At the 3rd U.N. Forum on Business and Human Rights--Remarks at Side Event: "Conceptual, Structural, and Operationalization Constraints on the Right to Remedy Under the Guiding Principles"

In a prior post I noted the then upcoming Third Annual United Nations Forum on Business and Human Rights, of the Working Group on the issue of human rights and transnational corporations and other business enterprises, will be held in Geneva 1-3 December 2014. (e.g.,  The 2014 United Nations Forum on Business and Human Rights, "Advancing Business and Human Rights Globally: Alignment, Adherence and Accountability").

I have the delightful privilege of having helped organize one of the side events of this Forum, "Ensuring access to effective judicial & non-judicial remedies: progress, trends & recommendations" with colleagues from the International Corporate Accountability Roundtable (ICAR), Business and Human Rights Resource Center (BHRRC), Corporate Responsibility Coalition (CORE), European Coalition for Corporate Justice (ECCJ), International Federation for Human Rights, and Pennsylvania State University School of Law. The event will be held 1 December 2014 in the Palais des Nations Room XI, from 11:45 – 13:15.

This post includes the Session Concept Note and my remarks for this session, "Conceptual, Structural, and Operational Constraints on the Right to Remedy Under the Guiding Principles."

Joint Proposal – UN Forum on Business & Human Rights Side Event
Submitted by ICAR, BHRRC, CORE, ECCJ; Larry Catá Backer, Pennsylvania State University School of Law

Title:

Ensuring Access to Effective Judicial & Non-Judicial Remedies: Progress, Trends & Recommendations

The third pillar of the UNGPs is generally regarded as neglected and the pillar which has seen the least progress since the GPs’ endorsement. Access to effective judicial remedy sits at the very core of the third pillar, and is fundamental for the effectiveness of the balance of the UNGPs. The UNWG stated in its May 2014 report to the HRC its intention to support a process to identify "models of best State practice in relation to the functioning of domestic judicial mechanisms". Moving beyond principle to operationalization of the UNGPs, the evolving structures of remediation at the state and enterprise level are critical to internalizing the UNGPs within the domestic legal frameworks and the internal human rights cultures of enterprises.

ICAR, CORE, and ECCJ developed The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business. The report identified and analyzed the barriers to remedy in the United States, Canada, and Europe, setting out detailed recommendations for the actions States should take to address these barriers.

This side event will reflect on developments that have taken place at the national and international levels since publication of The Third Pillar, examine recent proposals to improve access to remedy that have gained traction, as well as focus on opportunities to address gaps in legal coverage and protection that could improve access to courts for victims of human rights abuses. Furthermore, speakers will present recommendations that were produced following the organization of a series of high-level conferences in France, the UK, Germany, and Brussels. The panel will also consider access to effective non-judicial remedies, focusing on remedial opportunities in Latin America, Africa, Asia and especially China. New developments in these regions offer concrete guidance which takes into consideration their distinct cultural, political and legal systems. These contextually appropriate remedial structures may help OECD core states and the MNCs headquartered there better approach their National Action Plans and supply chain governance structures.

Victims of corporate-related abuses' voice will be represented by human rights defenders from the Global South testifying about obstacles to accessing remedy and the increased criminalisation of their activities.

Format:

The side event will be in the form of an interactive dialogue & workshop, beginning with the organizers briefly sharing the initial findings of their research and then moving on to discussion of potential opportunities and promising developments. Questions will be posed to the participants and an open dialogue will be encouraged.

Objectives:

- To show that addressing gaps in legal coverage and protection to the law could create real change by making courts available to victims, without imposing a heavy burden on the judicial infrastructure;

- Under the OECD process, identify avenues to improve access to effective remedies (e.g., the role of NCPs post-2011), especially to deal with complaints regarding corporate conduct in non-OECD states;

- Identify the potential of informal redress mechanisms by CSOs in particular in states with governance deficits and how will corporate redress mechanisms interact with formal, state-based accountability mechanisms;

- Gather recommendations on policy and legal reform to improve access to justice everywhere;

- Highlight what is being done to overcome barriers to accessing remedy for corporate human rights abuses in various jurisdictions around the world, and identify how this should be incorporated into NAPs;

- Special case of China and its role in in the GP project;

- Draw attention to challenges faced by human rights defenders in accessing remedy, and to the increased criminalisation of their activities, particularly in the area of land rights.

