Access to Effective Remedy: Taking Human Rights and Rights Holders Seriously
Strengthening access to effective remedy for business-related human rights abuses is perhaps the most pressing challenge in the business and human rights (BHR) field. In recent years, the OHCHR and the European Union Agency for Fundamental Rights and others (e.g., ICAR; Amnesty) have provided concrete guidance to states on how to remove barriers in access to remedies. Nevertheless, 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.
This must change, as victims of business-related human rights abuses deserve more than a “charity justice”. In its report presented to the UN General Assembly in October 2017, the UN Working Group on Business and Human Rights (Working Group) calls for a transformative change in how we approach the issue of access to effective remedy. The report recommends that rights holders must be at the heart of the entire remedy process and all roads should lead to remedy.
At the outset, it should be stressed that access to an effective remedy has “both procedural and substantive aspects”. Therefore, merely providing access to effective remedial mechanisms will not suffice: there should also be effective remedies in practice at the end of the remedial process. States must put in place such remedial mechanisms that can deliver effective remedies. Similarly, when a business enterprise provides remediation in cases in which it identifies that it has caused or contributed to adverse impacts, such remediation should be effective in terms of both process and outcome.
Centrality of rights holders
Rights holders should be central to the entire remedy process, including to the question of effectiveness. It is they who suffer harm due to business-related human rights abuses. Therefore, 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.
The Working Group’s report outlines several elements flowing from the centrality of rights holders. Let me elaborate four of these elements here.
First, the remedy process should be sensitive to the diverse experiences of rights holders. Rights holders are not a homogenous group. As the report shows in relation to women, different groups of rights holders experience the impacts of business-related human rights abuses differently and may face additional barriers in accessing remedies. Therefore, 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.
Second, the key elements of an effective remedy – that is, accessible, affordable, adequate and timely – should be considered from the perspective of affected rights holders seeking remedies. For instance, rights holders would consider a remedy to be accessible only if they know about its existence and could gain access to it without too much expense, inconvenience or the help of technical experts. Similarly, what may be regarded as an affordable remedy by some, might not be considered affordable by the actual affected communities.
Third, rights holders seeking remedies should not fear victimization. If rights holders fear victimisation in the process of seeking remedies for a human rights abuse, they may not avail such remedies in practice. That is why freedom from fear of victimization in seeking remedies is an integral component of access to effective remedies. No additional harm should be caused in the process of trying to redress the initial harm. States should ensure that individuals and communities adversely affected by business activities face no obstacles in approaching remedial mechanisms. Business enterprises should also play their part in cooperating with such efforts by states, including by ensuring that their actions to defend corporate interests do not have a chilling effect on the legitimate exercise of seeking an effective remedy.
Fourth, rights holders should be able to seek, obtain and enforce a “bouquet of remedies”. 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 situations. Moreover, available remedies should combine preventive, redressive and deterrent elements. The overall effectiveness of remedies will be undermined if any one of these three elements is missing.
All roads to remedy
The Working Group’s report also recommends the adoption of an “all roads to remedy” approach. This approach has three prongs.
First, access to effective remedy should be taken as an all-pervasive lens. Access to remedy should not be seen as solely a Pillar III issue. As the three pillars of the UNGPs are to be understood as “a coherent whole”, access to effective remedies should be regarded as a common thread running through all three interconnected and interdependent pillars. Whatever action is taken by states as part of Pillar I and by business enterprises as part of Pillar II will have some positive or negative bearing on access to effective remedies under Pillar III. For example, states – as part of their duty to achieve policy coherence under Principle 10 of the UNGPs – should ensure that policies of multilateral trade or financial institutions do not have an adverse impact on access to effective remedies.
Second, realising effective remedies in the business and human rights field require concerted action by key players such as states, businesses, civil society organizations and human rights defenders. States have both an individual and collective responsibility to ensure that individuals and communities affected by business-related human rights abuses have access to effective remedies. Business enterprises have an independent but complementary role to play in realizing effective remedies: the Working Group’s report highlights four responsibilities to fulfil this role. Similarly, civil society organisations and human rights defenders – as “justice enablers” for the victims of corporate human rights abuses – have a critical role to play in facilitating access to effective remedies. States should safeguard civic space and businesses should support such efforts.
Third, the “all roads to remedy” approach means that effective remedies could be sought in diverse settings, including in consumer courts, labour tribunals and environmental courts, and that mechanisms are in place to avoid negative impacts of other parallel regimes such as dispute settlement under trade or investment agreements. In line with Principle 9 of the UNGPs, states should take steps to address the asymmetrical situation between the rights and obligations of investors under bilateral investment agreements.
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. The Working Group hopes that the 2017 UN Forum can trigger a sense of urgency on this front.
Surya Deva is the current Chairperson of the UN Working Group on Business and Human Rights, an Associate Professor at the Law School of City University of Hong Kong, and one of the founding Editors-in-Chief of the Business and Human Rights Journal.