Image credit: Earth Rights International - Photo: 2023

A Legally Binding Treaty on Business & Human Rights is Needed

By Simone Galimberti

The writer is the co-founder of ENGAGE and of the Good Leadership, Good for You & Good for the Society.

KATHMANDU, Nepal 1 July 2023 (IDN) — Communities can become truly empowered while dealing with grievances or alleged abuses perpetuated by the corporate sector.

Katherine McDonnell, an expert on human rights and co-founder of Just Ground and a PhD Candidate at University of Galway offers some key insights based on her experience with local populations in the global South.

Imagine the dynamics occurring between an international multinational owning a mine or a palm oil plantation and the local communities in a developing nation.

They are often stories of abuses and violations, all now well documented.

Remedy for local populations is not easily available despite an increasingly vast field of legal theory and practice that is being shaped by practitioners and academics, normally defined as “Business & Human Rights”.

With the negotiations on a global legal binding instrument offering rights and protection against transnational corporate abuses, probably the most realistic thing to do is to go back to the grassroots levels and empower local communities.

It is what some human rights experts and practitioners have been trying to do, working out an approach that could entrust those at the receiving ends of corporations’ malpractices, with real ownership of local grievances mechanisms.

I am referring to what in legal jargon is referred to as “community driven operational grievances mechanisms” or CD-OGMs.

These are tools being promoted within the framework of the non-binding UN Guiding Principles on Business and Human Rights or UNGPs and they are centered on the idea that, oftentimes, it is not practical nor possible or even there is no need to take the legal route while dealing with alleged human rights violations by corporates.

To better understand the complex dynamics behind such attempt, I spoke with Katherine McDonnell, a human rights expert in the field of  Business and Human Rights and the Co-founder of Just Ground, a not for profit organization working in the field.

In an online conversation, she elaborated on the unique features of the CD-OGMs and shared her key insights.

“The UNGPs center on narratives about ground levels OGMs being a practical compliment to litigation. The CD-OGM model is centered on the recognition that despite their shortcomings and limitations, the use of OGMs is becoming more common, and that they cannot be improved without meaningful community involvement”.

Certainly, with the UNGPs remaining the cornerstone of a system supposedly centered on the state’s responsibility to protect on one hand and on the other, on the corporate responsibility to respect human rights, non-judicial mechanisms are not intended to be convenient shortcuts for the private sector.

Rather the focus is on complementary procedures that, in a very imperfect world where rule of law is weak and local people have no easy access to remedy through normal legal process (courts), could provide practical remedy to local people at the mercy of powerful corporations.

“Although there will always be limitations on what non-judicial mechanisms can offer, a community-driven approach to OGMs can help counter many of the causes of the failures of existing OGMs,” McDonnell explains.

So far, the use of non-judicial grievance mechanisms have been disappointing, ineffective and controversial especially from the perspective of local communities searching remedy to alleged abuses.

You can easily imagine why.

Criteria that would make these tools effective and credible and legitimate are ignored or simply promoted without a real commitment and sincerity. Yet despite the limitations, these non-judicial grievance mechanisms can still offer a chance to put local communities at the center of the equation.

Just Ground, in partnership with EarthRights International, is developing a pilot model on how communities can be truly be at the center of the non-judicial grievance mechanisms.

Developing such pilots, is, inevitably, a long-term effort, a process that evolves and improves through lessons learned.

It is, explains McDonnell, what the UN Working Group on Business and Human Rights, a so called Special Procedure of the UN Human Rights Council composed by independent experts, defines as process of “putting rights holders at the center of remedy and accountability.”

“In this pilot, EarthRights worked alongside community leaders as they designed one and shared it with the project developer for feedback and negotiations, basically

The organization, where at the time McDonnell was employed, has been facilitating the creation of this approach with a local community in Myanmar before the junta cup and the following civil unrest.

McDonnell explained that that people on the ground are “more than capable of articulating what a fair OGM would look like”. She was also candid in explaining that in some situations “non-judicial grievance mechanisms might be the only viable options.

For this reason, “a more rights-centering mechanism like a CD-OGM, is needed” she adds. This approach could tackle “epistemic injustice”, a concept McDonnell has been developing as part of her ongoing research.

Because of this embedded injustice, according to McDonnell, “rights holders ‘involvement in general in BHR has been limited”.

