Restitution of Unjust Enrichments: A Right to Remediation for Human Rights Abuses from Parent Companies
Abstract: As of today, there are no binding obligations under international human rights law for companies. Therefore, the UNGPs and the OECD Guidelines has emerged as soft law instruments which explains social and legal expectations on states and business in regards of human rights. According to the principles, states has the primary role in protecting human rights while business should respect human rights throughout their operations. By following these principles, states and business can prevent and mitigate human rights abuses by reducing domestic legal barriers. In the past decades the international community have been concerned with the issue of multinational enterprises potential and actual adverse impacts on human rights throughout their transnational operations. Through affiliates, suppliers or contractors, business operations may occur in low cost manufacturing states where corruption is high, and rule of law is weak. Therefore, the host states may fail to provide right-holders with access remedy. In effect, this system sometimes benefits parent or buying companies at the expense of right-holders. When human rights abuses have occurred within the operations of multinational enterprises, domestic courts have tried claims against parent companies in private and criminal law. However, the attempts have been less successful due to extraterritorial limitations in criminal law, limited liability of separate legal entities and difficulties with proving causality in tort law. The concept of unjust enrichment as a ground for restitution may provide the right-holders with an effective grievance that could fill the void uncovered in contract, tort and criminal law. This concept may thereby help strengthening legal frameworks for holding MNEs accountable and help victims of human rights abuses to obtain remediation from a parent company.
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