Administrative and Judicial Mechanisms
and the UN Framework
This module has the following objectives:
Enable the participants to• Discuss the experiences of using the existing labor grievance mechanisms;• Discuss the administrative oversight on corporation-related issues (e.g., compliance with domestic standards on use of natural resources that impact on livelihood
security, health, land use, cultural protection, environmental protection);• Analyze the experience of using the courts in addressing business-related humanrights issues;• Determine what measures should be done by affected people when using the administrative and judicial mechanisms to resolve business-related human rights issues.
Time: 7 hours and 20 minutes
Materials:• Big size papers, colored pens, writing papers, adhesive tapes;• Equipment - computer, projector, screen;• Video or a on labor mechanisms.

118

Business, Human Rights and Northeast Asia

Administrative and Judicial Mechanisms and the UN Framework
I. Procedurea. Opener – 5 minutes
Explain that there are two sections in this module. One section covers labor dispute
resolution mechanisms and administrative oversight mechanisms. The second section dwells
on judicial mechanism.
Inform the participants that the discussions/activities will use their own experiences
and/or their own knowledge about specific cases related to the mechanisms.
SECTION ONE
Labor grievance mechanisms
a. Activity 1 – 1 hour
Ask the participants to recall their experience in using labor mechanisms and answer
the following questions:i. What advantages or disadvantages are provided by these labor grievance mechanisms in addressing labor issues?
ii. What procedural aspects of the mechanisms should change or be retained to ensurethat they subscribe to human rights-based approach to access to justice?
iii. What lessons can be learned from the experiences of using these mechanisms?
Ask the participants to discuss the answers to the question in groups. Instruct them towrite their answers on big size papers; and post the papers on the wall afterward.
Administrative oversight mechanisms
b. Activity 2 – 1 hour and 30 minutes
Provide examples of existing administrative oversight mechanisms that cover humanrights issues. These mechanisms can be the following:
National government corporate oversighti. Government agencies that monitor compliance with laws on agricultural (including
aquatic) production, forestry preservation, environmental/natural resources protection, mineral exploitation, foreign investment, special economic zones, cultural
assets protection, and other related issues;ii. Administrative procedures in resolving complaints about non-compliance bycompanies;
Local government corporate oversighti. Local government offices that monitor the corporate compliance with laws andordinances on agricultural (including aquatic) production, forestry preservation,
environmental/natural resources protection, mineral exploitation, foreign investment, cultural assets protection ,and other concerns;
ii. Remedies available in local governments (provincial, city and town governments)
regarding complaints of adverse human rights impact of company operations;
A Facilitator’s Training Manual

119National human rights institutions
i. Role of national human rights institutions in resolving business-related humanrights issues;ii. Procedures for resolving business-related human rights issues.
Ask the participants to discuss in small groups lessons that can be learned from the experiences of using the existing mechanisms and determine their advantages and disadvantages
in resolving business-related human rights issues. Assign each group of participants to one
type of administrative mechanism.
Tell the participants to present their group reports in plenary.
Ask the participants to raise questions or comments on the group reports.
Organize on the board/big size paper the key points raised in the group reports and in
the comments and questions of the participants. Use the table below in summarizing the
key points:
Administrative mechanism

Procedures

Advantages

Disadvantages

National government
Local government
National human rights institution

Ask the groups to present their reports in plenary.
Tell the participants to raise questions or comments on the group reports.
Organize on the board/big size paper the key points raised in the group reports and in
the comments and questions of the participants.
Alternative Activities
Alternatively, the activities in this Section can start with a visit to nearby offices of
the administrative mechanisms to interview officials involved in resolving cases related tocompanies. The interview on specific cases should include the procedures of the grievancemechanisms.
The participants can be divided into as many groups as there are offices that can bevisited.
In this case, the participants will use the information gathered from the interview to
discuss the questions in the two activities above.
c. Input – 1 HOUR
Provide an input on how existing administrative grievance mechanisms can be improved
to be able to subscribe to human rights-based approach to access to justice.
The presentation can discuss the characteristics of effective non-judicial grievance mechanisms, both State-based and non-State-based, such as the following:a. Legitimate: enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes;

