Thursday, September 15, 2011

An Analysis of the U.N. Protect, Respect and Remedy Framework Guiding Principles, Part VII--Access to Remedy

On March 24, 2011 the United Nations released the "Guiding Principles for the Implementation of the UN Protect, Respect and Remedy Framework" (the "GP" or "Guiding Principles", the culmination of the work of the UN Special Representative on business and human rights, John Ruggie, and his team.  The Guiding Principles were endorsed by the U.N. Human Rights Council in June, 2011.   “In an unprecedented step, the United Nations Human Rights Council has endorsed a new set of Guiding Principles for Business and Human Rights designed to provide -for the first time- a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity.” United Nations Human Rights Council, News Release, New Guiding Principles on Business and human rights endorsed by the UN Human Rights Council, 16 June 2011.

(From Akshaya Mishra,  Deepen democracy to curb Khap power  First Post.Politics,  Apr 20, 2011)


The consideration of the Guiding Principles marks a great milestone in the development of frameworks of governance of economic actors outside of the framework of national law. This milestone can be understood as consisting of four great aspects. The Guiding Principles represents the first successful efforts to provide a governance framework that can be adopted into the national legal orders of adhering states. In this aspect it represents a critical effort in the harmonization of national law on the basis of global consensus. At the same time, the Guiding Principles also represents the first successful effort to provide a framework for the development of customary and conventional international law. In this aspect, the Guiding principles represent a critical effort in the harmonization of governance for an important transnational actor at the international level. Additionally, the Guiding Principles for the first time acknowledges the existence and importance of non-governmental sources of governance rules. The embrace of the importance of social norm systems of autonomous behavior rules for economic enterprises represents a critical acknowledgment of non-state actors as a source of norm making the authority of which is not dependent on states. Lastly, the Guidelines for the first time link remedial obligations to the state duty to remedy and the corporate responsibility to respect human rights in a way that both preserves the autonomy of human rights and their connection to both law and social norms systems.

The Guiding Principles will likely be significantly influential not just as a source of soft law principles at the international level, but as a basis for the evolution of common understanding of appropriate standards of corporate behavior for the development of social norms and eventually changes to the form of the domestic legal orders of states. It will be inevitable that as the Guidelines move toward approval and implementation after endorsement, all major stakeholders in the process will seek to mold the Guidelines to suit their interests. See, e.g., Stefan Marculewicz, U.N. Special Representative's Final Guiding Principles on Business and Human Rights: Policy Implications for Employers, Global Employment Law, March 29, 2011 ("We also believe these Guiding Principles, if not addressed proactively by companies, may create an opportunity for advocacy organizations (such as issue-specific non-governmental organizations and labor unions) to seek to define the parameters of the Guiding Principles on their own terms. "). These discussions will draw on the Guiding Principles themselves and their inevitable comparison with failed earlier efforts to provide a structure for the governance of business actions with human rights impacts. John Knox, The Human Rights Council Endorses “Guiding Principles” for Corporations ASIL Insights Aug. 1, 2011 ("In the wake of the debate over the Draft Norms, the appointment of John Ruggie was something of a gamble that he could bring consensus out of the controversy over the application of human rights principles to corporations. To a remarkable degree, he did so. The Human Rights Council’s endorsement of the Guiding Principles opens a new chapter in the continuing effort to bring human rights law to bear on corporations. It remains to be seen, however, how successful the Guiding Principles will eventually prove at curbing corporate abuses of human rights.").


 (From Protect, Respect, Remedy – a Conference on Corporate Social Responsibility (CSR), EU Commission on Employment, Social Affairs and Inclusion Nov. 10, 2009)

In order to better understand the Guidelines, it may be useful to examine the context in which the Guiding Principles were developed and the development of the Guiding Principles from draft (in November 2010) to final form (March 2011, the DP or "Draft Principles") from a more neutral perspective. For this purpose I have provided my own thoughts about that context and development. That analysis is divided into several parts:


This posting continues a section by section consideration of the final version of the Guiding Principles, focusing on the GP provisions elaborating the access to remedy.