Epidemic injustice, she explains, is “centered on “the harmful impacts when some people are treated with less credibility when they seek to share their knowledge, experiences, and voice”.

Then McDonnell was quick at adding that “this is an “attempt to work within an imperfect and limited “remedy landscape” or “remedy ecosystem”.

“This acknowledges that there are limitations with what can be expected, and some improvements to the existing way that OGMs operate are being designed and operated”.

Considering the complex circumstances of many developing nations, any initiative that can truly give agency and power to local communities should be welcome.

These mechanisms able to put local communities at the center are getting the due recognition.

The Accountability and Remedy Project (ARP) , run by Office of the High Commissioner on Human Rights, an initiative that aims “to strengthen implementation of the “Access to Remedy” pillar of the UNGPs”, recognizes their value.

For example, its third phase of implementation mentions co-design or CD-OGM; also the International Commission of Jurists (ICJ) acknowledges their potential in their 2019 report on OGMs.

Will corporations be ready to fully embrace the model?

The answer is that there is also a “business case” for the CD-OGMs.

It is a sort of corporate “buy-in”, McDonnell emphasizes, and it is not because they can be easily manipulated.

McDonnel believes that, if companies want mechanisms on the ground that meet the so called “Effectiveness Criteria” of the UNGPs, then it is “their own interest to learn from the users of the mechanism what it should look like and how it should operate”.

“Rights holders are uniquely positioned to know what will work best in a mechanism intended for them to use,” she further elaborates.

Indeed, while the work of Just Ground and EarthRights International and the whole work on the CD-OGMs remain essential at very practical level, we should not forget that we need stronger and better legal systems, nationally and globally, to deal with alleged abuses committed by the corporate sectors.

The upcoming EU Mandatory Due Legislation could constitute a watershed momentum once approved but still there is the case for a global treaty.

As it happened at the end of March in Kathmandu with the IV UN South Asia Forum on Business and Human Rights, also the recently United Nations Responsible Business and Human Rights Forum Asia Pacific held in in Bangkok did not include in its official program any reference to it.

While there was a session on mandatory due diligence in the Asia Pacific region, no discussions were held around the global treaty.

Is it because it is going to be impractical to have such a legal tool or simply because it is convenient to spin this view?

There is an acknowledgement, among many “progressive” practitioners about the power of the prevailing narrative surrounding the issue of business and human rights.

The mainstream view is that partnerships and collaborations are better than regulation.

This is a partisan and very narrow approach that has become “orthodoxy”.

It is what McDonnell and her colleague at Just Ground Shauna Curphey define as “Corporate Capture of the BHR-relevant Discourses”.

No one denies the importance of collaborations.

Promising and fair non judicial grievances mechanisms as the ones being piloted by Just Ground and EarthRights International, are centered on dialogue, an essential element whose importance has also been highlighted by the Accountability and Remedy Project.

But let’s remind ourselves, that these mechanisms are offering an initial and still partial way at re-balancing the power equation but alone are not enough.

It is also a key point raised by McDonnell in our conversation.

“But to be clear, they should never ever be a replacement for judicial mechanisms. Communities need access to binding, enforceable processes. Those also need to be developed and strengthened,” she explains.

The fact that the negotiations on the legal binding treaty are still far off, does not mean that a focus on dialogue and ownership of local communities, as essential as they are, can replace the foundational state duty to protect human rights.

Non state grievance mechanisms are tools that, after all, are best suited to work as early warning systems and “support the identification of adverse human rights impacts as part of an enterprise’s ongoing human rights due diligence” as it is explained in the UN Principles.

Promoting CD-OGMs approach is useful and should be scaled up, especially when other legal options are inexistent.

Yet we need to be crystal clear on their original purpose and its limitations.

Caroline Brodeur with OXFAM America, could not be more vocal in one of the sessions of the Bangkok summit when she explained that voluntary framework alone do not work.

If companies are serious, dialogue can make the difference but alone is not enough as she had explained in her intervention.

That’s why we need a strong, mandatory international legal instruments that ideally not only deal with all major corporations, not only transnational.

A treaty that would have at its center legally enforceable provisions that, building on the foundations of the UN Principles, can offer real remedy because it would re-assert the duties of the State in defending against the abuses of corporations. [IDN-InDepthNews]

Image credit: Earth Rights International

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