Stellar panel looks at challenges but remains ‘cautiously optimistic’
By Nita Khare, 1L
On March 4, 2011, the International Human Rights Program (IHRP) of the University of Toronto, Faculty of Law partnered with Amnesty International and the Canadian Centre for International Justice (CCIJ) to host the symposium “Holding Canadian Corporations Accountable for Human Rights Abuses Abroad.” Activists, academics and leading lawyers in the field came together to provide an overview of corporate accountability in the legal context.
Canada has significant governance gaps in the area of corporate social responsibility, which has created impunity for corporations who have condoned human rights violations in foreign countries. The need for legal reform in Canada is especially significant, as our country is home to the largest number of mining exploration companies in the world. The participants discussed the need for reform through legislative and judicial means to see an effective reduction in this gap.
The members of the panels were divided on whether legislative reform, alone, would be sufficient to close the governance gap identified. Currently the laws in Canada, and even at the international level through the United Nations “Protect, Respect and Remedy” Framework, provide only toothless non-judicial remedies to foreign victims of human rights violations by corporations, which do not allow for enforceable remedies or sanctions.
Despite many attempts to introduce stronger remedies, the mining industry has played a very deliberate and active role in successfully hindering legislative reform. The failure of Bill C300 in late October was cited as such an example. When the bill was tabled, the mining industry lobbied hard to have the bill defeated.
It was suggested that if proponents of strong legislative reform want to see effective changes, they will need to better mobilize their constituents and like-minded corporate players to advocate in favour of reforms.
Significant challenges were also identified in using the judicial system as a means of bringing about legal reform in the area of corporate social responsibility.
Penelope Simons, a law professor at the University of Ottawa, said “litigation is not a silver bullet, but an ex-post facto remedy.” Litigation will not necessarily be as effective as setting standards and using compliance mechanisms that can prevent harm in the first place.
The participants expressed frustration with legal hurdles to the pursuit of accountability in Canadian courts, especially in terms of courts accepting jurisdiction where the claim involves foreign plaintiffs alleging human rights violations on foreign soil. Even where courts accept jurisdiction, they often find that another country’s court system would provide a more appropriate forum for the action (even where the other country has a dysfunctional legal system or the state itself has been complicit in the activities at issue).
Even if a case is successfully tried on its merits, the plaintiff still faces the problem of the corporate veil, which arises from complicated legal structures of corporations. Often, the parent company creates legal entities to manage its operations in foreign jurisdictions, and it is these subsidiaries that would be found to be directly involved in the human rights abuses. Unless the plaintiff can demonstrate that the parent company was complicit in the acts through secondary liability, that the parent corporation used the subsidiary to perpetrate fraud or avoid liability, or that the parent itself was directly involved in the violations, the assets of the parent company are sheltered from successful plaintiffs.
Despite these obstacles, Beth Stephens, a leading international human rights lawyer from the United States, suggested we should not “underestimate the power of litigation as a model and means to further human rights activism.” The corporate community is astonishingly apprehensive about being embroiled in legal confrontations over human rights violations, even though the legal rulings have generally worked in their favour. She remains cautiously optimistic that through the persistent and determined efforts of activists, the judiciary and legislature will one day begin to recognize the need for legal reform, and eventually, foreign plaintiffs will be able to attain justice through our legal systems.
