Lawyers willing to take on powerful companies are hard to find, so the Business & Human Rights Resource Centre has put together a global directory
Legal Researcher, Business & Human Rights Resource Centre
Tuesday 22 September 2015 08.00 BST
I have spent the last year speaking to lawyers working at a grassroots level all over the world to understand their experience of protecting the vulnerable from corporate abuse.
It’s been part of the work to build a lawyers’ directory for the Business & Human Rights Resource Centre, which aims to help victims of abuse across the world find legal assistance.
From the Democratic Republic of Congo (DRC) to Brazil, Indonesia and Thailand to Russia, we have heard heart-wrenching stories of victims being denied justice as lawyers themselves become targets of abuse. But we have also heard stories of unabated determination and powerful collaborations.
We often associate corporate legal accountability with high-profile out-of-court settlements in UK or US courts, like the $83m settlement by Shell earlier this year for its role in Nigerian oil spills. However, there are lawyers on the ground all over the world helping affected people challenge abuse by companies and obtain justice. Their work is crucial, but often not widely publicised.
These lawyers use the tools available to them to make companies accountable for human rights abuses. They include domestic legislation – tort, administrative and criminal law – as well as international and regional conventions. But often these legal tools are not fit for purpose, allowing companies to act with impunity. In response, lawyers use existing laws resourcefully and challenge unjust legislation to forge a path towards justice.
Non-judicial mechanisms offer some opportunities to bring complaints to companies but as Emmanuel Umpula Nkumba, executive director of AfreWatch (Democratic Republic of Congo) points out, these routes produce a recommendation “which is pretty weak in terms of arriving at a satisfactory result for the victims”.
The strategic and creative approaches these lawyers take with lawsuits means they often act as more than lawyers – they are also activists, defenders, mediators, campaigners and community leaders. But even getting to the point where a lawyer is asked to take on a case is a challenge.
Several lawyers stressed that people are generally unaware of their rights, of relevant legislation, and of the way to use these tools, making them unable to stake a claim in an effort to uphold their rights. Even when they are aware, the duration and financial cost of launching legal proceedings deters many from seeking justice.
In most cases, plaintiffs do not have the financial resources to pay a lawyer, and legal aid does not exist for corporate accountability cases. Lawyers, therefore, may receive no remuneration for their hard and hazardous work. It is often thanks to external funding that they can help plaintiffs in their quest for justice against corporations, but this support rarely covers all their needs.
“We only have four lawyers working for us and often we need to ask others for help, but we cannot compensate them,” says Sor Rattanamanee Polkla of the Community Resource Centre in Thailand.
When a case makes it to the courts the process is often marred by dysfunctional judiciaries in which judges lack training on how to deal with business and human rights cases. Often, these issues are simply not seen as a priority among the plethora of cases presented to courts.
Without judicial independence, victims of abuse involving companies may never obtain justice, especially in large infrastructure or extractive projects where those companies receive major concessions from the government.
“National authorities hold shares in the companies or play a protective role in exchange for a personal interest they have in them … Those in power, in Africa generally speaking, have nothing to do with common people. Economic interests prevail over other interests,” argues Nkumba.
After the coup in Thailand last year, Polkla was targeted by the military, who attended her community meetings and told her to obtain official permission for gatherings. “The military seems more interested in protecting the development projects than the Thai people,” she says.
Like many human rights defenders, these lawyers are subject to increasing legal harassment, including defamation lawsuits filed by companies. Human rights defender Febi Yonesta of LBH Jakarta (Indonesia) described them as “a weapon used by anyone who wants to silence us”.
And risks do not just come through legal avenues. “There is no lack of threats – intimidation, attacks on one’s physical integrity, arrests. I have been threatened more than once,” says Nkumba.
So what kind of changes do these lawyers ask for? At the domestic level, reforms are needed to allow class action lawsuits, and NGOs should be able to participate in legal proceedings. They also argue that creating criminal liability for companies would widen participation and open new avenues to justice.
The international community must also share information on corporate human rights abuses globally. Polkla pointed out that foreign investors can help pressure companies into dialogue with lawyers and communities regarding allegations of abuse. Regional blocks such as the African Union and the European Union can also be more active in supporting and protecting lawyers working on corporate accountability. Yonesta says that the international community can help lawyers like him with funding support to ensure continuous advocacy and capacity-building.
These lawyers want companies to understand that profit-making shouldn’t come at the expense of human rights, a consideration that should be mainstreamed into their activities. When tensions arise with communities or workers, it is vital that companies are open to dialogue with them and their legal representatives, which can help prevent lawsuits.
Collaboration remains crucial – with the communities and individuals they represent, civil society organisations, governments and lawyers themselves – to push for accountability and explore new routes to justice, but also to protect themselves from the growing risks they face as they undertake this work. There is strength in numbers. As Foromo Frédéric Loua, a human rights lawyer from Guinea says: “I hope that other lawyers will join me in what I believe is a very noble struggle.”
Elodie Aba is a legal researcher at the Business & Human Rights Resource Centre.
Join our community of development professionals and humanitarians. Follow@GuardianGDP on Twitter.