Saturday, November 10, 2018

Effective Remedy and Accountability Through Non-State Non-Judicial Mechanisms: How Typology Matters

(Pix ©Larry Catá Backer Fra Angelico From Fresco Crucifixion with Saints 1441-1442)

Accountability and remedy have remained in the cross hairs of international organizations since the endorsement of the U.N. Guiding Principles for Business and Human Rights. Of course, the two concepts reference substantially different things. Accountability speaks to the relation between an institution and its duty (the state) or responsibility (the enterprise), or something undefined (civil society remains beyond the reach of accountability though they have assumed a central role in the UNGP framework). Remedy refers, in contrast, to the mechanics and objectives through which rights holders may seek to vindicate rights against those who bear liability for infringing those rights.

Like many framework regulations of its type, the UNGP mix the two concepts. The premise is one of necessary interrelation; one form of accounting is manifested through the remedial act; accountability posits the need for a remedial mechanism as the means through which accounts are rendered to their holders. the act of self accounting, of auto-accountability, on the other hand, is understood as the performance of risk management and the avoidance or mitigation of actions that would otherwise generate the obligation to render account to the holder of rights. "Those clusters of acts and objects are the means through which one brings another to account, but as important, they serve as the means through which one is brought to account, and the forms through which one brings oneself to account. The three are united in their fidelity to the forms of accountability, even as each points to quite distinct forms of rendering account." (Unpacking Accountability in Business and Human Rights).

It is on the basis of this self referencing relation between the state of being accountable, and the duty to render account, that the UNGP's so-called remedial pillar is grounded. Accountability and remedy are bundled together in the forms of "grievance mechanisms," which are understood as modalities through which rights holders may assert claims respecting their grievances. Grievances, in turn, are "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." (UNGP ¶ 25 Commentary). These grievances, then, are to be resolved through "mechanisms" categorized as state based (UNGP ¶ 26-27) and non-state based (UNGP ¶ 28-30).  The later include international mechanisms, company mechanisms, and private collaborative initiatives.

This organizational typology, however, provides little by way if useful guidance in the difficult task of moving from high concept to the banal level of operational organization. There are quite accomplished actors and institutions that are now considering these issues in quite useful ways.  This post takes a look at the issue of organizational typology from a different perspective, suggesting some ways in which typology may be a function of accountability and remedy. Or perhaps better put, it examines briefly the extent to which accountability and remedy may be shaped by the centering effect of typology. It considers four distinct typologies manifested within the UNGP themselves--providers, forms of structures of provision, character of grievance, and form of remedy.

The UNGP's organizational typology for its remedial pillar would naturally parallel the organizational framework of the substantive provisions of the UNGP themselves. These, in turn, are focused on two of the four great actors in the organization of human economic activity--the state, and the enterprise (but not civil society or religion). That organizational choice followed the logic of the tortuous development of the UNGP from out of the great ideological battles of the Cold War (political expressed through the contest for dominance between state based and markets based governance from the 1950s) and the great decolonization movement of the post WWII period (economic expressed through the Global South's emerging principles of "development" form the 1970s). Since political and economic systems were organized around the concepts of the two great forms of bodies corporate (state and enterprise), the logic of the system within which human rights in economic activity developed would have embraced the organizational premises of that system.   

It would follow that accountability and the consequential duty/responsibility to render account (to remedy)  would be organized around the great bodies corporate of the state, through its judicial and related apparatus, and through the enterprise, and its remedial/grievance mechanisms. That is how the UNGPs are organized. But this categorization only provides the general model. It in in the application of that model to the context specific condition of states, and of enterprises, both with reference to global production chains, that now provide the challenges for those seeking a deeper conceptualization of accountability, and its expression in remedial methodologies and operationalization.  But the challenge is different for enterprises than for states. Generally for  state based mechanisms, the approach incorporates the now deeply developed mechanisms that states have developed in other context for fulfilling their accountability and remediation functions under their peculiar domestic legal orders. However, for non state based non judicial mechanisms, there is much less in the way of tradition, or customary practice that can structure legitimate mechanisms with respect to which their is consensus on form, operation or authority. 

Yet bound up in this generalized typology are at least four distinct approaches that might significantly color the approach to the development of ground level accountability/remediation mechanisms. These four distinct approaches include the traditional approach that is focused on providers, those that focus on the mechanisms for provision of accountability/remediation, those that focus on the types of grievances that might require accountability/remediation, and those that focus on the forms that accountability/remedy might take.  Let's briefly consider each in turn.

