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	Lack of access to justice is widespread in many countries by UNDP, agencies   Martyn Day is famous for winning ‘unwinnable’ David-Goliath cases, but the head of the legal firm who took on Shell Nigeria is gloomy about the state of international law.   “Well, it’s a fairly depressing landscape,” says Martyn Day. He doesn’t seem particularly depressed as he says it. In fact, he seems positively cheerful, radiating all the satisfaction and energy of a man doing a job he loves.   That is probably at least partly because his legal firm Leigh Day, which specialises in ensuring “that the ordinary person has just as good quality legal advice as our state bodies, insurers and multinationals” has just pulled off a legal coup in the form of a settlement with Shell Nigeria for £55m. Leigh Day represented 15,600 Ogoni farmers and fisherman whose livelihoods were shattered after a two large oil leaks in 2008 and 2009. The original offer from Shell, back in 2011, was £4,000 for the whole community.   Day is, obviously, very pleased to have got the settlement, although scathing about Shell’s behaviour. “The Shell case has shocked me,” he says. “The idea that they could have offered that community £4,000. All they were interested in was seeing what they could get away with, that really shocked me to the core. Even I, cynical as I am about all these CSR things, assumed Shell would be better than a lot of other people.”   Holding corporations and governments accountable, and championing the human rights of individuals has always been the focus for Leigh Day. Their 2012 victory for the Kenyans who were tortured by the British government during the Mau Mau rebellion is, says one law expert, “one of the landmark cases of the last few years”. Day grins when I mention it. “Oh yes, I loved that case. Nobody thought we had the slightest chance.Being able to get them justice was absolutely fantastic. To give these people the power to take on the might of the British government was just fabulous, and it’s what we are about.”   But those cases, by and large, are exceptional. According to Day the UK’s justice system is “very good for bringing justice to people in the developing world for the operations of multinationals in that country”. He says that the unified judicial system means that cases move forward quickly. “Our judges have been excellent in saying ‘cut to the chase’.”   But in other parts of the world holding multinational companies accountable for their actions is extraordinarily difficult. Day says that the civil code in Europe “does not work in these big cases”. His colleague Daniel Leader clarifies that disclosure rules on the continent tend to be “much less onerous than in Britain”. Moreover a different financial set-up makes the cases “economically unviable”.   Meanwhile in the States, says Day, “you can get bogged down with procedural hurdle after procedural hurdle”. The difficulty has been increased with the recent Supreme Court decision which it ruled the Alien Tort Claims Act does not apply outside of the country and dismissed a case against Royal Dutch Shell.   In an ideal world, people seeking justice from a multinational would go through their local court system. “Normally you’ve got a subsidiary, so you can nearly always go through the courts of the local place where it all took place,’ says Day. “The problems are firstly that you have to find the costs, secondly the process will take many years and third is corruption.” Day gives examples in Nigeria where he traditionally chiefs bring a case against a company. “If the case is ever resolved, even decades later, the money will go to the chiefs and the poor fisherman or farmers who suffered most of the loss are very unlikely to see any of it,” he says.   Leader adds that the situation in places like South Africa is improving. “But in some countries, like the Congo, there’s no chance of any justice at all, and a corporate accountability case is 20 years off.”   So, if a government abroad or a multinational company is acting up in some way - perhaps dumping waste or mistreating workers - what can be done about it? Do they get a free pass? Day nods. “Yes, I think that’s absolutely true. It is a totally depressing landscape. I feel good that we’ve got a system here that works, but it is very unusual and we do not fall over other lawyers from other jurisdictions when we are out and about around the world.”   It’s an issue that should be seriously worrying the international community. At the turn of the century there was increasing recognition that as trade expanded across the world, it would be important to give citizens safeguards, and equally give corporations responsibilities. The UN drafted a document that would impose the same human rights duties on businesses that states have already accepted, but they immediately met fearsome resistance to any kind of regulation from the business community, and so in 2005 John Ruggie was appointed the UN Secretary-General’s Special Representative for Business and Human Rights, and given the task of coming up with a set of principles. The United Nations Guiding Principles on Business and Human Rights, published in 2011, is based on the idea of three pillars; “Protect, respect and remedy”.   