The full analysis will be published as
Backer, Larry Catá, From Institutional Misalignment to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s 'Protect, Respect and Remedy' and the Construction of Inter-Systemic Global Governance (September 5, 2011). Pacific McGeorge Global Business and Development Law Journal, 2011 and can be accessed here. 

(Photo Credits: Nonprofits File Suit Against North Carolina Courts, Saying Lack of Interpreters Is Illegal)
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The GP Access to Remedy Principles


D. Access to Remedy Principles. 

1.  Access to Remedy: Foundational Principles.  The General Principles describing the remedial obligations of states and corporations[1] present the most potentially dynamic element of the GP framework. Yet, one must look carefully to extract that dynamic element from within the formal framing of remedial principles within the state and its dispute resolution apparatus.  Reflecting the fundamental postulate of the primacy of states within the construct, the remedial prong of the “Protect, Respect and Remedy” framework tends to filter substantially all remedial mechanics through the state, relegating alternative disputes mechanics to a subsidiary or residual space.  Though corporations are accorded a limited role for remedial programs,[2] the subordination of those programs to the remedial power of states remains quite evident.  States, under this framework, remain the paramount legitimating source and force for resolving disputes, settling claims and determining rights.  Corporations may mediate harm, and may anticipate and remediate problems before they rise to the level of justiciable injury, but their role is clearly secondary.    The effect on the ability of corporations, along with other non-state actors to develop social norm based remediation structures is thereby marginalized and diminished.  So, perhaps, is the structural integrity of the remedial pillar as an autonomous foundation for the governance of the adverse human rights effects of state or corporate action.  

The hierarchy producing tone of the remedial pillar is set quite clearly in GP Principle 25 (DP Principle 23 substantively unmodified).  States (but not corporations or other entities with duties or responsibilities under the GP) are charged with the obligation to “take appropriate steps” to ensure access to effective remedy by those affected by business related human rights abuses.[3]  The obligation to take such steps are triggered when abuses occur within their territories or (in a nod to the extraterritoriality provisions that occur throughout the GP) within their jurisdiction.[4]  Appropriate steps may be effectuated through “judicial, administrative, legislative, or other appropriate means.” [5]

The Commentary elaborates the key points. The central focus is on the intimate and direct connection between the duty of states to protect (GP Principles 1-10) and the remedial principles of this section.[6] It follows conventional Western thinking by dividing the remedial provision into two parts—a procedural and a substantive element.[7] But the procedural and the substantive element produce a potential tension with the fundamental proposition, that the remedial element is a core obligation encompassed within the domestic legal orders of states and the more innovative intimations of the GP that suggest a conflation between the rule frameworks of the domestic legal order and international hard and soft law approaches. The objective is clear and laudable—to space as large a space as possible for the development of transnational systems of procedural and substantive remedies, but the form produces a conflation of irreconcilable systems (at least at a formal law based level) that diminishes the system-forming value of this part of the GP. The confusion suggests a disjunction between the state favoring thrust of the Principle and the more flexible and broad grievance resolving structure of the Commentary. 

Consider, for example, the procedural element.  The overarching structure is conventional enough—“Procedures for the provision of remedy should be impartial, protected from corruption and free from political or other attempts to influence the outcome.”[8]  This is consonant with the black letter of the principle, elaborating a formal state based process structure. But further generalized as “grievance mechanisms,” the procedural element of access to remedy grounded in the obligations of states takes a curious turn.[9]  First, it turns the focus of the principle from the state (a limiting condition of the black letter of GP Principle 25) to corporations and other non state actors.[10]  Second, it contemplates administration by a host of organs and using a variety of methods,[11] some of which may not be legitimate within the particular domestic legal order of a state (or at a minimum strictly restricted in jurisdiction),[12] or be accorded no legal effect within the domestic legal orders of states.[13] 

The substantive element discussion in the Commentary also elaborates this curious tension. It prescribes a flexible range of remedies[14] that, again, may include choices unavailable under the laws of a state to which the duty applies.[15]   More broadly, the definition of grievance, while in line with a foundational remedial approach that recognizes the autonomy and legitimacy of both law based and social norm grievance mechanisms, spills far out beyond the limits inherent in both the General principles and the state based structure of the black-letter of GP Principle 25 itself.[16]

