In brief 9 min read
A recent spate of complaints shows how NGOs and civil society groups are using UN-level human rights grievance mechanisms as a growing part of their toolkit to influence corporate behaviour and seek remedy for allegedly affected parties.
Despite the UN being a body that monitors and upholds international law – ie laws that apply horizontally, as between Nation States – and not domestic law, recent cases show how the UN's mechanisms are increasingly being applied to business conduct.
- Claimant groups, often supported by NGOs and claimant law firms, are being increasingly innovative in seeking remedy from multinational organisations for alleged human rights and environmental harms. They are often taking a multi-tooled advocacy approach to dispute resolution, which can involve shareholder activism, the use of non-judicial dispute for a like UN grievance mechanisms, advocacy campaigns and traditional litigation and arbitration.
- Common to a number of recent NGO and civil society campaigns has been complaints to non-judicial forums in conjunction with other steps. On occasion, these occur alongside or as a precursor to traditional litigation. Increasingly, complaints to non-judicial forums are taking the place of traditional litigation, acting as a precursor to litigation or taking place after traditional litigation has failed to achieved the desired result.
- Non-judicial dispute resolution forums, including UN grievance mechanisms like UN Special Procedures, are attractive to claimant groups as they can be low cost and high-profile. The absence of jurisdictional and standing issues also mean they are available to claimant groups where domestic remedies may have been denied. In this way, they can overcome obstacles for claimants that may arise due to the complexities of modern international business and corporate structures.
- There is a multitude of non-judicial forums available. Perhaps the most prominent examples are the OECD National Contact Points, commonly referred to as the 'NCPs', which are set up pursuant to the OECD Guidelines for Multinational Enterprises. However, another aspect of the remedy ecosystem are complaints to the UN Special Procedures mechanisms, as illustrated by a number of recent examples, including in relation to Unilever and Google.
- Multinational enterprises with governance and compliance systems spanning their global operations, should be aware of these novel ways in which a claimant group may seek recourse against corporates. They ought to be cognisant of the entire remedy 'ecosystem' so that they can see every strand of a claimant campaign in its broader strategic context, thereby enabling them to calibrate their approach to group-wide risk management and dispute resolution to respond to this new dispute resolution paradigm.
The UN Special Procedures sit under the auspices of the UN Human Rights Council (UNHRC). The UNHRC is responsible for strengthening and promoting the protection of human rights globally. The Special Procedures mechanism is a core means by which the UNHRC informs itself of human rights issues.
They are distinct from the UN Human Rights Committees, which will hear formal complaints alleging that a State has failed to comply with its obligations under one or more treaties.
The Special Procedures themselves are independent human rights experts with mandates to report and advise on human rights issues from a thematic or country-specific perspective. They either operate alone (when they are known as UN Special Rapporteurs) or in working groups. The role of the UN Special Procedures is to examine specific issues and report back to the UNHRC. They do this publicly, publishing their findings and reports annually to the UNHRC, and often at the UN General Assembly as well.
In terms of subject matter, the range of mandates held by the UN Special Procedures are extremely broad – each UN Special Procedure has an area of focus and powers which guide how they satisfy their mandate. Some focus on traditionally marginalised groups (eg the Special Rapporteur on the rights of indigenous peoples), particular human rights (eg the Special Rapporteur on the rights to freedom of peaceful assembly and of association) or the intersection of human rights and other areas of law (eg the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment).
In terms of procedure, for each UN Special Procedure this is informed by the mandate granted to them by the UNHRC. Most mandates will have a section which sets out the nature of the powers of the UN Special Procedures. Often, powers will be drafted to expressly include a mandate to conduct country visits and engage in confidential or non-confidential communications with State and non-State actors. Others' mandates will be less prescriptive. There is a great deal of flexibility in the way the UN Special Procedures exercise their mandates. Depending on scope of their mandate, the tools available to the UN Special Procedures include desktop studies, convening expert working groups, making visits in-country and raising public awareness through advocacy, press releases and the development of guidelines.