The first pillar represents the duty of the state to protect its own citizens; the second the duty of corporations to respect the rights of those citizens, and the third “the need for greater access by victims to effective remedy, both judicial and non-judicial”.   The response has not been as powerful as anyone hoped. Day, who was pleased that “remedy” was seen to be a vital part of the UN’s principles, was nevertheless disappointed overall. “I thought he did as good job as you could, the disappointing thing has been the reaction to it.” Day says that politicians and NGOs should have built on Ruggie’s work, but instead “the impact of it is depressingly limited”.   Obviously he operated within massive restrictions. I think the job was really for the rest - the politicians, the NGOs to get in there, and do something with it, but i think generally, the final implications are limited.”   In the meantime, his colleague Leader suggests that “we need to develop a network of international lawyers who will find remedies for multinational corporations acting with complete impunity in these countries”. They already have close links with lawyers in the US, France and the Netherlands. “Ruggie is not a lawyer,” he points out. “And I think he’s seriously underestimated the steps that need to be taken to bring true remedy.”   Leigh Day is currently preparing for a particularly titanic case; representing the Caribbean nations in a claim for reparations for slavery. It’s exactly the sort of case that enrages critics on the right wing and Day is guarded about the chances of success. “Much will depend on the determination of the Caribbean states and the response of the British government,” he says.   (Published by The Guardian)   Societies can''t be inclusive without equal access to justice.   The lack of access to justice is widespread in many countries in Asia, Africa and post-Soviet bloc states says AH Monjurul Kabir.   Unhindered access to national judicial system is critical to human dignity and inclusive development. It gives meaning to the equality before law principle. In fact, the integrity, independence and impartiality of the judiciary are essential to protecting human rights and fostering economic development.   But is this enough to ensure social justice and an inclusive legal state? Unfortunately, for disadvantaged and vulnerable groups and marginalised communities across the world, the lack of access to justice is widespread.   The status of the judiciary has proven to be a key weakness of many post-communist regimes, as confirmed by many evaluations of national judicial systems, processes and components.   Can access to justice influences judicial integrity?   Most people associate judicial integrity with an accountability, transparency and integrity. But without unrestricted access to justice, does judicial integrity really exist? Can it survive beyond glorious declarations or official pronouncements? If people do not have access to judicial services, they will not be able to get redress, and, judge quality of justice. It is likely that public confidence in the judicial system will suffer.   The challenges for marginalised communities and vulnerable groups in accessing justice are even greater due to historic reasons, discrimination, economic deprivation, political marginalisation. All these, as Amartya Sen argued in his seminal book The idea of justice, " … will diminish the role of public reason in establishing what can make societies less unjust."   Based on a recent UNDP analysis of national studies carried out in Bosnia and Herzegovina, Kazakhstan, Kosovo, Kyrgyzstan and Serbia during 2011-12, it is fair to say that there are institutional capacity and knowledge gaps in judicial institutions to address the needs of specific segment of population: women, minorities, persons with disabilities.   This is worrying as it erodes people''s confidence in the justice system, and, limits the access to, and quality of justice. This strongly resonates in many developing and middle-income countries from Asia and Africa.   The Bangalore principles of judicial conduct set out six principles to guide the proper discharge of the judicial office: independence, impartiality, integrity, propriety, equality, and competence and diligence. Furthermore, the United Nations office on drugs and crime recently released an Implementation guide and evaluative framework for Article 11 of the UN convention against corruption.   These are positive first steps towards making equal access to justice a reality, but it is crucial that we now act on these guidelines to address the specific needs of those who are most in need of judicial services.   To act, we must first identify the key barriers faced by disadvantaged and vulnerable groups in protecting their rights and accessing legal protection mechanisms. A recent report from UNDP found that the main barriers experienced by women, people with disabilities and minorities are: widespread poverty, discrimination, public prejudice, low education, and illiteracy.   It was also found that judges, lawyers and court staff lack sufficient awareness of the specific needs of these groups.   Further compounding the issue is that marginalised groups do not have equal opportunities when it comes to political participation and are underrepresented in political decision-making within the legislative, executive and judicial authorities at all levels.   