Corporate Remediation of Human Rights Violations: A Restorative Justice Framework

Abstract

In the absence of effective judicial remediation mechanisms after business-related human rights violations, companies themselves are expected to establish remediation procedures for affected victims and communities. This is a challenge for both companies and victims since comprehensive company-based grievance mechanisms (CGM) are currently missing. In this paper we explore how companies can provide effective remediation after human rights violations. Accordingly, we critically assess two different approaches to conflict resolution, Alternative Dispute Resolution (ADR) and Restorative Justice (RJ), for their potential to provide dialoguebased, non-judicial remediation. We argue that remedy through agreement-driven ADR mechanisms risks marginalizing the interests and concerns of victims and affected community members, particularly in weak institutional contexts. Hence, we develop a dialogue-driven framework for corporate remediation of human rights violations grounded on RJ principles. This restorative framework provides a comprehensive CGM that focuses on the harms and needs of victims and aims at restoring justice through restorative dialogue. Based on a prompt discovery and a thorough investigation of the grievance, companies should design and prepare the remediation process together with victims, offenders and affected community members. Through restorative dialogue with the affected parties about the circumstances and impacts of the wrongdoing, companies can repair the harm, regain legitimacy amongst stakeholders as well as transform their business practices to avoid future human rights violations.

Deliberating or Stalling for Justice? Dynamics of Corporate Remediation and Victim Resistance Through the Lens of Parentalism: The Fundão dam Collapse and the Renova Foundation in Brazil

“…Inclusiveness within MSI processes has also been stressed by Schouten et al (2012). The deliberative tenets of participation, engagement and dialogue between corporate culprits and victims are also promoted as ideals for restoring justice (Schormair & Gerlach, 2019). However, these researchers note that their model of corporate remediation would most likely not apply to cases of mass-scale human rights abuses.…”

“…Deliberative democracy, which hails participation and dialogue through multi-stakeholder initiatives (MSIs)-defined as soft law mechanisms, in which corporations and civil society organizations participate, that are designed to fill the gap left by governments in addressing socio-environmental externalities caused by businesses (Mena & Palazzo, 2011 p. 827)-is often touted as an ideal vessel for achieving consensus between disputing parties. In a similar vein, scholars have advanced proposals for using intensive dialogue, participation and engagement between business actors and victims to achieve justice in response to corporate human rights abuses (Schormair & Gerlach, 2019).…”

A just alternative to litigation: applying restorative justice to climate-related loss and damage

“…To illustrate how restorative justice can be applied to climate-related loss and damage, we use a four-stage framework developed by Schormair and Gerlach (2020) for restorative remediation of corporate human rights abuses (see Figure 1). In Stage 1 (discovery), key questions to be addressed include: Who are the victims?…”

“…The offenders would give their account of the circumstances, and the victims their account of how they were affected, including through photographs and videos. Other stakeholders, for example from the communities of care, would also be able to share their experiences, and all parties involved would have the chance to ask questions (following Schormair and Gerlach 2020). The focus should, however, be on the victims' needs, which should be met following a demonstration of remorse on the part of the offenders (following Schormair and Gerlach 2020).…”

“…Other stakeholders, for example from the communities of care, would also be able to share their experiences, and all parties involved would have the chance to ask questions (following Schormair and Gerlach 2020). The focus should, however, be on the victims' needs, which should be met following a demonstration of remorse on the part of the offenders (following Schormair and Gerlach 2020). This should go beyond a mere apology and feature, for example, invitations to the victims to identify requests, along with consideration of opportunities for post-conference learning.…”