Individuals, workers, communities, are all exposed to harm, and yet they are on the periphery of transnational regulation, even when they are its critical object. The architecture of the UN Guiding Principles on Business and Human Rights (GPs) tells it all. There is no Pillar IV on the obligations and privileges of individuals or groups affected by state or corporate activity with human rights impacts. Nor is Pillar III on access to remedy cast in that direction, or at least until recently.

A shift in attention away from the focus of the first two pillars – states and business enterprises – can be seen in the 2017 Report of the Working Group on Business and Human Rights. Its objective is to center rightsholders in a reconsideration of the access to remedies Pillar. The term rightsholders, as opposed to that of victims, refers to individuals that can make legitimate claims rather than being the passive objects of events and subject of remedy. That alone marks a change in the narrative. But the most significant strides have been in unpacking policy issues about the different forms of remedy mechanisms.

The new wealth of research on operational-level grievance mechanisms (OGMs) is one such stride, all the more critical because the GPs are somewhat jarring on this topic. On the one hand, the GPs open up the realm of non-judicial private remedy mechanisms. On the other hand, they implicitly, and without justification, frame OGMs in particular as an emanation of corporations. Reparation appears to be intended as the continuation of due diligence, or, in other words, as part of the business processes to manage human rights risks. GP 31.h, to be sure, calls for “engagement and dialogue” with the intended users of the grievance mechanism, but corporations are clearly in the driving seat.

The ICJ Report on Effective Operational Grievance Mechanisms upholds this focus on the pragmatic ground that an OGM cannot be effective without acceptance and use by companies. But it goes beyond the GPs in at least two essential ways. First, it requires engagement and dialogue at every step of the life-cycle of OGMs, starting from design to implementation to evaluation, thus dispelling the risk (endemic to the loose language of the GPs) that corporations can “pick-and-choose” from rightsholder feedback. Second, it offers a broad and deep collection of experiences, which will make it hard for companies to hide behind the excuse of the lack of success stories to evade engaging with rightsholders. Also, laudable is the sparing and appropriate use of the “best practices” jargon. Given that OGMs are both highly contextual creatures and part of a fast-changing landscape of remedies, a more universalizing approach would breed the risk of distortion and too early lock-in.

Not only, then, is there progress, but also a clear move towards emphasizing the substantive involvement of rightsholders in OGMs. It is likewise in the draft of the Accountability and Remedy Project III of the UN Human Rights Office.

At the same time, these developments proceed within the conceptual boundaries of the GPs, which frame OGMs as a dialogue-based mechanism for the resolution of individual situations. The ICJ Report, in particular, builds on these two features. Thus, the notion of community and stakeholder participation extends to all stages of OGMs, from pre-design to implementation, the consensual ethos that the GPs advocates for dispute resolution. The focus on individual claims, typical of the GPs, translates as an emphasis on issues at the one-to-one level between companies and rightsholders. Hence at the heart of the Report is a discussion about access to the mechanism, transparency, and satisfaction with remedy. The overarching understanding is that increased stakeholder involvement and procedural fairness contribute to effectiveness by curbing the inequality of OGMs. If you flip it around, equality means here equality of arms, where both sides must have equal access to the mechanism, and neither party should be procedurally disadvantaged.

Very little of the sort exists in corporate-created remedy mechanisms. The ICJ insights and proposed performance standards, particularly on development and implementation, are therefore welcome. Let us not forget, though, that inequality takes on a starker and more radical quality in this world, including in globalized business activity. Some lives are more valued and therefore protected than others. Not all claims against injury or loss of life are registered. They are, as Judith Butler puts it, not recorded as losses worthy of grief. It is, then, in the capacity to make claims for this form of exposure to harm that the crux of equality lies. Hence the question for us: To what extent shall we integrate this notion of inequality into the debate on OGMs? Now, the capacity to register causes of grief, to make loss visible and addressed, is at the heart of OGMs. But it would be unrealistic and beyond the point to expect them to repair for, let alone solve, the inequality of which we are talking here. More modestly, I wish then to point to three issues with targeted implications for our debate.

First, the notion of engagement with stakeholder groups, particularly under the label of corporate social responsibility, fails to recognize that the stakes of those exposed to harm outweigh all others. Nor does the identification of vulnerable groups compensate for that. A framework for reparation should not extract vulnerability, but rather show how it works together with resistance. Concretely, one step in this direction would be to highlight the role and support towards solidarity networks as an incubator of collective agency for rightsholders. Another step is to nuance the idea that dialogue always proceeds from a consensual posture, and thus make room for opposition within stakeholder engagement. The second point is that a focus on individual grievances does not allow restoring the capacity to make claims for the broad-picture exploitative or adverse conditions of a given situation. In this respect, the ICJ Report pays less heed than other recent policy documents to the crucial role of third-party-monitoring of enforceable standards. Third and finally, the availability of multiple sites for seeking effective remedies does not necessarily translate into enhanced equality in the sense discussed above. A more promising option, particularly in supply chains, is that of binding approaches forcing lead firms to sustain through their market leverage robust remedy mechanisms at the bottom level. For it is here, ultimately, that exposure to harm is the highest and the risk of its erasure the strongest.

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.

Antonella Angelini is Swiss National Science Foundation Postdoctoral Mobility Fellow at Columbia Law School.