OHCHR Accountability and Remedy Project II: Enhancing effectiveness of State-based non-judicial mechanisms in cases of business-related human rights abuse

On 30 June 2016, the Human Rights 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 requested OHCHR to: “identify and analyse lessons learned, best practices, challenges and possibilities to improve the effectiveness of State-based non-judicial mechanisms that are relevant for the respect by business enterprises for human rights, including in a cross-border context, and to submit a report thereon to be considered by the Council at its thirty-eighth session.”

For this purpose, OHCHR produced an initial draft scoping paper marking the beginning of OHCHR’s work in response of this new mandate. It aims to provide a preliminary assessment of current practices and challenges with respect to the use of State-based non-judicial mechanisms (NJMs) as a way of enhancing access to remedy in cases of adverse human rights impacts that are business-related, and to identify areas where there may be a need for further research and/or legal development. This initiative constitutes phase 2 of the Accountability and Remedy Project (ARP II).

Subsequently, OHCHR undertook a sector study focused on the historical and potential responses of State-based NJMs to adverse human rights impacts occurring in four “focus” business sectors: extractives, mining and natural resources; agribusiness and food production; infrastructure and construction; and textiles and manufacture of clothing. Focussing in particular on the types of remedies presently available, as well as issues of policy coherence, the sector study concludes that domestic systems for responding to adverse business-related human rights impacts through State-based NJMs are presently haphazard. While State-based NJMs appear to offer a route to a partial remedy in some cases, States are not, at present, generating sufficient (and sufficiently varied) opportunities for affected individuals and communities to seek and obtain adequate and effective remedies for adverse human rights impacts arising in these focus business sectors via State-based NJMs.

OHCHR gathered information about the work of State-based non-judicial mechanisms in different jurisdictions via an Open Process Questionnaire, as well as specific focus jurisdiction research. Additionally, OHCHR consulted with stakeholders in various jurisdictions about their experiences with State-based non-judicial mechanisms, how well they work in practice as an alternative to judicial mechanisms, and what could be improved.

With the information gathered, OHCHR produced a discussion paper providing the key observations arising from the information gathering exercise, identifying a number of legal, structural, practical and policy challenges.  The paper also provided illustrative examples responding to the effectiveness criteria in UNGP 31 as well as preliminary ideas for the final report of ARP II.

The final report will be submitted and presented at the Human Rights Council’s thirty-eighth session in June 2018.

Based on research and consultation exercises conducted to date OHCHR prepared a consultation draft with a set of policy objectives and elements of good State practice that will appear as the Annex of the OHCHR’s main report to the Human Rights Council on the Accountability and Remedy Project (Part II).

In February 2018 the OHCHR organized a consultation with with practitioners from State-based NJMswithin different State jurisdictions.to receive comments and feedback on the policy objectives in the consultation draft. A summary report from the consultation can be found in the resources below and here.

The Final Report together with an Explanatory Addendum for phase two of the Accountability and Remedy Project waspresented at the Human Rights Council in its thirty-eight session in June 2018. Please find them inin the resources below.

For questions or comments relating to the Accountability and Remedy Project, please contact write to business-access2remedy@ohchr.org.