Of course, the Commentary to Principle 25 may be read, in this respect, as purely descriptive, rather than proscriptive.  One can then understand the Commentary as merely describing the potential possible ranges of process and substantive approaches, rather than prescribing the implementation of the full range of processes and remedies described; the actual availability of any of the suggestions remaining dependent on the domestic legal order of the state in which the remedy is sought (or is available). But there is a sense that a proscriptive approach is favored.  Thus, for example, the Commentary presumes the possibility of positive obligations with respect to remedies.[17]

This prescriptive sense is deepened by a further oddity about GP Principle 25.  Having devoted a substantial amount of effort in constructing a state based remedial framework with perhaps a hint of supra-national bases for the outer bounds of remedial authority, the Commentary then hints that the system itself is part of a larger polycentric system of remediation in which the state plays a role but not necessarily the only role. While non-state based remedies are no where to be found in the black-letter of the principle itself, the Commentary provides that “State-based judicial and non-judicial grievance mechanisms should form the foundation of a wider system of remedy.”[18]  This tension, between what appears to be the privileging of the state in the remedial pillar, with a nod toward non-state remedial regimes popping up at the margins, provides a disconcerting dissonance in the exposition of the remedial power, which is then mirrored in the development of the remaining principles of access to remedy which is meant to operationalize this foundational principle.[19]

2.  Access to Remedy: Operational Principles—State Based Judicial Mechanisms.  Having laid the foundation in GP Principle 25, GP Principles 26-27 flesh out the parameters of state based remedies, including the paramount state obligation to oversee non-judicial remedial systems.  GP Principle 26 (DP Principle 24) considers state based judicial remedies.  It describes a principle of effectiveness: “States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms.”[20] Effectiveness is measured in terms of reductions of barriers of access to remedy before the judicial organs of a state.[21]  The Commentary emphasizes the centrality of the judicial functions of states as the core of the access to remedy principles of the GP because these institutions are legitimating, effective and when they work well impartial.[22]  The Commentary, then, focuses on the obligations of states to protect the legitimacy of the court system to render effective and impartial justice. In particular, the judicial system should avoid erecting barriers to access to justice.[23]  State should also guard against corruption.[24]  The Commentary also suggests the hortatory element of the principle.[25] These barriers also speak to the tension between the Principle fully applied, and the constraints of the domestic legal orders of powerful, and powerfully influential states.[26]

The suggestions for legal and policy changes identified in the Commentary are neither extraordinary nor unreasonable as matters of policy. They might be understood as grounded in the legal and policy dimensions of the fundamental obligations of the state in the context of their duty to protect.[27] Because the GP place their greatest reliance of state based and especially judicial remedial organs, individuals affected by human rights abuses have a smaller range of legitimate alternatives where states fail in their duty or remain indifferent to the barriers identified in the Commentary.  Worse, states can avoid addressing these barriers by reference to the constraints of their constitutional orders or the limitations of law or custom in accordance with the framework GP General Principles. Thus, while the Commentary suggests that GP Principle 26’s obligation to provide effective domestic judicial mechanisms, it is not clear that this incorporates a positive obligation, resident only in the Commentary, to also reform judicial mechanisms to reduce barriers to access grounded in the seven examples provided in the Commentary.  

The obligation to reduce the barriers identified in GP 26 Commentary might have more authority if they were deemed to reflect an expression of the legal obligations of states under international law—the touchstone for state duty under the GP.  It is possible to read an effectiveness principle into the human rights obligations states are under a duty to protect, but to the extent that a state might take the position that this amounts to the creation of new international law obligations, it is unlikely that such obligations can be sourced in the Commentary to GP Principle 26.[28]  There is a tension here, though, because the fundamental principles of the access to remedy provisions speak, in its commentary, to the embeddedness of judicial mechanisms in a wider system of remedy.[29] Yet, within the context of the GP, this can mean nothing more than that beyond judicial mechanisms there are additional means of grievance settlement that may be available beyond the purview of the state.   And thus one returns to the starting point—the hortatory nature of much in the Commentary. Though hortatory instruments have played an enormously important role in the development of international norms, it is more likely to affect the approaches to business enterprises to dispute resolution mechanisms that states.  Yet states and not business corporations are the object of this provision. What remains then, is the elaboration of policy best practices that might prove useful to non-governmental organizations working toward legal reform within a state.

