Business and human rights: Remediation through a gender lens

by Aleydis Nissen

Flower farm kenya
PHOTO:

Workers at a flower farm, Kenya. World Bank via Flickr

Corporate activities affect women differently and disproportionally through, amongst other things, the feminisation of precarious and irregular labour and the reinforcement of gender discrimination by gender-neutral trade deals. For example, the high rate of women in irregular employment in South Korea – estimated to be 70 percentis due to ongoing discrimination against women, including patriarchal attitudes and gender-based stereotypes.

Women also face specific barriers to accessing and benefiting from remedies, including gendered roles, social stigma and power imbalances. Austerity measures taken by states in response to the 2007 financial crisis have considerably worsened these barriers for all women. Such barriers are reflected in the comparatively low number of women accessing remedies for corporate human rights violations. For example, women working in the Kenyan floriculture industry are five times less likely to file proceedings in court, even though they are more numerous and work in worse conditions than men. These barriers are further reinforced by stratification based on race and class.

This limited access to remediation poses two major problems. First, dispute settlers do not contribute to the lived experience of equality of women impacted by corporate human rights violations. Second, dispute settlers operating within the existing gendered realities might exacerbate the construction and normalisation of these realities.

The UN Guiding Principles (2011)

Unfortunately, gendered barriers to remedies have been largely invisible in the ‘business and human rights’ body of knowledge, including the 2011 United Nations Guiding Principles on Business and Human Rights, which serve as the central reference point for the entire spectrum of rights that might be impacted by corporations, as well as the remedies available to rights-holders. The principles clearly state that preventive, redressive and deterrent remedies should be available to rights-holders. Domestically, judicial remedies should form the backbone of a wider remediation package including non-judicial remedies at the state, industry and company levels.

There are two important reasons for this blind spot. First, barriers to justice are often presented in this literature as being exclusively of a ‘technical’ nature. This creates the impression that if only bad procedures were to be replaced and good ones adhered to, the issues connected with human rights violations would go away. In reality, barriers to justice often continue to exist precisely because they are deeply embedded in broader patterns of exclusion and marginalisation. Social forces that impede the enjoyment of rights in contexts such as women's limited representation in trade unions and concentration in more irregular jobs are underestimated. Second, women’s rights advocates work on ‘business and human rights’ cases without referring to them as such.

The Gender Guidance (2019)

In May 2019, the United Nations Working Group on Business and Human Rights (WGBHR) took a first important step by reconceptualising the Guiding Principles through a gender lens. In its report, the Working Group noted that remedies at the state, industry and company levels need to be ‘gender-transformative’. This means that they should combine ‘preventive, redressive and deterrent elements’ to bring ‘change to patriarchal norms and unequal power relations that underpin discrimination, gender-based violence and gender stereotyping’. Such remedies should be based on an assessment that is responsive to ‘differentiated, intersectional and disproportionate adverse impacts on women’s human rights as well as to discriminatory norms and patriarchal power structures’ and accompanied by other relevant ‘gender-transformative’ measures. In December 2019, the Council of the European Union has also called for the inclusion of ‘gender-responsive measures’ in its Agenda for Action 
on Business and Human Rights. 

But where does ‘gender-transformative’ remediation in business and human rights begin? Information and knowledge sources are scattered all over the place. Some important knowledge has been gathered by the Council of Europe since 2007, after former European Court of Human Rights judge Françoise Tulkens noted that only 16 percent of the judgments and inadmissibility decisions delivered by a chamber or the Grand Chamber had been lodged by women between 1 November 1998 and 1 March 2006. It might also be interesting – as the WGBHR notes –  to align with gender experts. For example, feminist scholars who have long tried to re-imagine dispute-settling by ‘rewriting’ key judgments that correct power dynamics and promote substantive equality in a wide area of subjects. Some of these rewritten judgements – including those on the disproportionate impact on women of privatisation, which deprives citizens of access to important public goods – are relevant to ‘business and human rights’ matters.

About the author

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Aleydis Nissen is a postdoctoral researcher at Leiden Law School. She is working on the project ‘Institutions for Conflict Resolution’. www.aleydisnissen.com

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