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Assessing the Effectiveness of Non-State-Based Grievance Mechanisms in Providing Access to Remedy for Rightsholders: A Case Study of the Roundtable on Sustainable Palm Oil

Published online by Cambridge University Press:  08 February 2021

Mark WIELGA  and
James HARRISON Open the ORCID record for James HARRISON [Opens in a new window]
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Abstract

This article explores different approaches to assessing the effectiveness of non-state-based non-judicial grievance mechanisms (NSBGMs) in achieving access to remedy for rightsholders. It queries the approach that has been widely adopted as a result of the United Nations Guiding Principles on Business and Human Rights (UNGPs), which focuses on the procedural aspects of grievance mechanisms. Rather, it stresses the importance of analysing the outcomes of cases for rightsholders. This article tests this hypothesis by undertaking comprehensive empirical research into the complaint mechanism of the Roundtable on Sustainable Palm Oil (RSPO). RSPO is found to perform well when judged according to the UNGPs’ effectiveness criteria. However, it performs poorly when individual cases are assessed to ascertain the outcomes that are achieved for rightsholders. The article therefore argues for the importance of equivalent scrutiny of outcomes in relation to other NSBGMs and provides an approach and accompanying methodology that can be utilized for that purpose.

Keywords

Dispute settlementGrievance mechanismsNon-judicial grievance mechanismsPalm oilRemedyUnited Nations Guiding Principles
Type
Scholarly Article
Information
Business and Human Rights Journal , Volume 6 , Issue 1 , February 2021 , pp. 67 - 92
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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Footnotes

Conflicts of interest: The authors declare none.

*

Nomogaia, Denver, CO, USA.

**

University of Warwick, Warwick, UK.

‡

Funding: no external funding was utilized in the research that produced this paper.

References

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4 Ibid, Principle 26.

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19 Ibid. Making this point about dual roles, and the potential for NSBGMs, according to Ruggie, to play a central role, see Stefan Zagelmeyer, Lara Bianchi and Andrea R Shemberg, ‘Non-State Based Non-Judicial Grievance Mechanisms (NSBGM): An Exploratory Analysis. A report Prepared for the Office of the UN High Commissioner for Human Rights’ (13 July 2018), https://www.ohchr.org/Documents/Issues/Business/ARP/ManchesterStudy.pdf (accessed 17 March 2020).

20 Human Rights Council (2011), note 3, 22.

21 We discuss how both the UNGPs and UN Working Group on Business and Human Rights have defined the substantive aspects of effective remedy in section IV below. Our point here is that these substantive aspects remain marginalized within overall discussions of how effective remedy is achieved in practice.

22 Human Rights Council, note 3, 27.

23 Lukas et al, note 12.

24 We make no claims here about the extent to which the effectiveness criteria processes have actually influenced NSBGMs in practice, as the evidence for this is rather sparse, but examples of them being discussed include IPIECA, ‘Community Grievance Mechanisms in the Oil and Gas Industry’ (2015), https://www.ipieca.org/resources/good-practice/community-grievance-mechanisms-in-the-oil-and-gas-industry/ (accessed 20 November 2020); Caroline Rees, ‘Piloting Principles for Effective Company-Stakeholder Grievance Mechanisms: A Report of Lessons Learned. CSR Initiative’, Harvard Kennedy School (2011), https://www.cdacollaborative.org/wp-content/uploads/2016/01/Piloting-Principles-for-Effective-Company-Stakeholder-Grievance-Mechanisms-A-Report-of-Lessons-Learned.pdf (accessed 20 November 2020); CSR Europe, ‘Assessing the Effectiveness of Company Grievance Mechanisms’ (2013), https://static1.squarespace.com/static/5df776f6866c14507f2df68a/t/5e666810b7c6ef5fcd9bf296/1583769622168/MOC-A+Report.pdf (accessed 20 November 2020).

