David Birchall, ‘Irremediable Impacts and Unaccountable Contributors: The Possibility of a Trust Fund for Victims to Remedy Large-Scale Human Rights Impacts’

ABSTRACT
Corporate actions often adversely impact human rights in ways that are not easily justiciable. Such actions include the production and use of fossil fuels, contributing to climate change and its impacts, and actions that deny or retrogress access to the global food, housing and pharmaceutical markets. This paper terms the impacts caused by these actions ‘large-scale impacts’. Such impacts feature multiple contributors, disparate victims, and no clear line of causation for establishing individual liability, and they often stem from legally permitted economic activity. This paper argues that the corporate responsibility to respect human rights – pillar two of the UN Guiding Principles on Business and Human Rights (UNGPs) – provides a useful framework for: (1) capturing the harm that such impacts cause, and (2) holding a wide range of businesses accountable for their contribution. However, remedial mechanisms under pillar three of the UNGPs, as currently constituted, are ill-suited to such impacts. To correct this gap, this paper proposes the establishment of a Trust Fund for Victims (TFV), into which all corporate contributors to large-scale impacts would pay and against which victims could claim. Such a mechanism could significantly improve corporate accountability in the context of economic globalisation.

Birchall, David, Irremediable Impacts and Unaccountable Contributors: The Possibility of a Trust Fund for Victims to Remedy Large-Scale Human Rights Impacts (April 1, 2020). Australian Journal of Human Rights, 2020.

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