Determining Criteria to Evaluate Outcomes of Businesses’ Provision of Remedy: Applying a Human Rights-Based Approach

Abstract

The UN Guiding Principles on Business and Human Rights (GPs) expect businesses to participate in operational-level, non-judicial mechanisms to address the grievances of communities affected by their activities. While there is guidance on operational-level grievance mechanisms as to what constitutes an effective process, inquiries into the effectiveness of outcomes have been met with less success. This article identifies three key incongruities within the GPs regarding effective outcomes: (1) the broader interpretation of remedy within the Remedy Pillar compared to the Respect Pillar; (2) the novelty of enforcing human rights through dialogue and engagement as opposed to adjudication; and (3) the difficulty in reconciling objective human rights standards with the subjective preferences of the parties. It then aims to resolve these issues by applying a human rights-based approach: examining how empowerment of communities can act as the founding basis for understanding whether an outcome is effective. It concludes by examining the working of the Porgera Mine mechanism from this perspective.

International business and human rights: A research agenda

“…Based on this, there is a growing body of literature on the tools and instruments they use to mitigate their human rights impacts, such as human rights due diligence (Fasterling & Demunijck 2013;Fasterling 2017) or operational-level grievance mechanisms (Thompson 2017).…”

Assessing the Effectiveness of Non-State-Based Grievance Mechanisms in Providing Access to Remedy for Rightsholders: A Case Study of the Roundtable on Sustainable Palm Oil

“…14 United Nations Office of the High Commissioner for Human Rights, 'Accountability and Remedy Project Part II: State-based non-judicial mechanisms for accountability and remedy for business-related human rights abuses: supporting actors or lead players? Discussion paper prepared for the 6th UN Annual Forum on Business and Human Rights' (27)(28)(29) November 2017), https://www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/ARPII_% 20DiscussionpaperonPhase2forUNForum_FINAL.pdf (accessed 2 April 2020). 15 Surya Deva and David Bilchitz (eds.…”

Torn between Legal Claiming and Privatized Remedy: Rights Mobilization against Gold Mining in Chile

“…Following this trajectory, the UNGPs present human rights due diligence and non-judicial grievance mechanisms as tools to identify and address "any legitimate concerns" before they "may over time escalate into more major disputes and human rights abuses" (UNGPs: 32). Thus, the current debate on the operationalization of the UNGPs emphasizes firm-community dialogue and participatory processes as means to prevent and resolve BHR disputes (Gathii & Odumosu-Ayanu, 2016;Kaufman & McDonnell, 2016;Tamir & Zoen, 2017;Thompson, 2017).…”