Civil liability for human rights violations

A project in the Business and Human Rights and Access to Justice research programmes

In May 2019, the Bonavero Institute of Human Rights was awarded a grant by the Oak Foundation to undertake a comparative study of civil liability for human rights violations across several jurisdictions in the Global South and Global North (“Project”). The primary purpose of the Project is to determine whether and when the law of civil remedies provides a real opportunity to hold state and non-state actors accountable for their involvement in three specified categories of human rights violation: (i) assault or unlawful arrest and detention of persons; (ii) environmental harm; and (iii) harmful or unfair labour conditions.

Scope of the Project

The focus of the Project is on the civil remedies that could provide compensation to the victims by way of damages, apologies, restitution, and address the prevention of harm through, for example, injunctions or guarantees of non-repetition. The scope of the Project is broad, and the research questions fall within four major areas: (i) existing causes of action and elements of civil liability; (ii) the bases of liability to hold an actor liable for the acts and omissions of a third party (e.g. vicarious and accessory liability); (iii) liability within complex business structures (e.g. parent company and supply chain liability); and (iv) available remedies.

Project Team

The Project is led by Professor Catherine O’Regan and is coordinated by Dr Ekaterina Aristova. Titiksha Mohanty provides research assistance. A Steering Committee guides the Project. The members of the Steering Committee are Dr Ugljesa Grusic (UCL), Daniel Leader (Leigh Day), Professor Robert McCorquodale (University of Nottingham; Brick Court Chambers), Dr Annelen Micus (Amnesty International), Professor Catherine O’Regan (Bonavero Institute of Human Rights), Dr Miriam Saage-Maaß (European Center for Constitutional and Human Rights), Rupert Skilbeck (REDRESS), Lise Smit (British Institute of International and Comparative Law) and Professor Sandy Steel (University of Oxford).

Design of the Project

The Project has two principal components. The first involves a scholarly analysis of the challenges and opportunities for using civil claims as a mechanism for human rights accountability. On 22-26 October 2020, the Bonavero Institute hosted an online research roundtable to discuss the civil liability framework. Over nine panels, more than 50 scholars and human rights practitioners from 21 jurisdictions shared their views on various forms of civil remedy that exist within the legal systems around the world and changes that are happening (quite rapidly) within these systems under the influence of human rights standards. The legal developments that were discussed during the roundtable included inter alia climate change litigation based on a tort law action in the Netherlands; compensatory claims for recovering loss caused as a result of the armed conflict in Eastern Ukraine; a Brazilian case of civil liability for labour violations in the supply chain; the use of tort law to obtain compensation for offshore detentions in Australia; the French duty of vigilance law which establishes legally binding human rights obligations of companies enforced through civil liability claims; the emergence of constitutional torts in Bangladesh and India.

The insights and key lessons learnt during the roundtable were summarised in a blog post published by the British Institute of International and Comparative Law. Papers presented at the roundtable are published by Hart Publishing under the title “Civil Remedies and Human Rights in Flux: Key Legal Developments in Selected Jurisdictions” edited by Dr Ekaterina Aristova and Dr Uglješa Grušić. The book covers 16 jurisdictions: Argentina, Australia, Bangladesh, Brazil, Canada, England and Wales, France, Germany, India, Kenya, the Netherlands, the Philippines, South Africa, Switzerland, Ukraine, and the US.

The Project’s second component will build on the first component by publishing an online Handbook on civil liability for human rights violations for practitioners. The Handbook will be available online in a format that may be downloaded. It will feature country reports from several jurisdictions, and each report will follow a unified template. Section I contains general questions about the key principles and provisions of the civil liability framework. Section II aims to approach the analysis of civil liability practically by applying the basic principles of the law of civil remedies to specified hypothetical cases, which often lead to adverse human rights impacts (“Case Scenarios”). The main purpose of the Case Scenarios is to use a defined set of circumstances to enable a comparative study of the national jurisdictions. In January 2022, the Bonavero Institute of Human Rights hosted a workshop to discuss first drafts of the country reports and Case Scenarios with practitioners from 21 jurisdictions.

Oak Foundation Research Visitor Programme

One of the Project’s outcomes is the establishment of the Oak Foundation Research Visitor Programme. It aims to provide an opportunity to the Research Visitors from the Global South to contribute to the field by conducting independent research in Oxford and to foster collaboration between human rights scholars and human rights lawyers in practice. To this end, the Bonavero Institute will host five Oak Research Visitors from Brazil, Egypt, Mexico, Sri Lanka, and Zimbabwe who will spend three months researching the civil liability for human rights violations in their respective jurisdictions.

Research Outputs

During the Project, it became obvious that civil claims have been increasingly used by practitioners as a means of corporate human rights accountability. The narrative of civil liability for human rights violations has been particularly influential in the context of the business and human rights movement. This emerging trend has been triggered by the unanimous adoption of the UN Guiding Principles for Business and Human Rights; negotiation of the UN Treaty on Business and Human Rights; and the legislative initiatives towards mandatory human rights due diligence. In Hilary Term 2020, the Bonavero Institute in collaboration with the Oxford Business and Human Rights Network organised a series of events ‘Human Rights Due Diligence in Law and Practice’ to discuss the recent regional and national developments and the role of civil liability claims in this field with a group of leading practitioners and academics. Links to the audio recordings of the talks and blog posts with the insights are available here.

In February 2021, jointly with the European Center for Constitutional and Human Rights in Germany and the Economic, Social and Cultural Rights Project in Mexico, the Bonavero Institute hosted an online roundtable on “Corporate Human Rights Due Diligence in Practice” to discuss recent developments around mandatory human rights due diligence mechanisms and share experiences in litigating cases of corporate human rights abuses. In the expert roundtable co-convened by Dr Annelen Micus, 25 experienced practitioners and renowned academics from the Global South and North discussed how civil liability and due diligence laws can contribute to preventing business-related human rights abuses and achieving structural change. In the first session, recent litigation efforts in the field were analysed. In the second part of the roundtable, prospects, and challenges for creating mandatory human rights due diligence laws to achieve these objectives were assessed.

In June 2021, the Bonavero Institute of Human Rights partnered with the International Commission of Jurists to organise an online symposium on civil liability for human rights violations. The organisers invited a group of experts from academia and legal practice to discuss the wider implications of recent civil liability developments in the law and policymaking of corporate responsibility to respect human rights and identify the remaining gaps in the law. The first part of the symposium featured two webinars on the scope of the parent company’s duty of care and access to justice barriers in civil litigation. The second component involves a series of blogs published by Opinio Juris platform. The symposium is co-convened by Dr Ekaterina Aristova (Bonavero Institute) and Dr Carlos Lopez (ICJ) who have authored an introductory blog setting out key aspects of the debate.

 

 

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