OHCHR Accountability and Remedy Project: Background

Introduction

The question of how to secure corporate 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. The right to remedy is a core tenet of the international human rights system, and the need for victims to have access to an effective remedy is recognized in the UN Guiding Principles on Business and Human Rights (UNGPs).

However, extensive research has shown that in cases where business enterprises are involved in human rights abuses, judicial systems and other grievance mechanisms 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 often perpetrated by States, companies can be involved either as offenders or by being complicit in such abuses.

The challenges that victims face are both practical and legal in nature. To begin to address these challenges, and as part of its mandate to advance the protection of and respect for human rights, OHCHR launched a process in 2013 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 that examined the effectiveness of domestic judicial mechanisms in relation to business involvement in gross human rights abuses. The study identifies 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; an analysis of the written submissions received is available here.

ARP I: State-based judicial mechanisms

In June 2014, the Human Rights Council adopted resolution 26/22, which requested the High Commissioner

"to continue 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, to organize consultations with experts, States and other relevant stakeholders to facilitate mutual understanding and greater consensus among different views, and to publish a progress report thereon before the twenty-ninth session of the Human Rights Council, and the final report to be considered by the Council at its thirty-second session." (OP 7)

In response to this request, OHCHR officially launched its "Accountability and Remedy Project." The first phase (ARP I), which took place from 2014 – 2016, focused on enhancing the effectiveness of judicial mechanisms in cases of business-related human rights abuse.

Through a consultative process, OHCHR developed a detailed and ambitious programme of work for ARP I. Six distinct, but interrelated, projects were chosen to focus the work; they were selected because of their strategic value and potential to improve accountability from a practical, victim-centred perspective.

In May 2015, OHCHR presented an ARP I progress report to the Human Rights Council on legal options and practical measures to improve access to remedy for victims of business-related human rights abuses.

After finishing its extensive research and gathering of inputs from a range of stakeholders, OHCHR submitted its final ARP I report to the Human Rights Council at its thirty-second session in June 2016. The 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. The report's annex contains a set of (1) policy objectives for States addressing both procedural and substantive aspects of access to judicial remedy, and (2) elements to demonstrate different ways that the policy objectives can be achieved in practice. These policy objectives and elements capture "good practice" lessons, were developed through inclusive multi-stakeholder processes (see ARP’s methodology), and were designed to take into account different legal systems, cultures, traditions and levels of economic development.

The ARP I report was released with two companion documents, which should be read alongside the main report (see how to read an ARP report).

  • The ARP I addendum explains key legal concepts and the main findings emerging from ARP I in further detail. Additionally, this document includes a model terms of reference that can be used by States to review the effectiveness of domestic legal systems.
  • OHCHR also 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. These illustrative examples have been identified through the extensive data collection process underpinning the report and are included for illustration and learning purposes only.

In June 2016, the Human Rights Council adopted resolution 32/10, in which it unanimously welcomed OHCHR’s work on accountability and access to remedy and noted with appreciation the ARP I report.

ARP I follow up

Human Rights Council resolution 32/10 also 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 (concept note).

A follow-up report that was informed by the discussion at this consultation was submitted to the Human Rights Council at its 38th session in June 2018. In 2020, OHCHR further built upon this work by publishing an issues paper on legislative proposals for mandatory due diligence by companies, as well as a note outlining some key considerations for mandatory human rights due diligence regimes.

The second consultation was held during the UN Forum on Business and Human Rights in Geneva in November 2017 (concept note).

ARP II: State-based non-judicial grievance mechanisms

On 30 June 2016, Human Rights Council resolution 32/10 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.” (OP 13, emphasis added)

In response to this mandate, OHCHR launched phase two of its Accountability and Remedy Project (ARP II), which took place during 2016 – 2018.

In February 2017, and through a consultative process, OHCHR produced an initial draft scoping paper, which provided a preliminary assessment of practices and challenges with respect to the use of State-based non-judicial mechanisms (NJMs) to remedy business-related human rights abuse. The paper also identified areas in need of further research and/or legal development.