3.  Access to Remedy: Operational Principles—State Based Non-Judicial Mechanisms. Though the bedrock of the remedial right is state based judicial remedy, GP Principle 27 recognizes that non judicial state based remedies “play an essential role in complementing and supplementing judicial mechanisms.”[30]  GP Principle 27 provides that “States should provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights.”[31]  The role of non-judicially State based remedies is principally as a gap filler, both in terms of the availability of remedy and to make appropriate accommodation for the idiosyncrasies of culture.[32] The Commentary suggests a broad selection of mechanisms, many of which might be compatible with the rules of the domestic legal orders of several states but all of which are unlikely available in any one state.[33] Effectiveness of non-judicial state based mechanisms is the subject of its own principle, and more elaborately constructed than the effectiveness criteria of state based judicial remedied.[34]  The issue of imbalances between the parties, which tend to be avoided in the law systems of states, is also treated in the Commentary.[35]

4.  Access to Remedy: Operational Principles—Non-State Based Grievance Mechanisms.  Finally, GP Principle 28-30 turn from the state and its organization of remediation mechanisms, to non-state based grievance mechanisms.  It is important to remember, that while these might have been considered autonomous of state systems and grounded in the social norm rules that are the foundation of the non-state governance norms of corporations highlighted in the corporate responsibility to respect provisions, as crafted in the access to remedies principles, it becomes clear that these mechanisms occupy a dependent and secondary role.[36]  GP Principle 28 (DP Principle 26 substantially unmodified) makes it clear that the state duty to protect human rights in its remedial role extends to the oversight of non-state based grievance mechanisms. “States should consider ways to facilitate access to effective non-state based mechanisms dealing with business-related human rights harms.”[37]  The commentary provides a listing of appropriate forms of such grievance mechanisms.  One category includes mechanisms originating or controlled by the business entity at the center of the human rights harms.[38]  The other includes mechanisms available through international organizations and other public non-.state actors.[39]

It is here, and for the first time, that the Commentary, that the Principles confront one of the largest lacuna of the principles—the absence of remedial mechanisms for the human rights harms of state actions, and especially by failures to comply with the state duty to protect.   Regional and international human rights bodies “have dealt most often with alleged violations by States of their obligations to respect human rights. However, some have also dealt with the failure of a State to meet its duty to protect against human rights abuse by business enterprises.”[40] While the oblique reference to the necessity of moving beyond mechanisms that manage corporate compliance to those that also manage state compliance under the principles, this off handed reminder might be insufficient to be effective.  Moreover, the construction of the Principles framework itself appears to reject the notion that enforcement against states is an object of the framework.

The two GP that follow turn to the obligations of companies in the construction and operation of non-state based non-judicial mechanisms. GP Principle 29 (DP Principle 27 substantially unmodified) focuses on the obligation of businesses to provide effective operational level grievance mechanisms to address grievances early and remediate directly.[41] Specifically, it speaks to the placement of the grievance mechanism within the corporate structure and to the timing of access to the non-judicial remedy made available.[42]  The Commentary describes these mechanisms as existing independent of the remedies available by the State and can be quite flexibly constructed—the focus is on functional effectiveness within the context of the company’s operations.[43] In addition, the Commentary suggests two important functions of these mechanisms that tie remedies to the corporate responsibility to respect human rights:  the first is to support the monitoring function of human rights due diligence,[44] and the second is to provide for early remediation of grievances before harms are compounded.[45] These mechanisms are not bounded by either rules of procedure or substantive constraints that frame judicial mechanisms.[46]

