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UN Forum blog series

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20 November 2017

Commentary: Businesses must prioritize access to remedy in states with weak rule of law

Author: Daniel Aguirre, Greenwich University, Business and Human Rights Journal

"Obligations to respect and protect human rights are meaningless without access to remedy in states where the rule of law is weak: The example of Myanmar", 20 Nov 2017

The international community must make clear that access to remedy [the third pillar of the UN Guiding Principles on Business and Human Rights] is the priority and that non-binding arrangements and other guidelines are secondary to this legal obligation...Although the international community has made progress encouraging companies to respect and States to protect human rights, access to remedy must underpin these UNGP ‘pillars’, particularly in developing or transitional states like Myanmar…

Investment in Myanmar has long been associated with human rights abuse [such as]…land grabs [and]…land confiscation and displacement... Even where a investor intends to respect human rights, they may operate in a Special Economic Zone or an industrial park developed in violation of human rights... Myanmar does not provide adequate access to remedy for victims of business related human rights abuses…

The judicial system in Myanmar is under-resourced, lacks capacity and is corrupt, particularly at the township level where most people access it... Non-judicial mechanisms like administrative procedures, national human rights commissions and ombudspersons can play a complementary role where the judiciary may lack resources or independence... [and] can…only be effective if the mechanisms are compliant with due process standards and can provide remedy…Businesses in Myanmar…have a responsibility to facilitate non-State-based procedures, such as operational grievance mechanisms...[which] can help to improve access to remedy and reparation where business has caused or contributed to adverse impacts.

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20 November 2017

Commentary: Effective grievance mechanisms strengthen companies' social license to operate & reduce risks

Author: Lukasz Czerwinski, Landesa, Business and Human Rights Journal

"A Jedi Approach for Companies to Manage Grievances and Land-Related Risk", 17 Nov 2017

...To mitigate risks and challenges, one of the biggest priorities for any company should be to maintain meaningful relationships with communities...Landesa’s team...[has implemented] a Department for International Development (DFID) funded project called Responsible Investments in Property and Land (RIPL). The purpose of RIPL is to develop step-by-step “how to” guides for companies, government and communities so they are better positioned to comply with international standards for responsible investment...[W]hen companies choose to invest in establishing an effective grievance mechanism, they strengthen their social license to operate within a community and in turn reduce their risks...

[T]here is one key component of social license that is often overlooked by companies; an effective grievance mechanism... To establish a grievance mechanism, we first found that companies should develop and implement an inclusive consultation and engagement plan that facilitates clear, well-planned and frequent communication with communities, including diverse groups within communities, not just dominant voices or traditional leadership... [T]he second step is to work with a cross-section of women and men within the community to design and implement a grievance mechanism...[T]he third step is for a company to have clear, robust monitoring and evaluation procedures...Finally, the entire process needs to include the voice of all land users: men, women, pastoralists and any other groups...

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17 November 2017

Commentary: Banking sector needs to address gaps in access to remedy for human rights abuses

Author: Ryan Brightwell, BankTrack, Business and Human Rights Journal

"Steps forward and steps back on the road to access to remedy in the banking sector", 16 Nov 2017

...[B]anks struggle with access to remedy...[and BankTrack has]...been unable to find any examples of global banks operating grievance mechanisms, participating in them systematically, or credibly explaining how they facilitate or enable access to remedy for those impacted by their finance. FMO, the Dutch development bank, remains the only example of a bank which is partly privately owned and has an independent grievance mechanism.

The main bank initiative on implementing the [UN] Guiding Principles [on Business & Human Rights], the Thun Group...has avoided the topic of access to remedy studiously... [B]anks can contribute to human rights abuses through their finance...[and] in practice...[I]t’s important that the debate on how banks can play a role in ensuring access to remedy takes place, with the full and committed participation of banks.