Where they have an investigative function, the UN Special Procedures can receive complaints from States or private parties of alleged harms or wrongdoing that fall within their mandated subject matter. In responding to allegations and complaints, the UN Special Procedures can engage in formal communications with States and private parties. The communication process often involves the UN Special Procedure writing to a State or to a non-state actor (such as a company or a victim group) setting out details of the allegation, applicable international human rights norms and standards, the concerns and questions of the mandate-holder(s) and making a request for information and (in some cases) particular follow-up action.
These communications, as well as any responses from the parties, are made public. The UN Special Procedures also often comment publicly on the responses they receive.
There is no obligation on a company to whom a communication is addressed to respond. The company can decide whether to respond or not. A company will likely wish to conduct a thorough internal investigation and engage with impacted stakeholders, including its host State, prior to responding. In our experience, early, transparent and collaborative engagement with the UN Special Procedures can mitigate the risk of any adverse public findings being made by the UN Special Procedure. The establishment of an effective working relationship with the UN Special Procedure can also enhance the probability that the UN Special Procedure will give the company a right to respond to any proposed findings before they are made.
The UN Special Procedures do not have any judicial powers or functions – they cannot impose liability. However, they exert significant political and reputational pressure through their publications and media commentary. The UN Special Procedures report on an annual basis to the UN Human Rights Council, who may debate the matters raised in an annual report or pass motions in relation to the same.
A recent driver behind decisions by UN Special Procedures to intervene into an alleged human rights violation has been complaints made to relevant UN Special Procedures by civil society and NGO groups involving allegations of human rights and environmental harms by business. In our experience, complaints to non-judicial dispute resolution mechanisms – including UN Special Procedures – are on the rise. These complaints often accompany, or sit behind, the use of more traditional dispute resolution tools, such as pre-actions to litigation or arbitration.
In our experience, complaints to non-judicial dispute resolution mechanisms – including UN Special Procedures – are on the rise. These complaints often accompany, or sit behind, the use of more traditional dispute resolution tools, such as pre-actions to litigation or arbitration.
A couple of recent examples include:
- In July 2020, a coalition of NGOs brought a complaint to the UN Special Rapporteur on Extreme Poverty and Human Rights on behalf of 218 employees of a subsidiary of the multinational consumer goods company, Unilever. The complainants worked on a tea plantation in Western Kenya. During post-election turmoil in December 2007, the complainants were alleged to have been subjected to violence and assault. The complaint followed an unsuccessful claim brought by Leigh Day in the English High Court for civil damages. The English High Court declined jurisdiction to hear the case on the basis of jurisdiction, a decision which was ultimately affirmed in the English Court of Appeal.
- In November 2019, the UN Special Rapporteur on the Right to Privacy wrote to Google, Inc. in relation to 'Project Nightingale', an initiative between Google and Ascension which reportedly relates to gathering the health data of patients across 21 American States. The UN Special Rapporteur recommended that Google give full consideration to a set of guidelines for the management of health data which had been prepared by the UN Special Rapporteur and invited Google to respond within 60 days. The letter was based on information which the UN Special Rapporteur had received. It is unclear whether this information was a complaint. However, the timing of the communication followed the announcement in mid-November 2019 of an inquiry into Project Nightingale by the Department of Health and Human Services.
- On 22 March 2019, the UN Special Rapporteur on Adequate Housing wrote to Blackstone Group L.P. regarding their contribution to the 'financialisation of housing' and its related adverse consequences on the right to housing. The financialisation of housing refers to the concept of treating housing as a commodity to grow capital, rather than as a social good. A number of Blackstone's investment and management practices allegedly resulted in increased rents, reduced housing affordability, and greater housing insecurity experienced by tenants. Further, the UN Special Rapporteur alleged that Blackstone had used its resources and political leverage to undermine domestic laws and policies that would improve access to adequate housing. Blackstone responded to the communication from the UN experts in which they strongly denied the claims.
Given the breadth of mandates of the various UN Special Procedures, complaints are possible in a wide variety of different sectors. However, we have seen a recent proliferation of complaints in environmentally and human rights sensitive sectors such as oil and gas, energy and mining. Another emerging trend is complaints targeting technology, telecommunications and social media companies, either for privacy-related human rights infringements or providing a platform for online harm or enabling human rights violations.
