Company-created remedy mechanisms for serious human rights abuses: a promising new frontier for the right to remedy?

Abstract

This article identifies and analyses a new type of process by which corporations are seeking to directly remedy serious violations of human rights associated with their operations. We call this process a ‘company-created human rights abuse remedy mechanism’ (CHRM). We argue that while this new type of process is often discussed as an operational-level grievance mechanism (OGM), it differs in key respects from OGMs as they have been generally conceived. Typically, OGMs are viewed as early-warning, prevention-oriented, and dialogue-based complaint and resolution processes for a wide range of (often low-level) adverse impacts. In contrast, the new process we describe here is designed to provide a largely fixed remedy for a known class of past serious human rights violations, is more adjudicative than dialogue-based, and seeks to impose final settlement on claims. Drawing on a case study of a CHRM created by a Canadian company at a goldmine in Papua New Guinea to provide remedies to victims of sexual assault committed by company guards, we argue that while CHRMs may promise more accessible and convenient remedies, they may also entail unique and serious risks to rights-holders and the right to remedy. Such mechanisms should be subjected to heightened scrutiny because of the risks to victims’ rights inherent in a mechanism designed by a company to remedy adverse impacts associated with its own operations, and should be used only sparingly and in accordance with stringent safeguards. Future project-level direct remediation efforts would benefit from a shift towards mechanisms created and administered as a partnership between a company and affected communities.