Lastly GP Principle 30 (DP Principle 28) suggests  the value of industry or multi-stakeholder initiatives as a mechanism for effective grievance mechanisms.[47]  This provision echoes the multilateral institutions principles of the state duty to protect.[48] The focus is on the creation on substantive standards that further respect for human  “Such collaborative initiatives should ensure the availability of effective mechanisms through which affected parties or their legitimate representatives can raise concerns when they believe the commitments in question have not been met.”[49]  The issue is one of legitimacy—a theme that is threaded throughout the access to remedies principles, though never consistently.[50]  “These mechanisms should provide for accountability and help enable the remediation of adverse human rights impacts.”[51]

5.  Access to Remedy: Operational Principles—Effectiveness Criteria for Non-Judicial Grievance Mechanisms.  The last of the Principles, GP Principle 31 (DP Principle 29), ties all of the non-judicial remedial provisions together under the criteria provisions of effectiveness.  It sets out a list of legitimating characteristics of non-judicial grievance mechanisms, though it is not clear why these characteristics ought not also to apply to state based judicial remedial mechanisms. The characteristics include: legitimacy,[52] accessibility,[53] predictability,[54] equity,[55] transparency,[56] rights-compatibility,[57] and constant improvement.[58]   A special additional characteristic is specified for operational level mechanisms: dialogue and engagement.[59]    “These criteria provide a benchmark for designing, revising or assessing a non-judicial grievance mechanism to help ensure that it is effective in practice.”[60]  The final criteria is specific to business administered operational level grievance mechanisms and focus on engagement and dialogue.[61]

Grievance mechanisms are defined as a term of art in the General Principles.[62]  The term appears in the Commentary of GP Principle 20,[63] GP Principle 22,[64] and GP Principles 25, 27-28.[65]  “The term itself may not always be appropriate or helpful when applied to a specific mechanism, but the criteria for effectiveness remain the same.”[66]  Interestingly, effectiveness is also measured by the willingness of corporations and affected individuals to use grievance mechanisms and their aggregate implementation as a basis for political action.  “Regular analysis of the frequency, patterns and causes of grievances can enable the institution administering the mechanism to identify and influence policies, procedures or practices that should be altered to prevent future harm.”[67]  The possibility of using the Guiding Principles as the3 basis for political action as well as for constraining behavior opens possibilities that suggest an implicit limit on the General Principles’ prohibition on the use of the Principles ot create new international law.  It appears that the Commentary here suggests that while the Principles themselves may not create new law, they may certainly serve as the basis for such creation through the traditional methods of convention or the development of customary international law.[68]

Taken together, the access to remedies principles presents a divided approach to remediation.  On the one hand, it approaches the issues of state based remedies cautiously and within the conventional perspective that states retain the ultimate authority to build their remediation systems as they like.  But at the edges the principles suggest subversion, either through the efforts to suggest the primacy of international norms as the basis for framing domestic legal order remediation, or by suggesting that grievance mechanisms themselves serve as a basis for political action. On the other hand, corporations are treated as subsidiary elements of this access to remedies framework.  They serve two broad purposes—to institute systems that avoid the need to access remedies or to detect and prevent harm in the first place.  International institutions also serve a gap filler role as well, but also become useful as a place where international norms (and perhaps social norms affecting corporate behavior) may also be developed with indirect effects on state domestic law as applied by its judicial and non-judicial mechanisms.

Yet, there is a hierarchy built into this balance.  Throughout, it is clear that the state remains the focus of the access to remedy.  And while the corporation or international bodies may serve supporting or preventative roles, legitimacy is still very much tied to the courts of the states.  But access to remedies itself is never developed in its own right.  It serves the state duty to protect and the corporate responsibility to respect, but never finds its own normative justification for existing apart form either.  And it could have—in contrast to the state duty and the corporate responsibility, access to remedy focuses on the third great stakeholder in the human rights enterprise: the individual or community affected by state or corporate activity having adverse human rights effects.  It is to the remedial rights of that individual that the remedial provisions might have better focused, an object of discussion taken up in the concluding subsection of this part. 
 

