The UN Guiding Principles\u2019 third pillar, Access to Remedy (GP \u00b6\u00b6\u00a0 25-31), is fundamental to both operationalize the substantive values of duty and responsibility assigned to states and corporations under the First and Second Pillar, and to center those duties and responsibilities not on states and enterprises, but on the individuals and communities to which international organizations, states and corporations are irreducibly obliged.\u00a0 Yet the third pillar of the UNGPs is generally regarded as neglected and is understood as the pillar which has seen the least progress since the GPs\u2019 endorsement.<\/p>\n
In these remarks I will suggest at least one way to understand the reason for this contradiction and perhaps to point to mechanisms for overcoming the tensions between states and corporations, vested with active obligations and individuals and communities who are the receptacles of these duties and responsibilities. In the process I will suggest the general structural limits of the remedial pillar, its blindness to the remedial framework of Marxist Leninist regimes, and the dangers of relying on national judicial systems for systematic and sustainable development of remedial mechanisms for the resolution of human rights wrongs.<\/p>\n
\u00a0To this end I will point to the conceptual, structural and operationalization constraints<\/i> on the obligation to remedy and point to the means to begin to move beyond those constraints.\u00a0 My remarks do not follow the general consensus among NGOs as to \u201cwhat is to be done.\u201d \u00a0Nor do the remarks intend a fatalistic embrace of the desires of some states, and of those enterprises that have sought to shield their activities behind the thick and malleable walls of sovereignty, to reconceive the UNGPs as a conceptually empty gesture requiring little more than a more efficient approach to public sector-based business-as-usual (but now with a more active complicity of enterprises and civil society).<\/p>\n
\u00a0Conceptual Constraints<\/i><\/p>\n
\u00a0Conceptual constraints go to the normative foundations of the third pillar.\u00a0 These define their scope and the premises within which they might be understood and applied.<\/p>\n
\u00a0The first is the reluctance to see in the remedial pillar a foundational objective of recognizing the rights of and obligation owed to people and communities who are the objects of the first and second pillars. To treat the third pillar as merely procedural and consequential\u2014a reminder that mechanisms must be instituted to give effect to the duties and responsibilities described in the first two pillars\u2014erases the principal substantive object of the third pillar.\u00a0 That object is meant to recognize the reciprocal claim of individuals and communities to be secure in the enjoyment of those human rights that states have a duty to protect and enterprises a responsibility to respect. Thus the third pillar, fairly read, might better be understood as a recognition of the individual and the community at the center of a web of duty and responsibility.\u00a0 The centrality of the individual in this web is the animating principle of remedy\u2014not so much as embedded in a right assigned to the individual or vested in a community, as it is embedded in the duty and responsibility of state and enterprise themselves. That embedding carries with it the obligation to ensure that individuals and communities are secure in the obligations owed to them. In the West we speak of these generally in the context of \u201crights\u201d discourse.\u00a0 In China and Marxist-Leninist states, it is spoken of in terms of legitimacy and the duty to ensure that state officials fulfill their obligations.\u00a0 That is a powerful way to read together the UNGPs principles 22 and 29 (enterprise remediation), and 25 and 28 (the foundational principle for state engagement in remediation).<\/p>\n
\u00a0The second conceptual constraint centers on an unwillingness to avoid the imperial project of transposing Western assumptions about rights and of the relationship between states and their people to the rest of the world\u2014and to do so without effective consultation with those affected.\u00a0 This is an important conceptual omission and points to an arrogance of transposing Western conceptions of \u201cthe good\u201d to those who suffer either from false consciousness or conceptual underdevelopment. Not that many of these concepts\u2014at a sufficient level of generality\u2014are not profound and worthy of embracing.\u00a0 To speak the sort of language of human rights that has become a staple of transnational elite conversation is to ignore the potentially profound differences in approach\u2014though not of objectives\u2014between Western oriented political theology and those of other systems.<\/p>\n
