Activating the Third Pillar of the UNGPs on Access to an Effective Remedy

The UN Guiding Principles on Business and Human Rights (known as the UNGPs or Ruggie Principles) were developed in 2008 by the UN Secretary General’s Special Representative, John Ruggie, and endorsed by the Human Rights Council in 2011. Comprised of three pillars to ‘protect, respect and remedy’ human rights violations, the third pillar on remedy has often been referred to as the ‘forgotten’ pillar. However, it is now garnering much greater attention.

While momentum around the third pillar is critical to the realisation of the UNGPs, a number of issues still need to be ironed out. One central question relates to Principle 27 which requires states to make ‘effective and appropriate non-judicial grievance mechanisms’ available. In this post, I suggest that non-judicial grievance mechanisms can contribute to access to an effective remedy but they also carry significant risks which are potentially accentuated in the context of businesses. I argue that much greater clarification is needed on when such mechanisms can be used and the standards of justice required of them, if they are to form part of a ‘bouquet’ of effective remedies foreseen by the UN Working Group on Business and Human Rights.

The Greater Focus on the Third Pillar

In recent years, key actors have focused on the third pillar. For example, the UN Office of the High Commissioner for Human Rights (OHCHR) established the Accountability and Remedy project which examines the barriers complainants face in accessing justice and securing remedies from businesses. In 2017, the UN Committee on Economic, Social and Cultural Rights adopted General Comment No. 24 on ‘State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities’. This General Comment contains substantial analysis on the right to an effective remedy. The UN Forum on Business and Human Rights dedicated its 2017 session to access to an effective remedy and has included more panels on the pillar at the Forum taking place later this month in Geneva. Article 8 of the Zero Draft of the Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises also provides for a right of effective access to justice for victims.

All of these initiatives foresee access to a court as the ‘core’ of the right to an effective remedy. However, they also consider that ‘non-judicial grievance mechanisms’, as set out in the UNGPs, have a role to play. In its second report for the Accountability and Remedy project on ‘Improving Accountability and Access to Remedy for Victims of Business-Related Human Rights Abuse through State-Based Non-Judicial Remedies’, OHCHR provides examples of State-based non-judicial mechanisms as ‘labour inspectorates; employment tribunals’; privacy and data protection bodies; State ombudsman services; public health and safety bodies; professional standards bodies; and national human rights institutions’. It breaks down the mechanisms into:

• Complaint mechanisms
• Inspectorates
• Ombudsman services
• Mediation or conciliation bodies
• Arbitration and specialized tribunals

Its third report will look at non-state non-judicial grievance mechanisms which could include internal dispute resolution processes within companies.

The UN Working Group on Businesses and Human Rights has stated that victims ‘should be able to seek, obtain and enforce bouquet of remedies’. It includes non-judicial mechanisms within this ‘bouquet’, emphasising that what is key is that both judicial and non-judicial mechanisms should be capable of ‘providing effective remedies in practice’.

As part of a wider remedial landscape which includes courts, some non-judicial processes can enhance complainants’ choice, self-determination and autonomy and give them the opportunity to shape the types of remedies they receive, particularly where they do not wish to go through a formal court process. However, as I have argued previously in EJIL and in a forthcoming article with Rachel Murray and Shirley Shipman in Human Rights Quarterly as part of our Nuffield-funded project on NHRIs and Access to Justice, non-judicial forms of dispute resolution can carry significant risks particularly in human rights cases. These risks need to be addressed if such processes are to form part of the ‘bouquet’ of effective remedies.

ADR Redlines

In our forthcoming article, we argue for a number of redlines where non-judicial dispute resolution processes should not be used. First, non-judicial mechanisms should not affect the independent duty of states to investigate and prosecute, where it applies, for example in cases of torture or enforced disappearance. Second, we argue against mandatory requirements to use non-judicial mechanisms as this can undercut the choice and autonomy of the complainant (which are two reasons often advanced in favour of the use of non-judicial processes) as well as circumvent the right of access to a court. This position aligns with the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence.

However, there are still some open questions. For example, should the redline only apply in cases of serious human rights such as the subject matter of the Council of Europe Convention or should it extend to all human rights cases? Should it only apply where complainants are required to enter into the process and comply with the outcome (for example mandatory arbitration) or should it also apply to processes where choice remains over the outcome (such as mediation or compliance with the recommendations of an ombuds)? The exact parameters of international human rights law on the compatibility of mandatory requirements to engage with alternative forms of dispute resolution require clarification. This will be important in the business and human rights context. A further question in this context is whether distinctions need to be drawn between state-based non-judicial mechanisms and internal complaints processes within businesses and the extent to which these are appropriate for dealing with human rights claims.

Addressing the Risks of Inequality of Arms and Power Imbalance

Beyond these redlines, in our view, there are no constraints on the use of non-judicial mechanisms in human rights cases, provided the process and outcome meets the requirements of international human rights law. This is where an articulation of how the right to an effective remedy and access to justice applies to non-judicial remedies would be particularly valuable as the practice varies widely and the risks are significant for complainants. These risks include resource (such as large legal teams) and power imbalance and inequality of arms between the parties and in the business and human rights context, potentially between the business and the wider community. These risks can also be accentuated where these processes are not accessed in the ‘shadow’ of available and effective courts. These risks can be most pronounced in agreement-based processes such as settlement negotiations or mediation. However, they can also arise in ombuds investigations and in arbitration, particularly if the third party decision-maker does not attend to the risks of inequality of arms.

Consideration of what these standards look like and embedding them in practice is only beginning to be addressed and, until resolved, may be a central limitation to the use of non-judicial grievance mechanisms and alternative forms of dispute resolution for human rights complaints. Key issues that will require attention include how equality of arms and procedural justice can be tailored and built-into different non-judicial processes. Further questions arise as to whether victims should have a presumptive right to representation and the appropriate role of the non-judicial process (such as the mediator or ombuds) to ensure that the requirements of international human rights law are respected both in the process and in the outcome of the agreement or decision. Other points arise such as whether the outcome of non-judicial processes should be subject to confidentiality as is often the case with settlement agreements, for example, and options for agreement to certain aspects of the outcome to be agreed in summary terms at least, particularly as a means of public accountability. Finally, as noted above, the question of the compatibility of internal complaints processes within businesses with international human rights law requires much greater attention in relation to issues such as independence (actual and perceived), the types of grievances they receive and whether they are treated as human rights complaints, the ability to challenge decisions or agreements before state-based mechanisms and the nature of the process.

Looking Forward: the Need for Standards on Non-Judicial Processes

 Given the significant risks to complainants in accessing non-judicial grievance mechanisms, it is critical that the circumstances in which such processes can be used and the standards required of them are clearly set out and embedded in the design and roll-out of such processes. Otherwise, complainants could be exposed to significant risks, thereby diminishing, rather than realising, their right to an effective remedy. The current attention to the third pillar of the UNGPs is an opportunity to declare how international human rights law applies to these processes which will enhance access to an effective remedy not only in the business and human rights context but in human rights cases more broadly.