OHCHR Accountability and Remedy Project I: Enhancing effectiveness of judicial mechanisms in cases of business-related human rights abuse
In June 2014, the Human Rights Council adopted Resolution 26/22, which requests the High Commissioner to “continue the work to facilitate the sharing and exploration of the full range of legal options and practical measures to improve access to remedy for victims of business-related human rights abuses, in collaboration with the Working Group, and to organize consultations with experts, States and other relevant stakeholders to facilitate mutual understanding and greater consensus among different views.”
After conducting extensive research and gathering inputs from a range of stakeholders, OHCHR submitted a final report to the Human Rights Council at its thirty-second session in June 2016.
This report offers a set of practical resources which States can draw upon with a view to progressively and systematically improving their implementation of Pillar III of the UNGPs, including (i) a model terms of reference that can be used to review the effectiveness of domestic legal systems, (ii) an annex setting out a list of practical steps for States to consider, arranged by themes (“policy objectives”) relating to both procedural and substantive aspects of access to remedy, and (iii)
an addendum explaining key legal concepts and the main findings emerging from ARP I in further detail. The policy objectives were developed through inclusive multi-stakeholder processes, and were designed to take into account different legal systems, cultures, traditions and levels of economic development.
In June 2016, the Council adopted
Resolution 32/10 by consensus, which welcomed OHCHR’s work on improving accountability and access to remedy for victims of business-related human rights abuse and noted “with appreciation” the report
To further support implementation of the ARP I outcomes, OHCHR has produced a paper containing illustrative examples of methods that States have used and steps that States have taken in practice that are relevant to the different policy objectives and which have the potential to improve access to remedy in cases of business-related human rights abuses. The illustrative examples have been identified through the extensive data collection process underpinning the report and are included for illustration and learning purposes only. The paper is intended as a “live” document that will be updated on an ongoing basis to reflected further experiences and lessons learned.
The ARP I report complements other efforts and initiatives at the international, regional, and national levels aimed at enhancing accountability and remedy for human rights abuses by economic actors.
The programme of work comprised six distinct, but interrelated projects, which range from getting clarity on the legal tests for corporate accountability for involvement in gross human rights abuses to strategies to overcome financial obstacles to accessing remedy mechanisms. The projects were selected because of their strategic value and potential to improve accountability from a practical, victim-centred perspective.
Background to this initiative
The question of how to secure accountability and access to remedy for victims of business-related human rights abuses has long been an issue on the business and human rights agenda. Research by civil society organizations, academics and others has found that judicial systems often fail to hold companies to account and to ensure effective remedy for victims. This situation is particularly acute in cases involving gross human rights abuses and other particularly serious offenses – such as slavery, torture, extra-judicial killings, forced and child labour, and large-scale harm to human health and livelihoods. While such offenses are most often perpetrated by states, companies can be involved either as offenders or by being complicit in such abuses.
As part of its mandate to advance the protection of and respect for human rights, OHCHR launched a process in February 2014 aimed at contributing to a fairer and more effective system of domestic law remedies to address corporate liability for gross human rights abuses. As the first step in this process, OHCHR published an independent study by legal expert Dr. Jennifer Zerk. This study examined the effectiveness of domestic judicial mechanisms in relation to business involvement in gross human rights abuses. The study identified barriers to accessing justice at the domestic level, and the effects of differences in domestic approaches on the way that remedial systems are used in practice. OHCHR invited all interested stakeholders to submit feedback on the issues identified and recommendations made in the study.
Continuing developments with ARP I
In its Resolution 32/10, the Human Rights Council requested the High Commissioner to continue work in this area and to convene two consultations involving representatives of States and other stakeholders. OHCHR convened these consultations in late 2017 with a view to further unpacking the policy objectives contained in the ARP I report and exploring certain areas that warranted closer attention.
The first consultation was held in Geneva in October 2017 and looked at the relationship between human rights due diligence (as described in the UNGPs) and determinations of corporate liability under national law for adverse human rights impacts arising from or connected with business activities. A report that was informed by the discussion at this consultation was submitted to the Human Rights Council at its 38th session (A/HRC/38/20/Add.2). More information can be found in the (1) overview of the consultation, and (2) concept note.
The second consultation was held during the UN Forum on Business and Human Rights in Geneva in November 2017. It focused on elements of criminal and administrative regimes that facilitate or hinder corporate accountability and access to remedy when companies are involved in human rights abuses. The consultation sought to explore strengths and weaknesses of different approaches and outline ways forward for states. More information about this consultation is available in the concept note.