In Human Rights, What Does ‘Access to Remedy’ Really Mean?

Authors

Natalie Bridgeman Fields, Executive Director, Accountability Counsel

Natalie Bridgeman Fields, Executive Director, Accountability Counsel

Since founding Accountability Counsel nearly four years ago, we have been working to ensure that communities around the world have “access to nonjudicial remedy” to address conflicts with corporations. After years working as a human rights and environmental litigator, I started Accountability Counsel out of the belief that courts are not always the best venues to address such conflicts. Litigation is not an option for many of our clients, who face barriers to accessing courts that include corruption, financial hurdles, and the need for immediate action to address harms. Insufficient laws addressing corporate accountability are an impediment as well, made more so with the U.S. Supreme Court’s ruling this week in Kiobel v. Royal Dutch Petroleum. And even when litigation is an option, nonjudicial mechanisms can sometimes prove a more effective route in resolving disputes.

With the 2011 unveiling of the Guiding Principles on Business and Human Rights, our work at Accountability Counsel was put squarely at the center of discussions on what it means to provide access to nonjudicial remedy, which is part of the third pillar of the Guiding Principles framework. Although the Guiding Principles were a leap forward, they left a key practical issue unaddressed in that third pillar: Can we expect marginalized and vulnerable communities to know how to access and use nonjudicial recourse mechanisms? For people living in remote regions, who speak only local languages, barely eke out a living, have limited or no literacy, lack access to the internet, and have never heard of the Guiding Principles, what will it mean that they are now recognized as having access to remedy when a corporation or the government suddenly insists that the land they have cultivated for centuries will now become a mine?

Just as civil society groups and governments should be paying attention to this yawning capacity gap, so, too, should corporations. Little conflicts can become human rights abuses when they are left unaddressed. When local grievance mechanisms fail—and we must assume that some will—what mechanisms are available to provide access to remedy at the next level? And if those mechanisms are unknown and unusable because of this lack of capacity, what will happen to these escalating conflicts?

Our organization helps communities use the recourse mechanisms of the World Bank Group, regional development banks, export promotion agencies, and OECD National Contact Points. Our policy work focuses on ensuring that these mechanisms are independent, transparent, accessible, fair, and effective tools. We have worked with communities that have successfully used these mechanisms to resolve their conflicts, providing corporations with predictability and effective management of risk. So now, with the mandate of the Guiding Principles and the problem of this capacity gap identified, what’s next? 

Join us at the BSR San Francisco office on April 22 to continue this discussion at “Human Rights Defenders: Conversation and Cocktails with Accountability Counsel.”