The role of courts in adjudicating human rights violations by transnational corporations

In this era of globalisation, Transnational Corporations (TNCs) operated in an accountability gap that is often leaving these entities largely unregulated in the context of human rights. While globalization has facilitated growth for such entities by lowering legal, financial and technical restrictions, a failure to agree an overarching protection mechanism and the weaknesses in current protection mechanisms creates a vacuum. This vacuum primarily exists due to inadequate legal and regulatory regimes in host states that are developing countries, and who need and seek such investment; and the general difficulties concerning the weak enforceability of international law. As a consequence, TNCs could and do commit grave human rights violations while avoiding scrutiny despite the existence of a few international, regional and institutional instruments that could hold them accountable. The efforts to fill the regulatory vacuum in which TNCs function have taken the form of ‘soft-law’ instruments, however, their purely voluntary nature and purpose in encouraging TNCs to oblige rather than holding them legally accountable appears inadequate in promoting and protecting recognised principles of human rights law.
Under international law victims of corporate human rights abuses, just as any other types of victims, have the right to access an adequate remedy through recourse to judicial remedies where other informal or administrative remedial schemes are insufficient. Having an efficient and fair justice system in developing host states for the victims of corporate human rights abuses is key to ensuring access to an adequate remedy. The thesis aims at examining the role of various courts at international, regional and domestic level; in the intergovernmental, home, as well as in the developing host state, to remedy and punish human rights violations by TNCs. The reasoning underpinning the examination of judicial scrutiny acknowledges that such authorities are not an ideal forum for improving human rights mainly due to problems that prevent full access to such legal remedies. However, the existence of judicial systems and effective remedies stemming from them is nonetheless believed to remain the essential, if not an effective forum based for victims seeking redress for corporate human rights abuses. This thesis also explores the question as to adequate forum for accountability, assessing efforts made in ‘home’ states where the TNCs are headquartered, and in ‘host’ states, where they operate, and where, practice shows, many of the unremedied human rights violations persist. Although, the emphasis for host states is on potential accountability. The study uses Nigeria as case study to assess the extent of human rights violations by TNCs in developing host states, how these entities have been dealt with by the courts at domestic level, in a bid to highlight the challenges hindering access to effective remedy and justice. It proposes as a recommendation that developing countries undertake deep structural reforms, alongside vigorous involvement of several actors, including the state, related agencies, the judiciary and public interest organisations.