Access to Remedy – International Frameworks &

OptionsJohn Barnes, Institute for Human Rights and Business &

Myanmar Centre for Responsible Business3rd June 2015

Addressing Grievances – Which Path?

“They paid no attention to us when we raised small problems, so we had to

create a big one.”

What is a grievance ?

◦ “Perceived injustice evoking an individual or group’s sense of entitlement, based on law, contract, explicit or implicit promises, customary practice or on general notions of fairness.”

◦“Complaints or grievances refer to a specific incident that has been alleged, as well as to any damage, impact or dissatisfaction that allegedly occurred as a result of company or contractor actions, perceived or actual.”

Basic Concepts

What is a remedy? ◦ Apology◦ Prevention of further harm through guarantees of

non-repetition or stopping a particular activity or relationship

◦ Compensation (financial or non-financial) ◦ Restitution, rehabilitation◦ Punitive sanctions◦ Some other form of remedy agreed by the parties

Basic Concepts

Access to remedy is itself a human right◦ Accountability◦ Justice◦ Fairness

Because it is interlinked with better outcomes

Because there currently are few other effective

options in Myanmar to address concerns

Why is Important to Address Grievances?

Prevention

Stakeholder Engagemen

t

Addressing Grievances

International Frameworks on Access to Remedy

UN Guiding Principles on Business and Human Rights – Pillar III

Pillar III: Access to Remedy

IPIECA - Community grievance mechanisms in the oil and gas industry. A manual for implementing operational-level grievance mechanisms and designing corporate frameworks (2015)

“A grievance mechanism can only serve its purpose if the people it is intended to serve know about it, trust it and are able to use it’

• Legitimate: Foster trust among stakeholders• Accessible: Be known to all intended stakeholder groups and

assist with barriers to access• Predictable: Clear procedure, timeframe and outcomes• Equitable: Ensure parties can engage on fair, informed and

respectful terms• Transparent: Keep parties informed of progress• Rights-compatible: Processes and outcomes accord with

human rights• Continuous learning: Identify lessons learned to prevent

repetition or continuation• Based on engagement: Consult on how to make most useful

UN Guiding Principles on Business & Human Rights:

“Effectiveness Criteria” for Operational Level Grievance Mechanisms

Early & accessible

Clear process

Fair process

Part of a bigger picture

Effective Grievance Mechanisms

Address grievances early before complaints escalate◦ Be ready with a well designed grievance mechanism when

impacts start – before significant activity – be ready for construction phase!

Make it known to all intended stakeholder groups

Accessible via several different means - ◦ Not just written complaints◦ Use local languages◦ But end up in the same process

Early & Accessible

Have a formal/written process – and follow it◦ Reduces the risk of ad hoc responses

Make it predictable - clear procedure, timeframe and outcomes

Make it transparent: Keep parties informed of progress; transparency helps build trust

Early & accessibleClear Process

IPIECA - Community grievance mechanisms in the oil and gas industry. A manual for implementing operational-level grievance mechanisms and designing corporate frameworks (2015)

Typical steps in a grievance mechanism process

IIED, Dispute or Dialogue: Community Perspectives on Company-Led Grievance Mechanisms (2013)

And this is what the process may look like when implemented within a company …

Ensure parties can engage on fair, informed and respectful terms◦ Treat people with respect and dignity

Credible in the eyes of its intended users for people to trust & and use it◦ Users should have confidence that if they lodge a complaint, it will be treated in a

fair and objective manner.

Equitable - addresses imbalances of power or knowledge that may exist between the company and the complainant◦ Facilitate access to advice / expertise

Protection against harm and retribution

Make sure it is sufficiently independent so that there is limited opportunity for manipulation

Use the full range of remedies – particularly the promise of non-repetition◦ To do this, need to address the root causes◦ Resolving problems together can results in better solutions

Fair Process

Based on engagement Consult on design, how to make most useful, whether it is

working as intended, report on performance Make it part of broader community engagement

Continuous learning: Identify lessons learned to prevent repetition or continuation Treat as opportunity to improve Look beyond the specifics of individual grievances to see if

patterns are emerging – and dig deeper to understand why

Understand where it fits in the national remedy “ecosystem” ◦ Other external mechanisms or procedures may be a better

substitute or additional complement◦ Don’t block access to other remedies

Part of the Bigger Picture

Companies need to understand:

