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OHCHR launches study on domestic law remedies for corporate involvement in gross human rights abuses – invites stakeholder submissions


Background

The question of how to secure accountability and access to an effective remedy for victims in cases of gross human rights abuses involving business enterprises has long been an issue in discussions about business and human rights.

In February 2011, the then Special Representative of the Secretary General (“SRSG”) on human rights and transnational corporations and other business enterprises, Professor John Ruggie, noted that further clarification of standards relating to appropriate investigation, punishment and redress where business enterprises cause or contribute to such abuses, as well as what constitutes effective, proportionate and dissuasive sanctions are warranted.  The former SRSG repeated this call in his opening remarks as Chair of the first UN Forum on Business and Human Rights held in Geneva on 3-5 December 2012.

Study on the effectiveness of domestic judicial mechanisms

In light of the OHCHR’s mandate to promote and protect human rights, including in the area of business and human rights, OHCHR intends to commence a process of conceptual, normative and practical clarification of key issues aimed at creating a fairer and more effective system of domestic law remedies to address corporate liability for gross human rights abuses. This is done with a view to enable more effective and comprehensive implementation of the UN Guiding Principles on Business and Human Rights through enhanced preventative and remedial measures.

To launch such a process, OHCHR in May 2013 commissioned Dr. Jennifer Zerk to prepare a study on the effectiveness of domestic judicial mechanisms in relation to business involvement in gross human rights abuses. This study identifies barriers to accessing justice at domestic level, and the effects of differences in domestic approaches on the way that domestic remedial systems are used in practice. Based on the findings, the study sets out recommendations for areas for further enquiry.

The study finds that present arrangements for preventing, detecting and remedying cases of business involvement in gross human rights abuses are not working well: victims in many cases fail to get effective redress, States face un-even patterns of  use of remedial mechanisms, and companies have to operate in an environment of great legal uncertainty and lack a level playing field.
 
To begin to address some of the barriers and challenges, the study recommends that a consultative, multi-stakeholder process of clarification be launched.  This consultative process would be carried out in two parts, comprising a consultative process aimed at clarifying key issues of principles and policies, and a process to identify models of best state practice in relation to function of domestic judicial mechanisms.

The study also identifies an urgent need for a renewed focus on the area of criminal law enforcement, given the apparently very low levels of activity by domestic law enforcement bodies, which also seem to be limited to a very small number of states.  It therefore includes recommendations for additional work to be undertaken specifically with domestic law enforcement and prosecution bodies, to better understand the legal, political and practical challenges they face, and to help build local enforcement know-how and capacity. 

Next steps – consultation process

OHCHR invites all interested stakeholders to make submissions in writing on the issues identified in the study as requiring further clarification (see issues listed in Chapter 5, section 5.2.1)

Submissions can be sent to OHCHR at business-access2remedy@ohchr.org. Please note that the deadline for inputs has been extended until 30 June 2014.

OHCHR intends to convene a multi-stakeholder consultation based on the study recommendations and the submissions received in the second half of 2014.

Study

About the author

Jennifer Zerk is a writer, researcher, analyst and teacher specializing in business and human rights. A former commercial lawyer, she now works mainly in the area of regulatory analysis and reform and is a leading expert on international and cross-border regulatory issues.  She has written extensively on regulatory problems and issues relating to business and human rights and is the author of “Multinationals and Corporate Social Responsibility” (Cambridge University Press, 2006), one of the first book-length explorations of the international law background to the social and environmental regulation of multinational companies.

DISCLAIMER: This study was commissioned by OHCHR from Dr. Jennifer Zerk to enhance the understanding of legal and practical issues related to domestic law remedies for cases of corporate involvement in gross human rights abuses. The contents of this paper do not necessarily reflect the views of OHCHR.