The Wild West of Company-Level Grievance Mechanisms: Drawing Normative Borders to Patrol the Privatization of Human Rights Remedies
By Lisa J. Laplante
This Article is the first to present a normative framework that challenges the privatization of remedies established by corporations to resolve human rights violations which they contribute to or cause. The need to draw such normative borders responds to an unprecedented innovation of ordinary company complaint mechanisms to handle human rights grievances suffered by individuals and communities. This development traces back to the 2011 approval of the United Nations Guiding Principles on Business and Human Rights (“UNGPs”) which call on companies to develop operational-level grievance mechanisms (“OGMs”) to handle a range of claims which may include those involving serious harms. This Article shares empirical evidence from a six-year study that demonstrates a notable uptick in companies developing OGMs, especially as they come under increasing pressure from private and public sources to comply with the UNGPs. Surprisingly, these redress mechanisms operate with virtually no government regulation or oversight even though the right to an effective remedy and holding private actors like companies to account go to the core of protecting fundamental rights. Remarkably, there has been minimal challenge or discussion about this concerning situation, most likely due to some ambiguities in the UNGPs and the lack of guidance from the U.N. bodies in charge of their implementation regarding any normative limits on the use of these private remedies. Indeed, an opinion issued by the Office of the High Commissioner for Human Rights in 2013 concerning a high profile OGM established by the Barrick Gold Corporation even suggests that company grievance mechanisms may operate beyond the normal boundaries of the law and require greater normative flexibility, drawing an analogy to administrative reparation programs employed in post-conflict settings. This Article challenges this analogy and the resulting conclusion through three normative arguments. First, administrative reparation programs in post-conflict settings are state-led initiatives that operate within clear normative boundaries and have been subject to review by international human rights bodies. Second, this external review occurs because governments can be held liable for failing to fulfill two positive duties: the obligation to protect human rights even when violated by private actors, and the obligation to ensure the right to access an effective remedy if such protection fails. Finally, a state cannot delegate either of these positive obligations to a private entity like a company, at least not without some oversight. This Article argues that because the UNGPs also recognize these foundational principles, they should be interpreted to support more regulation of OGMs—a position supported by recent judgments issued by the Inter-American Court of Human Rights. This Article concludes by acknowledging the current reality in which OGMs may serve as the only remedy available to some communities in states with weak remedial systems, and proposes a new agenda to ensure that OGMs operate subject to oversight to ensure they are effective and thus serve the ultimate aim of victim redress and corporate accountability.