◦ the socio-political context of the country & local culture and approaches

◦ the history of seeking remedies in the country – past and current

◦ the remedy “ecosystem”

◦ their role in influencing grievances and remedies

◦ *the government’s role

Grievance Mechanisms – Challenges for Companies to Understand

Grievance Mechanisms – Some tensions for Communities to Understand

1. Production Pressure/ Deadlines

2. Cost reduction pressure3. Complaints Dept v Other

Operational Departments4. Company/international

standards

1. Time necessary for engagement

2. Staff time and resources to address complaints

3. One focal point but are they empowered?

4. National standards

Making a grievance mechanism process mostly about compensation

◦ It should be about engagement and problem solving, not just payment

Lack of transparency about company – government interaction

◦ If more difficult issues are just escalated to the Gov, does that build trust? Especially if Gov puts pressure on community members

Resolving grievances becomes about maintaining the company’s operations rather than about resolving issues Avenues for redress may involve harm to the claimant

A Few Warning Flags

Lessons Learned in the Extractives Sector

International Frameworks & Avenues to Raise

Grievances • OECD Guidelines on Multinational Enterprises• International Finance Corporation - Ombudsman• Asian Development Bank – Accountability Mechanism• Voluntary Principles on Security & Human Rights

Using Relevant International Mechanisms for Projects in MyanmarInternational Mechanism

Pre-requisite to Access the Mechanism

OECD National Contact Point

IFC Compliance Advisor Ombudsman (CAO)

Asian Development Bank (ADB)

Voluntary Principles for Security and Human Rights

For OECD-based companies operating in Myanmar

For IFC-financed projects in Myanmar

For ADB-financed projects in Myanmar

For participants in the VP process NGO/Company/Governments

The Organisation for Economic Cooperation and Development (OECD) - OECD Guidelines on Multinational Enterprises◦ Unique, government-backed international corporate accountability

mechanism ◦ Define standards for socially and environmentally responsible corporate

behaviour ◦ Set procedures for resolving disputes between corporations and the

communities or individuals negatively affected by corporate activities

OECD National Contact Points◦ Set up in each OECD country to hear complaints about company non-

adherence to OECD Guidelines◦ The dispute resolution mechanism – called the ‘specific instance’ procedure –

is focused on resolving disputes – primarily through mediation and conciliation

◦ Can be used by anyone in Myanmar who can demonstrate an ‘interest’ (individuals, NGO, trade unions) in the alleged violation in Myanmar as long as it is an OECD based company

OECD National Contact Points

How to Bring an OECD Complaint?

Guide Covering:

•Eligibility of a complaint

•Steps to file an OECD Guidelines

complaint

•Instructions to write a complaint letter and strategic considerations before filing an OECD Guidelines complaint

Independent recourse mechanism for projects supported by IFC

Conducts an assessment of the situation, and assists the parties in determining the best alternatives for resolving a complaint◦ could involve joint fact-finding, facilitating discussions between

key stakeholders, mediating disputes between parties, or establishing  a dialogue table or joint monitoring program

Work with independent mediators who specialise in facilitation and consensus building around development projects

International Finance Corporation (IFC) - Compliance Advisor Ombudsman (CAO)

How to Bring a Complaint to the IFC?

Filing a Complaint with the IFC Ombudsman

The ADB Accountability Mechanism provides a forum where people adversely affected by ADB-assisted projects can voice and seek solutions to their problems and report alleged noncompliance of ADB's operational policies and procedures.

2 functions:◦ Problem solving function ◦ Compliance review function

Asian Development Bank

ADB Problem Solving Process

How does it work? Participants may raise concerns regarding

whether any other participants sustained lack of efforts to implement the Voluntary Principles. ◦ Direct dialogue between concerned participants◦ If not resolved Secretariat can facilitate formal

consultations between the interested participants◦ Decision by the plenary on any further action to

strengthen the Voluntary Prinicples

Voluntary Principles on Security & Human Rights

Thank you