Emerging into Focus: The Neglected Right and the Forgotten Pillar
Mental health considerations and remediation in cases of corporate-related human rights harm
Reflecting on the theme of “Realizing Access to Remedy” at the upcoming UN Annual Forum, the UN Working Group on Business and Human Rights asserts that Pillar III of the UN Guiding Principles (UNGPs) is losing the epithet ‘forgotten pillar.’ Remedy is now being drawn into focus, both at the Forum and increasingly in the business and human rights world. Mental health has received a similar increase in attention – from the UN Special Rapporteur on the Right to Health in his report earlier this year; WHO’s focus on mental health in the workplace and setting mental health as a global development priority; and elevation in public policy by numerous states. And as both emerge from the shadows, there are compelling reasons to better understand the interconnections between – and to elevate the importance of – the nexus between access to effective remedy and the mental health of rights holders. Adopting a mental health lens in assessing the appropriacy and effectiveness of remedy for victims of business-related human rights abuse is crucial.
A nuanced understanding of the impact of corporate-related human rights harm on the mental health of victims is little explored in many areas. In the case of the impact of remedy in such instances, even less so. But understanding the complexities and challenges of the potential effects – positive and negative – of remedial processes and outcomes on the mental health of rights holders may sit at the very heart of establishing truly effective, impactful remedy for victims. Three starting points include:
I. OLGMs can play a crucial role in preventing negative mental health impacts
Effective OLGMs can be critical in catching grievances before they constitute an abuse, so their potential value is high when viewing a rights holder-centred approach through a mental health lens in a business context. The severity of a mental impact of a company’s operations, products or services on rights holders – whether employees, workers, customers or the communities in which the company operates – may occur along a spectrum from zero to irremediable. In some of the most tragic instances, suicides attributable to the effects of poor working or living conditions, or death resulting from stress-related illness occur. Provision of an OLGM at company or community level can help ascertain the spectrum of impacts that the company may be facing within a given context. The role which an effective OLGM can play in prevention, coupled with the potential for alerting a need for systemic change within a company or in response to its operating context, can therefore be vital.
II. A rights holder-centred approach to effective remedy necessitates consideration of the mental health of the impacted party
When considering mental health in the context of remedy, pre-existing mental ill-health in rights holders and their capacity and autonomy to access and engage effectively with the remedial process warrants serious focus. While this has already been explored outside and, to some extent, inside the business and human rights space, less focus is given in this context to how an abuse affects the mental health of the rights holder and the further impact of the remedial process and outcome on the individual.
In adopting a rights holder-based approach to remedy, there is an implicit need to understand how an individual experiences a negative human rights impact; the nature and effect of that impact; and its implications in both the short and long-term. Put simply, how is a negative human rights impact experienced? Physically? Possibly. Mentally? Almost certainly.
It is at this point that the potential effect of cumulative mental impacts must be appreciated, if we are to acknowledge that we may be dealing with a pre-existing mental vulnerability due to the impact of a trigger – the human rights abuse. So, to adopt a rights holder-centred approach to remedy, there is a need to meet the victim ‘where they are at.’ The impact of the remedial process and outcome can then have a further positive or – equally significant – negative impact on the victim.
III. Positive and negative mental health impacts of remediation
In the spirit that “… no additional harm should be caused in the process of redressing the initial harm”, engagement with a remedial process should secure a positive – or certainly not a negative – mental health outcome for the victim. On paper, forms of remedy deployed in a business and human rights context (as elsewhere) aim at re-empowerment – achieving justice, receiving an apology or admission of guilt from the perpetrator, a chance to speak truth to power, injunctions or guarantees of non-repetition, compensation, rehabilitation etc. Elements of assurances around trust and fairness within the UNGPs effectiveness criteria – legitimacy, accessibility, predictability, equitability, transparency – would seem to play a significant role in increasing chances of a positive experience and mitigating stressors.
But when assessing appropriate remedy, we should also remain mindful of the potential for negative impacts –elongated victim narratives or chronic stress caused by prolonged litigation; large financial pay-outs to communities with pre-existing high levels of substance abuse (risking exacerbation)*; and of cultural sensitivity where traditional methods may be undermined by clinical forms of intervention.*
Further important areas of inquiry include: how companies operating transnationally should engage with theories such as transcultural psychiatry, or address concerns regarding the over-pathologising or the pharmaceuticalisation of mental illness in rehabilitation processes; greater clarity on the role of government, business and those involved in access to remedy – including lawyers and civil society – in considering mental health in pursuing a specific course of action for a victim; and what lessons learnt exist in other areas, such as Transitional Justice, which might provide cross-currents of learning.
The interaction between an individual rights holder’s mental health and a remedy process and outcome to which they are party is highly complex and potentially unique when set within a business context. As such, it may be tempting to ignore. But if we do so, we may be shutting down the opportunity to create truly impactful and effective remedy.
Jo Reyes has worked in business and human rights for 10 years. She is Director at the Global Business Initiative on Human Rights and a doctoral candidate at the Human Rights Centre at the University of Essex. This blog is written in her personal capacity.