Saturday, February 27, 2010

Business and Human Rights Part XXV--On the Third Pillar Right to Remedy

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme.  The Ruminations Series in 2009 produced a month long series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions. 
For 2010, this site introduces a new series--Business and Human Rights.  The series takes as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum 
The U.N. "Protect, Respect, Remedy" framework is made up of three pillars: the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights, which means to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial.  The forum is currently focused on the corporate responsibility to respect human rights, the second pillar of the framework. The forum is divided into sections, each of which contains multiple topics with space for discussion and comment.
New Online Forum for U.N. Business and Human Rights Mandate, United Nations Press Release, New York and Geneva, Dec. 1, 2009. Each of the Essays will consider one of the topics raised in the online consultation.  My hope is to help generate discussion and to encourage further discussion of the issues within the framework fo the consultation  framework. 

Part XXV: On the Third Pillar Right to Remedy. IN PROGRESS

The third pillar of the Framework is integral to the entire framework as it is used to enforce the other duties and responsibilities. Four segments exist in this pillar that must be considered when determining how to operationalize.

State Obligations: States are required to take steps to investigate, punish and redress corporate-related abuses of human rights within their jurisdiction.[1] “[T]he State obligation applies to corporate abuse of all applicable human rights, it is unclear how far the individual right to remedy extends to non-State abuses.”[2]

Interplay between Judicial and Non-Judicial Mechanisms: These two mechanisms are sometimes thought of as mutually exclusive, but in fact, they are more interactive, even complementary, reinforcing, sequential, or preventive.[3] Non-judicial mechanisms can be used earlier and faster than judicial processes and where there is no cause for legal action. But each mechanism has its own advantages and disadvantages which must be considered in the wide range of options based on needs and circumstances.

Judicial Mechanisms: The legal systems of States are not enough to investigate, punish and redress abuses as significant barriers still exist.[4] Ruggie focused on barriers that are prominent for victims of corporate related human rights abuses. Some problems included: insufficient capacity to deal with complex claims, costs of filing claims, loser pays policies, and receiving judgments.[5] When making claims against the subsidiaries of foreign parent companies it is even more difficult as there are jurisdictional standards to be used while parent companies use their leverage over governments.[6] With criminal proceedings, even if it is a valid claim, the state may not be willing, or able, to commit resources to the claim.[7] The SRSG is continuing to research and conduct consultations on barriers to judicial remedy, while also looking at possible options to redress them.[8]

Non-judicial Mechanisms: six grievance mechanism principles were considered from the 2008 report: legitimacy, accessibility, predictability, equitability, rights-compatibility, and transparency. The newest principle maintains that the company should operate through dialogue and mediation as opposed to the company itself as an adjudicator. Mechanisms exist at the company level, the national level and the international level.

At the company level, effective grievance mechanisms play an important part in the corporate responsibility to respect. They complement monitoring of human rights compliance and provide a channel for early warning signs.[9] A number of influential companies have begun experimenting with grievance mechanisms and related methodologies. The SRSG also welcomed efforts to craft principles for the operation of such systems by non-state transnational actors.[10] At the national level, national human rights institutions (NHRIs) and the National Contact Points (NCPs ) of states that adhere to OECD Guidelines are potentially important avenues for remedies at the national level.[11] NCPs stress the need for flexibility in its operation that reflects the circumstances.[12] But governments have not given these efforts sufficient support, despite treaty obligations that appear to compel a greater level of support and institutionalization.[13]

Lastly, at the international Level, many “voluntary industry codes, multi-stakeholder initiatives and investor-led standards have established grievance mechanisms.”[14] A major barrier to access of grievance mechanisms is lack of information about them. The SRSG has launched a wiki ( to address this issue. A number of other proposals are outlined within the report. “[C]reating a single, mandatory, non-judicial but adjudicative mechanism at the international level poses greater difficulty”, though an alternate option would be to look at an existing body with international standing that could offer mediation of human rights disputes.[15] Currently, no solid plan has been identified that could be used to address the issues raised here.

For the SRSG, then, grievance mechanisms serve as the heart of any remedy scheme. “They are essential to ensuring access to remedy for victims of corporate abuse.”[16] Again, the distinction between states as law-system organs and corporations as social-system organs drives the analysis. States enforce through the elaboration of laws and standards enforced through its courts. Corporations enforce through the elaboration of governance systems that are grounded in surveillance and non judicial remedies.[17] “But too many barriers exist to accessing judicial remedy, and too few non-judicial mechanisms meet the minimum principles of effectiveness.”[18]

[1] Without these steps, the access to remedy would be weak or even meaningless. Ibid at ¶ 87.

[2] Ibid at ¶ 88.

[3] Ibid at ¶ 91.

[4] Ibid at ¶ 93.

[5] Ibid at ¶ 94.

[6] Ibid at ¶ 95.

[7] Currently, there is very little that victims can do about this situation. Ibid at ¶ 96.

[8] Ibid at ¶ 98.

[9] Companies can even track complaints to identify systemic problems to prevent future harms. Ibid at ¶ 100.

[10] Id., at ¶ 101.

[11] Ibid at ¶ 102.

[12] Ibid at ¶ 104. To ensure credibility, flexibility should be limited by certain performance criteria outlined by the SRSG.

[13] Id., at ¶ 104.

[14] Ibid at ¶ 106.

[15] Ibid at ¶ 111. Arbitration is also an option that is being given serious consideration.

[16] Id., at ¶ 115.

[17] Id.

[18] Id.

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