\u00a0Third, it is not clear that the `principle object of the UNGP is to push forward the Western project of advancing economic and social progress through an emphasis on the development of Western style political and civil rights.\u00a0 There are a number of states that view the opposite to be a better way of effectuating the promise of the UNGPs\u2014to focus on the development of social, economic, and cultural rights (understood in the form of state obligations to its people) from out of which political and civil rights may be more legitimately developed. In China the obligations of both state and enterprise are understood in terms of institutional duty to people rather than in terms of individual rights that may be asserted against institutions. That shapes both the approaches to remediation and the relationship between the state and enterprise in issues of CSR compliance. It is certainly true that in the West we tend to believe the opposite\u2014the only through the cultivation of political and civil rights will it be possible to develop state responsiveness to mass economic, social and cultural rights.\u00a0\u00a0 But the use of the UNGP to further that agenda will do little to deepen its acceptance in the many states that find such a formula problematic.<\/p>\n
\u00a0Structural Constraints<\/i><\/p>\n
\u00a0Structural constraints are those assumptions about the means of instituting the mechanisms for remediation that sometimes, reflecting conceptual assumptions, will constrain the ability to deliver remedies to the most vulnerable populations, even as they tend to augment the power and influence of those complicit in the remediation processes developed.<\/p>\n
\u00a0The first is the emphasis on the judicial remediation of human rights wrongs. Judicial remediation serves to enhance the power of states as obstacles to the seamless process that is globalized production.\u00a0 They also tend to exacerbate tensions between members of distinct and sometimes contentious groups divided by race, religion, ethnicity, gender and the like within a state.\u00a0 As the events in Ferguson Missouri suggest, there is not one state where such issues may not have a profound effect on the ability of a judicial mechanism, a mechanism that reflects the tensions of the allocation of state power among a population.\u00a0 Where wealth and technical proficiency enhance the legitimacy of judicial authority, they also make the real possibility of effective remedy remote at least and unattainable at worst for most bearers of human rights or human rights obligations.\u00a0 That is so without the effective help of intermediaries.\u00a0 And those tend to consist of the largest human rights NGOs who might fall into the trap of upholding systems that might be better opened in order to retain their own states and power to influence and be admitted into the halls of state and transnational power. The focus on judicial power\u2014effectuated through states\u2014is a poisoned chalice.<\/p>\n
\u00a0The second follows from the first\u2014it assumes that the judicial mechanism is the best and most effective means of supplying effective remedies that might be accepted as legitimate among all stakeholders.\u00a0 Yet there may be systems, for example that of Marxist Leninist states, in which other administrative agencies might be better suited to effect remedies.\u00a0 In China the duties in the UNGP is meant to frame the extent of the state\u2019s (or the enterprise\u2019s) obligations to the members of the communities it affects. That fundamental inversion provides the basis for understanding both the difficulties of transposing Western human rights institutions into China, but also the way forward toward a context specific transposition of the human rights agenda into Chinese enterprise culture. That transposition will likely be premised on the cultivation of administrative mechanisms for the fulfillment by enterprises of their obligations (understood as the appropriate mix of human rights objectives), and it will require the development of systems of accountability and control of human rights serving administrative mechanisms to ensure that the functional objectives of avoiding human rights detrimental actions by enterprises will be furthered.<\/p>\n
\u00a0The third is the emphasis on segmenting global human rights standards to the national contexts in which remedies may be sought. \u00a0\u00a0The consequence, especially for the NGO sector, is the will of the wisp search for the ideal jurisdiction within which internationalization of remediation might be possible.\u00a0 The manically obsessive effort by global civil society to convert an ancient U.S. statute into a transnational mechanism for remedying human rights wrongs and the effort to transform the courts of the United States into nan transnational forum for supra national disputes was doomed of failure from the start.\u00a0 That effort, as much as it might have mobilized mass response to the issues of business and human rights\u2014and support for the substantive standards embedded in the UNGPs, did little to advance the construction of an effective structural mechanism for the remediation of human rights wrongs.<\/p>\n
\u00a0Operationalization Constraints<\/i><\/p>\n
Issues of operationalization are consequential in the sense that they are disciplined by the conceptual and structural constraints that are admitted as binding.\u00a0 In this case it is not hard to understand the ways in which implementation is hobbled by the obsession with squeezing global human rights significant effects of transnational economic relations within the jurisdictional segmentation that passes for recourse to state based judicial remedy. l<\/p>\n