1.  The typology of providers. This is the orthodox typology and one that adheres most closely to the formal structures and divisions on which the UNGP themselves are organized.  To some extent it forms a necessary element of any framework for non-state non judicial mechanisms to meet the objectives of accountability and remedy. That, in turn, requires requires the construction of a typology based on the institutional forms through which global production is undertaken. In the first instance, then, it requires the identification of "providers" and then their categorization by "type" (and thus the typology). Accountability, and its forms as remediation, are constructed around premises abut the forms, cultures, interest, and behaviors, of the provider identified. These are then modified as these institutional providers are aligned within polycentric regulatory fields. The result is something that resembles Generally the many types of institutional organization of global production are divided among between companies, multi-stakeholder organizations, and financial institutions. Here, the focus of typology is on the provider rather than on the mechanism, and it is the provider that becomes the center both of regulatory efforts and of the basis through which accountability and remedy are conceived.  This expresses the basis of much of the business and human rights discussion over the last decade, and certainly the conceptual basis of the bulk of the discussion respecting remedy (and from out of remedy and as a quality control assurance mechanism--accountability). 

2. The typology of forms or structures of accountability and remediation delivery. The typology of forms focuses on the mechanisms of accountability and remediation rather than on the providers in which which such accountability and remediation will be embedded (or operated).  This focus moves discussion from the administrative and control apparatus of the provider to the consideration of the relationship between the forms of accountability and remediation provision and the effective delivery of both in the context in which their provision is required. One speaks here to the design and operation of delivery systems rather than to the design of entity compatible administrative apparatus. A forms based typology developed a distinct set of conceptual categories to that end.  These can be divided into substance and process forms echoing the Commentary of UNGP ¶ 25. Process forms includes the use of data and data analytics (including algorithms) for projects of accountability and mitigation, and on the rights vindication side the issues of process based justice compatible with the context in which rights holders may face. Substance oriented form categories includes issues of the forms of tribunals (formal, informal), and their constitution (ad hoc or permanent), as well as their locus (within the provider or embedded in third party providers, public, private or international). This centers the UNGP's focus on legitimating characteristics of mechanisms (UNGP ¶ 31). More on this below. These are the issues that have remained beyond the reach of rigorous conceptualization.  That follows from the treatment of forms of delivery as consequential rather than as a primary orientation of analysis. However, in some respects, a rigorous exploration of accountability and remedy as a function of the forms of delivery would be essential to the effective operationalization of remedial structures--at least from the perspective of aggrieved rights holders.

3.  The typology of grievances.   But neither a provider based typology nor a forms or structures of delivery typology captures all of the nuance of effective non state non judicial mechanisms. A typology centering on types of grievances picks up the nuances of context, especially as they relate to the distinctive challenges of production chains in distinct sectors.  Certainly the OCED has already recognized the importance of this typology as it moves forward on its sector specific guidance for due diligence in supply chains (e.g., here).  In this approach, accountability and remedy are necessarily tailored to the rich normative context in sector specific fields--labor, consumer issues, environment, indigenous claims, and the like.  This typology necessarily drills down to a context that parallels the organization of production.  To that extent, it can provide a basis for standardization (and with it predictability and certainty) that would enhance its legitimacy on rule of law based sensitivities. But it offers little with respect to either the peculiarities of the cultures of different providers; nor does it go to the structuring issues of formal organization. But more important are the organizing principles left undisturbed; grievance typologies at the operational level must wrestle with issues of siting (whose operations?), direction (who controls?), responsibility (where is it assigned?), and responsibility (who is liable?). None of these are easy within the complexities of global production chains. And none imply a single or simple answer.  

4.  The typology of remedy. The last organizational basis of typology focuses on the remedy itself.  Here remedy includes both the traditional remedy which is bound up with the outward obligation to rights holders, as well as the inward facing duty to manage risk and the duty to account to self and to bring others to account (internally as well as externally). A typology of remedy centers the UNGP's focus on the construction of supra legal forms  of remedy--and of the development of rendering account to self and others (transparency, disclosure, data based mitigation and risk reduction regimes). The forms through which one renders account--that is that forms by which one is brought to account by others, brings oneself to acocunt, or brings others to acocunt, is not bounded by the constraints of law. "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." (UNGP ¶ 25 Commentary).  Yet the focus on remedies is also a poisoned apple, in the sense that it opens the possibility of corruption.  That corruption touches on the 21st century forms of 2th century Marxist-feminist false consciousness arguments (e.g., here at 763) respecting remedies, in context, and their legitimacy.

