Background

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In the Asia-Pacific region, trends in business-related human rights abuses include attacks against human rights defenders (HRDs) and continued barriers to access to remedy. A recent analysis of attacks on HRDs in 2022 found that Asia and the Pacific are among the most dangerous regions for defenders.

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The UNGPs recognize that, while effective judicial mechanisms are “at the core of ensuring access to remedy,” non-judicial mechanisms can also play an important role, and “may offer speed, reduced costs and/or transnational reach.” Yet, ten years after the endorsement  of the UNGPs, rights holders “still face diverse systemic or procedural obstacles to accessing effective judicial remedies” and non-judicial grievance mechanisms “are not yet fulfilling the role envisaged for them.”

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The UN Working Group on Business and Human Rights has emphasized that, “rights holders should be central to the entire remedy process,” and has recommended, with regard to operational level mechanisms [OGMs] in particular, that they “should be at the service of rights holders, who should be consulted meaningfully in creating, designing, reforming and operating such mechanisms.”

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Corporations have in large part not followed this guidance, and the general consensus is that OGMs are failing to deliver rights-compatible remedies. The Working Group on Business and Human Rights has attributed this to “challenges relating to lack of trust and effectiveness in design, including in building gender-sensitive and culturally appropriate mechanisms, and to challenges of effective transparency and monitoring.” Despite these flaws, in some situations, OGMs may be the only viable option for seeking remedy.

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In response to these challenges, there are increasing calls for centering rights holders in the context of remedy.

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About the session

 

This session will discuss some of the main obstacles to access effective remedy in the Asia-Pacific region, including the harassment of HRDs. It will explore the issues using several case studies as examples. It will then discuss the evolving guidance on the role of rights holders in remedial systems and what rights holder “engagement” often looks like in practice. The session will also share community-driven operational grievance mechanisms as a model for access to remedy, and the challenges and opportunities that model presents.

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There will be at least the case study from Thailand and Myanmar to be shared by the speakers.

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Objectives

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The main objectives of this session are to:

• Highlight obstacles rights holders face in seeking to access to effective remedy;

• Describe the evolving normative guidance on rights holders’ role in remedy;

• Increase understanding of the practical complexity of implementing access to remedy;

• Share the experience of designing a community-driven operational grievance mechanism and explore lessons learned and future plans for the model;

• Surface lessons learned and other examples of innovative approaches for realizing access to remedy from participants.

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Additional reading

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• Bus. & Hum. Rts. Resource Ctr, Human Rights Defenders & Business in 2022: People Challenging Corporate Power To Protect Our Planet, May 3, 2023.

• U.N. Working Group on Bus. & Hum. Rts., UNGPs 10+ A Roadmap for the Next Decade of Business and Human Rights (2021), at 30 [hereinafter UNGPs 10+ Roadmap].

• UN General Assembly, Rep. of the Working Group on the Issue of Hum. Rts. and Transn’l Corp. and Other Bus. Enter., Guiding Principles on Business and Human Rights at 10:

• taking stock of the first decade, ¶ 97, 19, U.N. Doc. A/HRC/47/39 (April 22, 2021).

• UNGPs 10+, supra, note 2 at 30.

• UN General Assembly, Rep. of the Working Group on the Issue of Hum. Rts. and Transn’l Corp. and Other Bus. Enter., ¶ 21 A/72/162 (July 18, 2017).

• UNGPs 10+ Roadmap, supra note 3, at 30.

• See, e.g., UNGPs 10+ Roadmap, supra note 2, at 31; Int’l Comm’n Of Jurists, Effective Operational-level Grievance Mechanisms (2019); Int’l Council On Mining And Metals, Handling and Resolving Local-Level Concerns and Grievances 16 (2019); Rep. of the UN High Comm’r Hu. Rts., Improving Accountability And Access To Remedy For Victims Of Business-Related Human Rights Abuse Through Non-State-Based Grievance Mechanisms, at 11, U.N. Doc. A/44/32, (May 19,  2017).

• EarthRights International & Just Ground, Community-Driven Operational Grievance Mechanism Discussion Paper (2022).

• Kaufman, J., & McDonnell, K. Community-Driven Operational Grievance Mechanisms. Business and Human Rights Journal, 1(1), pp. 127-132 (2016).