120

Business, Human Rights and Northeast Asia

b. Accessible: being known to all stakeholder groups for whose use they are intended,and providing adequate assistance for those who may face particular barriers toaccess;c. Predictable: providing a clear and known procedure with an indicative time frame
for each stage, and clarity on the types of process and outcome available and meansof monitoring implementation;
d. Equitable: seeking to ensure that aggrieved parties have reasonable access to sourcesof information, advice and expertise necessary to engage in a grievance process on
fair, informed and respectful terms;
e. Transparent: keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence
in its effectiveness and meet any public interest at stake;f. Rights-compatible: ensuring that outcomes and remedies accord with internationallyrecognized human rights;
g. A source of continuous learning: drawing on relevant measures to identify lessons
for improving the mechanism and preventing future grievances and harms;
Operational-level mechanisms should also be:
h. Based on engagement and dialogue: consulting the stakeholder groups for whose
use they are intended on their design and performance, and focusing on dialogue
as the means to address and resolve grievances.
(Source: Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect
and Remedy” Framework. United Nations, HR/PUB/11/04, 2011, page 33)

Tell the participants to refer to Annex A for an explanation of these principles. Ask theparticipants to go back to their discussions on labor and administrative oversight mechanisms and determine whether these characteristics apply to these mechanisms’ mandate,
powers and procedures.
Provide another input on the national human rights institutions (NHRIs) and their role
in resolving grievances arising from business operations. The following characteristics ofeffective investigation and complaints handling system can be stressed:
Complaints are handled promptly and effectively by:
1. Identifying out-of-jurisdiction complaints and potential referrals out to other organisations at the intake stage;
2. Using information and tips from NGOs [non-governmental organizations], advocates, and other organisations in the field to pursue investigations;
3. Using alternative dispute resolution (ADR) in the early stages of the complaint process (statistics show that voluntary mediation can resolve 30% - 50% of complaints
submitted, if properly structured);
4. Tracks the performance of investigators in terms of the numbers of complaints theyhandle and close per year, depending on whether cases are systemic or complex
in nature. This information feeds into both individual performance measures andinstitutional targets. (The target may be higher in Ombuds-style NHRIs that rely onquick, early resolution processes to resolve cases without many legal formalities);
5. Communicates regularly with parties about the status of the complaint and recording this activity;

A Facilitator’s Training Manual121

6. Demonstrates that the NHRI has made recommendations following investigations
on important human rights issues (as set out in the strategic plan) and has madeefforts to ensure that these recommendations were adopted;
7. Uses case management committees, or an equivalent structure, that meets regularly
and provides timely process decisions;
8. Has decision-making structures, whereby senior office-holders meet regularly toreview and decide on investigation reports, and document those decisions;9. Sets service standards for timelines for each part of the investigation process andcommunicating these to the public;
10. Is used to inform and improve programming and performance in investigation andin other programme areas.
(Source: Text based on UNDP-OHCHR Toolkit for collaboration with National Human Rights Institutions [NewYork/Geneva, December 2010], page 221)

Ask the participants to review their discussions on NHRIs and determine whether or
not these characteristics apply to their complaints handling system.
SECTION TWO
Judicial mechanism
a. Activity 3 – 1 hour and 30 minutes
Ask the participants to discuss in small groups court cases they are familiar with andanswer the following questions:i. How do courts address the business and human rights issues?
ii. What are the challenges being faced in using the courts to uphold corporate accountability and on employing the human rights-based approach to access to justice?
iii. What lessons can be learned from these experiences?
Tell the participants to discuss in groups the questions and write on big size paper their
responses. Ask them to give a report in plenary.
b. Input – 1 HOUR
Provide an input on judicial mechanism and the practical measures necessary to maximize the use of the courts to address business-related human rights issues. Use a case study
on how resorting to court action has helped the community affected by company operations
recover from the effects of pollution. See Annex B for a case study.
Discuss in the input the following issues, among other concerns, regarding judicial
mechanism:• Consideration of adverse human rights impacts of business operations as subject
to domestic laws and therefore bases for court action;• Requirements in initiating judicial recourse on adverse human rights impacts ofbusiness operations, including the costs of litigation;• Role of supporters (particularly of volunteer lawyers,* legal assistance groups andother civil society organizations) to pursue court claims on behalf of the affected* See for example Takeji Fujiwara, The Involvement of Japan’s Lawyers in Environmental Issues.

