The right to effective remedy – the ‘third pillar’ of the United Nations Guiding Principles on business and human rights (UNGPS) – is already a fundamental human right. If realized, the right would alleviate business-related human rights abuses and possibly render unnecessary the Forum in November. The international community must make clear that access to remedy is the priority and that non-binding arrangements and other guidelines are secondary to this legal obligation.
Although the international community has made progress encouraging companies to respect and States to protect human rights, access to remedy must underpin these UNGP ‘pillars’, particularly in developing or transitional states like Myanmar. Progress notwithstanding, legal accountability and access to remedy require international regulation.
The UNGPs are an important breakthrough. But reducing them to three distinct ‘pillars’ obfuscates the central problem in many developing or transitional states: access to remedy in a dysfunctional national legal system that lacks independence. In these contexts, remedy should not be conceived as one of three separate pillars: it must be the foundation that holds the entire structure together.
Investment in Myanmar has long been associated with human rights abuse. Ethnic armed conflicts are fuelled by competition for natural resources such as jade and hydropower that result in land grabs. Foreign investors, often in joint ventures with military-owned or crony companies, have been involved in serious human rights abuses in the past. These groups still control the economy and human rights violations associated with economic development, such as land confiscation and displacement, continue today. Even where a investor intends to respect human rights, they may operate in a Special Economic Zone or an industrial park developed in violation of human rights. As a result, people associate investment with the military, human rights abuses, and impunity. Even the current Rohingya refugee crisis, while not caused by business related human rights abuse, looks likely to result in them.
Myanmar does not provide adequate access to remedy for victims of business related human rights abuses. Myanmar’s decades of authoritarian rule have systematically weakened the judiciary and compromised the independence of its legal system. The government is unable or unwilling to take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within its territory those affected can obtain justice.
The judicial system in Myanmar is under-resourced, lacks capacity and is corrupt, particularly at the township level where most people access it. Lawyers do not have an official independent bar association. The current legal body is headed by the Attorney General and has punished its members for taking on contentious cases. Many lawyers lack capacity and are ineffective. The executive branch, powerful crony businessmen and the country’s military and security apparatus, maintain improper influence, over the judiciary especially in politically sensitive cases – a category that includes business related human rights abuses. Fair trials are uncommon. As a result, people do not trust the judicial system. Yet, into this accountability void billions of dollars of new investment flows.
The Attorney General’s Office, the Supreme Court and the NLD government have all signalled their commitment to reform in line with the rule of law and rights. Lawyers are emboldened and increasingly willing to take on tough cases with less fear for their careers. However, political and legal obstacles render criminal or civil litigation unlikely to hold powerful actors accountable. Overcoming impunity requires generational change, reform of legal education, increased capacity building and continued support from the international community.
Non-judicial mechanisms like administrative procedures, national human rights commissions and ombudspersons can play a complementary role where the judiciary may lack resources or independence. But they can only be effective if the mechanisms are compliant with due process standards and can provide remedy. Unfortunately, Myanmar’s National Human Rights Commission as presently constituted is not capable of providing remedy and has failed as an independent human rights institution. It has failed to meet the criteria put forward in the Paris Principles and has been widely criticised for a lack of impact.
Businesses in Myanmar also have a responsibility to facilitate non-State-based procedures, such as operational grievance mechanisms. These mechanisms are perceived to improve community relations where lack of access to remedy can result in unaddressed grievances, protests and violent confrontation. They can help to improve access to remedy and reparation where business has caused or contributed to adverse impacts.
International organizations have begun to work with Myanmar to develop a National Action Plan (NAP) to implement the UNGPs. They hope to build the capacity of key partners on business and human rights issues and develop a baseline assessment. The development of a NAP should focus on access to remedy at all levels. It should address impunity, examine the legal obstacles – including the harassment of human rights defenders – and include measures to ensure the courts are able and willing to hold business accountable for human rights abuses. Non-judicial mechanisms should not be a platform for the government to make non-binding commitments to human rights.
As access to remedy has been the ‘forgotten’ pillar, in practice the UNGPs have made little difference to those whose human rights are violated in the context of business activity where courts or non-judicial mechanisms do not provide justice. Alone, initiatives undertaken to implement the UNGPs will not ensure access to remedy where the rule of law is weak, the legal system underdeveloped, and the judiciary unable to perform its duties independently. Where states are unwilling or unable to fulfil their human rights obligations, a binding treaty is necessary to fill the accountability gap.
The corporate duty to respect human rights is meaningless unless there is access to remedy when companies fail to follow the law. Likewise, the state duty to protect fails unless victims are able to review and challenge the conduct of the state ensuring it meets national and international standards. The UNGPs will have little impact unless they improve access to remedy for human rights abuses.
Daniel Aguirre is a senior lecturer at Greenwich University. He has spent the last 4 years in Myanmar as an international legal advisor for the International Commission of Jurists, implementing a Judicial Reform Project that focused on Business and Human Rights.
This article first appeared in the Cambridge Business and Human Rights Law Journal Blog and is available here: http://blog.journals.cambridge.org/2017/11/20/obligations-to-respect-and-protect-human-rights-are-meaningless-without-access-to-remedy-in-states-where-the-rule-of-law-is-weak-the-example-of-myanmar/