[1] See GP Principles 25-31 (DP Principles 23-29).
[2] See GP Principles 28-30 (DP Principles 26-28), all of which are closely tied to the foundational principle embracing the idea of the supremacy of the state and its domestic legal orders as the primary site of dispute resolution for human rights claims, GP Principle 25 (DP Principle 20).
[3] GP Principle 25.
[4] Id.
[5] Id.
[6] “Unless States take appropriate steps to investigate, punish and redress business-related human rights abuses when they do occur, the State duty to protect can be rendered weak or even meaningless.” GP Principle 25 Commentary.
[7] “Access to effective remedy has both procedural and substantive aspects.” GP Principle 25 Commentary.
[8] GP Principle 25 Commentary.
[9] Recall, for these purposes, the overarching principle that must be read into GP Principle 25 and its Commentary: “States’ existing obligations to respect, protect and fulfil human rights and fundamental freedoms;” GP General Principles (a), discussed supra.
[10] “The term grievance mechanism is used to indicate any routinized, State-based or non-State-based, judicial or non-judicial process through which grievances concerning business-related human rights abuse can be raised and remedy can be sought.” GP Principle 25 Commentary.
[11] “State-based grievance mechanisms may be administered by a branch or agency of the State, or by an independent body on a statutory basis. They may be judicial or non-judicial. Examples include the courts, labor tribunals, national human rights institutions, National Contact Points under the OECD Guidelines for Multinational Enterprises, many ombudsperson offices, and government-run complaints offices.” GP Principle 23 Commentary.
[12] In the United States, for example, the resort to indigenous courts and court systems is both highly restricted and highly politicized.  It has spawned a cottage industry of lawyers and policy activists on both sides of the issue of the extent and power of Indian Court systems.  See, e.g.,
[13] The reference to the National Contact Points under the Guidelines for Multinational Enterprises of the Organization for Economic Cooperation and Development provides a case in point.  See,e .g., Larry Catá Backer, Case Note: Rights And Accountability In Development (Raid) V Das Air (21
July 2008) And Global Witness V Afrimex (28 August 2008); Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, 10(1) Melbourne Journal Of International Law 258-307 (2009). The Commentary does acknowledge the limiting effects of reliance of State law-systems as the foundation of remedial rights: “State-based grievance mechanisms may be administered by a branch or agency of the State, or by an independent body on a statutory or constitutional basis.” GP Principle 25 Commentary.  But it then conflates what many domestic legal orders deploy separately—remedial systems and soft law systems in which neither jurisdiction nor remedial authority is mandated. 
[14] “The remedies provided by the grievance mechanisms discussed in this section may take a range of substantive forms the aim of which, generally speaking, will be to counteract or make good any human rights harms that have occurred. Remedy may include apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions (whether criminal or administrative, such as fines), as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition..” GP Principle 25 Commentary.
[15] See, e.g., Larry Catá Backer, Indigenous Law and Global Constraints: Bolivia, Decolonization of Law, Constitutionalism and Human Rights, Law at the End of the Day, June 27, 2010. Available http://lcbackerblog.blogspot.com/2010/06/indigenous-law-and-global-constraints.html.
[16] “For the purpose of these Guiding Principles, a grievance is understood to be a perceived injustice evoking an individual’s or a group’s sense of entitlement, which may be based on law, contract, explicit or implicit promises, customary practice, or general notions of fairness of aggrieved communities.” GP Principle 25 Commentary.
[17] “Ensuring access to remedy for business-related human rights abuses requires also that States facilitate public awareness and understanding of these mechanisms, how they can be accessed, and any support (financial or expert) for doing so.”  GP Principle 25 Commentary.
[18] GP Principle 25 Commentary.  “.Within such a system, operational-level grievance mechanisms can provide early-stage recourse and resolution. State-based and operational-level mechanisms, in turn, can be supplemented or enhanced by the remedial functions of collaborative initiatives as well as those of international and regional human rights
mechanisms.” Id.
[19] “Further guidance with regard to these mechanisms is provided in Guiding Principles 26 to 31.” GP Principle 25 Commentary.
[20] GP Principle 26.
[21] Id. (“considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy”).