\u00a0The first is the subordination of enterprise and independent mediating and rights remedial mechanisms to the peculiarities of national law. Enterprise and non judicial mechanisms may be facilitated by states, may be permitted, but there is a sense of their value as subordinate to and dominated by the legal structures and constraints of the states in which such remedies may be sought.\u00a0 At its worst, and when tied to notions, expressed mildly enough in the UNGP of extra territoriality, deepens the sort of chaotic competition for control of the remedial venues for the resolution of human rights issues that will destabilize rather than advance a global project of securing individuals and communities in their ability to operate free of the human rights detrimental actions of enterprises and states. It makes possible the frenzy of the international community that had bet, and bet heavily, on the much criticized United States and its court system, and then been disappointed.<\/p>\n
The second constraint to operationalization follows from the obsession with the state and its apparatus\u2014especially its legal apparatus\u2014the inability to realize the promise of a coherent approach to developing standards for enterprise and state conduct that may produce adverse human rights effects.\u00a0 Policy coherence is of course at the heart of the UNGPs\u2014especially as formulated in GP \u00b6 8.\u00a0 But the internal coherence in state policy envisioned there is even more critical at the trans-state level.\u00a0 Yet the third pillar\u2014the site from out of which such coherence could be implemented, tends to be overlooked.\u00a0 The logic of emerging meta-governance represented by the UNGP points to the need to establish a central mechanism for the interpretation of transnational normative governance instruments, and the logic of emerging mass governance principles points to the need to vest representative civil society organizations with the authority to bring cases and advocate before such an interpretive body. Two opportunities, to date ignored, are worthy of serious development. The first is a facility for delivering interpretations of the GPs whether or not deemed binding by state or enterprise instrumentalities at the international level. The second, drawing from the first, would incorporate civil society as a key representative of individuals seeking an interpretation of the UNGPs in particular contexts. It follows that the application-interpretation facility requires not just the establishment not just of an institutional framework for providing a means of hearing specific complaints, but one in which individuals could bring these complaints through representative civil society for determination of the application of the GPs in context. The object is to more fully develop the UNGP\u2019s remedial third pillar through the creation of an internationally based autonomous source of process and governance that raises the stakeholder status of individuals, now represented by a civil society sector under the third pillar that states enjoy under the first pillar and enterprises enjoy under the second. The way to that goal requires substantial development, but its value appears clear.<\/p>\n
Moving Forward<\/em><\/p>\n The brief look at the conceptual, structural and operationalization constraints of the third pillar have suggested the power of these limitations and have pointed toward the means of overcoming them.\u00a0 The fixation on the state, and on the judiciary of the state apparatus tends to inhibit both the availability of redress for wrongs suffered by individuals and communities, but also tends to substantially limit the range of remediation options available to enterprises and the civil society elements that seek to serve affected communities.<\/p>\n So what is to be done, and what role for the civil society sector?<\/p>\n \u00a01.\u00a0 The state sector remedial framework must be strengthened but only within its own logic. \u00a0That requires two distinct projects for which civil society can play an important role.<\/p>\n \u00a0The first is a normative project.\u00a0 It focuses on developing some coherence in the substance of the state duty to protect human rights. The national action plan process is a good first step.\u00a0 But it is far too easy for states to hide behind generalities as they produce \u201cfeel good\u201d hortatory documents that avoid the hard issues.\u00a0 Civil society might help states produce national inventories of national and international standards that are actionable within the jurisdiction, and then work to harmonize them among states within supply chains. In the absence of a globally coherent approach to the state duty, no amount of remedial power will substitute for a lack of normative obligations on the part of states.<\/p>\n \u00a0The second is an operational project.\u00a0 It focuses on expanding access to remedies for those legal and regulatory regimes for which the state provides a remedy. Civil society plays an instrumental role in this project\u2014they tend to be the only institutional advocate for those individuals who usually bear the brunt of human rights wrongs committed by states and enterprises.\u00a0 But it also requires civil society to be willing to expand the range of remedial mechanisms that might be derived from states or their subordinate unites. These would include, beyond courts,\u00a0 administrative mechanisms (especially in Marxist Leninist state), tribal or other indigenous courts, arbitration and mediation whether under the auspices of states or otherwise.