...[T]he Dutch banking sector agreement on human rights...looks set to play a much more promising role in this respect than the Thun Group has so far managed...This...multi-stakeholder agreement, signed by all Dutch banks as well as civil society organisations and Government ministries, includes a commitment for all banks to create a complaint procedure that is publicly accessible for employees, clients and third parties, as well as the creation of a “voluntary advisory expert mechanism” to handle notifications of an alleged breach of the OECD Guidelines, including on human rights...[refers to BNP Paribas and FMO].

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14 November 2017

Commentary: Access to remedy requires taking human rights & rights holders seriously

Author: Surya Deva, UN Working Group, Business and Human Rights Journal

"Access to remedy: taking human rights and rights holders seriously."

Access to effective remedy for the victims of corporate human rights abuses remains an exception rather than the rule. One of the reasons for the slow progress on realising effective remedies is that human rights and rights holders are not taken seriously enough by both states and businesses... 

Rights holders should be central to the entire remedy process, including to the question of effectiveness... Any process to remedy such harm should take both the rights holders and their sufferings seriously, otherwise remedies may not be regarded effective by those whose opinion should matter the most... [Also] different groups of rights holders experience the impacts of business-related human rights abuses differently and may face additional barriers... Unless states and business enterprises are sensitive to this diversity among rights holders, they may not be able to provide effective remedies to all individuals and communities...  [R]ights holders seeking remedies should not fear victimization;... no additional harm should be caused in the process of trying to redress the initial harm. 

[In addition,] to address a harm suffered by certain rights holders, multiple forms of remedies may be required, as no single remedy may be effective and different remedies may be more appropriate in different situation... In short, access to effective remedy from the perspective of rights holders is the barometer to measure how seriously states and businesses take the UNGPs. The time for talking is over: individuals and communities all over the world need timely and evidence-based progress in securing justice.

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12 November 2017

Commentary: Do local grievance mechanisms work?

Author: Roper Cleland, ICMM, Business and Human Rights Journal

Operational level grievance mechanisms are part of the UN General Principles’ access to remedy pillar, yet their role has been called into question by some sectors of civil society. Ownership of grievance mechanisms by companies has raised questions about accountability and neutrality with critics suggesting that they lack adequate checks and balances, allowing the company to act as ‘judge and jury’. Their non-binding nature is also a concern for some...

[In terms of advantages,] local grievance mechanisms... are generally faster and more responsive... Well-designed grievance mechanisms also enable companies to continuously learn about the impacts its operations are having on local communities and find opportunities for improvement... The low cost compared to judicial redress is also a major benefit for complainants... [and they can] also enable better communication between local people and businesses... In order to tackle the potential for bias in favour of the company, communities and affected stakeholders should be included in the design of the process... A rights-based grievance mechanism helps address power imbalances by considering the issue from the perspective of the complainant rather than company... In the spirit of accountability, the process, timelines, outcomes and escalation process for complaints should be clear.  

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12 November 2017

Commentary: Reclaiming access to remedy & the law as an agent of change

Author: Gabriela Quijano, Amnesty International & Elodie Aba, Business & Human Rights Resource Centre, Business and Human Rights Journal

"Reclaiming the forgotten pillar and the law as an agent of change," 7 November 2017

Little meaningful action has been taken to date to guarantee effective remedy to victims of corporate human rights abuse... [R]emedy should be a priority for any state genuinely committed to implementing the UNGPs; it may be the single most effective way of ensuring corporate respect for human rights. Amnesty International and Business & Human Rights Resource Centre recently published the briefing Creating a paradigm shift: Legal solutions to improve access to remedy for corporate human rights abuse, [which] put[s] forward concrete legal proposals to tackle hurdles to remedy.

To overcome the challenge...[of] parent companies shield[ing] themselves from liability for abuses committed... by their subsiaries or other entities they control... Amnesty and the Resource Centre recommend that states pass laws imposing on parent companies or companies with the ability to control members of the group an express duty of care... towards individuals and communities whose human rights are affected by their operations... [To address unavailable or inaccessible information, Amnesty and the Resource Centre] recommend that states enact laws requiring companies to generate and maintain information that is relevant for a full understanding of the actual and potential adverse human rights impacts of their activities or projects. 

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