25 Lukas et al, note 12.

26 Corporate Human Rights Benchmark, ‘Methodology 2019 for the Agricultural Products, Apparel and Extractives Industries’ (2019), https://www.corporatebenchmark.org/sites/default/files/2019-11/CHRB%202019%20Methodology%20AGAPEX%2016Jan19.pdf (accessed 2 April 2020).

27 Human Rights Council, note 3, Principle 31f.

28 Benjamin Thompson, ‘Determining Criteria to Evaluate Outcomes of Businesses’ Provision of remedy: Applying a Human Rights-Based Approach’ (2017) 2:1 Business and Human Rights Journal 55, 68.

29 Martijn Scheltema, ‘Assessing the Effectiveness of Remedy Outcomes of Non-Judicial Grievance Mechanisms’ (2013) The Dovenschmidt Quarterly 190; Miller-Dawkins et al, note 12.

30 Corporate Accountability Research, ‘Non-Judicial Redress Mechanisms Project Publications’ (no date), https://corporateaccountabilityresearch.net/njm-project-publications (accessed 1 April 2020). The Non-Judicial Redress Mechanisms Project is a multi-institutional effort with several authors and many researchers. It is a collaboration among Monash University, the University of Melbourne, Essex University, the University of Newcastle, CORE (Corporate Accountability Coalition), Homeworkers Worldwide and Action Aid Australia.

31 Haines and Macdonald, note 5; Miller-Dawkins et al, note 12.

32 These are available at the Corporate Accountability Research website at https://corporateaccountabilityresearch.net/njm-project-publications (1 April 2020). The repository includes a study of the RSPO mechanism: Kate MacDonald and Samanthan Balaton-Chrimes, ‘The Complaints System of the Roundtable on Sustainable Palm Oil (RSPO)’, Non-Judicial Redress Mechanisms Report Series (2016), https://corporateaccountabilityresearch.net/njm-report-xv-rspo (accessed 1 April 2020).

33 RSPO, ‘About’ , https://rspo.org/about (accessed 20 April 2020).

34 RSPO, ‘#goodbadpalmoil’, https://rspo.org/about/goodbadpalmoil (accessed 2 April 2020).

35 Dennis J Murphy, ‘Palm Oil: Scourge of the Earth, or Wonder Crop?’ The Conversation (30 June 2015), https://theconversation.com/palm-oil-scourge-of-the-earth-or-wonder-crop-42165 (accessed 10 March 2020).

36 Rob Cramb and John F McCarthy (eds.), The Oil Palm Complex, Smallholders, Agribusiness and the State in Indonesia and Malaysia (Singapore: NUS Press, 2016) 31. Other estimates for Indonesia are as high as 21 million hectares; Bhimanto Suwastoyo, ‘Sawit Watch: Indonesia has More than 21 Million Hectares of Oil Palm Plantations’, The Palm Scribe, https://thepalmscribe.id/sawit-watch-indonesia-has-more-than-21-million-hectares-of-oil-palm-plantations/ (accessed 2 April 2020).

37 Ibid.

38 For example, France in relation to biofuels (Reuters Staff, ‘In Blow to Total, France Upholds Law Banning Palm Oil from Biofuel Scheme’, Reuters (11 October 2019), https://www.reuters.com/article/us-total-biofuels-palmoil/in-blow-to-total-france-upholds-law-banning-palm-oil-from-biofuel-scheme-idUSKBN1WQ0ZG (accessed 3 August 2020)); Norway in relation to public procurement of palm oil as a biofuel (Morgan Erickson-Davis, ‘Norway Bans Government Purchasing of Palm Oil’, Mogabay News (13 June 2017), https://news.mongabay.com/2017/06/norway-bans-government-from-purchasing-palm-oil-biofuel/ (accessed 3 August 2020)); European Commission in making palm oil ineligible to count towards EU renewable transport targets which will result in a phase-out of the palm oil based biofuel (Dave Keating, ‘EU Labels Biofuel from Palm Oil as Unsustainable, Bans Subsidies’, Forbes (14 March 2019), https://www.forbes.com/sites/davekeating/2019/03/14/eu-labels-biofuel-from-palm-oil-as-unsustainable-bans-subsidies/#42469e459c9d (accessed 3 August 2020).

