Gabrielle Holly, ‘Transnational Tort and Access to Remedy under the UN Guiding Principles on Business and Human Rights: Kamasaee v. Commonwealth

Abstract
The Guiding Principles on Business and Human Rights (‘UNGPs’) set out a tripartite framework outlining the human rights obligations of states and responsibilities of business. However, until recently, little attention has been paid to the aspect of the framework that deals with access to remedy for victims of business-related human rights abuse. Renewed focus on access to remedy has drawn attention back to jurisdictions that have developed a body of jurisprudence, which, to varying degrees, will allow domestic courts to accept jurisdiction over claims where extraterritorial human rights violations are framed as civil suits and brought against a corporate actor in its home jurisdiction. Kamasaee v Commonwealth (‘Kamasaee’) is the first claim to test the Australian jurisdiction as a forum for transnational human rights litigation against a corporate defendant in 17 years, and the only claim of its nature to be brought in the era of the UNGPs. What Kamasaee makes clear is that although transnational human rights litigation remains a critical avenue for obtaining remedy for breaches of human rights standards engaged in by corporate actors, without the fulfilment of the state duty to protect human right enshrined in the UNGPs, such claims are not capable of providing effective remedy.

Holly, Gabrielle, Transnational Tort and Access to Remedy under the UN Guiding Principles on Business and Human Rights: Kamasaee v Commonwealth (January 31, 2018). Melbourne Journal of International Law, volume 19, no 1, 2018.

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