By Gustavo Becker, Executive Research Fellow, Berkeley Center for Law and Business
On November 5, 2015, the Fundão tailings dam collapsed(opens in a new tab) above the village of Bento Rodrigues in Minas Gerais, Brazil. In minutes, a wave of mining waste destroyed the village. The toxic sludge traveled more than 650 kilometers down the Rio Doce to the Atlantic Ocean, contaminating drinking water and destroying the livelihoods of communities who depended on the river for fishing, farming, and daily life. The dam belonged to Samarco, a joint venture between the Brazilian company Vale and the mining group BHP. Beneath the environmental catastrophe lay a human rights question with no obvious answer: what was owed to the people whose homes, health, and livelihoods had been affected, and how would remedy be delivered? The following year, the companies, together with the oversight role of public institutions, created a private foundation to administer non-judicial remediation mechanisms based on mediation.
When the UN Human Rights Council endorsed the United Nations Guiding Principles on Business and Human Rights(opens in a new tab) (UNGPs) in 2011, it called on companies to establish such non-judicial mechanisms. The UNGPs refer to them as grievance mechanisms, which are to be established in order to identify and address adverse human rights impacts. It framed them as a complement to judicial remedy, not a replacement for it. The legitimacy and promotion that the UNGPs provide for private remedial mechanisms is worth mentioning considering the Principles’ position as the authoritative global standard on business and human rights. They rest on three pillars: the State duty to protect human rights, the corporate responsibility to respect them, and access to remedy for those harmed. Grievance mechanisms sit in the third pillar.
Companies responded, and grievance mechanisms became corporate practice. For instance, Barrick Gold launched its Porgera Remedy Framework(opens in a new tab) the same year the UNGPs were endorsed, private arbitration was used as a grievance mechanism in the aftermath of the Rana Plaza disaster in Bangladesh(opens in a new tab), and TotalEnergies today runs a grievance mechanism alongside the compensation and resettlement program for the East African Crude Oil Pipeline(opens in a new tab). Comparable mechanisms operate across extractives, apparel and agriculture.
These mechanisms may offer potential advantages for businesses and individuals: proximity to affected communities, speed, lower costs, transnational reach, and the capacity to deliver different types of reparations beyond financial compensation. My doctoral thesis identified a recurring problem among such mechanisms: the standards against which their effectiveness is analyzed.
The UNGP’s Effectiveness Criteria vis-à-vis an Effective Remedy under International Human Rights Law
Two ideas are easily conflated here, and the confusion has consequences. “Effectiveness,” under the UNGPs, refers to a set of design qualities that a grievance mechanism should exhibit. The “right to an effective remedy” is a right held by the individual and protected by human rights treaties. The first asks whether the process is well built. The second asks what the person was owed, and whether and how they received it. A mechanism can perform well against the first and still fall short of the second.
In business and human rights scholarship, almost all assessment of private remediation run through the effectiveness criteria of UNGP Principle 31. Principle 31 is the provision of the UNGPs that sets out what a non-judicial grievance mechanism should look like. It lists eight qualities: legitimacy, accessibility, predictability, equity, transparency, rights-compatibility, being a source of continuous learning, and, for company-managed mechanisms, being based on engagement and dialogue with the groups they serve.
These describe the qualities of a process. They do not necessarily encompass what remedy the claimant receives, whether the remedy provided matched the harm, or whether individuals could still go elsewhere if the process failed their interests. Principle 31(f) does require outcomes to accord with internationally recognized human rights, but without specifying which standards apply or what reparation they require.
The right to an effective remedy is more specific. It is set out in Article 2(3) of the International Covenant on Civil and Political Rights, which the United States ratified in 1992, and in every major human rights treaty. It generally requires both meaningful access to a process capable of addressing the violation and appropriate reparation for the harm suffered. On the first, the process must be reachable in practice, procedurally fair, and open to arguable claims, with access to an independent and impartial tribunal at its core. On the second, General Comment No. 31 of the UN Human Rights Committee and the case law of the Inter-American Court of Human Rights set out the forms that reparation may take: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition, proportionate to the gravity of the violation.
Such human rights treaties and their relevant case law constitute the sources of International Human Rights Law. These sources do not bind companies directly, and companies cannot be sued in a US court based on the existence of obligations under human rights treaties. They are sources of State-based obligations and may be considered benchmarks for corporate behavior, not a cause of action. Yet, they are the benchmarks a company should adopt when it attempts to meet international human rights standards. A company that endorses the UNGPs and then measures its mechanism only against Principle 31 is applying half of the framework it is supposed to.
The Business Interest in an Effectiveness Analysis
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