39 Jackson, TA et al., ‘Learning to Love the Worlds Most Hated Crop’ (2019) 31:3 Journal of Palm Oil Research 331.Google Scholar

40 RSPO, ‘Principles and Criteria for the Production of Sustainable Palm Oil 2018’ (5 March 2020), https://rspo.org/resources/certification/rspo-principles-criteria-certification (accessed 2 April 2020).

41 RSPO, ‘Membership’, https://www.rspo.org/files/resource_centre/Factsheet-RSPO-Membership.pdf (accessed 2 April 2020).

42 RSPO, note 33.

43 On the environmental issues, see Gatti, Roberto Cazzolla et al., ‘Sustainable Palm Oil May Not be so Sustainable’ (2019) 652 Science of The Total Environment 48 CrossRefGoogle Scholar; Kimberly M Carlson et al, ‘Effect of Oil Palm Sustainability Certification on Deforestation and Fire in Indonesia’ (2018) 115:1 Proceedings of the National Academy of Sciences 121; Denis Ruysschaert and Denis Salles, ‘Towards Global Voluntary Standards: Questioning the Effectiveness in Attaining Conservation Goals: The Case of the Roundtable on Sustainable Palm Oil (RSPO)’ (2014) 107 Ecological Economics 438. On resistance by local actors, see Victoria Marin-Burgos, Joy S Clancy and Jon C Lovett, ‘Contesting Legitimacy of Voluntary Sustainability Certification Schemes: Valuation Languages and Power Asymmetries in the Roundtable on Sustainable Palm Oil in Colombia’ (2015) 117 Ecological Economics 303.

44 RSPO, ‘Complaints and Appeals Procedures’, https://www.rspo.org/articles/download/86ecb2e35265a17 (accessed 2 April 2020).

45 This is based on analysis of what actually happened in the human rights claims reviewed. The RSPO Complaints and Appeals Procedures were updated in 2018. RSPO, ‘Complaints and Appeals Procedures’ (17 September 2019), https://rspo.org/resources/complaints (accessed 2 April 2020).

46 Jonas, Holly, A Review of the Complaints System of the Roundtable on Sustainable Palm Oil: Final Report (Sabah, Malaysia: Natural Justice, 2014).Google Scholar

47 MSI Integrity and the Duke Human Rights Center at the Kenan Institute for Ethics, ‘The Multi-Stakeholder Initiative Database’ , https://msi-database.org/ (accessed 2 April 2020).

48 MSI Integrity and the Duke Human Rights Center at the Kenan Institute for Ethics, ‘The New Regulators? Assessing the Landscape of Multi-Stakeholder Initiatives’ (June 2017), https://msi-database.org/data/The%20New%20Regulators%20-%20MSI%20Database%20Report.pdf (accessed 20 July 2020);

MSI Integrity, ‘Not Fit-for-Purpose: The Grand Experiment of Multi-Stakeholder Initiatives in Corporate Accountability, Human Rights and Global Governance’ (July 2020), https://www.msi-integrity.org/not-fit-for-purpose/#:~:text=Not%20Fit%2DFor%2DPurpose%20reflects,providing%20effective%20protection%20against%20abuse (accessed 20 July 2020).

49 RSPO Trends Dataset, available from the MSI Integrity website (https://www.msi-integrity.org/), updated as of 30 June 2019. MSI Integrity, 2020, note 48, 178. For more details on the RSPO process, see RSPO, ‘Complaints System’ , section 1.5, https://rspo.org/publications/download/bf72abc7fe14bae (accessed 19 March 2020).

50 RSPO Trends Dataset, note 49.

51 MSI Integrity, 2020, note 48, 170.

52 Although, most notably for the overall time frame of the case, an expected time period is not specified for the investigation period. Instead, the complaints panel ‘shall stipulate a reasonable time within which its investigations or directions in relation to investigations are to be completed’ (RSPO, note 48, section 11.1).