[22] “Effective judicial mechanisms are at the core of ensuring access to remedy. Their ability to address business-related human rights abuses depends on their impartiality, integrity and ability to accord due process.”  GP Principle 26 Commentary.
[23] “States should ensure that they do not erect barriers to prevent legitimate cases from being brought before the courts in situations where judicial recourse is an essential part of accessing remedy or alternative sources of effective remedy are unavailable.” GP Principle 26 Commentary.
[24] “They should also ensure that the provision of justice is not prevented by corruption of the judicial process, that courts are independent of economic or political pressures from other State agents and from business actors, and that the legitimate and peaceful activities of human rights defenders are not obstructed.” GP Principle 26 Commentary.
[25] The Commentary speaks of legal and practical barriers, as well as barriers grounded in the marginalizing of vulnerable groups, listing a number of specific forms of barriers to be avoided.  GP Principle 26 Commentary. 
[26] This is particularly true, for example, with respect to the United States.  Contrast Medellín v. Texas, 552 U.S. 491 (2008) (international obligations of the United States are not binding as a part of the U.S: domestic legal order unless the treaty is self executing or Congress has transposed the obligations; the decisions of the International Court of Justice are not binding within the United States even if they bind the government of the United States) with Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 (Judgment of March 31) (Avena) (imprisoned Mexican nationals were entitled to review and reconsideration of their convictions and sentences because the State of Texas violated the obligations of the United States under a Treaty to which it was bound).   
[27] Discussed above at text and notes ---, supra.
[28] Indeed, the GP Principles themselves are limited by a commitment to avoid extending or creating international law.  GP General Principles, discussed infra.
[29] GP Principle 27 Commentary, discussed supra.
[30] GP Principle 27 Commentary.
[31] GP Principle 27.
[32] GP Principle 27 Commentary.  “Gaps in the provision of remedy for business-related human rights abuses could be filled, where appropriate, by expanding the mandates of existing non-judicial mechanisms and/or by adding new mechanisms.” Id.
[33] “These may be mediation-based, adjudicative or follow other culturally-appropriate and rights-compatible processes – or involve some combination of these – depending on the issues concerned, any public interest involved, and the potential needs of the parties.”  Id.
[34] GP Principle 27 Commentary.
[35] “As with judicial mechanisms, States should consider ways to address any imbalances between the parties to business-related human rights claims and any additional barriers to access faced by individuals from groups or populations at heightened risk of vulnerability or marginalization.” GP Principle 27 Commentary.
[36] “Operational-level grievance mechanisms can be important complements to wider stakeholder engagement and collective bargaining processes, but cannot substitute for either. They should not be used to undermine the role of legitimate trade unions in addressing labour-related disputes, nor to preclude access to judicial or other non-judicial grievance mechanisms.” GP Principle 29 Commentary.
[37] GP Principle 28.
[38] “One category of non-State-based grievance mechanisms encompasses those administered by a business enterprise alone or with stakeholders, by an industry association or a multi- stakeholder group.” GP Principle 28 Commentary.
[39] “Another category comprises regional and international human rights bodies.” GP Principle 28 Commentary.
[40] Id.
[41] “To make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.” GP Principle 29.
[42] “Operational-level grievance mechanisms are accessible directly to individuals and communities who may be adversely impacted by a business enterprise. They are typically administered by enterprises, alone or in collaboration with others, including relevant stakeholders.”  GP Principle 29 Commentary.
[43] GP Principle 29 Commentary.
[44] “They do so by providing a channel for those directly impacted by the enterprise’s operations to raise concerns when they believe they are being or will be adversely impacted. By analyzing trends and patterns in complaints, business enterprises can also identify systemic problems and adapt their practices accordingly.” GP Principle 29 Commentary
[45] The Commentary suggests that “these mechanisms make it possible for grievances, once identified, to be addressed and for adverse impacts to be remediated early and directly by the business enterprise, thereby preventing harms from compounding and grievances from escalating.” Id.
[46] These grievance mechanisms “need not require that a complaint or grievance amount to an alleged human rights abuse before it can be raised, but specifically aim to identify any legitimate concerns of those who may be adversely impacted.”  Id.