Panelists:

1. Name: Geneviève Paul
Organization: FIDH
Nationality or region: national of Canada, based in France
Business and human rights expertise: Introduction of human rights defenders
Contact information: gpaul@fidh.org & mcadier@fidh.org; +33 1 43 55 55 03

2. Name: Juan Pichun Lonko [to be confirmed]
Organization: Spiritual leader of the Lemulemu community (Mapuche)
Nationality or region: Chile
Business and human rights expertise: Testimony regarding barriers to accessing remedy, from human rights defender
Contact information: juan.pichun@gmail.com

3. Name: Katie Shay
Organization: ICAR
Nationality or region: USA
Business and human rights expertise: Third Pillar report & developments since publication
Contact information: Katie@accountabilityroundtable.org

4. Name: Mauricio Lazala, (chairing panel)
Organization: Busines & Human Rights Resource Centre
Nationality or region: National of Colombia, based in UK
Business and human rights expertise: Global overview of corporate legal accountability
Contact information: lazala@business-humanrights.org

5. Name: Larry Catá Backer
Organization: W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International Affairs, Pennsylvania State University; Director, Coalition for Peace and Ethics (an independent NGO)
Nationality or region: USA
Contact information: lcb911@me.com

6. Name: Surya Deva [if it conflicts with another commitment for Surya, the alternative speaker will be Karin Buhmann from the Danish National Contact Point]
Organization: Associate Professor, School of Law, City University of Hong Kong
Nationality or region: National of India, based in Hong Kong, China
Contact information: suryad@cityu.edu.hk

7. Name: Juana Kweitel
Organization: Director Conectas Human Rights
Nationality or region: Brazil
Contact information: juana.kweitel@conectas.org

__________

Conceptual, Structural, and Operational Constraints on the Right to Remedy Under the Guiding Principles 

Remarks 

Larry Catá Backer

The UN Guiding Principles’ third pillar, Access to Remedy (GP ¶¶ 25-31), is fundamental to both operationalize the substantive values of duty and responsibility assigned to states and corporations under the First and Second Pillar, and to center those duties and responsibilities not on states and enterprises, but on the individuals and communities to which international organizations, states and corporations are irreducibly obliged. Yet the third pillar of the UNGPs is generally regarded as neglected and is understood as the pillar which has seen the least progress since the GPs’ endorsement.

In these remarks I will suggest at least one way to understand the reason for this contradiction and perhaps to point to mechanisms for overcoming the tensions between states and corporations, vested with active obligations and individuals and communities who are the receptacles of these duties and responsibilities. In the process I will suggest the general structural limits of the remedial pillar, its blindness to the remedial framework of Marxist Leninist regimes, and the dangers of relying on national judicial systems for systematic and sustainable development of remedial mechanisms for the resolution of human rights wrongs.

To this end I will point to the conceptual, structural and operationalization constraints on the obligation to remedy and point to the means to begin to move beyond those constraints. My remarks do not follow the general consensus among NGOs as to “what is to be done.” Nor do the remarks intend a fatalistic embrace of the desires of some states, and of those enterprises that have sought to shield their activities behind the thick and malleable walls of sovereignty, to reconceive the UNGPs as a conceptually empty gesture requiring little more than a more efficient approach to public sector-based business-as-usual (but now with a more active complicity of enterprises and NGOs).

Conceptual Constraints

Conceptual constraints go to the normative foundations of the third pillar. These define their scope and the premises within which they might be understood and applied.

