United Nations Guiding Principles on Business and Human Rights: Does the United Kingdom Fulfill the Third Pillar?

• Publication year: 2019
• Citation: Vol. 47 No. 3

UNITED NATIONS GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS: DOES THE UNITED KINGDOM FULFILL THE THIRD PILLAR?

Hayley Alexandra Nicolich^*

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I. INTRODUCTION....................................................................................746

II. BACKGROUND.....................................................................................750

A. Development of the United Nations Guiding Principles on Business and Human Rights..............................................750
B. Access to Remedy Under the United Nations Guiding Principles on Business and Human Rights Framework ....751
C. The United Kingdom's Response to the United Nation's Guiding Principles.............................................................754

1. Judicial Remedies........................................................757
2. Non-Judicial Remedies................................................759
3. Business/Internal Grievance Mechanisms..................762

III. ANALYSIS............................................................................................763

A. Limitations on Judicial Remedies in the United Kingdom 763
B. Limitations on Non-Judicial Remedies..............................769
C. Limitations on Business/Internal Grievance Mechanisms in the United Kingdom...........................................................774

IV. CONCLUSION.......................................................................................775

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I. Introduction

It seems intuitive that all inhabitants of the earth are inherently entitled to the protection of their human rights. The term human rights contemplates a range of privileges, such as the right to life, the right to freedom of assembly, the right to privacy, the right to freedom of movement, the right to form and join trade unions and the right to strike, among a multitude of others.¹ States previously shouldered the full responsibility of protecting human rights for their respective citizens.² With the rise of big business in the last century, an interplay has naturally arisen between transnational corporations and the human rights of citizens whose countries the corporations inhabit. Therefore, international law has been forced to become more involved in the protection of human rights and the regulation of potentially harmful actions by multinational corporations.³ Recent studies estimate that transnational corporations currently compose over one-half of the world's 100 largest economic entities.⁴ To give an example of the growth of these massive transnational corporations, Exxon was ranked forty-fifth on the list of the 100 largest economic entities, "making it comparable in economic size to the economies of Chile or Pakistan."⁵

With this great economic influence comes great responsibility. Multinational corporations are, and should be, expected to comply with basic human rights standards. Multinational corporations, however, "enjoy a de facto immunity that protects them against . . . challenges."⁶ Individuals must invoke civil liability of a multinational corporation at the national level "either in the corporation's country of origin or in its host country."⁷ With this in mind, the United Nations Human Rights Council unanimously endorsed the United Nations Guiding Principles on Business and Human Rights (UNGP) in June 2011 in an attempt to broaden regulation of multinational corporations, to heighten

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standards at the corporate level, and to facilitate easier access to remedies for victims of human rights violations by these types of corporations.⁸

The inception of guidelines regarding corporations and human rights followed egregious violations of human rights by multinational corporations. For example, in 2005, Nike released information relating to human rights violations perpetrated in its own factories.⁹ Nike owns factories in Asia, South America, Australia, Canada, Italy, Mexico, Turkey, and the United States, just to name a few.¹⁰ Nike admitted that, after performing an audit of hundreds of factories in 2003 and 2004, it found cases of physical and verbal abusive treatment as well as 25% to 50% of factories restricting access to toilets and drinking water during the workday.¹¹ The same percentage of factories required employees to work seven-day weeks, and in up to 25% of the factories, wages were below the legal minimum.¹² Sadly, Nike is a salient example of the human rights abuses that occur in many of the multinational corporations that exist today.