[47] “Industry, multi-stakeholder and other collaborative initiatives that are based on respect for human rights-related standards should ensure that effective grievance mechanisms are available.”  GP Principle 30.
[48] See GP Principle 10, discussed supra. The Commentary suggests the parallel, though only indirectly: “Human rights-related standards are increasingly reflected in commitments undertaken by industry bodies, multi-stakeholder and other collaborative initiatives, through codes of conduct, performance standards, global framework agreements between trade unions and transnational corporations, and similar undertakings.” GP Principle 30 Commentary.
[49] GP Principle 30 Commentary.
[50] “The legitimacy of such initiatives may be put at risk if they do not provide for such mechanisms. The mechanisms could be at the level of individual members, of the collaborative initiative, or both. These mechanisms should provide for accountability and help enable the remediation of adverse human rights impacts.” GP Principle 30 Commentary.  The issue of mechanism legitimacy is treated more extensively in GP Principle 31 Commentary (a), (e) and (h). The focus on legitimate processes was cross linked to the corporate responsibility to respect.  See GP Principle 22 discussed supra.  Legitimacy was bound up in discussions of barriers to state supported remediation mechanisms.  See GP Principle 26.
[51] Id.
[52] GP Principle 31(a) (“enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes”).  The Commentary speaks to the elements of trust and accountability as critical to legitimacy concerns.  GP Principle 31 Commentary.
[53] GP Principle 31(b) (“being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access”).  The Commentary speaks to barriers to access.  GP 31 Commentary.  This was also treated in GP  Principle 26.
[54] GP Principle 31( c) (“providing a clear and known procedure with a time frame for each stage and clarity on the types of process and outcome it can (and cannot) offer, as well as a means of monitoring the implementation of any outcome”).  The Commentary conflates trust and predictability, suggesting that the mechanisms should “provide public information about the procedure it offers. Timeframes for each stage should be respected wherever possible, while allowing that flexibility may sometimes be needed.” GP Principle 31 Commentary.
[55] GP Principle 31(d) (“seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms”).  The Commentary speaks to redressing the imbalance in resources between parties to improve perceptions of fair process.  GP Principle 31 Commentary.  This is an issue addressed in other principles as well, e.g. GP Principles 26-27.
[56] GFP Principle 31(e) (“keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence in its effectiveness and meet any public interest at stake”).  The Commentary speaks to the balance between demonstrating legitimacy and gaining trust through disclosure and protecting the confidentiality of information and parties according to the context of the grievance. It also suggests the value of record and statistics keeping.  GP Principle 31 Commentary.
[57] GP Principle 31(f) (“ensuring that its outcomes and remedies accord with internationally recognized human rights standards”).  The Commentary speaks to reframing grievances appropriately.  GP Principle 31 Commentary.  This extends the tensions between the limited nature of state obligations to enforce anything but those legal obligations transposed into the domestic legal order, social norms obligations of corporations that provide grievance mechanisms and international norms that may inform the scope and nature of both.
[58] GP Principle 31(g) (“drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms”).  The Commentary speaks to the utility of data analysis.  GP Principle 31 Commentary.
[59] GP Principle 31(h) (“focusing on processes of direct and/or mediated dialogue to seek agreed solutions, and leaving adjudication to independent third-party mechanisms, whether judicial or non-judicial”).
[60] GP Principle 31 Commentary.
[61] GP Principle 31(h) (“consulting the stakeholder groups for whose use they are intended on their design and performance, and focusing on dialogue as the means to address and resolve grievances.”).
[62] GP Principles 31 Commentary.
[63] Discussed supra; this relates to operational level grievance mechanisms as a means of feedback to verify human rights impacts.
[64] Discussed supra; this relates to the use of operational level grievance mechanisms as effective means of enabling remediation.
[65] Discussed supra; on remediation mechanisms and grievance mechanisms.
[66] GP Principle 31 Commentary.
[67] GP Principle 31 Commentary.
[68] Burt see generally, Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (New York: Oxford University Press, 2005).
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