53 RSPO Trends Dataset, note 49.

54 Carla Garcia Zendejas, ‘Glass Half Full? The State of Accountability in Development Finance’, Centre for International Environmental Law (2016), https://www.ciel.org/reports/glass-half-full-the-state-of-accountability-in-development-finance-jan-2016/ (accessed 1 August 2020).

55 The reports cited above analyse operational level grievance mechanisms and development bank complaints mechanisms, respectively, in relation to the UNGPs’ effectiveness criteria. In relation to accessibility, transparency, equitability and legitimacy, they find that levels of performance are generally significantly below that achieved by RSPO as identified above. In relation to predictability, the reports do not provide sufficient information to compare performance in a meaningful way.

56 Human Rights Council, note 3, 22.

57 Ibid.

58 UN General Assembly, ‘Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’, A/72/162 (18 July 2017).

59 Ibid, para 15.

60 Ibid, para 39, quoting Dinah Shelton, note 1, 10.

61 Ibid, paras 40, 43–54.

62 Ibid, para 22.

63 The rightsholders’ subjective perceptions are always relevant to understanding the reality of remedy. However, those perceptions may be based on unrealistically low or unrealistically high expectations of the remedial system.

64 RSPO, ‘Status of Complaints’ https://askrspo.force.com/Complaint/s/casetracker (accessed 2 April 2020).

65 In accordance with the UNGPs, we used the International Bill of Rights and the Core Conventions of the International Labor Organization as the relevant set of internationally recognized set of rights.

66 An example is RSPO Claim PreCAP/2015/24/PR Poligrow Italy (a subsidiary of Poligrow Colombia SAS), which was made in response to the Environmental Investigation Agency’s video, ‘Between Water and Palm Oil’ (9 August 2015), https://www.youtube.com/watch?v=6q2RU_8RRTc (accessed 2 April 2020). While that group did have communications with RSPO regarding the claim, neither it nor any community or person ever filed a complaint in the matter.

67 Comment from RSPO, 23 December 2019, by email.

68 Providing various rationales for confidentiality in international arbitration processes, but also arguing that they are times overstated, see Cindy Galway Buys, ‘The Tensions Between Confidentiality and Transparency in International Arbitration’ (2003) 14 American Review of International Arbitration 121.

69 Interview of international NGO, 27 August 2019. Interview of local NGO, 24 June 2019. Interview of International NGO, 27 September 2019. Email exchange with International NGO, 19 August 2019. Interview with International NGO, 23 July 2019.

70 The only cases in which rightsholders were interviewed directly to obtain this information was in the claim Sustainable Development Institute v Equatorial Palm Oil (02 October 2013), described in detail below, and in the claim Zebilon Siligen v New Britain Palm Oil, (15 August 2015), https://askrspo.force.com/Complaint/s/case/50090000028Es0xAAC/ (accessed 3 August 2020).

71 Six of the interviews were conducted by telephone. Four of the interviewees were interviewed both by telephone and in person. Two interviews were conducted entirely by email.

72 Of course, new events have occurred in these cases after we finished our review and before publication. One particularly notable claim which had been open and ‘under investigation’ for eight years, was the subject of a OECD Swiss National Contact Point specific instance against RSPO itself. It is reported to have resulted in a settlement. OECD, ‘Roundtable for Sustainable Palm Oil and TUK Indonesia: Land Conflict in Indonesia’, http://mneguidelines.oecd.org/database/instances/ch0017.htm (accessed 20 November 2020), although the RSPO claim is not yet closed as of November 2020. PT Mitra Austral Sejahtera v The communities of Sanggau (Kerunang & Entapang), Transparansi untuk Keadilan (TuK) (31 October 2012), https://askrspo.force.com/Complaint/s/case/50090000028ErzsAAC/detail (accessed 20 November 2020).

73 RSPO, ‘Principles and Criteria for the Production of Sustainable Palm Oil’ (2018), https://rspo.org/resources/certification/rspo-principles-criteria-certification (accessed 2 April 2020), 35, criteria 4.4: ‘Use of the land for oil palm does not diminish the legal, customary or user rights of other users without their Free, Prior and Informed Consent’.

