Human Rights Compliance Assessment (HRCA)
Human rights compliance assessment seeks to analyze whether non-state actors’ activities respect and protect international human rights norms and standards. When the state acts as a private agent, this assessment can also apply. This assessment is performed to identify actual or potential risks to the human rights of the citizens that interact with those actors; once the risks are identified, the aim is to implement the necessary procedures and to adapt their activities to the parameters provided by human rights law and standards. The human rights compliance assessment is framed under the international human rights law. Various mechanisms have been designed to perform the human rights compliance assessment and it has been increasingly integrated into the management of organizations. The identification of the salient human rights that can be affected by the activities of non-state actors is the core content of this assessment. Stakeholders such as employees, consumers, local (indigenous) communities, next generations, minority shareholders, and/or partners play an essential role thereby, and special attention is paid to vulnerable groups such as children and women.
Human rights are general principles and standards, recognized by binding international treaties and by most of the national constitutions worldwide, which entitle human beings to the right of being treated with dignity and without discrimination for reasons of race, color, sex, language, religion, opinion, national or social origin, property, birth, or other status. These rights are interrelated, interdependent, and indivisible (Universal Declaration of Human Rights, 1948). The United Nations Guiding Principles on Business and Human rights (UNGP) (UN OHCHR 2011) is the concluding document of a series of initiatives that started in 2008 when the UN General Assembly approved the “Protect, Respect and Remedy: a Framework for Business and Human Rights” (UN HRC 2008). The UNGP aims at guiding the state and non-state actors in evaluating and adapting their activities to make them compatible with the duties to respect, protect, and fulfill human rights as recognized by international human rights law. For this purpose, the UNGP propose three pillars: state responsibility to protect, corporate responsibility to respect, and access to remedy.
States are therefore expected to regulate corporate accountability concerning the duties to respect human rights. However, at the national level, non-state actors are in some cases expected to protect and to support the state in fulfilling human rights. The corporate responsibility is related to corporate social responsibility (CSR) which is a self-regulating mechanism aiming at making business activities compatible with social and environmental standards and, more recently, with human rights law. The third pillar, access to remedy, seeks to provide remedial mechanisms when the preventive and corrective measures are not effective.
Other specific UN Guiding Principles on Human Rights Impact Assessments of Trade and Investment Agreements and for Responsible Contracts for State-Investor Contracts complement the general UNGP by emphasizing the duties of states to ensure that trade and investment activities respect human rights law. As these activities have become more complex and interconnected with human rights and environmental protection, the conflicts have also increased. The main issue is how to protect investments without limiting the policy space of host countries worldwide, particularly of developing countries. The mentioned Guiding Principles seek to serve as a macro framework for human rights compliance assessment.
Earlier initiatives such as the Tripartite Declaration of Principles concerning Multinational Enterprises (MNEs) and Social Policy (MNE Declaration) of the International Labor Organization (ILO 2017), adopted in 1977, and amended in 2000, 2006, and 2017 and the Organization of Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises (MNEs) adopted in 1976 and updated in 2011 also sought to integrate social policy and sustainable practices into corporate management. The UN Global Compact (1999), agreed upon by governments, corporations, and labor organizations, also promotes business accountability for the respect of international human rights rules and guidelines, to protect the environment and to fight corruption.
The UN Human Rights Council created an intergovernmental working group on transnational corporations and other businesses with respect to human rights, whose mandate is to reach an international legally binding instrument to regulate business activities and their impact on human rights. For this purpose, a multi-stakeholder forum on business and human rights was created, but, up to now, no treaty has been adopted and therefore, the legal framework for human rights compliance assessment are the treaties and national law that protect human rights and the mentioned soft law guidelines.
