Ombudspersons represent another type of mediation mechanism that victims can turn to. Although there is no clear and universally accepted definition of an Ombudsperson, it is generally associated with an independent and objective investigator of complaints filed by individuals against government agencies and other organisations from both public and private sectors. In some countries, they take the form of the National Human Rights Institutions (NRHIs – see previous part of this section). After reviewing the complaint, the Ombudsperson determines whether the complaint is justified and makes recommendations to the organisation to resolve the problem. Sometimes they may also provide support to Human Rights defenders.
An ombudsperson may be appointed by a legislature, a professional regulatory organisation or a local or municipal government, but s/he may also be appointed directly by a company to handle complaints internally, or by an NGO. Depending on the type of ombudsman and the appointment procedure, their independence is subject to various criticisms. Individuals can sometimes be sceptical vis-à-vis the Ombudspersons and their ability to handle their complaints impartially.
There are dozens numerous ombudspersons in several countries, mandated to hear complaints from individuals against public or private actors (industry, electricity and gas, banking, insurance, telecommunications, consumer, etc.). examples of countries would include the United Kingdom 1 , New Zealand 2 , Ghana 3 and India 4 . In many countries, the Ombudsperson only has the competence to hear complaints against the public administration, but this may still be relevant to corporate-related Human Rights abuse if it includes the way in which the administration has dealt with the abuse. Some Ombudspersons are established for specific industry sectors, such as the Canadian Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor for the extractive Sector, 5 and the Pakistani Federal Ombudsman Secretariat for Protection Against Harassment of Women at Work Place. 6
A number of mediation mechanisms including ombudspersons are reviewed under other sections of the present guide. In particular, section IV on financial institutions describes various mechanisms set up by multilateral banks (for example, Compliance Advisor Ombudsman of the International Financial Corporation) or that can be appealed in case the requester is not satisfied with the outcome of a grievance mechanism set up by a public bank (a request may, for instance, be filed with the European Ombudsman in relation to the eIB), or another institution (for instance a complaint concerning the UK export Credit Agency may be forwarded by the UK Parliamentary Ombudsman).
Process and outcome
Ombudspersons do not exist in all countries or for all sectors, and are often only mandated to deal with complaints against the state administration. You may verify if there exists an ombudsperson in the particular country or for the particular industry relevant to your situation, either in the country where the Human Rights abuse has occurred or in the home country of the corporation involved. Contact the relevant Ombudsman directly or see their website for procedural requirements.
The expected outcome will vary greatly according to their degree of independence, their mandate, etc.
Ombudspersons in action in corporate-related Human Rights abuses
Costa Rica Ombudsman’s Office files legal action against genetically modified corn
In June 2013, the Ombudsman’s Office of Costa Rica filed a legal action challenging the constitutionality of a decision permitting a subsidiary of the multinational biotechnology company Monsanto to grow genetically modified corn in the country. The complaint also requested the reform of the country’s Phytosanitary Law in order to better protect against entry of genetically modified organisms (GMOs) in the country. In September 2014, the Constitutional Chamber of the Supreme Court annuled the decision for inconstitutionality. 7
Canada’s Corporate Social Responsibility (CSR) Counsellor for the Extractive Sector
Since its inception in 2009, this mechanism has proved to be deeply flawed. As the mandate of the first Counsellor only included a voluntary participation-based mediation mechanism, companies repeatedly walked away from the mediation with no consequences. 8 The first Counsellor quietly resigned in October 2013 before the end of her mandate after none of the six cases brought before her was mediated, and none of the complainants had received remedy. 9
After more than a year of inaction, November 2014 saw the launching of “Canada’s Enhanced CSR Strategy: Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad. 10 On 1 March 2015 the second CSR Counsellor for the Extractive Sector was appointed, with a reportedly “enhanced” mandate. Canadian civil society organisations remain highly critical of the Counsellor and its mandate: they are calling for an independent and effective ombudsman that can investigate allegations and offer recommendations and remedy for workers or communities affected by Canadian-owned mines. 11 The CSR Counsellor for the Extractive Sector mandate ended on May 18, 2018.
The Canadian Ombudsperson for Responsible Enterprise (CORE) 12
In 2018, the CSR Counsellor for the Extractive Sector was replaced by the Canadian Ombudsperson for Responsible Enterprise (CORE), who has a the objective to investigate allegations of human rights or other business conduct abuses arising from Canadian corporate activity abroad in the mining, oil and gas, and garment sectors.
The mandate of the CORE is to:
- Promote the implementation of the UN Guiding Principles and the OECD Guidelines;
- Advise Canadian companies on their practices and policies with regard to responsible business conduct;
- Review a complaint that is submitted by or on behalf of an individual, organization or community concerning an alleged human rights abuse where the abuse allegedly occurred after the day on which the first Ombudsperson is appointed or, if it allegedly occurred before that day, is ongoing at the time of the complaint;
- Review, on the Ombudsperson’s own initiative, an alleged human rights abuse where the abuse allegedly occurred after the day on which the first Ombudsperson is appointed or, if it allegedly occurred before that day, is ongoing at the time of the review;
- Offer informal mediation services;
- Provide advice to the Minister on any matter relating to their mandate, including issues related to the responsible business conduct of Canadian companies operating abroad.