Business and Human Rights Litigation

 

Statue of Eleanor Roosevelt

Bonavero Institute of Human Rights, Oxford

On January 22-24, 2025, the Bonavero Institute of Human Rights at Mansfield College, Oxford, hosted a roundtable on business and human rights litigation. The roundtable discussed draft chapters for the Cambridge Handbook on Business and Human Rights Litigation, edited by Hassan Ahmad, Ekaterina Aristova, and Rachel Chambers, which is slated for publication next year.

The roundtable was a fascinating discussion of what constitutes business and human rights litigation, how it differs from country to country, and many of the challenges it faces. In contrast to many human rights conferences that I have attended, this one was dominated by voices from outside the United States (indeed, depending on how one counts, I was arguably the only American representative). The editors gave me permission to discuss some of the issues that arose at the roundtable, without attributing views to particular participants. (A video of the opening panel, with remarks from Ebony Birchall, Taqbir Huda, Anaïs Tobalagba, and me is available here.)

What Is Business and Human Rights Litigation?

At the outset, there are questions about how to define the topic. Business and human rights litigation must, I suppose, involve some sort of litigation, implicate businesses, and seek to advance human rights. In the United States, we typically think of civil cases against corporations under the Alien Tort Statute, such as Doe v. Cisco Systems, or the Trafficking Victims Protection Reauthorization Act (TVPRA), such as Doe v. Apple. But in Bangladesh, after the Rana Plaza disaster, only one civil claim was filed. Most of the litigation has instead consisted of constitutional cases and criminal prosecutions.

Human rights may also be defined narrowly or broadly. The roundtable discussed torture, extrajudicial killing, and forced labor. But one paper noted that litigation arising from armed conflicts also implicates international humanitarian law (the law of war), under which additional claims against corporations might be brought. Litigation involving the arms industry also does not fit neatly into traditional categories, because much of it is directed against exporting governments, aiming to prevent harms by challenging unlawful transfers of weapons.

Property rights are often ignored as human rights. But the roundtable learned about displacements from mining operations in Tanzania and land grabs for the benefit of sugar plantations in Cambodia. Other speakers addressed environmental litigation in Taiwan, Thailand, and Colombia, the last of which has enshrined “rights of nature” in its constitution. And several speakers discussed climate change litigation.

Litigation in the Global North

Business and human rights litigation began in earnest in the United States during the 1990s, with claims against corporations under the ATS such as Doe v. Unocal and has subsequently spread to other “home country” courts. In Vedanta Resources PLC v. Lungowe (2019), the U.K. Supreme Court recognized a duty on the part of U.K. parent corporations to supervise the activities of their foreign subsidiaries in some situations. In Nevsun Resources Ltd. v. Araya (2020), the Canadian Supreme Court held that Canadian corporations might be held liable under customary international law for human rights violations abroad. France’s Duty of Vigilance Law and the European Union’s Corporate Sustainability Due Diligence Directive (CS3D) impose obligations to prevent human rights abuses abroad and permit litigation in some cases.

Yet such litigation has encountered difficulties. In the United States, the Supreme Court has cut back the ATS cause of action in a series of decision. Often, there are also problems with personal jurisdiction and piercing the corporate veil. In Canada, attempts to follow up on the Nevsun case have been stymied, at least temporarily, by the doctrine of forum non conveniens, with the Ontario Superior Court holding in John v. Barrick Gold Corp. (2024) that the claims would be better heard in Tanzania.

Litigation in the Global South

It was encouraging to hear how much litigation is now occurring in “host state” courts in the Global South, including Bangladesh, Brazil, Congo, Ecuador, Tanzania, and Thailand. Forum non conveniens is not a problem in such cases, but other substantial barriers exist. These include less developed laws on tort or delict, limitations on damages, short statutes of limitations, limited access to legal counsel, and (in cases involving land) difficulties in proving legal title. And, of course, a “host state’s” judgment may require enforcement in the “home state’s” courts.

Private or Public Law

Some of the speakers focused specifically on whether it was more appropriate to address corporate violations of human rights through private or public law. Although the United States permits (at least in theory) the direct application of customary international law under the ATS, some recent cases have relied on domestic tort law. An example, discussed at length, was the 2024 jury verdict against Chiquita under Colombian law. Other examples from the United States include Exxon’s 2023 settlement of claims under Indonesian law and the currently pending case under Missouri law against a Missouri company for operating a smelter in Peru. In Canada, under Nevsun, domestic tort claims may be based on customary international law, which is incorporated into Canadian common law, whereas in the United Kingdom under Vedanta, such claims are simply domestic torts.

Some speakers expressed concern that domestic tort remedies cannot do justice to human rights harms. As one speaker put it, tort law is not human rights law and so cannot fit every aspect of these cases. Others noted that civil law systems often do not have the same principles of tort liability as common law countries and conceptualize such liability in different terms. Reliance on domestic law also inevitably raises choice-of-law questions, even when there are commonalities in the broad categories such as negligence and fault.

Tool Kits

One of the most interesting aspects of the roundtable was the range of tools with which business and human rights litigators are experimenting around the globe. In addition to claims under domestic tort law and customary international law, we see claims for unjust enrichment, conversion of property, misrepresentations to consumers and investors, and various specialized statutes. In Bangladesh and Brazil, following major disasters foundations were established to provide compensation to victims (although without acknowledging liability). In some cases, third-party funding has provided resources and helped to level the playing field.

Because countries differ in their substantive and procedural laws, the tool kits available in each country may be different. But I see some virtue in this necessity. Although human rights are universal, the ways of addressing them need not be. Remedies are likely to be most effective when they fit with the existing legal system. And tools that work in one legal system can be borrowed and adapted by others.

Conclusion

There is much more going on in business and human rights litigation around the world than I imagined. The Cambridge Handbook on Business and Human Rights Litigation promises to reveal these developments to a wider audience and to show them in comparative perspective. I look forward to its publication in 2026.