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Guiding Principle 28

States should consider ways to facilitate access to effective non-Statebased grievance mechanisms dealing with business-related human rights harms.

Commentary

One category of non-State-based grievance mechanisms encompasses those administered by a business enterprise alone or with stakeholders, by an industry association or a multi-stakeholder group. They are non-judicial, but may use adjudicative, dialogue-based or other culturally appropriate and rights-compatible processes. These mechanisms may offer particular benefits such as speed of access and remediation, reduced costs and/or transnational reach.

Another category comprises regional and international human rights bodies. These have dealt most often with alleged violations by States of their obligations to respect human rights. However, some have also dealt with the failure of a State to meet its duty to protect against human rights abuse by business enterprises.

States can play a helpful role in raising awareness of, or otherwise facilitating access to, such options, alongside the mechanisms provided by States themselves.

What National Action Plans say on Guiding Principle 28

[accordion clicktoclose=true tag=h3] [accordion-item title="Belgium"]

The NAP mainly contains measures regarding state-based grievance mechanism.

Action point 1, Elaborer une boîte à outils destinée aux entreprises et organisations concernant les droits de l’Homme [Develop a toolkit for companies and organizations on human rights], presents the action of developing, in collaboration with experts and its main human rights stakeholders and organizations, a toolbox that will help companies prevent human rights violations and promote the respect for human rights through their activities. This “Toolbox” will be composed of different elements including how companies can create grievance mechanisms.

Pillar 3: Access to Redress Mechanisms

Strand 3: Non-State Based Mechanisms [pages 62-63]

Non-state based redress mechanisms play an important role in the design of a holistic remedy system in the field of business and human rights, since this allow the owners of rights to look for redress actions outside or beyond the state-based system. In this regard, States must study the way to facilitate access for such non-state-based redress mechanisms to take care of violations against human rights related with business enterprises.

A category of non-state-based mechanisms are those managed by a business enterprise alone, or in conjunction with stakeholders, by an economic association, or by a multilateral group of stakeholders. This allows business enterprises and communities to develop spaces for dialogue, measurement, resolution and/or remedy, and to look for solutions within the relevant administrative structures that are culturally appropriate and compatible with human rights. When these mechanisms are developed within the framework of business and human rights, they may offer concrete advantages to resolve situation that may potentially vulnerate human rights, such as prompt access and remedy, reduced costs and/or cross-border reach.

Pillar III. Access to Remedy

Extrajudicial non-state resources [pages 42-43]

The Czech Republic acknowledges the benefits and advantages of alternative dispute resolution. Alternative dispute resolution is often faster, cheaper, less formal and more accessible to the parties. As the parties to a dispute are apt to accept an amicable solution better than an authoritative ruling, the Czech Republic welcomes and supports the development of alternative dispute resolution platforms among non-state entities, especially consumer organisations, trade unions and industrial associations. Nevertheless, no means of alternative dispute resolution must restrict access to an ordinary court. This means that arrangements must always be in place to ensure that both parties have decided on alternative resolution knowingly and voluntarily, except in situations where participation in an extrajudicial solution is required directly by the law. Under no circumstances, however, is the protection of the weaker party (e.g. the consumer) allowed to be violated.

Nonetheless, it should be remembered, first and foremost, that the ideal situation is one where no dispute occurs at all. When an action is brought before a court, this is not the start of the dispute, but the final step after previous attempts to reach a settlement have failed. The businesses themselves should offer a formalised mechanism for the amicable settlement of disputes. The dispute resolution instruments offered by the state should be geared towards prevention and actively assist in the search for an amicable solution.

Appendix 2 – Overview of the implementation of the access to remedy

Access to remedy [pages 34-35]

Non-State-based grievance mechanisms States should consider ways to facilitate access to effective non-State-based grievance mechanisms dealing with business-related human rights harms.

Initiatives taken or planned as a dedicated measure to implement the UNGPs

Denmark has a well-functioning system in place for dealing with complaints inside companies, e.g. wrongful dismissal. In this system, employers’ organisations representing the management level and trade unions representing the employees find solutions to conflicts by mediation and negotiation. In this way, many problems are solved outside the legal system.
An initiative dedicated to implementing the UNGPs which has been implemented recently is the development of a guide for small and medium-sized companies on ways to solve company conflicts by actively involving and engaging in a dialogue with the company’s stakeholders.

III. Access to Remedy

Non – judicial mechanisms [pages 55-59]

At the international level

2.2. ILO Enforcement Mechanisms

A unique international enforcement mechanism exists for International labour standards, ensuring that States apply the conventions they ratify. The ILO regularly checks whether these conventions are being correctly applied and highlights areas for improvement. If countries encounter difficulties in applying standards, it provides help in the form of social dialogue and technical assistance.

