Who is Responsible for Ensuring Access to Remedy?
A fundamental principle of international human rights law is that victims must have access to an effective remedy when their rights have been violated. The obligation of states to protect against human rights abuses within their territory and /or jurisdiction incudes a duty to ensure an effective remedy. States may be considered to have breached their obligations when they fail to take appropriate steps to prevent, investigate and redress human rights violations committed by private actors. Effective judicial mechanisms are at the core of ensuring access to remedy.
The state duty to provide access to remedy includes taking appropriate steps to ensure that domestic courts are empowered to address business-related human rights abuses. This implies taking steps to remove legal, practical or other barriers that may prevent victims from presenting their cases and applies to judicial mechanisms in the states where the human rights abuses took place and in the home states of the business enterprises. States should also provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive state-based system for the remedy of business-related human rights abuse.
The UN Human Rights Committee has encouraged states to ensure access to remedy for people whose human rights have been violated by companies operating abroad. In the case of victims of the dam collapse, this should include access to the Korean and Thai court systems to hold responsible actors accountable. Given the well-documented lack of independent and effective judicial systems in Laos and Cambodia, the courts of Korea and Thailand have an important role to play in providing access to justice for those who have suffered human rights abuses due to the Xe Pian-Xe Namnoy project.
If a business enterprise causes or contributes to adverse impacts on human rights, including through its business relationships, it should immediately take all relevant steps to address those impacts. If an adverse impact is ongoing, the company must immediately cease the activity causing it. If a violation has already occurred, the company must provide for or cooperate in remediation through legitimate processes. If a human rights impact is directly linked to a company’s operations, products or services through a business relationship, it should seek to prevent or mitigate such an impact even if it has not contributed to it.
In addition to participating in state-based remedial mechanisms, businesses should establish or participate in effective operational-level grievance mechanisms for people who have been adversely impacted by the business’s operations. To be effective, non-judicial grievance mechanisms must meet the criteria set out in the UN Guiding Principles on Businesses and Human Rights: they must be legitimate, accessible, predictable, equitable, transparent and rights-compatible. Remediation processes must occur in consultation with the affected individuals or groups to ensure that the remedy is comprehensive and legitimate in their view.
SK Engineering & Construction, the EPC contractor, and Ratchaburi Electricity Generating Holding Public Company, the construction supervisor, are primarily responsible for providing redress for the harms and human rights impacts they have caused, if reports of deliberate construction flaws and attendant oversight failures are accurate.
The companies that provided the funding for the dam all have a responsibility to provide for or cooperate in remediation for the adverse human rights impacts to which they have contributed. This includes all equity investors in Xe Pian-Xe Namnoy Power Company and the debt investors Krung Thai Bank, Ayudhya Bank, Thanachart Bank and the Export-Import Bank of Thailand. Depending on their level of human rights due diligence and the human rights safeguards in their legal agreements, these companies may have a responsibility to contribute commensurately to redress. At minimum, all of the investors and financiers, including the shareholders of the four developers, must use their leverage to the greatest extent possible to bring about redress.
Similarly, AON Thailand, AIG, Korean Re, Samsung Fire & Marine and Asia Capital Re, which provided insurance coverage to the developers for the project, have a responsibility and a unique opportunity to enable remediation by working with their clients to establish an accessible mechanism for victims to file claims.