Remedy mechanisms
To date, none of the remedy mechanisms that have emanated from the Guiding Principles on Business and Human Rights (UNGPs) reference or tackle corporate capture directly. However, some of them address the mechanisms used to practice capture or the impacts of capture on people and planet.
Pillar 3 of the UNGPs — arguably the most important to corporate accountability advocates, affected communities, and rightsholders — “stipulates that when a right is violated, victims must have access to effective remedies which are legitimate, accessible, predictable, equitable, transparent and rights compatible.” These provisions for improved accountability and access to remedy have been the subject of much advocacy by CSOs and also a point of significant debate and resistance by States and certainly companies, which, among other concerns, fear new liability for corporate-sponsored crimes and other violations.
According to the organizationShift, “Even where states and business do their best to implement the Guiding Principles, negative human rights impacts may still result from a company’s operations. Therefore, affected people need to be able to seek redress through effective judicial and non-judicial grievance mechanisms.”
What follows areobservations, opportunities,andinnovationsto improve remedy mechanisms:
- Fines are wholly insufficient:Fines do not constitute an effective remedy nor meaningful accountability for corporate-sponsored violations. They do not make affected people or parties whole and, given the deep pockets, insurance policies, hedges, and other strategies that companies employ to internalize and manage these costs, they often cause no more than a dent in the corporate armor. However,paying economic compensation for damages, both to direct and diffuse victims (such as consumers), is the State’s responsibility, whether the government itself provides the compensation or a court orders a company to do so.
- Contributions and direct links:According to BSR, when States and companies recognize corporate responsibility for human rights violations, which is not something they admit to regularly, it is usually for cases of direct causality, often proven in a court of law. However,other modes of indirect or partial causality, such as contributions(the company has leverage to affect change)and direct linkages(its operations, products, or services stemming from a business relationship),are frequently denied or ignored, and thus justice is denied.
- Strengthening enforcement and inspection mechanisms:Within the realm of causality, part of the difficulty in establishing corporate responsibility for contributions or direct links to human rights violations is because States do not have the capabilities to effectively inspect, investigate, prosecute, and enforce legal responsibility.Many would argue that this is because the corporate capture of the State has led to de-funding and de-prioritizing these functions.
- Companies must invest in handling grievances:Traditionally, companies have invested in corporate philanthropy and social responsibility initiatives — which are usually tax deductible — rather than on responsibly handling grievances or violations caused directly or indirectly by them. At most, companies invest in a combination of lawyers and public relations specialists to address these issues in post facto crisis mode, essentially missing opportunities to both prevent problems and meaningfully resolve them. However, Pillar 3 recommends more than creating complaint hotlines or voluntary participation in multi-stakeholder initiatives; the recommendation is to invest in prevention and grievance handling by building internal capacity to receive and investigate grievances, engage with rightsholders and their representatives, and proactively facilitate access to justice (instead of creating obstacles).
- Worker-driven social responsibility (WSR):Arguably the most promising innovation in terms of remedy is the WSR model. According to the Worker-driven Social Responsibility Network, “WSR provides a proven new form of power for previously powerless workers to protect and enforce their own rights.These rights can include – according to the circumstances and priorities of the workers driving the program –the right to freedom of association, the right to a safe and healthy work environment(including the right to work free from sexual harassment and sexual violence),and the right to work free of forced labor or violence, among other fundamental rights.The WSR paradigm is founded on the understanding that, in order to achieve meaningful and lasting improvements, human rights protections in corporate supply chains must be worker-driven, enforcement-focused, and based on legally binding commitments that assign responsibility for improving working conditions to the global corporations at the top of those supply chains.”
A great example of WSR is the organizing and advocacy work of the Coalition of Immokalee Workers in the U.S. and its creation of the Fair Food Program, which is a partnership between workers, growers, retailers, and consumers in the food supply chain. Another example is Ulula, a company that uses technology and training to promote transparency in global supply chains and practical tools for workers and communities to improve social, labor and human rights impacts. While not a WSR member, Ulula has a global reach, working in Africa, Asia, MENA, Europe, and Latin America.