In May 2017, OHCHR released 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 available, as well as issues of policy coherence, the sector study concludes: “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.

Following numerous information-gathering activities (see ARP’s methodology), OHCHR produced a discussion paper in November 2017 identifying a number of legal, structural, practical and policy challenges in relation to State-based NJMs.

This paper was followed up by a consultation draft in January 2018 providing a draft set of policy objectives and elements of good State practice proposed for the final report.

At the Human Rights Council’s thirty-eighth session in June 2018, OHCHR presented the ARP II final report and its explanatory addendum. The report’s recommended actions draw upon good practice lessons for how States address both the procedural and substantive aspects of access to non-judicial remedy. The ARP II explanatory addendum, which should be read alongside the main report, explains key concepts and the main findings emerging from ARP II in further detail. Additionally, this document includes a model terms of reference that can be used by States to review the effectiveness of their relevant non-judicial mechanisms (see how to read an ARP report).

Following the ARP II work, the Human Rights Council adopted resolution 38/13, in which it unanimously welcomed OHCHR’s work on accountability and access to remedy and noted with appreciation the ARP II report.

ARP III: Non-State-based grievance mechanisms

On 6 July 2018, the Human Rights Council adopted resolution 38/13 by consensus, requesting OHCHR:

"to identify and analyse challenges, opportunities, best practices and lessons learned with regard to non-state-based grievance mechanisms that are relevant to the respect by business enterprises for human rights, . . . and to submit a report thereon to the Human Rights Council for consideration at its forty-fourth session." (OP 9, emphasis added)

In response to this request from the Human Rights Council, OHCHR launched the third phase of its Accountability and Remedy Project (ARP III).

The project began with a scoping exercise that resulted in a November 2018 paper setting out the project’s proposed methodology and scope. For ARP III, we focused on routinized, non-State-based, non-judicial processes (in other words, private mechanisms) through which grievances concerning business-related human rights abuse can be raised, and remedy can be sought. We prioritized three types of mechanisms:

  • Company-based grievance mechanisms: mechanisms established and administered by companies;
  • Grievance mechanisms developed by industry, multi-stakeholder, or other collaborative initiatives: mechanisms external to companies that administer a set of commitments that the companies have agreed to adhere to; and
  • Mechanisms associated with development finance institutions: mechanisms through which those adversely impacted by institution-financed projects can seek remedy (e.g., independent accountability mechanisms).

During 2018 – 2020, OHCHR engaged in a robust set of information-gathering activities that fed into the main report and its explanatory addendum (see paragraphs 15-18 of the main report for an overview of the ARP III methodology). The main report’s recommended actions capture “good practice” lessons as regards the design and operation of non-State-based grievance mechanisms, and relevant legal and policy issues. Further explanation as to the various objectives and elements can be found in the addendum to the report, which provides definitions, examples and added context, and which should be read alongside the report (see how to read an ARP report).

On 23 July 2020, the Human Rights Council adopted resolution 44/15, in which it unanimously welcomed OHCHR’s work on accountability and access to remedy and noted with appreciation the ARP III report.

ARP IV: Accessibility, dissemination and implementation

The OHCHR Accountability and Remedy Project (ARP) began in 2014 with the aim of delivering credible and workable recommendations for enhancing accountability and access to remedy in cases of business-related human rights abuse. During the first six years of the project, three substantive phases were completed, with each phase resulting in recommendations for enhancing the effectiveness of one of the three categories of grievance mechanisms referred to in the UN Guiding Principles on Business and Human Rights (UNGPs):

Each ARP phase was requested by the Human Rights Council, and each ARP report was presented to, and noted with appreciation by, the Council (see resolutions 26/2232/1038/13 & 44/15).

Following up on the six years of substantive, evidence-based work into how different grievance mechanisms can be made more effective, OHCHR began work on a fourth phase of the project in 2020 to enhance the accessibility, dissemination and implementation of ARP findings (ARP IV). Work for this phase is ongoing.

For any questions or comments regarding any phase of the Accountability and Remedy Project, please contact OHCHR-business-access2remedy@un.org.