Challenging the System: Using Strategic Human Rights Litigation in Seeking Transnational Remedies in the Context of Business and Human Rights

When TNCs’ investment in developing countries causes the displacement of people from their land, how do human rights advocates respond? In answering the question, this paper investigates the potential of strategic human rights litigation in seeking transnational remedies within the emerging business and human rights framework. This research shows that tensions between business and human rights arise because global economic market reforms have weakened the power of developing countries to fulfil human rights obligations. I maintain that UN’s response to the tension by adopting the Guiding Principles has recognized the power of TNCs but still sustained that human rights obliga-tions remain with the States. As exemplified in the case of Koh Kong sugar plantation, I argue that the use of legal and non-legal means is an epitome of human rights NGOs’ continuous efforts to explore means and mechanisms to challenge, and eventually change the system that constrains the enjoyment of human rights. Strategic human right litigation posits that while the system hinders the enjoyment of rights and limit’s the remedies to be availed of, it depends upon the right-holders to claim and to work for the realization of their rights.