5. The limits of typology.  One can use typology as a methodological tool only so far.  It provides an orienting point for analysis.  But it carries with it a built in presumption based on the centrality of the orienting point that then permeates everything. A provider typology fixates on institutional players and the ideology/logic of institutional culture and expectations; a delivery typology fixates on self referencing mechanisms that center on the integrity of delivery mechanisms; typologies of grievance focus on contextually attached harm with little regard for administration or consistency (and except for a small functionally differentiated space) predictability; and typologies of remedies detach the object from the process of accountability. It follows that analysis loses its power tot he extent that a topological ecology is not used, one that incorporates the multiple critical typologies that in the aggregate provide the basis for thinking through authoritative systematization of accounting and remedial forms. Still, even a multi-typological framework may fail to account effectively for certain critical elements that make up the ecology of accountability and its remedial and risk management structures. These framing issues are treated next.

6.  The Importance of Framing Issues: Standardization, Permanence, Steering rules, and Assessment.  As a consequence--and especially in the context of non state based non judicial remedy in business and human rights--a typology based analysis tends to give short shrift to three core structural issues that tend to be marginalized.  That marginalization either follows from the desire to engage in "big picture" conceptualization, or conversely, distorting "bottom up" analysis by transforming the case study into analytical paradigms.Let us consider each in turn.
A. Standardization.  Much of the arc of development of business and human rights norms has constituted a project of standardization.  And yet that is precisely the element that proves elusive in the analytical frameworks of accountability and remedy. Standardization promotes predictability and certainly, but at the costs of effective remedy in the specific contexts in which claims may arise. Whatever the typology, principles of standardization require development. These center of principles for framing structuring choices--single forms versus categorical division, or a rejection of standardization in favor of a purely open ended and contextual regime. Each choice will profoundly affect the logic and operation of accountability-remedial systems.
B. Institutionalization. Principles of institutionalization are necessary to create a rule of law structure for the construction and deployment of the apparatus through which accounting are rendered and remedies fashioned and executed. These include principles for the construction of institutions and the protection of its integrity.  Conversely, they may focus on principles that protect the integrity of ad hoc instruments.
C. Steering Rules. Steering rules provide the institutional path for accountability and the vindication of rights. They are those principles that provide a legitimate and fair means of deciding what situations call for what sorts of mechanisms. Steering rules provide the basis for proper deployment of appropriately constructed institutional forms--and the processes attached to those forms.  They are the basis for disciplining those processes through review procedures, and they serve to construct principles by which non state non judicial mechanisms can be intermeshed with state based grievance mechanisms.
D. Assessment. All of the typologies in the world, along with their framing principles are of little use in the contemporary world in the absence of self accountability (a core concept with which I began this essay). Self accounting--to render account to oneself and for others, as well as to assess the rendering of accounts and the integrity of systems, along with their alignment with the objectives to which they have been tasked--is impossible in the contemporary context without data driven metrics. That is the promise and the curse of the current age. Yet assessment is itself a normative undertaking in the sense that numbers are meaningless in the absence of the principles that give quantitative assessment meaning.  Yet that is an enterprise that itself is fraught with human rights implications--from data harvesting to analytics, to the algorithms that would constitute the mechanics of disciplining accounting and remedial projects, and that itself has implications for law (e.g., here).   
7.  What emerges from this preliminary assessment are the glimmerings of a matrix. Any single analytical approach will necessarily produce distortion in the construction of operational level grievance mechanisms.  It will ensure that whatever is produced will be detached from anything but the context for which they are deployed but with little space for assessment.  That, in itself, would constitute a fatal challenge to the accountability obligation which is at the heart of the UNGP remedial enterprise. But it also limits flexibility in designing robust mechanisms that serve all stakeholders. In future posts I will try t sketch out the way that these multiple typologies may be used to develop a more rigorous approach to the development of well tailored and legitimacy enhancing non state nn judicial mechanisms. 

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