74 For example, in a case in Peru, the RSPO ruling was used in a land proceeding before the Constitutional Court and to support a requested criminal investigation. Interview of international NGO, 27 August 2019 by telecommunication; in person interview of local NGO, 28 November 2019, Geneva, Switzerland. The Liberian NGOs used the RSPO rulings extensively in their media presence. See, e.g., Carolyn Ziv, ‘Power of the People: How a Liberian Clan Took on an International Palm Oil Company – and won’, American Jewish World Service (22 August 2016), https://ajws.org/blog/power-people-liberian-clan-took-international-palm-oil-company-won/ (accessed 2 April 2020).

75 Alman, S.H. Gampo Alam et al v PT Permata Hijau Pasaman (31 October 2014), https://askrspo.force.com/Complaint/s/case/50090000028Erz4AAC/ (accessed 2 April 2020).

76 Perpetua George, ‘Letter from Perpetua George, General Manager, Group Sustainability, Wilmar International Limited’ (30 November 2017), https://ap8.salesforce.com/sfc/p/#90000000YoJi/a/90000000PXdi/a.y_0q50Q00Lhdyqlm89nZD88NZjbnaQUL96JQYWV4Y (accessed 2 April 2020).

77 RSPO claims file, note 75; Interview of international NGO, 2 August 2019, by written communication.

78 Green Advocates et al v Golden Veroleum (Liberia) Inc. (GVL) (03 October 2012), https://askrspo.force.com/Complaint/s/case/50090000028ErzuAAC/ (accessed 2 April 2020). It was consolidated with other RSPO claims regarding GVL’s actions in Liberia. Alfred Brownell of Green Advocates was awarded the 2019 Goldman Environmental Prize (the ‘world’s foremost award honoring grassroots environmental activists’) for his work on this case. See the Goldman Environmental Prize, ‘Alfred Brownell 2019 Goldman Prize Recipient, Africa’, https://www.goldmanprize.org/recipient/alfred-brownell/ (accessed 2 April 2020).

79 RSPO claims file, note 78; interview of company management, 14 February 2020, Monrovia, Liberia.

80 RSPO claims file, note 78; interview of national NGO, 6 February 2020, Monrovia, Liberia.

81 The violent protests were well documented in the press as well as in a personal interview with a UN Peacekeeper Representative, 12 April 2016, near Greenville, Liberia. In reference to the community frustration, Interview of national NGO, 6 February 2020, Monrovia, Liberia; interview of addition national NGO, 7 February 2020, Monrovia, Liberia.

82 Interview of company management personnel, 14 February 2020, Monrovia, Liberia. Interview of national NGO, 6 February 2020, Monrovia, Liberia.

83 Environmental Investigation Agency et al v PT Borneo Surya Mining Jaya (18 October 2012), https://askrspo.force.com/Complaint/s/case/50090000028ErzcAAC/ (accessed 2 April 2020).

84 RSPO claims file, note 83.

85 Tom Johnson, ‘Letter from Tom Johnson, Forest Campaigner, Environmental Investigation Agency’, (16 February 2015), https://ap8.salesforce.com/sfc/p/#90000000YoJi/a/90000000PYGa/bNBMlfqNIfIuF69cpDdfg0POa.CSnemqp5VmLozhciw (accessed 2 April 2020).

86 Ravin Krishnan, ‘Letter from Ravin Krishnan, Complaints Coordinator, RSPO’, (3 November 2015), https://ap8.salesforce.com/sfc/p/#90000000YoJi/a/90000000PYFX/HBZm4qKmGHWit0jXpbARGNSwdG5h8agKAZxfbS2Rblk (accessed 2 April 2020).

87 Environmental Investigation Agency, ‘Who Watches the Watchman II’ (November 2019), https://eia-international.org/wp-content/uploads/WWtW2-spreads.pdf (accessed 2 April 2020), 15.

