The UNGPs 10 years on – still no access to justice.

With 2021 marking the 10th anniversary of the adoption of the UN Guiding Principles (UNGPs), it’s safe to say that much remains to be done regarding the prevention of adverse human rights impacts through business. Although the UNGPs are often heralded as transformative, they have also been subjected to just criticism. In particular, the UNGPs focus heavily on grievance mechanisms within corporations. Victims of human rights abuses resulting from corporate operations are therefore to seek redress within the corporation who breached their rights. As a result, following the UNGPs, there is a privatisation of access to justice and human rights. The UNGPs provide that, in the event of a human rights violation, a corporation can (i) show that it had previously undertaken human rights due diligence; (ii) had assessed the possible risks its operation may have for human rights; and (iii) offered a grievance mechanism to victims after the fact. By following these steps, the corporation is still acting within the framework set by the UNGPs. These internal grievance mechanisms are opaque, biased, and not credible.?

Now, after 10 years, the UN Working Group on Business and Human Rights has taken stock of UNGP implementation by States and business. Although the stocktaking indicates that there is significant progress in certain areas, challenges remain with respect to the protection and prevention of human rights violations of the most vulnerable groups, as well as ensuring access to remedy for victims. Therefore, the UNGPs remain very important, perhaps even more than ever with a view to the ongoing climate crisis and deepening inequality. Following the stocktaking, the UN Working Group has issued a Roadmap for the next decade. This Roadmap lists 8 action areas where more effort and support are needed. With the weak governmental stance and lack of proper implementation by business of the UNGPs, those involved in Business and Human Rights were hoping for a hardening of the UNGPs.?

Among the 8 action areas specified in the Roadmap, area number four addresses ‘Access to Remedy’. The Goal under the name ‘Move from paper to practice in tackling barriers to access to remedy’ fails to clearly address any of the real issues with access to justice for victims of corporate human rights violations. The Roadmap therefore remains as silent on proper guidelines for access to justice as the UNGPs were. The lack of clarity and lack of legal protections on the matter do more harm than good. The self-exoneration and privatisation of human rights abuse as discussed above are stimulated through the UNGPs, thereby giving corporations yet another opportunity to hold themselves out to be the good guy – perhaps even believing it themselves. The 10-year anticipation for even the most marginal guidelines for internal grievance mechanisms has therefore concluded in a creatively formulated ‘paper to practice’ goal.