The Sustainable Development Goals (SDG) defined in the Post-2015 agenda also point to the need to regulate business activities to guarantee the respect for protection of and fulfillment of human rights and some specific targets help to delineate the scope of human rights compliance. For instance, some targets of Goal 5, “Gender equality,” flag that this goal is a fundamental human right and a necessary condition for a peaceful, prosperous, and sustainable world. Goal 6, “Ensure availability and sustainable management of water and sanitation for all,” promotes pollution reduction, the progressive reduction of the release of hazardous chemicals and materials, and increased water-use efficiency. Some targets of Goal 8, “inclusive and sustainable economic growth, employment and decent work for all,” encourage states to implement effective measures to eradicate forced labor, end modern slavery and human trafficking, and, by 2025, end all forms of child labor. Some targets of Goal 12, “sustainable consumption and production,” flag the responsibility of developed countries to implement sustainable management and efficient use of natural resources on all levels of the supply chain to eliminate adverse impacts on human health and the environment and to integrate sustainability information in their reporting cycle. Finally, some targets of Goal 17, “Partnership for the goals,” promote a global partnership for sustainable development, through technology transfer, and a universal, nondiscriminatory, and equitable multilateral trading system among countries.
At the regional level, the Council of Europe (CoE) has released guidelines on the implementation of the UNGP by member states (CoE 2016) and the CoE/Greta (Group of Experts on Action against Trafficking in Human Beings) monitors the implementation of the CoE Convention on Action against Trafficking in Human Beings (CoE/Greta 2016). The Interamerican Human Rights System has also actively protected local communities from polluting business activities, such as in the case of Kichwa Indigenous People of Sarayaku v. Ecuador (Judgment of 27.6.2012) and has held that member states must, firstly, consult local populations on the realization of business activities that can have adverse effects, secondly, ensure the respect for human rights when implementing agreements with states or non-state actors, and thirdly, avoid commercial or investment legislation that “weaken, undermine or deny” their international human rights obligations (IACHR 2015).
The European Union (EU) has been the most dynamic regional organization in this area, particularly after the entry into force of the Lisbon Treaty and the incorporation of the EU Charter of Fundamental Rights. The EU Strategy 2011–2014 for Corporate Social Responsibility (CSR) and the Second Action Plan on Human Rights and Democracy of 2015 are the base of the framework developed by the European Commission on business and human rights. Relevant tools include the “Better Regulation Guidelines and Toolbox” that includes a “Fundamental Rights Check List” in line with the proposal to incorporate the UNGP in the methodology of EU’s Trade Sustainability Impact Assessments (Bürgi Bonanomi 2017). Other initiatives aim at encouraging member states to regulate business activities in accordance with human rights, such as the Guiding Principles for Businesses to Respect Human Rights in Key Business Sectors and for Small and Medium Sized Enterprises (SMEs) (GLOBAL CSR and BBI International 2015); the Commission Staff Working Document on Implementing the UN Guiding Principles on Business and Human Rights – State of Play (European Commission 2015a); and the Council of the EU Conclusions on Business and Human Rights (Council of the EU 2016).
Other initiatives, such as Enterprise 2020, encourage European business to achieve “smart, sustainable, and inclusive growth” (European Comission 2010). The website CSR Europe provides diverse materials to non-state actors to comply with human rights duties.
This legal framework of rules and standards is the basis for human rights compliance assessment, aiming at private activities of non-state actors respecting, and in some cases protecting and supporting the fulfillment of human rights. Human rights compliance assessment has become a necessary tool because, as the UNGP (Principle 13) states, non-state actor’s activities should not cause nor contribute to adverse human rights impacts, and when these impacts occur, these actors should redress them. Human rights compliance assessment is not a unique process, and it depends on the contexts, risks at stake, salient human rights affected, and characteristics of the non-state actors involved. Various mechanisms have been developed for this purpose, but the UNGP actively promote the following: human rights due diligence (HRDD), human rights impact assessment (HRIA), reporting systems, operational-level grievance mechanisms, and self-evaluation of human rights compliance. These mechanisms are complementary and interconnected and are briefly presented in the next section.
Concept, Scope, and Relevance
Human rights compliance assessment seeks to verify whether non-state actors affect or limit (directly or indirectly) human rights. Non-state actors should ensure that their activities or the ones of their agents or partners do not violate human rights and if possible, they should actively promote human rights in their activities and within the supply chain. Although human rights fulfillment is not a direct duty of non-state actors, it is expected that they support the state in the accomplishment of their duty to fulfill human rights. This assessment also applies to state organisms when they act as private organisms such as state-owned corporations (Daelman 2015). Human rights compliance assessment is relevant, because corporations cannot be held accountable for human rights abuses at the international level, and therefore, states must regulate that non-state actors respect and protect human rights under their jurisdiction (Skinner 2015; van Dam 2015, 2017).