122

Business, Human Rights and Northeast Asia•••

people against companies - this includes the issue of the supporters’ locus standi** inrepresenting them in court;***Evidence necessary to prove claims against companies - this includes evidence oftechnical/medical/scientific nature that is difficult and expensive to obtain;
Time needed to complete judicial proceedings; andJudicial remedies and their enforcement – the remedies include compensation forthe damage caused (including compensation for lost income, or lost capacity to earna living), restoration of property that have been taken, rehabilitation of area that has
been damaged, support for the medical needs of affected people, and stoppage of
operations of erring companies. Such remedies may also be in the form of settlement agreement, which require appropriate negotiation capacity on the part of theaffected people to be able to obtain their demands from the companies. The extent
of enforcement of the remedies obtained has to be explained too.

c. Activity – 1 HOUR
In plenary, brainstorm on practical measures needed in seeking the courts’ intervention
on business-related human rights issues.
List on the board the suggested practical measures.
Report to the plenary the results of the group discussion using a panel discussion format.
II. Summary
Time: 15 minutes
Summarize the main points discussed during the session such as the following:
1. General characteristics of administrative and judicial mechanisms to resolve business-related human rights issues;
2. The key issues and lessons on the resolution of specific cases using the mechanisms
existing in Northeast Asia/country that affect business and human rights.

** In law, locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it.
Locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action
challenged to support that party’s participation in the case (USLegal.com, http://definitions.uslegal.com/l/locus-standi/).
*** See discussion of this issue in the Mongolian context in Center for Human Rights and Development, Human Rights in
the Mining Industry of Mongolia, pages 106-108.

A Facilitator’s Training Manual123Annex A
Commentary
A grievance mechanism can only serve its purpose if the people it is intended toserve know about it, trust it and are able to use it. These criteria provide a benchmark
for designing, revising or assessing a non-judicial grievance mechanism to help ensurethat it is effective in practice. Poorly designed or implemented grievance mechanisms
can risk compounding a sense of grievance amongst affected stakeholders by heightening their sense of disempowerment and disrespect by the process. The first sevencriteria apply to any State-based or non-State-based, adjudicative or dialogue-based
mechanism. The eighth criterion is specific to operational-level mechanisms that business enterprises help administer. The term “grievance mechanism” is used here as aterm of art. The term itself may not always be appropriate or helpful when applied toa specific mechanism, but the criteria for effectiveness remain the same. Commentaryon the specific criteria follows:a. Stakeholders for whose use a mechanism is intended must trust it if they are
to choose to use it. Accountability for ensuring that the parties to a grievance process cannot interfere with its fair conduct is typically one important factor in building
stakeholder trust;b. Barriers to access may include a lack of awareness of the mechanism, language, literacy, costs, physical location and fears of reprisal;c. In order for a mechanism to be trusted and used, it should provide public
information about the procedure it offers. Time frames for each stage should be respected wherever possible, while allowing that flexibility may sometimes be needed;
d. In grievances or disputes between business enterprises and affected stakeholders, the latter frequently have much less access to information and expert resources, and often lack the financial resources to pay for them. Where this imbalance
is not redressed, it can reduce both the achievement and perception of a fair process
and make it harder to arrive at durable solutions;e. Communicating regularly with parties about the progress of individual grievances can be essential to retaining confidence in the process. Providing transparency about the mechanism’s performance to wider stakeholders, through statistics,
case studies or more detailed information about the handling of certain cases, canbe important to demonstrate its legitimacy and retain broad trust. At the same time,
confidentiality of the dialogue between parties and of individuals’ identities should be
provided where necessary;f. Grievances are frequently not framed in terms of human rights and many do notinitially raise human rights concerns. Regardless, where outcomes have implications
for human rights, care should be taken to ensure that they are in line with internationally recognized human rights;
g. Regular analysis of the frequency, patterns and causes of grievances can enable the institution administering the mechanism to identify and influence policies,
procedures or practices that should be altered to prevent future harm;h. For an operational-level grievance mechanism, engaging with affected stakeholder groups about its design and performance can help to ensure that it meets theirneeds, that they will use it in practice, and that there is a shared interest in ensuring
its success. Since a business enterprise cannot, with legitimacy, both be the subject