We also note that UN Special Procedures have been willing to make observations about the effects of climate change on the enjoyment of human rights, particularly the right to life, health, food, water and sanitation, and the rights of vulnerable populations. Recent activity in this space has mostly involved public advocacy (see for example the joint statement of the United Nations Special Procedures Mandate Holders dated 6 December 2018 on the occasion of the 24th Conference of the Parties calling on States to fully integrate human rights standards into the rules for implementing the Paris Agreement). Further, we note that the UN Special Rapporteur on Human Rights and the Environment, in conjunction with former mandate-holder John Knox, have been collaborating to submit expert statements in two climate change cases recently filed with UN treaty bodies. This includes the recent case filed by a group of Torres Strait Islanders with the UNHRC claiming that their rights under the International Covenant on Civil and Political Rights have been violated by Australia’s ongoing failure to adopt sufficient legal and policy measures to reduce greenhouse gas emissions.
A complaint to a UN Special Procedure can be an attractive option for claimants. It is cost effective and there are no formal procedural hurdles which can be a barrier to other forms of dispute resolution.
A complaint to a UN Special Procedure can be an attractive option for claimants. It is cost effective and there are no formal procedural hurdles which can be a barrier to other forms of dispute resolution. It can also be used to generate publicity and media attention. For example, the complaint made by Leigh Day received a lot of attention in mainstream media, as well as from business and human rights interest groups, even though it is merely at the complaint stage and the relevant UN Special Rapporteur has not intervened on the issue. They can also be highly impactful given the complaint essentially draws the gravitas and profile of the UN into the private sphere. Most organisations that find themselves the subject of a UN Special Procedure intervention will be subject to reputational pressure to respond. In this way, complaint groups can use the UN Special Procedures as a fact-finding exercise prior to, or in conjunction with, more formal action.
The UN Special Procedures are flexible in how they choose to intervene in relation to complaints. Whilst they tend to focus on general patterns and trends of human rights violations, some are more likely to respond to individual cases or complaints affecting a group or community, especially where the complaint establishes a particular vulnerability among the affected parties.
The two key constraints on a decision by a UN Special Procedure to respond to a complaint are:
- the particular mandate of the individual Rapporteur; and
- the Code of Conduct for Special Procedures Mandate-holders of the UNHRC. Which requires that the UN Special Procedures should act on 'objective, reliable information emanating from relevant credible sources' (article 6(a)).
The UN Special Procedures are not bound by the same standards of evidence and procedures as a court when determining whether an allegation is made out. However, complaints are required to meet certain evidentiary thresholds before a UN Special Procedure will intervene. Increasingly, we also see a complaint to the UN Special Procedures preceded by detailed in-country research and reporting by the NGO or civil society group, and this then tends to form the basis of the communication from the UN.
They are another example of the increasingly creative and innovative advocacy toolkit adopted by civil society groups.
Allens has direct and significant experience acting for clients the subject of complaints to UN Special Procedures and other non-judicial fora including OECD NCPs. We have traditional expertise in dispute resolution such as litigation and arbitration. However, we also understand the broader strategic dispute resolution approach adopted by modern claimant groups. UN Special Procedure reports often gain traction when they complement other judicial dispute resolution mechanisms such as litigation and arbitration, or non-judicial dispute resolution mechanisms such as a complaint to a National Contact Point under the OECD Guidelines for Multinational Enterprises. We have strong experience assisting clients to navigate this new remedy ecosystem.
Allens has unrivalled expertise advising on business and human rights issues. Our approach always emphasises the prevention or minimisation of adverse human rights impacts, in line with internationally accepted standards for the management of corporate human rights risk, such as the UN Guiding Principles on Business and Human Rights. We have extensive experience advising on risk management and compliance systems designed to identify, address and mitigate the risk of potential adverse impacts.
However, we recognise that, in some instances, issues can arise. In such cases we can assist your organisation with crisis response, investigations and stakeholder management to guide your organisation through the challenging and nuanced business and human rights landscape. We provide strategic advice, including at board and executive level, in connection with challenges levelled at a company's licence to operate through judicial or non-judicial means, including human rights related grievance mechanisms.