Access to remedies and emerging ethical dilemmas: changing contours within the business - human rights debate

The objective of this paper is to contest the inclusion of human rights waivers in settlement agreements and argue that such agreements create barriers to access to justice especially in cases involving corporate human rights abuse. Human rights waivers force the survivors of corporate wrongdoings to waive their right to access judicial remedies and extinguish the legal liability of corporations in exchange for monetary compensation. Settlement agreements, which use human rights waivers, are widely touted as the desired remedial norm in cases of corporate wrongdoings and has been continuously employed by corporate actors. Firstly, to tackle this contentious issue the paper will explore settlement agreements from an ethical perspective. Secondly, it will argue that such human rights waivers create compulsive situations because of which survivors are denied their human rights. The article will take three different perspectives on how these compulsive situations can be counter-theorized namely through: asserting the right to life, challenging settlements through public policy clauses and securing ethical remedies within the Guiding Principles. The conclusion of the paper is that the nature of remedies needs to be embedded in a more ethical framework to address complex business-human rights issues. The originality of the research lies in the fact that the consequences of using waivers and its effect on the access to remedies remains unexplored within legal scholarship thereby meriting this research.