88 Sustainable Development Institute v Equatorial Palm Oil Plc (02 October 2013), https://askrspo.force.com/Complaint/s/case/50090000028Es0OAAS/ (accessed 2 April 2020).

89 Ziv, note 74; Global Witness, ‘Communities Protest that UK’s Equatorial Palm Oil is poised to seize land in Liberia’ (24 June 2014), https://www.globalwitness.org/en/archive/communities-protest-uks-equatorial-palm-oil-poised-seize-land-liberia/ (accessed 3 August 2020). This entire episode was repeatedly communicated in multiple interviews with community members, 9 May 2019 and 4 February 2020 near the Palm Bay Estate, Grand Bassa County, Liberia.

90 Copy of the Memorandum of Understanding on file with authors. We have also extensively interviewed clan members, the NGOs involved in the claim and company personnel regarding the formal resolution of the claim and the current state of the community land.

91 Multiple interviews with community members, 9 May 2019 and 4 February 2020, near the Palm Bay Estate, Grand Bassa County, Liberia. Interview with local NGO, 5 February 2020, Buchanan, Liberia.

92 Interviews with workers and community members, 5 February 2020 and 9 May 2019. These allegations are denied by the company. Interview with company management personnel, 4 February 2020, Palm Bay Estate, Grand Bassa County, and Buchanan, Liberia.

93 Interview of company management personnel, 4 February 2020, Palm Bay Estate, Grand Bassa County, and Buchanan, Liberia.

94 Interviews of international NGO by telecommunication 29 July 2019 and in London, UK, 3 December 2019 (also noting its flaws). Interview of local NGO, 23 July 2019, by telecommunication.

95 Interview of international NGO, 27 September 2019, by telecommunication.

96 Interview of local NGO, 23 July 2019, by telecommunication. Interview of international NGO, 27 September 2019, by telecommunication.

97 Interview of international NGO, 24 June 2019. Interview of International NGO, 27 August 2019 by telecommunication. Interview of national NGO, 2 May 2019, outside of Monrovia, Liberia. Interview of national NGO, 5 February 2020, Monrovia, Liberia.

98 Interview of national NGO, 2 May 2019, outside of Monrovia, Liberia. Interview of national NGO, 5 February 2020, Monrovia, Liberia. Multiple interviews with community members, 9 May 2019 and 4 February 2020 near the Palm Bay Estate, Grand Bassa County, Liberia. Interview of international NGO, 24 June 2019. Interview of local NGO, 23 July 2019, by telecommunication. Interview of international NGO, 27 September 2019, by telecommunication.

99 Interview of national NGO, 2 May 2019, outside of Monrovia, Liberia. Interview of national NGO, 5 February 2020, Monrovia, Liberia. Multiple interviews with community members, 9 May 2019 and 4 February 2020 near the Palm Bay Estate, Grand Bassa County, Liberia.

100 Scheltema, note 29; Miller-Dawkins et al, note 12.

101 Ibid.

102 UN General Assembly, note 58, paragraphs 40, 43–54.

103 Making this point, see Haines and Macdonald, note 5; Miller-Dawkins and Macdonald, note 12.

104 Human Rights Council, note 3, Principle 28.

105 Human Rights Council, note 3, Principle 31.

106 UN General Assembly, para 22.

107 As noted above in section III, RSPO is one of only four MSIs with complaints mechanisms which discloses information about the number and status of current and historic claims, publishes information about individual complaint decisions and conducts analysis of complaints received.

108 International Commission of Jurists, ‘Effective Operational-level Grievance Mechanisms’ (2019), https://www.icj.org/wp-content/uploads/2019/11/Universal-Grievance-Mechanisms-Publications-Reports-Thematic-reports-2019-ENG.pdf (accessed 3 August 2020).

109 This also comports with the conclusions of the broader study by the Non-Judicial Redress Mechanisms Project, in its summary work (Macdonald and Marshall, note 12, 6): ‘this research finds that it is possible to fulfil the UNGP effectiveness criteria in a formal way, yet still fall very short of delivering effective redress or remedy for human rights violations committed in the context of business activities’.