Abstract
AbstractRedress for communities harmed by transnational business activity remains elusive. This paper examines community efforts to access redress for human rights‐related harms via recourse to transnational nonjudicial mechanisms (NJMs) – a prevalent but widely debated instrument of transnational business regulation. Drawing together insights from theoretical debates surrounding nonjudicial regulation and evidence from a major empirical study of human rights redress claims in Indonesia and India, the paper explores the conditions under which NJMs can support community access to remedy. Three conditions are shown to be central in enabling some degree of NJM effectiveness: the institutional design of regulatory strategies, the institutional empowerment of regulatory institutions, and social empowerment of affected communities and their supporters. While all three conditions are required in some measure to underpin effective NJM interventions, these conditions can be combined in varying ways in different contexts to underpin either top–down or bottom–up pathways to redress. The former derives its primary influence from institutional authority and capacity, while the latter relies more heavily on diffuse societal leverage in support of community claims. These findings have significant implications for theoretical debates about the capacity and limits of nonjudicial regulatory approaches to support human rights redress within decentered contexts of transnational regulation where both regulatory power and agency are widely diffused.
Highlights
An intense spotlight has been placed in recent years on an array of human rights violations associated with transnational business activity, including violations of labor rights, threats to community livelihoods or access to land, and compromised health and safety of workers or communities
Among the multiple governmental and nonstate governance initiatives that have emerged in response, one of the most significant has been the formulation and promotion of the United Nations Guiding Principles (UNGPs), which were endorsed by the UN Human Rights Council in June 2011 (Ruggie 2011, p. 22)
Nonjudicial mechanisms designed to support human rights remedy can take widely varying forms, including independent accountability mechanisms of international financial institutions (Scheltema 2013; Altholz & Sullivan 2017); mechanisms established by home country governments to receive complaints about the conduct of companies domiciled in their jurisdiction, such as National Contact Points (NCP) created under the framework of the OECD Guidelines on Multinational Enterprises; and grievance mechanisms associated with multistakeholder standard-setting bodies such as the Ethical Trading Initiative or Roundtable on Sustainable Palm Oil (RSPO)
Summary
An intense spotlight has been placed in recent years on an array of human rights violations associated with transnational business activity, including violations of labor rights, threats to community livelihoods or access to land, and compromised health and safety of workers or communities. We first draw on theoretical insights from a diverse body of regulatory scholarship debating the potential and limits of nonjudicial regulation to develop a framework for analyzing the enabling conditions for constructive NJM contributions to community remedy. This framework focuses on three factors that we expect to be associated with some degree of NJM effectiveness: the institutional design of regulatory strategies, the institutional empowerment of regulatory institutions, and social empowerment of affected communities and their supporters. We highlight the broader sources of social power in which nonjudicial institutions are embedded and the corresponding importance of diffuse sources of regulatory power and agency in supporting access to remedy for marginalized workers and communities affected by transnational business activity
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