The concept of compliance has been incorporated into the organizations’ structure and management and refers to the respect and implementation of state regulations of private activities, the self-assessment of the risks involved into their activities and procedures, the implementation of checks and procedures to verify respect for rules and standards and the implementation of mechanisms to address potential or actual failures. Compliance is therefore related to CSR, and in many cases, the codes of conduct indicate the values that guide the organization and their relations with their partners. More generally, corporate compliance traditionally covers various issues such as corruption, fair competition, intellectual property rights (IPR), tax compliance, social and environmental protection, and recently the respect for human rights has been integrated into this concept. The incorporation of human rights compliance assessment into the management of non-state actors is the result of the guidelines presented above and the pressure exerted from other actors, such as NGOs, intergovernmental organizations, governments, and some corporations (Walker 2011; The World Bank 2013: 5 De Schutter 2011: 9–10).
There is no unique framework or unique methodology to identify risks and implement human rights compliance requirements and procedures. In general, the legal framework is based on binding rules, but also on soft law guiding principles, as explained in the introduction and the most used mechanisms are the ones proposed by the UNGP. These mechanisms support non-state actors to check whether their activities comply with human rights rules and standards. The results of the human rights compliance assessment are not always binding, nor are they a certification of compliance. They guide the actors in adapting their activities to the international human rights rules and standards and they can be used as preparatory work for a monitoring or certification process, or they can be part of an internal audit.
Human Rights Due Diligence (HRDD)
Human rights due diligence (HRDD) is defined by the UNGP (Principle 17) as a permanent process to assess actual and potential human rights impacts. The procedure is not unique and the level of complexity is not always the same. The first step is to identify whether the activities of non-state actors can provoke adverse human rights impacts directly or indirectly by their partners, even if they are located in third countries. This risk assessment should be permanent in order to identify, prevent, and mitigate adverse human rights impacts that may be caused in any moment by their operations, products, or services or by their relationships. The second step is the impact assessment which is described below, as it has become an independent (although interconnected) mechanism. The third step is to integrate the results of the risk and impact assessment into their functions and processes. This is, they should establish tasks and processes and allocate a budget to address these actual or potential impacts. This process also covers their relations with partners in which the level of leverage is important to define the responsibility in adverse human rights impacts perpetrated in a value chain. The modern Enterprise Risk Management (ERM) is one example of how the “externalities” of non-state actors’ activities can be internalized, such as the impacts on the environment or on human rights of local communities. It is also a way to involve shareholders and stakeholders (CSR Europe 2016: 11).
Diverse multi-stakeholder initiatives (MSIs) for specific and sensitive sectors have been jointly adopted by, e.g., corporations, local communities, governments, and intergovernmental organizations that provide guidelines compliance procedures such as HRDD. The most important guidelines on HRDD are from the OECD, the UN Global Compact, the EU, and various UN agencies such as ILO and UNEP, among others.
The OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas (2016) is the most used framework for many related HRDD processes. The OECD has also promoted similar related initiatives for the extractive sector, with particular attention to child labor in mineral supply chains and artisanal and small-scale gold mining. Other assessed sectors include agricultural and garment supply chains, the financial sector, sports, and the criminal exploitation of resources. The UN Global Compact has also released Guidance for Companies on Respecting the Human Rights to Water and Sanitation (Shift and Pacific Institute 2015) and Human Rights Due Diligence in High Risk Circumstances: Practical Strategies for Businesses (Shift 2015). The UN Environmental Program (UNEP) has developed the Environmental Rights Initiative: Promote, Protect, Respect Environmental Rights. At the ILO, several conventions concluded by its member states refer to sensitive sectors such as the food retail, garment and chemicals sectors, and some initiatives such as the Fair Recruitment Initiative to Prevent Human Trafficking (2015) and the fair recruitment global action to improve the Recruitment Framework of Labor Migration (REFRAME) are also supporting human rights compliance assessment.