Also, a lack of political will and rigid cultural norms do not favour the improvement of conditions for women, people with disabilities or minorities.   Although most countries have adopted policies for addressing the judicial needs of marginalised communities, none has outlined specific activities or allocated resources to enact these policies in the real world.   In this light, many international organisations and national governments are working on providing a strong link between policy-level interventions and operational outcomes in order to make an impact on the lives of target groups. This will require a comprehensive approach throughout the region to maximise connections among the different stakeholders and to act as a platform for promoting the co-ordination and capacity development of national actors to engage in planning, reform and multi-stakeholder dialogue.   Inclusion and participation of poor people can be ensured through a range of mechanisms. For example, the World Bank in Latin America taking concrete measures through projectised interventions. It is training judges and other court personnel in local languages and cultures to promote access to marginalised communities in Guatemala.   Projects in Colombia, Guatemala, and Peru are experimenting with decentralised court services as well as services offered by travelling judges and public defenders.   Recently, UNDP introduced legal aid for justice, an initiative designed to provide comprehensive support to legal aid systems across different regions, using the UN principles and guidelines on access to legal aid in criminal justice systems as its foundation. This initiative will be further deepened by a series of related studies and publications based on the needs of individual countries.   Achieving judicial integrity is not a top-down, supply-driven process. We need to ensure genuine civic engagement, especially with young people, in order to empower women, disadvantaged and vulnerable groups—and create a bottom-up demand for judicial accountability.   * AH Monjurul Kabir is a lawyer and governance adviser, specialising in rule of law, justice and human rights. This is an abridged version of this blog was originally posted in the United Nations Development Programme''s Voices from Eurasia: http://www.theguardian.com/global-development-professionals-network/2014/feb/20/justice-women-social-inclusion-development
	Corporate tax deals are robbing poor countries of teachers and nurses by Martha Khonje Action Aid Malawi Country Director   Corporate tax deals are robbing poor countries of teachers and nurses, by Martha Khonje. (ActionAid)   According to recent figures from the World Bank, my country Malawi is the poorest country in the world. People here live to an average age of 55 and there are high rates of Aids/HIV infection. Our health service is threadbare, with a great shortage of nurses and doctors and our schools need teachers. The country desperately requires investment in public services, including health and education programmes.   However, this does not mean there is no hope. Far from it. One of the solutions to this problem is to increase government income through taxation. Although Malawi is poor, the country has natural resources that are hugely valuable. In theory, by allowing large companies to mine these resources and then tax those operations, our government could raise millions of dollars of revenue.   But this can only happen once the twin problems of tax avoidance and unnecessary tax incentives are solved. And there seems little sign of this.   ActionAid recently released a new report – called An Extractive Affair – revealing that the Malawian government lost out on more than $43m (£27m) in potential tax revenues from a single Australian uranium mining company in six years. That is enough money to pay the salaries of 39,000 teachers or 8,500 doctors for a year.   The company, Paladin, was able to do this by negotiating millions of dollars in tax incentives from the government. In addition it avoided paying millions more in tax in Malawi by using complex corporate structures to exploit loopholes in the international tax system, routing payments through the Netherlands.   Greg Walker, Paladin’s general manager for Malawi, disagreed with our conclusions, arguing that the basis of Action Aid’s argument – the assumption that Paladin would have invested in Malawi if a 5% royalty had been in place – is unsound. Walker says that unless the royalty had been reduced to 3% – “the average royalty rate in Africa at the time,” he says – the project would not have passed Paladin’s economic threshold for investment. “As a result Malawi has enjoyed the economic benefits arising from this very significant investment,” Walker says.   But I would argue that this is not the point. Paladin was able to do this because the international tax system let it. What happened was perfectly legal. In fact, tax breaks and tax planning are fairly typical ways companies minimise their tax bills in poor developing countries. In Paladin’s case it was permitted to do so by Malawian and international tax laws.   