Beyond Effectiveness Criteria: The Possibilities and Limits of Transnational Non-Judicial Redress Mechanisms

50 Pages Posted: 7 Nov 2016 Last revised: 1 Dec 2016

Date Written: November 6, 2016

Abstract

As the global debate on business and human rights considers how to improve business respect for human rights, and ensure access to remedy – through implementation of the United Nations Guiding Principles and/or through negotiation of a binding legal instrument – the case studies examined in this report contribute insights about the kinds of effects non-judicial mechanisms produce, under what conditions, and how they contribute to broader systems of remedy.

Non-judicial redress mechanisms have an explicit purpose of providing access to remedy. Individual remedy is understood as redress to specific individuals in a particular case in response to a human rights abuse. The right to an effective remedy in international law combines procedural and substantive elements: “practical and meaningful access to a procedure that is capable of ending and repairing the effects of the violation” and “where a violation is established, the individual must actually receive the relief needed to repair the harm” in a timely and affordable way.

Across ten cases we examined, the non-judicial redress mechanisms fell short of delivering individual remedy both procedurally and substantively, although in five cases we documented some form of positive result from the perspective of claimants seeking remedy. National and transnational non-judicial grievance mechanisms can sometimes contribute to problem-solving and provide access to compensation or a venue in which to mediate a settlement. In our cases, the result of mediation or other non-judicial process largely did not align with the remedy desired by complainants or meet the standard of “relief needed to repair the harm”.

The research points to the fact that the effectiveness of a transnational non-judicial mechanism is not myopically reliant on its own institutional design or process rules. Rather, it is also the result of its interaction within a broader system in how it generates leverage, manages relationships at different levels, engenders commitments and resourcing, and is able to navigate complex power imbalances in a way that serves its purpose of providing access to remedy.

Keywords: business and human rights, corporate accountablity

JEL Classification: 130, H7, F60, F66, K20

Suggested Citation

Miller-Dawkins, May and Macdonald, Kate and Marshall, Shelley D., Beyond Effectiveness Criteria: The Possibilities and Limits of Transnational Non-Judicial Redress Mechanisms (November 6, 2016). Available at SSRN: https://ssrn.com/abstract=2865356 or http://dx.doi.org/10.2139/ssrn.2865356

May Miller-Dawkins

Independent

No Address Available

Kate Macdonald

University of Melbourne ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

Shelley D. Marshall (Contact Author)

RMIT University ( email )

Melbourne Campus
Building 13
Melbourne, Victoria 3000
Australia
+613 99251382 (Phone)

HOME PAGE: http://www.rmit.edu.au

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