The EU also took several initiatives, being the most important the Conflict Mineral Regulation, which is a binding document built on the OECD guidelines and the Dodd Frank Wall Street Reform and Consumer Protection Act (US DFA) of the USA (1502) that seek to control the value chain of “conflict minerals.” The Directive on safety of offshore oil and gas operation requires member states to regulate these activities. Besides these binding rules, the EU has also released guidelines for the sectors of cotton, sugarcane, mobile phones, employment and recruitment agencies, ICT, oil, and gas (Shift and the Institute for Human Rights and Business (IHRB)). CSR Europe and Enterprise 2020 (2015, 2016) have also launched various initiatives to support the implementation of human rights compliance by non-state actors internally and in the value chains.
The Kimberley Process (KP) is another multi-stakeholder initiative supported by governments, civil societies, and industry seeking to reduce the trade of “conflict diamonds” which are the “rough diamonds used to finance wars against governments.”
All these initiatives guide non-state actors in the development of HRDD inside the organizations and in their value chains. The way they organize these processes internally is diverse such via their CSR, Human Resources, legal/compliance departments, etc. (UN Global Compact and the Shift 2014 and UN Global compact 2014). HRDD is complemented by the other mechanisms explained below.
Human Rights Impact Assessments (HRIA)
Human Rights Impact Assessment (HRIA) is defined as “the assessment of both the potential human rights impact of future policies and the actual human rights impact of implemented policies in a way ensuring the participation of various actors” (de Beco 2009: 140). HRIA at the micro level complements HRDD. At the macro level, it has been gradually introduced as part of social (or sustainability) impact assessments. The European Commission (2015b, 2016), for instance, launched an integrated approach to its trade impact assessments that covers economic, social, environmental, and human rights aspects of trade and investment initiatives, and they are even becoming a standard part of due diligence in mining projects (Götzmann 2014). HRIA applies to policies, projects, agreements, and to any kind of action (de Beco 2009; The World Bank 2013). In principle, it is a prior assessment that seeks a real effect on negotiations, on the structure of organizations, and on their processes and activities, but it can also be proposed as ex post HRIA.
The UNGP on Human Rights Impact Assessments of Trade and Investment Agreements provide a roadmap to conduct a HRIA. When the results are negative, many options are proposed: the amendment of the agreement, the inclusion of safeguards (when the agreement duties are incompatible with human rights obligations), mitigation or compensatory measures or, if any other measure is not viable, the termination of the agreement (De Schutter 2011). These Guidelines also encourage states to protect vulnerable groups and to apply the precautionary principle, i.e., if the HRIA identifies potential negative measures, “the burden of proof that it is not harmful falls on the governments negotiating the agreement” (De Schutter 2011: 8–9). If this applies to micro projects, then the burden of proof would fall on the non-state actor. At the macro level, despite these legal possibilities are listed, the criteria to evaluate these assessments become more political. Moreover, the proposed procedures are per se not innovative, but the UN Guidelines systematized existing legal/political procedures in one assessment. The methodology proposed to assess trade and investment agreements or projects is not new either. HRIAs should also be transparent by using public and verifiable sources of information and by including consultation of communities that may be affected by the activities; if necessary, HRIAs must follow ILO Convention 169 in countries where it is a legal source. They must refer to the normative content of human rights obligations in force and, if possible, to incorporate human rights indicators into the assessment and avoid regressive policies. HRIAs also contribute to balancing measures that involve conflicting rights. The assessment should prioritize sustainable economic and social benefits because they “contribute to the realization of all human rights over short-term economic and/or political gains expected from any trade and investment agreement” (De Schutter 2011: 12). HRIAs should also grant that losses and gains are shared across groups by applying mitigating, compensatory, or redistributive measures.
