By Aleydis Nissen
Financial Sponsors: Netherlands Network for Human Rights Research, Institutions for Conflict Resolution theme (Dutch Legal Sector Plan), Research Foundation Flanders (FWO) postdoc grant Nr 12Z8921N and Fonds de la Recherche Scientifique (F.R.S.-FNRS) chargée de recherche grant Nr FC38129.
Women experience the impacts of corporate activities – including the flexibilization of labour and the privatisation of public services – differently and disproportionally. Women have historically suffered discrimination, and remedies (inside and outside the courtroom) have often consolidated (p. 75) such exclusions. They have subordinated women by reproducing stereotypes and other obstacles that exist in society as a whole.
Various authors – including Daniel Augenstein, Chiara Macchi, Teresa Marchiori and Shilpa Sadhavisam – have acknowledged that engaging with justice institutions is useful. Accordingly, decisions delivered by courts and other state-based justice institutions can contribute to the lived experiences of equality for all women. They can also pre-empt the normalisation of the disproportionate impact of corporate human rights violations on women. Remediation is all the more important for women who suffer interlocking forms of discrimination.
The United Nations (UN) Committee on the Elimination of all Forms of Discrimination against Women (CEDAW) put this matter on the agenda when it adopted General Recommendation 33 on access to justice for women, in 2015. The UN Working Group on Business and Human Rights (WGBHR) also discussed gender dynamics in 2019. At that time, the Working Group reinterpreted the ‘respect, protect and remedy’ framework (2008) and the accompanying UN Guiding Principles (2011) – formulated by the former UN Special Representative on Business and Human Rights – in its Gender Guidance and accompanying report.
The WGBHR recommended engagement with women’s organisations and ‘gender-sensitive experts’ to identify a bouquet of appropriate remedies. Following this recommendation, four expert participants were invited to participate in a round table (or public focus group) that questioned what it means for women to have access to remedies of good quality when corporations have failed to respect their rights. Aleydis Nissen moderated this round table during the Conference ‘Courts as an Arena for Societal Change’ at Leiden University in July 2022.
The round table started off with a question about the meaning of ‘gender-sensitivity’, ‘gender-responsiveness’ and ‘gender-transformativeness’ in human rights remediation. The latter concept – which was introduced by the WGBHR – is the most far-reaching as it seeks to go beyond incorporation and towards a reappraisal of existing patriarchal norms and structures of unequal power relations. According to the WGBHR, such remedies combine preventive, redressive and deterrent elements to bring ‘change to patriarchal norms and unequal power relations that underpin discrimination, gender-based violence and gender stereotyping’. When we take a gender-transformative approach we are, as participant Marianna Leite (ACT Alliance) noted, ‘recognizing that we are in a gender-blind system, made by men for men, and not taking women’s experiences into account’.
The participants then agreed that there is more awareness of women’s issues and access to remediation nowadays. The COVID-19 pandemic has been a catalyst in this. Leite said that ‘women have seen the injustices they face when a crisis system is built by men only’. Liesbet Stevens (Belgian Institute for the Equality of Women and Men) agreed and explained that the gender perspective was raised much sooner during the pandemic than during previous global crises. However, gender issues often remain invisible. Katharine Booth (Centre for Research on Multinational Corporations) said, for example, that the Organisation for Economic Co-operation and Development’s National Contact Points generally continue to ignore gender issues.
Afterwards, the participants assessed in depth what it means for justice systems to be of ‘good quality’. Thereto, they considered the definition of ‘good quality’ of CEDAW’s General Recommendation 33 in the context of business and human rights issues. They considered, amongst others what it means for remedies to be ‘contextualized’, ‘dynamic’, ‘participatory’, ‘open to innovative practical measures’ and to ‘adhere to international standards of competence efficiency, independence and impartiality’. Leite said ‘You need training first ... As a judge [for example], you need to be able to rely on international human rights law and you should know what to apply’. Stevens added ‘the price you pay for being independent is accountability’.
Finally, the participants discussed the provision of remedies. There was agreement that the conversation should not simply be about monetary remedies. Meredith Veit – who participated as an independent expert – noted that ‘Companies can be quick to just give x amount of money/take a post offline and close the case and consider it done’. But, ‘it should be about talking to women and what actually makes sense and what remedy means’. Booth added ‘and that differs for every complaint’.
The round table will be followed up by two more online round tables to fully understand what it means for women to have access to remedies of good quality when corporations have failed to respect their rights. Feel free to get in touch with the moderator if you are a gender expert who would like to participate in this round table.
The round table was organised by Aleydis Nissen, Lize Glas and Eva Nave. The notes that were made by Annica Edl (Amsterdam Business and Human Rights Clinic) and Nour Hmoumou (Leiden Honours Academy) during the round table served as input for this post.
Aleydis Nissen, the moderator and author of this piece, is a researcher at Vrije Universiteit Brussel, Universiteit Leiden and Université Libre de Bruxelles. https://www.aleydisnissen.com; https://www.universiteitleiden.nl/en/staffmembers/aleydis-nissen#tab-1.