Human Rights Grievance Mechanisms and Remedies

Transcription

1 Human Rights Grievance Mechanisms and Remedies Business and Human Rights: Trends, Challenges and the Road Ahead, Day 2 American University, Washington School of Law April 24, 2015 Dr Chris Anderson, Principal, Yirri LLC

2 Reminder: What are human rights?

3 Reminder: What are human rights?! The inherent dignities and freedoms to which we are all entitled as human beings, wherever we live.! Universal and inalienable: held regardless of political, economic and cultural systems and not to be taken away.! Interdependent and indivisible: All rights are equally important. No hierarchy between civil, cultural, economic, political and social rights.! Equal and non-discriminatory: all humans have the same rights regardless of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

4 Relevant instruments! Universal Declaration of Human Rights (UDHR), which contains 30 articles setting out universal human rights.! The Declaration, together with two international instruments adopted in form the UN s International Bill of Human Rights.! Others: the International Labour Organization s (ILO) eight core conventions set out in the Declaration on Fundamental Principles and Rights at Work.! UN Guiding Principles on Business & Human Rights! Voluntary Principles on Security & Human Rights

5 Preliminary issues! Definitions & application: too narrow; too wide! Who is responsible? Government, business, civil society? Notion of impacting organization (IO)! Is Human Rights as a concept wholly relevant in the developed world?! Is HRts due diligence just part of normal risk management?! Critical importance of integration! Engagement fundamental

6 Integrating HRts into IO operation! Know and understand! Plan and implement! Monitor, evaluate and improve! Report and communicate

7 Engagement: A fundamental activity! Engagement critical in every phase of an IO lifespan! Active exchange of information, listening to community concerns and suggestions, and developing an agreed improvement plan together.! Inclusive engagement helps us to understand the complex and diverse human rights contexts in which we operate and enables us to identify opportunities to assist communities to enjoy their human rights.! Inclusive engagement ensures that all rights-holders, including vulnerable and at risk groups, can participate in meaningful engagement processes, voice their concerns, share their experiences and participate in decisions that affect their human rights.! Host communities as both stakeholders and rights-holders.

8 Indicators for performance! Indicators on the implementation of human rights related processes within an IO e.g. how widely an organization has human rights-compatible procedures in place.! Indicators of incidents these reflect the frequency with which the activities of a company result in a problem or abuse of human rights. These indicators have the benefit of being able to define a trend over time.! Demonstrable or measurable changes in the quality of life of stakeholder groups in areas of relevance to human rights.

9 Grievances, etc: Definitions! A community complaint is a notification provided by a community member, group or institution to the business or other impacting organization (IO) that they have suffered some form of offence, detriment, impairment or loss as a result of business activity and/or employee or contractor behavior.! A community dispute is a complaint that has not been accepted as valid by one party or the other and has escalated into disagreement between the parties. It may or may not have involved the IO.! A community grievance is a complaint or dispute that has escalated to the point where it requires third party intervention or adjudication to resolve. Typically grievances involve more than one community member or family and relate to disputes that have remained unresolved for some time.

10 Complaints & grievances: Principles of effective process! Legitimate The process should be transparent and sufficiently independent to ensure no party can interfere with fair conduct.! Accessible The process should be publicized in such a way that all community members can understand and have access to it, including groups who may face barriers to access.! Predictable The process should be consistent, have a time frame for each stage and be clear on the types of process and remedy that are available.! Equitable Aggrieved parties must have reasonable access to sources of information, advice and expertise to engage in the process on fair and equitable terms.

11 Complaints & grievances: Principles of effective process (continued)! Transparent Process and outcomes should be sufficiently transparent to meet public interest concerns without jeopardizing the identity of individuals. Parties to a complaint, dispute or grievance should be regularly informed about its progress to resolution.! Rights-compatible Process and remedies must accord with internationally recognized human rights.! A source of continuous learning Drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms.! Project-level complaints, disputes and grievance processes should also be based on engagement and dialogue, consulting with stakeholder groups on its design and performance.

12 Remedies! Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim s right to the following:! (a) Equal and effective access to justice;! (b) Adequate, effective and prompt reparation for harm suffered;! (c) Access to relevant information concerning violations and reparation mechanisms.

13 Other issues! The special case of Indigenous Peoples; Free, Prior & Informed Consent (FPIC)! Companies and host governments! Differences in sectors (mining, oil & gas, agriculture, forestry, manufacturing, infrastructure, retail )! What about other organizations? Finance houses? Civil society? Aid organizations?!

14 The Future At an organizational level, attention to human rights is becoming a competitive edge and a business risk management device; further integration into management & operations systems. For governments in democratic transition issues include:! Truth and justice acknowledgement of past issues & accountabilities! The demand for economic development,! Need for reintegration into the international community,! Institutional normalization with a constitution and laws, and! The search for social harmony and reconstruction of political and social organizations.