Under the theme of “Realizing Access to Effective Remedy” the 2017 UN Forum on Business and Human Rights, will devote particular focus to the third pillar of the UN Guiding Principles on Business and Human Rights (“Guiding Principles” or “UNGPs”) – the need for access to effective remedy for those whose human rights are adversely affected by business activities. While the Guiding Principles note that effective judicial mechanisms are at the core of ensuring access to remedy, they also call on States (in UNGP27) to “provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse.”

Among different State-based non-judicial mechanisms in the business and human rights field, the National Contact Point (NCP) system of the OECD Guidelines on Multinational Enterprises has received a great deal of attention since the Guiding Principles were endorsed by the UN Human Rights Council in 2011. This is because they are one of the most used non-judicial mechanisms by victims and civil society groups seeking redress for victims of business-related human rights abuses. The role and effectiveness of NCPs will also be the subject of several sessions at the 2017 UN Forum.

There are NCPs in the 48 countries that adhere to the OECD Guidelines. As the OECD Guidelines embedded key elements of the Guiding Principles in their Human Rights Chapter in 2011, the NCP system effectively became a business and human rights grievance mechanism. Indeed, since 2011 around 50% of all the complaints that were handled by the NCPs concerned alleged human rights impacts. Many national action plans (NAPs) for business and human rights also mention the NCP as an important non-judicial grievance mechanism, and some of the NAPs have adopted actions to strengthen the NCPs. Statements of G20 and G7 Heads of States also mention the importance of strengthening the NCPs.

The Annual Reports on the OECD Guidelines, academic and civil society reports show a mixed picture of performance, including successful mediated agreements, but also weak, even non-performance. In the context of developing NAPs, as many governments are committing to reforming their NCPs, it is important to highlight the existing commitments under the Council Decision of the OECD and to stress the specific Guiding Principles that should be operationalized to make NCPs effective.

The Decision of the OECD Council on the OECD Guidelines for Multinational Enterprises requires adhering Governments to set up an NCP to further the effectiveness of the Guidelines. This decision is a legally binding OECD instrument for member States. According to the Council Decision, an important function of the NCP concerns contributing to the resolution of issues that arise relating to the implementation of the OECD Guidelines in specific instances. For it to successfully fulfil this role, the NCP needs to be impartial, which is one of the core guiding principles for the handling of specific instances (Paragraph 22 Commentary to Procedural Guidance).

A closely-related requirement is also reflected in the Guidelines’ Commentary on the Procedural Guidance for NCPs: “NCP leadership should be such that it retains the confidence of social partners and other stakeholders, and fosters the public profile of the Guidelines” (Paragraph 10 Commentary to Procedural Guidance).

Some NCPs have struggled to be perceived as impartial and retain confidence of social partners and other stakeholders for many decades, as also shown in some UN Working Group country reports (see e.g. A/HRC/35/32/Add.1; A/HRC/35/32/Add.2, A/HRC/32/45/Add.1). For example, some NCPs are situated in agencies or ministries in the government that have key missions to attract trade and investment. This has resulted in perceived conflicts of interest, in that the agencies’ key objective seems at odds with the underlying purpose of the NCP with respect to addressing complaints focused on human rights impacts arising from investors’ activity. Some other NCPs have been viewed as having difficulties playing an impartial role vis-à-vis State-owned enterprises or enterprises that received licences or permits from the same governments.

The independence of NCPs is a cornerstone principle to make these a credible non-judicial grievance mechanism. Independence can be achieved in many ways. More and more States have taken steps to make their NCPs independent (such as Denmark, Norway and the Netherlands), or set up independent oversight mechanisms (UK) to address this important criterion of impartiality. We strongly recommend this approach.

The UN Guiding Principles, through their incorporation into the OECD Guidelines, provide an important reference point for assessing the effectiveness of NCPs. The Commentary to UNGP 25 states that: “Procedures for the provision of remedy should be impartial, protected from corruption and free from political or other attempts to influence the outcome.”

Furthermore, the Guiding Principles also underscore the need for non-judicial grievance mechanisms to instil trust and confidence among stakeholders. In this regard, we would like to reiterate that the Guiding Principles’ effectiveness criteria for non-judicial grievance mechanisms (UNGP31) are fully applicable to the NCPs as State-based non-judicial grievance mechanisms. They clarify that:

In order to ensure their effectiveness, non-judicial grievance mechanisms, both State-based and non-State-based, should be:
(a) Legitimate: enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes;
(b) Accessible: being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access;
(c) Predictable: providing a clear and known procedure with an indicative time frame for each stage, and clarity on the types of process and outcome available and means of monitoring implementation;
(d) Equitable: seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms;
(e) Transparent: keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence in its effectiveness and meet any public interest at stake;
(f) Rights-compatible: ensuring that outcomes and remedies accord with internationally recognized human rights;
(g) A source of continuous learning: drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms.

The commentary to UNGP31 clarifies that these criteria apply to any State-based or non-State-based, adjudicative or dialogue-based mechanism. Moreover, it notes that a grievance mechanism can only serve its purpose if the people it is intended to serve know about it, trust it and are able to use it.

The UNGP31 criteria provide a benchmark for designing, revising or assessing a non-judicial grievance mechanism to help ensure that it is effective in practice. Poorly designed or implemented grievance mechanisms can risk compounding a sense of scepticism amongst affected stakeholders.

A comprehensive improvement of the effectiveness of the NCP system would be a significant contribution toward strengthening implementation of the Guiding Principles across a number of countries. The Guiding Principles provide a useful and clear baseline for assessing NCPs and also a roadmap for reform. We look forward to continuing the dialogue on how – at the 2017 UN Forum and beyond.

Written by the UN Working Group on Business and Human Rights

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