At the macro level, the UN Guidelines indicate that ex ante HRIAs are a duty of states when they negotiate trade and investment agreements to avoid incompatible obligations vis-à-vis previously existing international treaty obligations of the states-parties, particularly of human rights obligations, or to avoid obstructing the competences of states (and non-state actors) to fulfill their human rights obligations. This means that states must preserve their regulatory independence to protect human rights, to adopt social policies that progressively improve the realization human rights, to promote multilateral instruments to respect and protect human rights obligations, to control non-state actors that may violate human rights because of these agreements (e.g., high-performance requirements to investors) and to avoid discriminatory measures. The focus of the HRIAs is basically on clauses of excessive investor protection, tariff reduction, service liberalization, or reinforced protection of intellectual property rights (IPR) (“Trips-plus or Trips-extra” clauses), government procurement, health and safety measures, technical standards and agriculture regulations (Walker (2011), quoted by The World Bank (2013: 48–49), (FIDH 2008). This has been reinforced by the General Comment 24/2017 of the UN Committee on Economic, Social, and Cultural Rights (CESCR) on state obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities. At the micro level, these guidelines can serve as an indicative procedure to assess the impact of their activities as a complementary assessment to HRDD.
Self-Assessment of Human Rights Compliance
Self-assessment of human rights compliance is another mechanism used by non-state actors. Most of the self-evaluations depart from international human rights law and related soft law guidelines. The self-evaluation usually uses guidelines of human rights organizations, research institutions, NGOs, etc. that construct different methods such as by using indicators taken from the law and guidelines to identify whether non-state-actors comply with human rights law. Self-assessment of compliance seeks to provide an overview of the main human rights rules and guidelines with which non-state actors must comply when developing their activities but also in their value chains. This way, they can identify and evaluate risks in order to take the necessary measures that need to be redressed or improved inside their organizations or in their value chain. It also seeks to identify the necessary procedures and policies to be implemented to fulfill their human rights duties. The self-assessment can also be applied to verify whether their commercial partners perform audit reports and self-assessment of their activities (Lenzen and d’Engelbronner 2007). In some cases, it can be the first step of a HRDD or a HRIA.
As it has been the case of the previous mechanisms, some organizations have released guidelines and check lists to support non-state actors in performing their self-assessment. The UN Global Compact self-assessment on human rights has been designed to support non-state actors in identifying whether businesses are taking a specific action regarding the respect for human rights, such as risk assessment, impact assessment, operational guidance notes, complaint mechanisms, employee training and awareness, supply chain arrangements, employee performance assessment, public disclosure of policies and practices, multi-stakeholder dialogue, etc. The UN Global Compact, like many organizations, adopts the US perspective and distinguishes between human rights and labor and environmental protection. Regarding labor rights, the check list focuses on children protection, the right to organize, collective bargaining, non-forced labor, non-discrimination, equal opportunity, safe working conditions, and mechanisms for age verification. Regarding the environment, the check list focuses on management systems, technology assessment, life-cycle assessment/costing, water footprint, risk and impact assessment, performance targets/indicators, cleaner and safer production, consumption, and responsible use targets, 3R (reduce, reuse, and recycle).
The EU has also created assessment tools that guide non-state actors in performing self-assessments for human rights compliance, such as the EU Questionnaire to raise SME awareness of CSR (European Commission 2015c). CSR Europe in turn released the Mia Tool (CSR Europe/Enterprise 2020: 2015, 2016) that promotes risk assessment and management in a similar way as the internal audit.
Other national institutions have also developed self-assessment tools, being the most used one of The Danish Institute of Human Rights (2006) that created the Human Rights Compliance Assessment (HRCA) to identify human rights risks in business activities. It focuses on salient stakeholders: employees, local communities, customers, and host governments. This tool seeks to identify whether these actors have adopted policies or guidelines regarding human rights compliance, whether they have implemented the needed procedures to develop the policies, and to check how they are developing these indicators. However, the tool mostly refers to the international human rights hard and soft law and less to the regional perspectives such as the EU regulations which have been translated into concrete legal duties for state and non-state actors. In other countries such as The Netherlands (MVO risico checker), Belgium (MVO zelfscan), Norway (The Risk Assessment and Identification Database (RAID) and A Practitioner’s Guide to Ethical Trade), and the UK (UK business and human rights toolkit), similar tools are being developed.