\u00a0 Cultivating a sensitivity to context, and the legal traditions of states within which the remedial pillar is to be cultivated may require abandoning the current almost single minded focus on the judicial mechanism in general, and on the judicial mechanisms of Western states in particular,<\/p>\n \u00a02.\u00a0 The corporate responsibility must not be overlooked in the rush to develop the state duty.\u00a0 Part of The genius of the UNGP was its recognition of regulatory structures beyond the state and beyond public law.\u00a0 Civil society can play an important role in deepening the normative framework of those rules and then providing remedial mechanisms\u2014beyond the state\u2014for this responsibility and international norm based normative framework, one that is defined through the 2nd<\/sup> pillar and made subject to dispute resolution procedures through the 3rd<\/sup> Pillar. The third pillar serves to provide the coherence necessary to bind the law based state duty to protect and the norm based corporate responsibility to respect. The private sector ought to be encouraged to develop their own remedial structures.\u00a0 These ought to take two forms.<\/p>\n The first focuses on internal corporate remedial structures.\u00a0 Civil society can play a role in providing the models and toolkits that aid business in developing workable models of normative principles that must be applied through corporate contractual relationships with downstream supply chain partners and through intra corporate governance rules, and implemented through dispute resolution mechanisms. These internal remedial structures ought to be suitable to the context but provide a way for civil society to intervene on behalf of affected individuals or communities. \u00a0The UNGP emphasis on transparency, monitoring and reporting makes such opening up of the remedial mechanism compatible with the basic working of human rights due diligence.<\/p>\n The second focuses on external corporate remedial mechanisms. One of the least emphasized elements of UNGP is \u00b6 30\u2019s call to develop \u201cIndustry, multi-stakeholder and other collaborative initiatives that are based on respect for human rights-related standards.\u201d\u00a0 Civil society can play a decisive role in the creation of these multi-stakeholder mechanisms.\u00a0 It is in the interests of all civil society stakeholders, whether they represent the state, business or affected individuals and communities, to develop mechanisms that might provide movement toward effective remedy beyond the state and focused on the corporate responsibility as an autonomous obligation of enterprises.\u00a0 It would also advance the UNGP project to ensure that such mechanisms might aggregate legal and norm based claims to simplify the process of remediation and to reduce forum gaming.<\/p>\n 3.\u00a0\u00a0 The core to any success of the remedies pillar is coherence of normative standards even in the face of diversity of remedial mechanisms.\u00a0 To that end it ought to be a central element of civil society strategy to create incentives for the development of a single point mechanism for the elaboration of interpretations of the UNGP in real disputes.\u00a0 \u00a0This mechanism need not have any authority to bind states or enterprises.\u00a0 But it ought to have authority to bring parties before it to determine the scope and extent of the application of the UNGP to particular disputes and to produce reasoned opinions explaining its positions.\u00a0 These might be used by local courts and other dispute resolution mechanisms\u2014but need not be.\u00a0 Whether binding or not, the establishment of a single point interpretative mechanism issuing opinions on the application fo the UNGP to disputes would generate a body of work that would serve to provide a point of\u00a0 coherence as states and enterprises develop their UNGP based working styles.\u00a0 That this objective is hardly noted by any of the great stakeholder in the business of human rights is likely the greatest danger to the success of the development of an effective Third pillar.<\/p>\n \u00a0The third pillar is a powerful tool in the development of transnational mechanisms for the redress of human rights wrongs.\u00a0 It ought to be contextualized within the conditions of states\u2014and not just Western states\u2014but it also requires liberation from the necessary constraints of state based systems. Working toward the development of trans-state mechanisms for developing a quasi jurisprudence of application of the UNGP in live conflict, and for a more pronounced role for civil society as the representatives of those whose remedies may be triggered by or through the UNGP would move the system toward a more coherent and effective conceptual, structural and operational structure.<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" The UN Guiding Principles\u2019 third pillar, Access to Remedy (GP \u00b6\u00b6\u00a0 25-31), is fundamental to both operationalize the substantive values of duty and responsibility assigned to states and corporations under the First and Second Pillar, and to center those duties and responsibilities not on states and enterprises, but on the individuals and communities to which … <\/p>\n