services as one of the ways of protecting them from re-victimization in the course of proceedings. Women often face additional barriers in seeking access to effective remedies as the remedial mechanisms typically adopt gender-neutral processes or operate within existing patriarchal norms (See para. 19). A gendered approach in proceedings will certainly build an inclusive framework for accessing justice. However, one may argue that the draft has limited its inclusive approach to only gender and does not address the challenges faced by other disproportionately affected people such as persons with a disability or indigenous people.
Thirdly, apart from courts, the Second Revised Draft gives the option to victims to approach non-judicial grievance mechanisms. This is a progressive step towards achieving effective remedy as it is often argued that non-judicial grievance mechanism is less costly and less time consuming compared to legal actions.
However, there is a significant departure from the first Revised Draft concerning Article 4 (2)(c) in the Second Revised Draft. The remedy in the first draft was added with certain adjectives that are ‘effective’, ‘adequate’ and ‘prompt’ while in the Second Revised Draft, the only adjective attached to remedy is ‘effective’. Prompt and adequate remedy serves the interest of justice (see General Comment No. 32). Deletion of these words will bring about the deprivation of rights of victims as well as of the accused.
Another setback in the Second Revised Draft is that it has completely scrapped the provision for the legal liability of corporations for international crimes. The victim, in the first Revised Draft, has an option to get justice as per the domestic law against the corporations involved in international crimes, which is removed altogether in the present draft.
In summary, the Second Revised Draft has made some significant progress in providing the right of access to remedy to victims by including a robust framework of the definition of victim and including certain novel features in the rights of victims for access of remedy. However, there are still certain limitations of this draft in addressing the rights of victims, such as diluting the requirement of prompt and adequate remedy and accountability for international crimes. Also, the rights of victims to access to remedy are limited to the domestic legal framework and hold no right to approach the international judicial bodies nor the draft has any provision for an individual complaint mechanism to the respective committee.
Nidhi Singh has completed a B.A. LLB (Hons.) from Chanakya National Law University and LLM (International Law) from South Asian University. She is currently working as a Legal Research Fellow in the Trade Policy Division, Department of Commerce, Government of India.