124

Business, Human Rights and Northeast Asia

of complaints and unilaterally determine their outcome, these mechanisms should
focus on reaching agreed solutions through dialogue. Where adjudication is needed,
this should be provided by a legitimate, independent third-party mechanism.
(Source: Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy”
Framework. United Nations, HR/PUB/11/04, 2011, pages 32-34)

A Facilitator’s Training Manual125Annex B
Case Study: Nishiyodogawa: Community Struggle on Right to Health and Environment*
Aozora Foundation
By mid-1930s, Nishiyodogawa ward had seven hundred factories, sixty thousand
employees, and four hundred sixty of these factories had ten or more employees.
This made Nishiyodogawa ward the heart of Osaka’s industrial area.**In the 1930s, Osaka city was named the “City of Factories”*** but also as “Smoke
Capital” of Japan due to its industrialization history dating back to the 1870s. In aschool textbook, Osaka city’s industrial development was symbolized by smokescoming from numerous factory smokestacks.
The strong demand of foreign trade as well as the military industry in the 1930s
caused the fast industrial development of Nishiyodogawa ward; it resumed afterWorld War II. In the 1960s, residents experienced brown-colored haze that enveloped
the area all day. Residents believed that all types of chemical pollution existed in
Nishiyodogawa ward, particularly sulfur oxides. Cars and trains had their lights turnedon during the day due to poor visibility.
Protests (including law suits) against widespread pollution in the country led tothe enactment of the Basic Law for Environmental Pollution Control in 1967, the Law
on Special Measures Concerning Redress for Pollution-related Health Damage in
1969, and the Absolute Liability Law in 1972 and the Pollution-related Health Damage
Compensation Law in 1973. The 1969 law designated parts of several cities including Yokkaichi, Osaka (including Nishiyodogawa ward) and Kawasaki cities as polluted
areas. Under this law, people who were certified as suffering from pollution-induced
health problems were qualified to receive medical care benefits. Under the 1972
Absolute Liability Law, lack of intent to pollute does not exempt companies fromescaping their responsibility for the pollution caused.
Nishiyodogawa Residents’ Protest
In mid-1970s, the Nishiyodogawa Association for Pollution Patients and Their
Families contacted lawyer-members of the Osaka Bar Association to study the
Nishiyodogawa problem. The difficulty of finding the sources of air pollution led thelawyers to do a three-year study on what legal action to take. In April 1978, the patients filed a case before the District Court in Osaka against ten companies believed
to be sources of air pollution.**** More than twenty lawyers were involved in the filingof the complaint in court, but lawyers from different parts of Japan later joined thelegal team that increased the number of lawyers to one hundred and fifty.
The tort liability complaint asked the court, among several demands, to stop theoperations of the companies and to order the companies to pay compensation to* This is a short version of the article entitled “Nishiyodogawa: Community Struggle on Right to Health” published in FOCUS Asia-Pacific, December 2015, volume 82, and available at www.hurights.or.jp/archives/focus/
section3/2015/12/nishiyodogawa-community-struggle-on-right-to-health.html.
** “A City of Factories Appears,” Osaka Asahi Shimbun, 16 November 1936, an English version of the article isfound in http://aozora.or.jp/lang/english/nishiyodogawa-field-museum/citizens-struggle.
***­  Japan’s Air Pollution from the Perspective of Pollution Victims, Center for the Redevelopment of Pollutiondamaged Areas in Japan (The Aozora Foundation), page 9.
**** Three more complaints were subsequently filed by the patients in court including those filed against the government about the air pollution (nitrogen oxides) from vehicle exhaust from public roads.