Reporting Nonfinancial Information
Human rights compliance assessment has also been developed by means of the construction of indicators to better visualize it. Some of the developed tools have also tried to link human rights compliance with the targets of the SDGs and their concrete indicators, to find relations with the compliance with human rights (The Danish Institute for Human Rights (websites). The construction of indicators to evaluate human rights compliance is also recommended by the UNGP (Principle 20) to evaluate the actions of non-state actors towards the redress of adverse human rights impacts, which can complement the feedback provided by actors and stakeholders, with an emphasis on the protection of vulnerable groups. The reporting systems are numerous, being some of them mandatory and others voluntary or pure guidelines for non-state actors to implement human rights compliance into their procedures and activities. The UNGP also refer to reporting as the way non-state actors should communicate the risks of severe human rights impacts that their activities can cause. This way, non-state actors can be held accountable as reporting visualizes how non-state actors comply with their duties of respecting and in some cases, protecting human rights. Reporting implies that non-state actors should gather and disclose information for any stakeholder and for internal evaluation in order to take measures to address the impact.
Reporting can be a legal duty and can be part of a wider report on nonfinancial performance that usually covers social and environmental issues. The EU law, for instance, is increasingly regulating the reporting duty of large corporations and corporations conducting activities of general interest, to identify how they operate and manage social, human rights, and environmental challenges. This way, stakeholders can have access to relevant information regarding their human rights. Recently, the EU enacted the Non-Financial Reporting Directive (Directive 2014/95/EU), which requests member states to regulate the duty of releasing non-financial statements as part of the annual reports. This duty is binding for large public-interest corporations with more than 500 employees. The concept of non-financial information refers to environmental protection, social rights, respect for human rights, anti-corruption and bribery, and diversity on corporate boards. Although the duty bearer is free to choose the reporting system, the EU recommends the UN Global Compact, the OECD guidelines for multinational enterprises and the ISO 26000. Besides this reporting Directive, the EU has also developed the Eco-Management and Audit Scheme (EMAS) that non-state actors can use worldwide to evaluate, report, and improve their environmental performance. This system of reporting is based on the EMAS Regulation; it develops the environmental core indicators to document environmental performance and creates the EMAS Global to make them accessible worldwide. In 2017, a Commission Regulation adapted EMAS EU Regulation (Comission Regulation 2017/1505) to the new version of the ISO 14001 2015 standard.
Reporting can also be used by non-state actors voluntarily. Some initiatives supported by the UN, such as the UN Guiding Principles Reporting Framework (2015) and the UN Principles for Responsive Investment (UNPRI) (2015), have developed specific human rights reporting systems for non-state actors. Other NGOs are also publishing reporting methods such as the International Standards Organization (ISO) which groups 160 national standards bodies, some of them public entities, to develop market relevant international standards. A standard is defined as a benchmark that specifies and guides on the minimum characteristics of products, processes, or services, to ensure that they are safe, reliable, and of good quality. The aim is to guarantee quality, safety, and efficiency of products, processes, and services in almost all the economic sectors. Standards related to human rights compliance assessment include ISO 9000 on quality management, ISO 14000 on environmental management, ISO 26000 on social responsibility (which is rather a guideline and not a certificate that encourages accountability, transparency, ethical behavior, stakeholder interests, rule of law, international norms of behavior, and human rights), ISO 22000 on food safety management, ISO 45001 on occupational health and safety (that replaces the BS OHSAS 18001), ISO 37001 on anti-bribery management systems, ISO 31000 on risk management, and ISO 20400 on sustainable procurement (which is also a guideline). However, they are to be purchased and their use is voluntary.
The Global Reporting Initiative (GRI) is another NGO that supports businesses, governments, and other organizations to manage the impact of their activities on sustainability issues (climate change, human rights, corruption, labor conditions, social responsibility, etc). These standards for sustainability reporting, known as the GRI Standards, measure impacts on the environment, society, and the economy and in 2016 incorporated human rights into the social standards. GRI has partnerships with some international organizations such as OECD, UN Global Compact, UNEP, and ISO and with governments and regulators to promote sustainability reporting at local levels. They also seek to provide transparency on business activities and relevant information for human rights compliance.
