Rationale for the Workshop

Fundamental to the business and human rights movement is the idea that where there has been a human rights impact, the victim must have access to an effective remedy. The fourth draft of a proposed binding instrument on Business and Human Rights published in July 2023 considers remedy as:

the restoration of a victim of a human rights abuse to the position they would have been had the abuse not occurred, or as nearly as is possible in the circumstances. An “effective remedy” involves reparations that are adequate, effective, and prompt; are gender and age responsive; and may draw from a range of forms of remedy such as restitution, compensation, rehabilitation, satisfaction, such as cessation of abuse, apologies, and sanctions), as well as and guarantees of non-repetition.

Human rights abuses cut across all industries, all forms of business (formal, informal, legal and illegal), all nations and all cultures. How, where and when these are remedied in a way that is deemed effective to the victim(s) of that human rights abuse is pivotal to the effectiveness or otherwise of the business and human rights movement. Policy papers, government funding into research on and commitments to remedy (for example in Ireland, Rachel Widdis’ Review of Remedy) are not enough if they are not accompanied with improvements to the lived experiences of those vulnerable to human rights abuses from corporate operations. We believe in an ‘holistic’ approach to business and human rights, one which recognises the context of the victim, the event, the locale, and the response.

With that in mind, in May 2024, the Business and Human Rights research group at QUB hosted an international workshop which considered remedy within business and human rights from the perspective of academics, practitioners, and civil society. We were very keen to see how remedy is understood, interpreted, and applied across different sectors and within different contexts.

Overview of the speakers

It was a dynamic event and showcased just how subjective remedy can be. Along with a range of representatives from different sectors and backgrounds we also had a globally diverse line-up with speakers from the UK, Ireland, continental Europe, Australia and Kenya. We heard about prosecuting  from the perspective of s. 22 of the Modern Slavery Act (UK) 2015 and the wide range of remedy that might be used in the criminal process to help those who might have experienced modern slavery. This contrasted well with later discussions in the academic panel from McGaughey on Modern Slavery Statements within the Modern Slavery Act 2018 (Australia) which consider the more administrative side to remedy (more on her recent research in this space can be found here and here). 

We were also keen to demonstrate that business and human rights impacts can be local as well as global. With that in mind, we heard about the impact of Brexit on how we think about Business and Human Rights in Northern Ireland and Ireland – with specific reference made to divergences in business and human rights regulation and regression on access to justice in the UK for victims of corporate abuse of human rights. We also heard about the importance of the Public Procurement Note PPN5/021 and the impact that this has for Northern Ireland in particular and how it might be implemented to include social value. We also heard about the indirect impacts of asylum housing on children’s rights to education, right to play, be part of a community etc. These all demonstrate the myriad issues that fall within business and human rights in our communities.

Our academic panel then addressed the idea of remedy through Aristova’s civil remedies, human rights and corporate liability project; Roorda’s timely presentation on the EU CSDDD and in particular art 22 (4) (there has been a really timely output on the CSDDD here); Grama and Githe’s presentation on Operational Grievance Mechanisms (OGMs are a form of non-judicial, non-state based remedy involving often the corporations themselves in understanding how they might cause or contribute to an impact, for more see here); Loughrey’s analysis of (failed) derivative actions and environmental litigation through the Client Earth v Shell plc. Finally, O’Kelly and Hackett discussed the OECD Guidelines on Responsible Business Conduct and the role of National Contact Points as routes to remedy.

In the practitioner and civil society panels, we heard from independent consultants who worked with organisations to encourage them to think of the risks of their operations. We also heard about the use of judicial reviews as a form of remedy, as well as procedural remedies such as the Proceeds of Crime Act, and Open Source Investigations in Litigation. A representative from Index on Censorship spoke to us about Strategic Litigation Against Public Participation (progress to ban SLAPPs in the UK has been halted by the forthcoming election) and the panel finished with a spokesperson from Environmental Justice Network Irelandon how they consider remedy within their operations.

What have we learned about remedy?

Being vested in the common law legal tradition of Western democracies, means that we typically have a narrow, legalistic definition of remedy. For the victim, this is often in seeing the wrongdoer being convicted, and/or required to pay a fine; or alternatively the wrongdoing is remedied through civil remedies; typically damages or injunctions. With the rise of Alternative Dispute Resolution and Mediation, legal remedies are becoming less tied to traditional legal processes which opens the door to a more inclusive, less burdensome approach to access. But more needs to be done. The hitherto narrow approach is not helped by the limited guidance on the third pillar of the UNGPs and by the repeated failures of governments to initiate and lead or act on recommendations. Even incoming legislation such as the CSDDD appears to reproduce a transactional model of remedy. Achieving consensus on remedy will be difficult but it is imperative that it is inclusive, diverse, and cuts across legal, political, moral, administrative, medical and emotional approaches.

It is increasingly clear from the wide range of presentations on many various forms of exploitation that remedy must be subjective. How victims understand remedy depends on their lived experience including their personal experience of the impact at that time in their lives. Aspects such as location, temporality, context, duration, extent, types of harm are relevant but equally so is the voice of the victim. The international workshop at QUB was a technicolour exposition on the wonder, extent and promise of remedy. The infrastructures that buttress remedy must be sufficient for victims’ voices to be platformed and their understanding of remedy to be facilitated. Whereas this might require our collective re-imagining on what remedy is, can and could be, victims need to know their rights, their entitlements and have their voices heard. Although much research is being carried out or commissioned by governments, CSOs, NHRIs, academics and the UN itself, reaching an understanding on remedy will require a multi-agency, multi-faceted approach which centres victims’ voices.

This event was kindly funded by the QUB AHSS Global Reputation Fund and by the QUB School of Law International Workshop Fund.

The speakers included: Kirsten McKevitt (PPS Special Prosecutor on Modern Slavery and Human Trafficking); Dr. David Russell (NIHRC); Jeannie McCann (Strategic Investment Board); Eamonn McNally (Senior Mental Health Solicitor Children’s Law Centre); Professor Fiona McGaughey (UWA); Ben Grama (Tilburg University); Charles Gitonga Githe (Njoroge O Kimani & Co Advocates); Dr. Lucas Roorda (Utrecht University); Dr. Ekaterina Aristova (Bonavero Institute, Oxford); Professor Joan Loughrey (QUB); Nora Wolters (Hamburg University/Independent Human Rights Consultant); Dearbhla Minogue (GLAN); Jessica Ní Mhainín (Index on Censorship); Dr Bróna McNeil (EJNI); Dr. Marisa McVey (QUB); Dr. Ciarán O’Kelly (QUB) and Dr. Ciara Hackett (QUB)