Two ILO bodies examine the reports submitted by Member States describing the steps they have taken in law and practice to apply the conventions, as well as the related observations formulated by employers’ and employees’ organizations. These bodies are the Committee of Experts on the Application of Conventions and Recommendations and the tripartite Conference Committee on the Application of Conventions and Recommendations.

There are also three specific procedures for examining representations and complaints: the procedure for examining representations about the failure to observe ratified conventions, the procedure for examining complaints about the failure to observe ratified conventions, and the special procedure for examining complaints about freedom of association (heard by the

Committee on Freedom of Association).

Lastly, Article 37.2 of the ILO Constitution provides for the creation of a tribunal to hear disputes or questions relating to the interpretation of conventions.

Proposal for Action No. 16

Actions to be implemented

– Ensure that fundamental labour standards are applied in France and support their universal application by encouraging ILO to establish stricter enforcement mechanisms for States.

– Encourage discussion on the social coherence of economic, financial and trade policies which would increase the ILO’s importance and influence among the institutions involved in the multilateral system and lead to the introduction of socialconditions.

2.3. The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESC) was ratified by France on 18 March 2015 and took effect three months later on 18 June 2015. The Protocol does not create new obligations for France, but constitutes an additional means of enforcing the obligations it entered into when ratifying the ICESC in These obligations require it to respect, protect and implement the rights mentioned in the Covenant in its territory and in the territories of other States in which it is present, particularly through public and private actors operating abroad in the economic, trade and financial fields.

This protocol introduces a procedure for individuals or groups seeking to establish their rights under the Covenant, after exhausting all domestic remedies, to submit communications to the Committee on Economic, Social and Cultural Rights. This mechanism enables alleged victims of a violation of the Covenant who have not obtained effective remedy at the national level to access justice through the United Nations by having their case heard by an independent committee of experts, which may award compensation for harm caused.

This communication mechanism is intended to:

– Make the application of economic, social and cultural rights more effective and encourage States to implement them;

– Clarify State obligations in the human rights field by supporting the adoption of positive measures and access to domestic justice.

The Optional Protocol is one of a range of similar mechanisms created for international conventions in the human rights field. Communications can also be submitted to the Human Rights Committee, the Committee on the Elimination of Discrimination against Women, the Committee against Torture, the Committee on the Rights of the Child, the Committee on the Rights of Persons with Disabilities, the Committee on the Elimination of Racial Discrimination, the Committee on Enforced Disappearances and individual communication mechanisms for special procedures (the Special Rapporteur on extreme poverty and human rights, the human right to safe drinking water and sanitation, etc.).

2.4. The European Social Charter

In order to promote and guarantee social rights not covered in the European Convention on Human Rights, the Council of Europe drew up the European Social Charter, which was adopted in Turin in 1961. Significantly, the 1961 Charter covers the right to work, the right to organize, the right to bargain collectively, the right to social security, the right to social and medical assistance, the right to the social, legal and economic protection of the family, and the right to protection and assistance for migrant workers and their families.

The European Social Charter of 1961 was revised in 1996 to incorporate the rights mentioned in the Additional Protocol of 1988, to reinforce and improve several existing rights, and to add new rights.

France ratified the revised 1996 version of the European Social Charter, which took effect on 7 May 1999, at the same time as the 1995 Protocol providing for a system of collective complaints (ratified by 15 of the Council of Europe’s 47 Member States).

To enforce the Charter, a European Committee of Social Rights was created. This Committee adopts conclusions on the national reports submitted by State Parties, and adopts non-binding “decisions” on collective complaints lodged by national and international employers’ and employees’ organizations and NGOs. These conclusions and decisions must be approved by the Committee of Ministers of the Council of Europe.

At the National Level

2.5. The Defender of Rights

The Defender of Rights, whose legal authority has been enshrined in the Constitution, was created in 2011. This independent administrative entity has jurisdiction to deal with subjects in four specific areas.

Any individual or legal entity can call on the Defender of Rights when they consider that they have been discriminated against or when they observe public or private representatives of law and order (police officers, customs officers, security guards, etc.) engaging in improper conduct.

The Defender of Rights can also be called on to address difficulties in dealing with public services (the Family Allowances Fund or CAF, the national employment agency or Pôle emploi, retirement funds, etc.).

Lastly, the Defender of Rights can be called on whenever someone considers that a child’s rights are not being respected.

Complaints can be lodged by way of an online form, a letter, or through one of the Defender’s deputies.

This Defender of Rights replaces four previous entities: the Mediator of the Republic, the Defender of Children, the High Authority in the Fight against Discrimination and for Equality (HALDE), and the National Commission on Security Ethics (CNDS).

Given the Defender of Rights’ jurisdiction over discrimination-related matters, he/she plays a role in dealing with cases and mediation proceedings concerning CSR.