126

Business, Human Rights and Northeast Asia

the pollution victims. The Nishiyodogawa residents received a lot of support from thegeneral public in pursuing the complaint.
While proving which companies were the sources of specific types and amounts ofpollutants was technically difficult, proving the unusually high rate of health problems(compared to the national average) among the Nishiyodogawa residents, especiallythe young and old, was not. And the court considered the health issue data in favorof the complainants.
After seventeen years of litigation, the companies sought to settle the complaint.
Both sides subsequently agreed on a four billion Yen compensation package. The
District Court accepted the settlement agreement in a decision issued in March 1995.
The Nishiyodogawa residents filed several other cases in court. These cases ended
after twenty years lapsed from1978.
Aozora Foundation
Years before the District Court decision came out, the Nishiyodogawa Association
for Pollution Patients and Their Families had released in March 1991 the “Nishiyodogawa
Redevelopment Plan” aimed at having a pollution-free community development inNishiyodogawa ward. The Association brought forth a series of proposals, including
one directed at defendant companies and on reconstruction after earthquakes.*****
Using part of the settlement package given by the companies under the 1995
court settlement agreement, the Nishiyodogawa pollution victims established in 1996
the Center for the Redevelopment of Pollution-damaged Areas in Japan (Aozora
Foundation).
Aozora Foundation organizes studies and practical activities that are creatively
carried out from the standpoint of pollution victims and community members, andaimed at rejuvenating local areas and environments.
It also holds public lectures, symposiums and other events with the participationof the residents, gathers documents and source materials, provides information, hosts
observation tours and trainees, lends support for school classes, conducts international exchanges, and more.
Redeveloping polluted areas does not merely involve rejuvenating, recreating, andpreserving the natural environment. In the Aozora Foundation way of thinking such
redevelopment depends on recovering and improving the health of local citizens;recovering and fostering community functions lost on account of economics-firstdevelopment; rebuilding relationships of trust and cooperation among government,
business, and citizens; and other such efforts. This necessitates basing initiatives on
the idea of “participation” as proposed in the Basic Environment Plan****** and, from acitizens’ standpoint, obtaining the cooperation of local authorities, businesses, andall other social entities.************ See website of Aozora Foundation, http://aozora.or.jp/lang/english/nishiyodogawa-field-museum/regeneration-begins.
****** See Basic Environment Law and Basic Environment Plan, www.env.go.jp/en/aboutus/pamph/
html/00pan250.html for basic information on the Plan.
******* “Our mission,” The Aozora Foundation, http://aozora.or.jp/lang/english/our-mission.

A Facilitator’s Training Manual127References
Takeji Fujiwara, The Involvement of Japan’s Lawyers in Environmental Issues.
Available at http://aozora.or.jp/lang/english/papers-from-overseas-workshops/
the-involvement-of-japans-lawyers-in-environmental-issues.
Nora Götzmann and Claire Methven O´Brien, Business and Human Rights - A Guidebook
for National Human Rights Institutions, (International Coordinating Committee of National
Human Rights Institutions [ICC] and Danish Institute for Human Rights [DIH], November2013). Full text available at www.humanrights.dk/files/media/dokumenter/udgivelser/bhr_
guidebook_for_nhris_2013_eng.pdf.
Dan Guttman and Xia Kunbao, “Protect the Environmental Rights and Justice of the
Public,” Human Rights Education in Asia-Pacific, volume 6, pages 277 – 308. Available atwww.hurights.or.jp/archives/asia-pacific/section1/13%20Environmental%20Rights%20
and%20Justice%20-China.pdf.
Strategic Plan of NHRIs, for Mongolia see the 5th Strategic Plan of NHRCM – 2012-2014,
in Center for Human Rights and Development, Human Rights in the Mining Industry ofMongolia, pages 100-102.

128

Business, Human Rights and Northeast Asia