Week of 5 July 2021
What is the status and direction of travel for the UNGPs in court cases?
Our key takeaway: Courts have started to use the UNGPs in their reasoning, and this is set to continue, with Latin American courts leading the charge in using the UNGPs as an interpretive tool as they assess business and human rights-related cases.
Debevoise & Plimpton published “UN Guiding Principles on Business and Human Rights at 10: The Impact of the UNGPs on Courts and Judicial Mechanisms” in conjunction with the ‘UNGPs 10+’ project organized by the UN Business and Human Rights Working Group. The report provides an overview of the application of the UNGPs by judicial and quasi-judicial mechanisms:
- Direct references to the UNGPs by judicial and quasi-judicial bodies is still limited, but this will change. Debevoise states that references to the UNGPs will increase due to five factors. First, there are some recent, notable examples of legislation that make explicit reference to the UNGPs (including the 2021 EU Taxonomy Regulation which incorporates the UNGPs). Second, there are a number of recent and forthcoming domestic laws that expressly refer to the UNGPs as part of the rationale for their adoption. Third, there are an increasing number of complaints in which the UNGPs have been used as a reference point by applicants and courts. Fourth, international courts and tribunals have utilized the UNGPs in assessing State accountability for third parties’ adverse human rights impacts. Finally, States are being encouraged to adopt further measures to increase access to remedy for victims of business-related human rights abuse.
- International treaty bodies and tribunals are increasingly referencing the UNGPs in the context of discussing a State’s duty. For instance, the Inter-American Court of Human Rights has found in a 2017 Advisory Opinion that Colombia must follow the UNGPs in addressing adverse human rights impacts that might result from the environmental activities of private businesses. As another example, the African Union’s 2018 State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment make reference to the UNGPs. Debevoise observes that as this references increase, this in turn will have a ‘trickle down’ effect leading to increased usage of the UNGPs by States, businesses, and domestic judicial and quasi-judicial decision-makers.
- There are a number of interesting regional trends. In Africa, court decisions in Africa and South Africa directly refer to the UNGPs – one (in South Africa) to invalidate a law that denies individuals access to a remedy. In Asia Pacific, National Human Rights Institutions are playing an important role, for instance, in Malaysia, where the UNGPs were invoked in a case concerning the construction of a dam which it was alleged would adversely impact local fishing communities. In Europe, the UNGPs have been referenced in four judicial or quasi-judicial decisions in the Netherlands, Sweden, Poland and France. When it comes to Latin America, the UNGPs have been referred to numerous times by a number of different courts. Notably, the Colombian Constitutional Court considers the UNGPs to be an ‘interpretive tool’ in relevant cases, and the Constitutional Court of Peru has developed a line of jurisprudence recognizing a duty of corporate social responsibility by reference to both national law and international soft law, including the UNGPs. As other examples, the Israeli Supreme Court mentioned the UNGPs when noting an amicus curiae submission which relied on the UNGPs, and there are also a number of publicly available amicus curiae submissions that refer to the UNGPs in the UK. In the U.S., the courts have referred to the UNGPs on two occasions as reflective of international guidelines, and in Canada, businesses’ responsibility to respect human rights has received greater judicial treatment.
For more, see Debevoise & Plimpton, UN Guiding Principles on Business and Human Rights at 10: The Impact of the UNGPs on Courts and Judicial Mechanisms