Proposal for Action No. 17

Actions to be implemented

Encourage the establishment of grievance mechanisms by businesses that meet the following criteria for implementation: *They support dialogue, consultation and complaints for people who consider themselves adversely impacted; * Information is provided on the existence of these mechanisms; * Any complaints are dealt with at the earliest possible opportunity; * Reports on the implementation and/or results of these mechanisms are provided to stakeholders.

Section 3. Actions

II. Initial priorities for the Business and Human Rights Implementation Group

Access to Remedy [page 19]

Engage with business representative bodies to promote and strengthen mediation as a viable option when businesses and their stakeholders are engaged in disputes.

IV. Government responses

Current Activities and Future Commitments [page 29]

B. Operational Principles

Guiding Principle 28

Italy recognises that judicial state-based mechanisms are at the core of the State’s ability to guarantee the full access to effective remedy against human rights abuses; at the same time, Italy yet acknowledges the need of developing appropriate non-state based grievance mechanisms and to this purpose the Government will encourage civil society organisations, trade unions and business associations to set up and activate grievance mechanisms (such as online network and tools, corporate mechanisms, or multi-stakeholders instruments) to enable the formulation, reception, and evaluation of claims for alleged human rights abuses and the proposals of adequate remedies.

II. Objectives and Measures

Objective 3: ensuring access to effective remedy

B. Planned measures

4. Promotion of business self-regulation. The aim is to encourage the creation of a code of conduct as well as cooperation with the subjects responsible for codes of conduct and other business entities that have taken on commitments according to the existing codes of conduct. At present, there are 1O codes of business ethics.

3. Results of the consultations and government response

3.4 Scope for Remedy [page 38]

Companies’ complaint mechanisms

When a company establishes that it is the cause of or contributes to a human rights abuse, it is expected to rectify the situation and/or provide compensation. Complaint procedures at company level could prove to be an effective means to this end. The procedure should be in line with the OECD Guidelines, and based on dialogue and commitment to seeking an acceptable solution. Complainants should still have access to other judicial or non-judicial complaint procedures, including the NCP’s and the standard court system.

4.2 Non-state-based grievance mechanisms [page 41]

Principles 28–30 deal with non-state-based grievance mechanisms, such as those established by the business sector itself. These may be linked with an individual enterprise such as a factory, or take the form of schemes aimed at a particular local community. Other types of grievance mechanisms are available to companies through industry organisations or tripartite cooperation. The 28th principle concerns the state’s responsibility to facilitate the establishment of non-state-based grievance mechanisms. Norway supports the organisation Access Facility. Access promotes effective problem solving for company–community conflicts by providing a safe space for dialogue between companies, communities and governments. It has a global network of professional facilitators who help communities and companies find practical solutions. At present the network is supported by institutions in the following countries: Argentina, Bolivia, Brazil, Chile, the Philippines, India, Kenya, Nigeria, Peru, South Africa, Thailand, Uganda and the US. Norway is supporting the training of facilitators in 2015.

C. Pillar III. Access to Remedy [page 24]

Measures

The Government will promote the development of practical guides and compile good practices on the establishment of grievance mechanisms managed by companies themselves that respect the criteria identified in Guiding Principle 31.

5.8 Pillar 3: access to remedy

Guiding Principle 28 [page 39]

Swiss business enterprises, and especially those that are particularly heavily exposed to human rights risks, should provide appropriate grievance mechanisms at the corporate level to allow those affected by abuses to claim remediation. Such mechanisms can also have a preventative effect.

UK Government and access to remedy for human rights abuses resulting from business activity

Action for government to promote access to remedy

(ii) task UK Trade and Investment (UKTI) teams in the markets where they operate to advise UK companies on establishing or participating in grievance mechanisms for those potentially affected by their activities and to collaborate with local authorities in situations where further State action is warranted to provide an effective remedy.

(iii) encourage companies to extend their domestic UK practice of providing effective grievance mechanisms to their overseas operations, adapting them where necessary according to local circumstances and consulting interested parties. This also applies to dispute arbitration/mediation mechanisms through their sector of activity or collective industry organisations.

Action for business to ensure access to remedy

The Government encourages companies to review their existing grievance procedures to ensure they are fair, transparent, understandable, well-publicised and accessible by all, and provide for grievances to be resolved effectively without fear of victimisation. It is also important for businesses to require similar good practice of their supply chains, especially in areas where abuses of rights have been identified.

The UK 2016 updated NAP

4. Access to remedy for human right abuses resulting from business activity [page 21]

Actions taken to promote access to remedy

The Government has:

(i) tasked UK Trade and Investment (UKTI) teams in the markets where they operate to advise UK companies on establishing or participating in grievance mechanisms for those potentially affected by their activities and to collaborate with local authorities in situations where further State action is warranted to provide an effective remedy.

(ii) encouraged companies to extend their domestic UK practice of providing effective grievance mechanisms to their overseas operations, adapting them where necessary according to local circumstances and consulting interested parties. This also applies to dispute arbitration/mediation mechanisms through their sector of activity or collective industry organisations