In recent years, there has been a considerable increase in attention paid to the benefits and pitfalls of using non-State-based grievance mechanisms as an avenue to seek remedy for business-related human rights abuse.  Recent reports on operational-level grievance mechanisms (e.g., the 2019 International Commission of Jurists report) evidence this, though there have also been a number of recent initiatives focusing on other types of non-State-based grievance mechanisms, such as those of multi-stakeholder initiatives or development finance institutions.  At the United Nations level, the leading effort aimed at enhancing the effectiveness of such mechanisms is through the third phase of the Accountability and Remedy Project (ARP III) of the Office of the UN High Commissioner for Human Rights (OHCHR).

Private grievance mechanisms play a potentially important role in enhancing access to remedy for affected people and communities.  They may offer certain advantages over more formal (State-based) mechanisms, such as reduced costs and speed of access and remediation.  Operational-level grievance mechanisms in particular can provide early stage recourse and resolution to certain harms, preventing these harms from escalating into major disputes and human rights abuses.

However, these mechanisms do not operate in a legal vacuum.  Although they are often viewed as a way of overcoming inadequacies or “gaps” in State-based remedial systems, States are often, in reality, profoundly influential actors with respect to the performance of private grievance mechanisms, and can undermine or bolster the effectiveness of such mechanisms in many and varied ways.  For instance, weak laws or enforcement of laws with respect to privacy, whistle blower protection, or labour rights (e.g., freedom of association) can increase the risk of retaliation or intimidation of remedy seekers, their families and associates, legal representatives, and other human rights defenders. This in turn could lead to a lack of engagement with grievance mechanisms in the first place, and/or new harms arising by virtue of remedy seekers attempting to access non-State-based grievance mechanisms.

The interrelationship between different types of remedial mechanisms, and the interface between private grievance mechanisms and the powers and functions of State-based institutions, has been a particular focus of OHCHR’s Accountability and Remedy Project.  The aim of this six-year project has been to identify ways that States and other actors can work to strengthen the three types of grievance mechanism referred to in the UN Guiding Principles on Business and Human Rights, so as to improve their ability to deliver effective remedies to people who have been subjected to business-related human rights abuse.  Each phase of the project has been requested by the UN Human Rights Council, and corresponds to one type of mechanism (ARP I covered judicial mechanisms, ARP II covered State-based non-judicial grievance mechanisms, and ARP III covers non-State-based grievance mechanisms).

While the project has approached each type of mechanism in distinct phases, with each phase of the project the complex interrelationships between the different types of mechanisms – State-based and non-State-based, judicial and non-judicial – has become ever clearer.  An important lesson to draw from this work is that analyzing any of these mechanisms in isolation can obscure their real value and potential as part of a wider, dynamic, and constantly evolving remedial system.  In other words, non-State-based grievance mechanisms may have value beyond creating more options and choice for remedy seekers; they can contribute to the improved functioning of State-based systems, for instance through raising awareness of systemic problems or new innovations with the potential to streamline processes and enhance user experience.   A failure to fully understand this “public-private” nexus can lead to missed opportunities, not only from the perspective of the day-to-day effectiveness of private grievance mechanisms, but also for the wider enhancements (e.g., in terms of stronger regulatory institutions and enhanced State-based mechanisms) that may come from greater collaboration.

Awareness of these linkages should inform the design of processes of State-based and non-State-based mechanisms alike.  For instance, State-based mechanisms should take account of the possibility that affected people and communities may choose to seek a remedy using a non-State-based grievance mechanism prior to, at the same time as, or subsequent to seeking a remedy using a State-based mechanism. OHCHR’s consultation draft of recommended action arising from ARP III research (available for public comment until 1 April 2020) draws attention to a number of ways in which greater flexibility for remedy-seekers can be built in to the design of processes (both judicial and non-judicial), for instance through simplified or fast-tracked applications for hearings, admission into evidence of information or witness statements collected for the purpose of pursuing a remedy using an alternative mechanism, or the use of dialogue-based approaches to resolve grievances.  The consultation draft further draws attention to ways in which the presence of State-based mechanisms in the background of private remedial regimes can have the effect of strengthening the latter and enhancing user confidence, for instance by providing a means by which remedy seekers who are dissatisfied with the outcome of a non-State-based grievance process can seek further assistance (for instance by way of a review, opinion, or binding determination) or through which remedial outcomes arrived at through non-State-based processes can be enforced.

By reviewing the ways in which their own laws, policies, and practices may contribute to or hinder the effectiveness of non-State-based grievance mechanisms, States can better determine how best to facilitate a robust system of remedy that works for those harmed in the context of business activities.  Conversely, by being aware of the regulatory context in which one operates, those designing and operating non-State-based grievance mechanisms can better ensure efficient and effective processes to resolve issues early and fairly.  In the end, recognizing the role that States have in relation to non-State-based grievance mechanisms, and ensuring that States facilitate, rather than hinder, effective access to such mechanisms, will ultimately lead to better outcomes for those impacted by business-related human rights abuse.

Editor’s note: the topic of grievance mechanisms and related aspects of the right to remedy have been explored in a number of Business and Human Rights Journal articles. Jonathan Kaufman and Katherine McDonnell have written on community-driven operational grievance mechanisms, Benjamin Thompson on effectiveness criteria for operational-level grievance mechanisms, and Karyn Keenan on the Canadian Corporate Responsibility Ombudsman. Two articles, one by Joana Nabuco and Leticia Aleixo, one by Baskut Tuncak, have explored different remedy-related issues following the collapse of the Doce river dam in Brazil. There is also a review by Manoj Kumar Sinha of a 2016 book on ‘The Role and Impact of Non-Judicial Grievance Mechanisms’. The latest issue of the journal is available here.