The first is the reluctance to see in the remedial pillar a foundational objective of recognizing the rights of and obligation owed to people and communities who are the objects of the first and second pillars. To treat the third pillar as merely procedural and consequential—a reminder that mechanisms must be instituted to give effect to the duties and responsibilities described in the first two pillars—erases the principal substantive object of the third pillar. That object is meant to recognize the reciprocal claim of individuals and communities to be secure in the enjoyment of those human rights that states have a duty to protect and enterprises a responsibility to respect. Thus the third pillar, fairly read, might better be understood as a recognition of the individual and the community at the center of a web of duty and responsibility. The centrality of the individual in this web is the animating principle of remedy—not so much as embedded in a right assigned to the individual or vested in a community, as it is embedded in the duty and responsibility of state and enterprise themselves. That embedding carries with it the obligation to ensure that individuals and communities are secure in the obligations owed to them. In the West we speak of these generally in the context of “rights” discourse. In China and Marxist-Leninist states, it is spoken of in terms of legitimacy and the duty to ensure that state officials fulfill their obligations. That is a powerful way to read together the UNGPs principles 22 and 29 (enterprise remediation), and 25 and 28 (the foundational principle for state engagement in remediation).

The second conceptual constraint centers on an unwillingness to avoid the imperial project of transposing Western assumptions about rights and of the relationship between states and their people to the rest of the world—and to do so without effective consultation with those affected. This is an important conceptual omission and points to an arrogance of transposing Western conceptions of “the good” to those who suffer either from false consciousness or conceptual underdevelopment. Not that many of these concepts—at a sufficient level of generality—are not profound and worthy of embracing. To speak the sort of language of human rights that has become a staple of transnational elite conversation is to ignore the potentially profound differences in approach—though not of objectives—between Western oriented political theology and those of other systems.

Third, it is not clear that the principle object of the UNGP is to push forward the Western project of advancing economic and social progress through an emphasis on the development of Western style political and civil rights. There are a number of states that view the opposite to be a better way of effectuating the promise of the UNGPs—to focus on the development of social, economic, and cultural rights (understood in the form of state obligations to its people) from out of which political and civil rights may be more legitimately developed. In China the obligations of both state and enterprise are understood in terms of institutional duty to people rather than in terms of individual rights that may be asserted against institutions. That shapes both the approaches to remediation and the relationship between the state and enterprise in issues of CSR compliance. It is certainly true that in the West we tend to believe the opposite—the only through the cultivation of political and civil rights will it be possible to develop state responsiveness to mass economic, social and cultural rights. But the use of the UNGP to further that agenda will do little to deepen its acceptance in the many states that find such a formula problematic.

Structural Constraints

Structural constraints are those assumptions about the means of instituting the mechanisms for remediation that sometimes, reflecting conceptual assumptions, will constrain the ability to deliver remedies to the most vulnerable populations, even as they tend to augment the power and influence of those complicit in the remediation processes developed.

The first is the emphasis on the judicial remediation of human rights wrongs. Judicial remediation serves to enhance the power of states as obstacles to the seamless process that is globalized production. They also tend to exacerbate tensions between members of distinct and sometimes contentious groups divided by race, religion, ethnicity, gender and the like within a state. As the events in Ferguson Missouri suggest, there is not one state where such issues may not have a profound effect on the ability of a judicial mechanism, a mechanism that reflects the tensions of the allocation of state power among a population. Where wealth and technical proficiency enhance the legitimacy of judicial authority, they also make the real possibility of effective remedy remote at least and unattainable at worst for most bearers of human rights or human rights obligations. That is so without the effective help of intermediaries. And those tend to consist of the largest human rights NGOs who might fall into the trap of upholding systems that might be better opened in order to retain their own states and power to influence and be admitted into the halls of state and transnational power. The focus on judicial power—effectuated through states—is a poisoned chalice.

The second follows from the first—it assumes that the judicial mechanism is the best and most effective means of supplying effective remedies that might be accepted as legitimate among all stakeholders. Yet there may be systems, for example that of Marxist Leninist states, in which other administrative agencies might be better suited to effect remedies. In China the duties in the UNGP is meant to frame the extent of the state’s (or the enterprise’s) obligations to the members of the communities it affects. That fundamental inversion provides the basis for understanding both the difficulties of transposing Western human rights institutions into China, but also the way forward toward a context specific transposition of the human rights agenda into Chinese enterprise culture. That transposition will likely be premised on the cultivation of administrative mechanisms for the fulfillment by enterprises of their obligations (understood as the appropriate mix of human rights objectives), and it will require the development of systems of accountability and control of human rights serving administrative mechanisms to ensure that the functional objectives of avoiding human rights detrimental actions by enterprises will be furthered.