Besides these salient reporting systems there is a considerable amount of parallel reporting systems such as the SA8000® Standard which is a social accountability certification for non-state actors worldwide. It was established by Social Accountability International in 1997 as a multi-stakeholder initiative that adopts the Universal Declaration of Human Rights and International Labor Organization (ILO) conventions. Other private initiatives have been released such as the Future-Fit Business Benchmark, the Integrated Reporting Principles of the International Integrated Reporting Council (IIRC) (2013), and the framework of the Climate Disclosure Standards Board (CDSB) (2014). The Corporate Reporting Landscape Map summarizes corporate reporting initiatives and their implementation requirements.
Some countries have released their own due diligence and reporting systems such as the NPR 9036 Due Diligence from The Netherlands, the DS 49001 CSR from Denmark, the California Transparency in Supply Chains Act, and the UK Modern Slavery Act.
The main concern is that this proliferation of reporting systems makes its use and understanding complex for the non-state actors but also for the stakeholders.
Operational-Level Grievance Mechanism
Besides the reporting systems, feedback provided by stakeholders is also relevant to complete a human rights compliance assessment. Diverse procedures can be implemented in this respect, being the most recommended one as complaint mechanisms that actual or potential victims can use to claim redress or reparation, or to inform the directives on the adverse impacts that their activities are causing. This mechanism is also called operational-level grievance mechanism, defined as “a formalized means through which individuals or groups can raise concerns about the impact an enterprise has on them – including, but not exclusively, on their human rights – and can seek remedy” (UN OHCHR 2011: 68). This mechanism aims at providing recourse to stakeholders to raise their concerns, to address a situation that can cause harm, or to redress it when the damage has already been caused. In the framework of business and human rights, the term “grievance mechanism” signifies the options that affected persons or stakeholders can use to lodge complaints and disputes towards non-state actors (UN OHCHR 2011: 68). The purpose of this mechanism is therefore double, to provide opportune feedback on actual or potential human rights impacts and to claim remedy when the adverse effect has been caused.
The grievance mechanism needs the implementation of an internal control and oversight system to process the feedback received and to identify grievances before a concrete damage has been caused and to take preventive or corrective measures that address the wrong situation. However, the UNGP (Principle 25) also states that when a human rights violation has been perpetrated, independently of whether or not damage was caused; these operational grievance mechanisms should also grant access to an effective remedy. These grievance mechanisms support the HRDD to identify adverse human rights impacts and to increase the participation of local communities and stakeholders. This remedy can be an alternative or a complement for the state judicial and nonjudicial mechanisms that provide access to remedy. This role depends on their autonomous capacity to provide effective remedy, taking as a reference the conditions promoted by the UNGP (Principle 31) (cf. for instance the “Assessing the Effectiveness of Company Grievance Mechanisms: CSR Europe’s Management of Complaints Assessment” (Moc-A)). The types of remedy are diverse, and they depend on the concrete case, the human rights violated and the seriousness of the damage caused. When there is an adverse impact that does not necessarily need the intervention of the state, such as in crimes, operational grievance mechanisms can provide a more opportune remedy.
The UNGP also recommend the implementation of joint oversight mechanisms formed by representatives of the non-state actors and the stakeholders to grant transparency and trust. Usually, large corporations are expected to implement their own grievance mechanism whereas small- and medium-sized corporations that operate in sectors with limited human rights risks can develop simpler grievance mechanisms or participate in grievance mechanisms provided by external organizations, if the objectives of the mechanism can be reached. Victims or stakeholders can also use complaint mechanisms or mediation provided by third parties, such as the National Contact Point of the OECD (Daniel et al. 2015; Ruggie and Nelson 2015) or state mechanisms to guarantee satisfactory redress or remedy.
If non-state actors do not provide its own complaint mechanism, they are expected to cooperate in the remediation process. Some complaint mechanisms have also been created and managed by multi-stakeholder initiatives or by funding organizations such as the World Bank, or Regional Investment Banks, particularly when the activity is complex (e.g., infrastructure projects) or when several non-state actors are involved.
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