Remedy Requires Real Resources

Helping local communities secure remedy through Independent Accountability Mechanism (IAM) processes is the core focus of Accountability Counsel’s work, be it through directly supporting communities, advocating for policy changes to strengthen IAMs, or compiling and analyzing data on IAM outcomes. Effective IAMs can produce a number of positive outcomes, including increased compliance and continuous institutional learning that can inspire forward-looking reforms. While these components are laudable, perhaps the most important outcome an IAM should achieve is redressing the harm that local communities have already experienced.

Ensuring the Principle of Remedy

Accountability Counsel has pushed for the memorialization of this principle, particularly with its advocacy around the drafting of the United Nations Guiding Principles on Business and Human Rights (UNGPs). The UNGPs are a set of general and operational principles on the issue of human rights and transnational corporations and other business enterprises.

Knowing that the UNGPs would serve as an important source of guidance for a wide variety of business and financial entities, we sought to make the UNGPs as strong as possible. In 2011, Accountability Counsel submitted comments to Professor John Ruggie on a draft of the UNGPs. Those comments focused heavily on the third pillar of the UNGPs, access to remedy, which established a number of principles meant to ensure that those harmed by business activity can seek redress.

Documenting the Remedy Gap

Unfortunately, effective remedy has too often been elusive for communities raising their concerns through IAMs. Accountability Counsel has seen this first-hand in multiple cases we support. Local communities who have had their harm verified by IAM compliance reports have then found bank management largely unwilling to provide the support necessary for redressing that harm, while other communities that have been able to negotiate an agreement through an IAM dispute resolution process have seen implementation of that agreement languish.

Accountability Counsel has demonstrated that, far from occurring in isolated instances, the failure of IAM processes to produce meaningful remedy is systemic. Working with partners, we have published multiple analyses illuminating this “remedy gap” across the international finance landscape. For instance, Accountability Counsel co-authored the OECD Watch report Remedy Remains Rare, which examined the effectiveness – or lack thereof – of OECD National Contact Point system in increasing access to remedy. Accountability Counsel also co-authored the seminal Glass Half Full report. The report analyzed hundreds of complaints brought to nearly a dozen IAMs and found that far too often these complaints resulted in inadequate remedy for local communities. In 2022, the Office of the UN High Commissioner on Human Rights confirmed the existence of a systemic remedy gap in its comprehensive report Remedy in Development Finance, which cited data from the Accountability Console.

Advancing Remedy Good Practice

Throughout numerous reviews of various IAM policies, Accountability Counsel, working with partners, has pushed for provisions that are crucial to an IAM’s ability to facilitate remedy. In submissions to international financial institutions (IFIs) like the European Bank for Reconstruction and Development and the Asian Infrastructure Investment Bank, we have pushed for IAMs’ overarching mandates to include facilitating remedy as a key purpose of the IAM. We have urged adherence to good practice regarding the management action plans (MAPs) that are supposed to address harm. Provisions guaranteeing project-affected people opportunities to participate in the drafting of MAPs and strong monitoring provisions are key to ensuring that MAPs meaningfully redress harm. And we have implored IFIs to take the next step towards truly accessible remedy by establishing remedy funds, resources set aside to ensure remedial measures can be properly implemented.

Accountability Counsel has built on this last recommendation in particular, working with partners to envision and illustrate how a remedy fund can be operationalized to meaningfully enhance access to remedy. In 2020, as part of our engagement on the review of the accountability framework for the World Bank Group’s private-sector arm, we called for the creation of a remedy fund. The submission illustrated how a lack of readily available resources can impede meaningful remedy. While recognizing the various ways a remedy fund might be structured, our submission stressed that any remedy fund must be structured around a set of guiding principles, including community responsiveness, accountability, and predictability. Our submission calls on the World Bank Group to commit to developing a remedy-fund framework through a transparent and inclusive process that includes consultations with affected communities and other stakeholders.

In November 2020, we and our partners Lumière Synergie pour le Développement and Inclusive Development International submitted similar recommendations for a remedy fund as part of the African Development Bank’s review of its accountability office, the Independent Review Mechanism.

Throughout 2022, we shared recommendations for how to enable remedy with various IFIs, including the World Bank, the International Finance Corporation, the European Bank for Reconstruction and Development, and the African Development Bank. Looking beyond IAMs as a source for remedy, we submitted extensive comments on the African Development Bank’s Integrated Safeguards System to illustrate how planning for remedy could be built into the financing of all projects. And as the International Finance Corporation develops a proposed remedial framework for its operations, we have urged the framework not to be only forward-looking, but also to address current existing harms.

Accountability Counsel will continue to push for more meaningful access to remedy in every facet of our work.