Despite the promulgation of the UNGP, human rights violations continue to occur across the globe. According to written evidence by the Business and Human Rights Resource Centre, the majority of human rights violations occur extraterritorially in regions where victims have trouble attaining a remedy.¹³ For example, as recently as 2016, British multinational corporation BK Gulf, co-owned by Balfour Beatty and one of Britain's largest construction firms, has been accused of human rights violations in Qatar.¹⁴ Nepalese laborers in Qatar claimed that for almost three months they endured dire living conditions, were not paid for their labor, had their passports confiscated, and were not allowed to leave Qatar against their will.¹⁵ Even more recently, the United Kingdom High Court dismissed a case against Shell brought by two destitute

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communities in the Niger Delta.¹⁶ Tens of thousands of Nigerians were affected by oil pollution that occurred due to the operations of Shell's subsidiary, Shell Petroleum Development Company (SPDC).¹⁷ The United Kingdom High Court decided that the suit could not proceed in the United Kingdom due to jurisdictional issues.¹⁸ These are only a few examples of the obstacles that individuals, hurt by multinational corporations and their subsidiaries domiciled in the United Kingdom, encounter when they seek a remedy for human rights violations.

According to John Ruggie, the creator of the UNGP, the root of the problem that exists in business and human rights "lies in the governance gaps created by globalization—between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences."¹⁹ Ruggie's tripartite framework, developed to address the problem of human rights violations perpetrated by multinational corporations, includes the state's duty to protect against human rights abuses by third parties, the corporate duty to respect human rights, and the need for access to effective remedy for victims of these violations.²⁰ Studies have shown that States have fallen short of the remedy requirement of the UNGP.²¹ Ruggie himself has commented on the obstacles victims face in attempting to attain remedy, stating:

Some complainants have sought remedy outside the State where the harm occurred . . . but have faced extensive obstacles. Costs may be prohibitive . . . non-citizens may lack legal standing; and claims may be barred by statutes of limitations. Matters are further complicated if the claimant is seeking redress from a parent corporation for actions by a foreign subsidiary. . . . These obstacles may deter claims or leave the victim with a remedy that is difficult to enforce.²²

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The significance of the States' failure to comply with the remedy requirement is reflected in the central theme of the Sixth Annual Forum on Business and Human Rights: "Realizing Access to Effective Remedy."²³

This Note will discuss the background of the UNGP, will analyze whether the United Kingdom's response to the UNGP adequately fulfills the third prong: providing access to remedy, and will suggest solutions to fill the gaps through which some victims of human rights abuses by multinational corporations seeking a remedy might slip. Although the United Kingdom was the first nation to promulgate and update a National Action Plan in response to the UNGP²⁴ and has since updated that plan,²⁵ the language of both plans is relatively vague as to the steps the United Kingdom has taken, and will take, to provide an accessible remedy to individuals who are subjected to human rights violations by multinational corporations domiciled in the United Kingdom. It is the position of this Note that the current remedies available to victims in the United Kingdom fall short of the UNGP. However, these shortcomings could potentially be solved by broadening liability of parent corporations for tortious actions of their foreign subsidiaries, narrowly revising regulations that make it difficult for claimants to pursue remedy in UK courts, expanding funding for the National Contact Point System, bolstering its ability to provide an enforceable remedy, and creating hard law that requires multinational corporations to have sufficient operational-level grievance mechanisms in place.

First, this Note will discuss the political and social landscape that gave rise to the UNGP, and the initial purpose of the guidelines. Next, it will examine the UNGP's specific requirements regarding the remedy that the UNGP encourage states and individual corporations to provide. Then, this Note will explore how the United Kingdom has responded to the UNGP, both judicially and non-judicially. The Note will then analyze the limitations that exist in the United Kingdom's provision of remedy under the UNGP and further discuss alternative solutions that might maximize the provision of remedy for human rights violations perpetrated by multinational corporations. Finally, this Note will conclude by summarizing the shortcomings and possible solutions regarding remedy for human rights violations by multinational corporations in the United Kingdom.

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II. Background

A. Development of the United Nations Guiding Principles on Business and Human Rights

The need for a framework on businesses' behavior regarding human rights arose in the 1990s with the expansion of oil, gas, and mining companies as well as the offshore production of clothing and footwear.²⁶ These...