Access to Remedy

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What Is Effective Remedy?

Effective remedy has both procedural and substantive aspects. For companies, merely providing access to their OGM is not enough; they need to also provide substantive remedy at the end of the remedy process.

Effective remedies integrate four key components, considered from the perspective of the affected rightsholder who has suffered the human rights harm and is seeking remedy:

• Accessible—Rightsholders should know of the existence of remedy and be able to gain access to it without inconvenience. Access can be through a company’s OGM or through another legitimate process.
• Affordable—Rightsholders can access remedy without too much expense. This will vary depending on affected communities and what they consider to be affordable.
• Adequate—Adequacy of remedies should be judged not only by the current needs of the rightsholder, but also their future long-term needs. Remedy agreements should also have some built-in flexibility to respond to harms discovered after the conclusion of compensation agreements.
• Timely—Timeliness will depend on the complexity of each case and what the rightsholder considers timely, given their circumstances. It is critical that claims are processed quickly as delays can result in the denial of justice.

The Five Elements of Remedy

Whether provided by the state or non-state company mechanisms, a remedy process should restore the rightsholder to the status they held preceding the harm and should be agreed upon and discussed with affected rightsholders. The five internationally recognized elements of remedy may be used alone or together in the remedy process.

1. Restitution

Restore, to the extent possible, whatever has been lost and return the rightsholder to the state before the abuses occurred.

2. Compensation

Money or other trade-offs for the cost of the harm.

3. Rehabilitation

Medical, psychological, legal, and social services to restore the victim.

4. Satisfaction

Cease the violation, acknowledge the harm, disclose the truth, provide an apology, and sanction those responsible.

5. Guarantee of Non-Repetition

Change policies and procedures to prevent future harms and/or take disciplinary action.

The Changing Remedy Landscape

The remedy landscape is changing, with greater expectations that companies will provide remedy for harms they have caused and contributed to—even if those harms were in the distant past. There are increased calls by stakeholders for companies to remedy the impacts of legacy issues and provide effective remedy.

In September 2020, Rio Tinto was accused of environmental and human rights violations in a complaint which stated that an abandoned mine was leaking waste and poisoning rivers on the island of Bougainville. In July 2021, the company agreed to look into the impacts through an independent impact report.

Demands are also growing on companies to make reparations to address racial injustices, including concepts such as restitution and guarantees of non-repetition. For example, civil society groups called on Bank of America in June 2020 to pay reparations and recognize its role in the perpetuation of racial economic inequality. This followed the bank's announcement that it would commit US$1 billion over four years to address economic and racial inequality accelerated by a global pandemic, which critics said was not enough.

There is also an increase in resolving cases through lawsuits. While a lawsuit is an important driver and principled way to advocate, it can be costly and does not guarantee remedy on the ground through a fair, rights-compatible manner. The Business and Human Rights Resource Center recently launched a Lawsuits Database, which includes case profiles of the numerous lawsuits brought against companies to hold them legally accountable for human rights abuses. In response to the trend toward litigation, we are seeing wider participation from corporate legal teams, especially within companies that have been rocked by human rights tragedies. These teams are working to proactively address human rights issues, with the understanding that not doing so can have serious reputational and financial harms.

Some companies are establishing independent mechanisms (either on their own or as part of legal settlements) through which victims can lodge human rights claims, given that OGMs may not be best suited for resolving human rights claims because they may be insufficiently independent, transparent, and predictable. For example, in 2019, Gemfields settled a claim of human rights abuses in one of its mines, Montepuez Ruby Mine. The settlement agreement had three main elements, one of which included setting up an independent OGM to provide redress for any rightsholders found to have suffered abuse at the mine.

Five Recommendations for Company Action on Remedy

It is paramount for businesses to respond to the changing remedy landscape, fulfil their obligations under the UNGPs, and, in doing so, provide effective remedy for human rights harms they have caused or contributed to.

Companies should:

1. Build capacity to provide meaningful and effective remedy when business activities have caused or contributed to harm and strengthen the remedy ecosystem where the company operates, ensuring pathways to remedy are available and accessible.
2. Strengthen OGMs to ensure alignment with the UNGPs effectiveness criteria. In high-risk locations, companies should consider establishing independent grievance mechanisms for human rights claims.
3. Strengthen stakeholder engagement practices to identify human rights issues and prevent them before they become human rights abuses.
4. Apply a gender and vulnerable people lens in implementing decisions around remedy to ensure the company does not perpetuate or exacerbate discrimination against women or other vulnerable groups.
5. Integrate human rights lawyers into human rights teams to facilitate relationships with the legal department and build awareness of the costs of unaddressed human rights risks and potential violations, changing stakeholder expectations, and consequences for inaction.