For this reason, we want the Malawian government and governments in other developing countries not to offer this kind of massive tax break to companies. We also want global tax rules to be much tougher to prevent this kind of behaviour.   One of the key anti-tax dodging proposals on the international table tax is from the Organisation of Economic Co-operation and Development. It has launched a base erosion and profit shifting (BEPS) action plan, and has billed it as an answer to tackling tax avoidance in both rich and poor countries.   But this would do nothing to stop what happened with Paladin in Malawi. The process does not deal with either tax breaks or the balance of taxing rights between rich and poor countries, enforced by the global spider’s web of tax treaties. Instead, it will allow business to go on as usual.   Moreover, Malawi never got a say on how this process is shaping global tax rules. Instead the system was created by 40 something of the world’s richest countries, who are represented on the OECD and G20, while poorer countries were merely consulted. Far better represented are the interests of the multinational companies headquartered in OECD nations.   Developing countries are pushing hard to be given a say in writing global tax rules, potentially through a tax body at the UN. We need to reshape the international tax system – although many of the world’s richer countries are opposing change. As a citizen of the poorest country in the world, I really hope that the world does take action to rewrite the global tax rules. From Malawi, I say that change is urgently needed.   Ten reasons why an intergovernmental UN Tax Body will benefit everyone. (Tax Justice Network)   Currently, the international tax system consists of a complicated web of thousands of bilateral tax treaties and different parallel international systems to regulate, for example, information exchange and corporate reporting. Negotiation of a globally agreed system is the only way to remove the complexity, confusion, inconsistency and mismatches that exist today. A truly global tax body is a crucial first step towards this goal.   Stronger cooperation between tax administrations. A coherent global system will make it easier for tax administrations to communicate and cooperate. This will further strengthen international coherence and improve working conditions for tax administrations.   Less unilateral action. Blacklisting and special restrictions on transfer pricing, financial transfers, corporate reporting and documentation are only some of the measures individual governments are currently introducing to protect their tax base. If the crisis in the global tax system continues to be unresolved, we are likely to see many more of these kinds of self-protective measures. Only truly global cooperation can ensure that all governments have a real alternative to unilateral action.   Ending the race to the bottom. The fear of losing investments is currently driving governments to introduce tax incentives, loopholes and harmful tax practices in a tragic ‘race to the bottom’, which is costing countries billions of dollars in lost tax income. Through truly global cooperation, we can turn this sad development around.   Better business environment. Clear, consistent, global and stable rules are good for business. Operating across diverse, inconsistent national tax systems creates heavy administrative burdens, legal uncertainty and high risks for international business.   A level playing field. Today, governments who commit to increasing transparency and closing loopholes fear that being a ‘first mover’ will result in businesses and wealthy individuals registering themselves in other jurisdictions. Through truly global negotiations, governments can agree on coordinated global action and ensure a level playing field.   Stronger implementation. No government will feel obliged to implement tax standards and norms adopted in closed rooms where it was not welcome. The UN is the only global institution where all governments participate as equals, and therefore the place to achieve a global commitment to action.   Less double taxation and double-non-taxation. The wide variety of mismatches between national tax systems is the core reason why some get taxed twice on the same income while others don’t get taxed at all. Only truly global cooperation can put an end to these problems.   More financing for development in the poorest countries. Currently, the world’s poorest countries are excluded from decision making on global tax standards, and international systems often don’t take into account their realities and inter ests. This means lower tax income and thereby less available financing for development in these countries.   Fair and consistent global action against tax havens. Many governments are currently trying to protect their tax base through national blacklists based on criteria that are often both unclear and inconsistently applied. While random blacklisting can be burdensome for impacted countries, it will not solve the tax haven problem. Action against tax havens must be fair, consistent and globally coordinated in order to be effective.   http://www.actionaid.org/news/tax-treaties-stopping-poor-countries-collecting-fair-share-tax-multinationals http://www.actionaid.org/tax-power Visit the related web page
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