The third is the emphasis on segmenting global human rights standards to the national contexts in which remedies may be sought. The consequence, especially for the NGO sector, is the will of the wisp search for the ideal jurisdiction within which internationalization of remediation might be possible. The manically obsessive effort by global civil society to convert an ancient U.S. statute into a transnational mechanism for remedying human rights wrongs and the effort to transform the courts of the United States into nan transnational forum for supra national disputes was doomed of failure from the start. That effort, as much as it might have mobilized mass response to the issues of business and human rights—and support for the substantive standards embedded in the UNGPs, did little to advance the construction of an effective structural mechanism for the remediation of human rights wrongs.

Operationalization Constraints

Issues of operationalization are consequential in the sense that they are disciplined by the conceptual and structural constraints that are admitted as binding. In this case it is not hard to understand the ways in which implementation is hobbled by the obsession with squeezing global human rights significant effects of transnational economic relations within the jurisdictional segmentation that passes for recourse to state based judicial remedy. 

The first is the subordination of enterprise and independent mediating and rights remedial mechanisms to the peculiarities of national law. Enterprise and non judicial mechanisms may be facilitated by states, may be permitted, but there is a sense of their value as subordinate to and dominated by the legal structures and constraints of the states in which such remedies may be sought. At its worst, and when tied to notions, expressed mildly enough in the UNGP of extra territoriality, deepens the sort of chaotic competition for control of the remedial venues for the resolution of human rights issues that will destabilize rather than advance a global project of securing individuals and communities in their ability to operate free of the human rights detrimental actions of enterprises and states. It makes possible the frenzy of the international community that had bet, and bet heavily, on the much criticized United States and its court system, and then been disappointed.

The second constraint to operationalization follows from the obsession with the state and its apparatus—especially its legal apparatus—the inability to realize the promise of a coherent approach to developing standards for enterprise and state conduct that may produce adverse human rights effects. Policy coherence is of course at the heart of the UNGPs—especially as formulated in GP ¶ 8. But the internal coherence in state policy envisioned there is even more critical at the trans-state level. Yet the third pillar—the site from out of which such coherence could be implemented, tends to be overlooked. The logic of emerging meta-governance represented by the UNGP points to the need to establish a central mechanism for the interpretation of transnational normative governance instruments, and the logic of emerging mass governance principles points to the need to vest representative civil society organizations with the authority to bring cases and advocate before such an interpretive body. Two opportunities, to date ignored, are worthy of serious development. The first is a facility for delivering interpretations of the GPs whether or not deemed binding by state or enterprise instrumentalities at the international level. The second, drawing from the first, would incorporate civil society as a key representative of individuals seeking an interpretation of the INGPs in particular contexts. It follows that the application-interpretation facility requires not just the establishment not just of an institutional framework for providing a means of hearing specific complaints, but one in which individuals could bring these complaints through representative civil society for determination of the application of the GPs in context. The object is to more fully develop the UNGP’s remedial third pillar through the creation of an internationally based autonomous source of process and governance that raises the stakeholder status of individuals, now represented by a civil society sector under the third pillar that states enjoy under the first pillar and enterprises enjoy under the second. The way to that goal requires substantial development, but its value appears clear.

Moving Forward

The brief look at the conceptual, structural and operationalization constraints of the third pillar have suggested the power of these limitations and have pointed toward the means of overcoming them. The fixation on the state, and on the judiciary of the state apparatus tends to inhibit both the availability of redress for wrongs suffered by individuals and communities, but also tends to substantially limit the range of remediation options available to enterprises and the civil society elements that seek to serve affected communities.

So what is to be done, and what role for the civil society sector?

1. The state sector remedial framework must be strengthened but only within its own logic. That requires two distinct projects for which civil society can play an important role.

The first is a normative project. It focuses on developing some coherence in the substance of the state duty to protect human rights. The national action plan process is a good first step. But it is far too easy for states to hide behind generalities as they produce “feel good” hortatory documents that avoid the hard issues. Civil society might help states produce national inventories of national and international standards that are actionable within the jurisdiction, and then work to harmonize them among states within supply chains. In the absence of a globally coherent approach to the state duty, no amount of remedial power will substitute for a lack of normative obligations on the part of states.

The second is an operational project. It focuses on expanding access to remedies for those legal and regulatory regimes for which the state provides a remedy. Civil society plays an instrumental role in this project—they tend to be the only institutional advocate for those individuals who usually bear the brunt of human rights wrongs committed by states and enterprises. But it also requires civil society to be willing to expand the range of remedial mechanisms that might be derived from states or their subordinate unites. These would include, beyond courts, administrative mechanisms (especially in Marxist Leninist state), tribal or other indigenous courts, arbitration and mediation whether under the auspices of states or otherwise. Cultivating a sensitivity to context, and the legal traditions of states within which the remedial pillar is to be cultivated may require abandoning the current almost single minded focus on the judicial mechanism in general, and on the judicial mechanisms of Western states in particular,

2. The corporate responsibility must not be overlooked in the rush to develop the state duty. Part of The genius of the UNGP was its recognition of regulatory structures beyond the state and beyond public law. Civil society can play an important role in deepening the normative framework of those rules and then providing remedial mechanisms—beyond the state—for this responsibility and international norm based normative framework, one that is defined through the 2nd pillar and made subject to dispute resolution procedures through the 3rd Pillar. The third pillar serves to provide the coherence necessary to bind the law based state duty to protect and the norm based corporate responsibility to respect. The private sector ought to be encouraged to develop their own remedial structures. These ought to take two forms.

The first focuses on internal corporate remedial structures. Civil society can play a role in providing the models and toolkits that aid business in developing workable models of normative principles that must be applied through corporate contractual relationships with downstream supply chain partners and through intra corporate governance rules, and implemented through dispute resolution mechanisms. These internal remedial structures ought to be suitable to the context but provide a way for civil society to intervene on behalf of affected individuals or communities. The UNGP emphasis on transparency, monitoring and reporting makes such opening up of the remedial mechanism compatible with the basic working of human rights due diligence.

The second focuses on external corporate remedial mechanisms. One of the least emphasized elements of UNGP is ¶ 30’s call to develop “Industry, multi-stakeholder and other collaborative initiatives that are based on respect for human rights-related standards.” Civil society can play a decisive role in the creation of these multi-stakeholder mechanisms. It is in the interests of all civil society stakeholders, whether they represent the state, business or affected individuals and communities, to develop mechanisms that might provide movement toward effective remedy beyond the state and focused on the corporate responsibility as an autonomous obligation of enterprises. It would also advance the UNGP project to ensure that such mechanisms might aggregate legal and norm based claims to simplify the process of remediation and to reduce forum gaming.

3. The core to any success of the remedies pillar is coherence of normative standards even in the face of diversity of remedial mechanisms. To that end it ought to be a central element of civil society strategy to create incentives for the development of a single point mechanism for the elaboration of interpretations of the UNGP in real disputes. This mechanism need not have any authority to bind states or enterprises. But it ought to have authority to bring parties before it to determine the scope and extent of the application of the UNGP to particular disputes and to produce reasoned opinions explaining its positions. These might be used by local courts and other dispute resolution mechanisms—but need not be. Whether binding or not, the establishment of a single point interpretative mechanism issuing opinions on the application fo the UNGP to disputes would generate a body of work that would serve to provide a point of coherence as states and enterprises develop their UNGP based working styles. That this objective is hardly noted by any of the great stakeholder in the business of human rights is likely the greatest danger to the success of the development of an effective Third pillar.

The third pillar is a powerful tool in the development of transnational mechanisms for the redress of human rights wrongs. It ought to be contextualized within the conditions of states—and not just Western states—but it also requires liberation from the necessary constraints of state based systems. Working toward the development of trans-state mechanisms for developing a quasi jurisprudence of application of the UNGP in live conflict, and for a more pronounced role for civil society as the representatives of those whose remedies may be triggered by or through the UNGP would move the system toward a more coherent and effective conceptual, structural and operational structure.