OHCHR Accountability and Remedy Project I: Enhancing effectiveness of judicial mechanisms in cases of business-related human rights abuse

• Overview
• Background
• Summary
• Documents
• Events, Meetings, Etc.
• Questionnaires
• Phases of the Accountability and Remedy Project

Overview

Background

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 (2-page background on ARP).

The first phase of the project (ARP I) began in response to a mandate from the Human Rights Council in resolution 26/22 (June 2014) requesting OHCHR:

"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."

Over the course of 2014-2016, and following ARP’s multi-stakeholder, consultative methodology, OHCHR developed numerous papers regarding the role and effectiveness judicial mechanisms in business and human rights cases, including a project scoping paper, series of working papers, progress report to the Council, discussion paper, and consultation draft.

At the Human Rights Council’s thirty-second session in June 2016, OHCHR presented the ARP I final report and its explanatory addendum (see how to read an ARP report).  These documents contain

• general observations regarding State-based judicial mechanisms (in the report);
• a series of recommended actions for improving the effectiveness of these mechanisms, drawing upon good-practice lessons uncovered during the two-year project (in the annex of the report);
• detailed explanations and context for these recommendations (found in the addendum); and
• a model terms of reference States can use to review the coverage and effectiveness of laws relevant to business-related human rights abuses (found in the addendum).

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 ARP I recommended actions.

Following the conclusion of ARP I, the Human Rights Council requested follow-up work on ARP I in resolution 32/10,leading to a report on the relevance of human rights due diligence to determinations of corporate liability.

Further work on ARP I is currently being conducted through the fourth phase of the project (ARP IV).

For any questions or comments regarding the ARP I work, please contact [email protected].

Summary

Ensuring legal accountability of business enterprises and access to effective remedy in cases of business-related human rights abuse is a vital part of a State’s duty to protect. However, accountability and remedy through judicial mechanisms in such cases is often elusive. Numerous problems exist in many jurisdictions, leading to a system of domestic law remedies that is patchy, unpredictable, often ineffective and fragile.

Business enterprises are seldom the subject of law enforcement and criminal sanctions. Further, private claims often fail to proceed to judgment and, where a legal remedy is obtained, it frequently does not meet the international standard of adequate, effective and prompt.

Legal uncertainty in many jurisdictions regarding the legal responsibilities of a parent company vis-à-vis human rights abuses connected with the business enterprise’s operations is not only a barrier to remedy itself, but also gives rise to further barriers, including by adding to legal costs and creating delays.

Accountability and remedy challenges are exacerbated in cross-border cases as many domestic legal regimes focus primarily on within-territory business activities and impacts. The extent of international cooperation in cross-border cases has a crucial bearing on accountability and access to remedy in practice.

Further, a lack of policy coherence and the piecemeal development of legal responses for business and human rights issues has hampered the effectiveness of domestic legal regimes in many jurisdictions.

Rectifying these deficiencies will require concerted and multifaceted efforts from all States, encompassing actions relating to law reform and legal development, improvements to the functioning of judicial mechanisms, law enforcement, policy development and closer international cooperation. The recommendation actions found in the annex of the ARP I report provide a significant resource for States seeking to improve the effectiveness of their domestic legal responses to business and human rights challenges.

Documents

ARP I Documents

• ARP I Main Report: A/HRC/32/19, 10 May 2016
• ARP I Addendum: Explanatory Notes to Final Report: A/HRC/32/19/Add.1, 12 May 2016
• ARP I Illustrative Examples, 5 July 2016
• How to read an ARP report, 22 February 2021
• ARP I Consultation Draft, February 2016
• ARP I Discussion Paper, November 2015
• ARP I Working Paper #3:International operational-level cooperation with respect to criminal investigation: a short study of the work of Joint Investigation Teams in the European Union, 27 July 2015
• A/HRC/29/39: ARP I Progress Report to the Human Rights Council, 7 May 2015
• ARP I Working Paper #2:State positions on the use of extraterritorial jurisdiction in cases of allegations of business involvement in severe human rights abuses: a survey of amicus curiae briefs filed by States and State agencies in ATS cases (2000-2015), April 2015
• ARP I Working Paper #1:Cross-border regulation and cooperation in relation to business and human rights issues: a survey of key provisions and state practice under selected ILO instruments, April 2015
• ARP I two-page overview, 2015
• ARP I Programme of Work, February 2015
• OHCHR, ICAR and Amnesty International Joint Statement regarding collaboration on work of domestic prosecution bodies, 2015
• Summary of stakeholder feedback to independent expert study, September 2014
• A/HRC/RES/26/22 – Human rights and transnational corporations and other business enterprises, 15 July 2014
• Independent expert study by Dr. Jennifer Zerk: Corporate liability for gross human rights abuses: Towards a fairer and more effective system of domestic law remedies, 2013

ARP I Follow-up Work

• ARP papers on mandatory human rights due diligence
• ARP Consultation exploring the links between human rights due diligence, accountability, and access to remedy, 3-4 March 2022
  • Event recording
• A/HRC/38/20/Add.2: The relevance of human rights due diligence to determinations of corporate liability, 1 June 2018
  • View report page
  • Traducción no oficial en español
• A/HRC/RES/32/10 - Business and human rights: improving accountability and access to remedy, 15 July 2016

Events, Meetings, Etc.

This section includes select events and other types of meetings in which OHCHR took part, and which can be made public. This list is not exhaustive, nor is it representative of the geographic reach of the project, which was global in nature.

OHCHR is actively seeking to participate in events related to accountability and access to remedy for business-related human rights abuse. If you would like to notify the ARP team of, or invite us to, relevant events, or propose organizing an event with us, please contact [email protected].

Questionnaires

The following questionnaires were made available to gather information for the ARP I report.

• ARP I Open Process Questionnaire (online form) | Français | Español
  • PDF version: English | Français | Español
  • Note Verbale to States: English | Français | Español
  • Overview of responses
• ARP I Detailed Comparative Process Questions for legal researchers
• ARP I Detailed Comparative Process Questions for public interest lawyers and victims' representatives
• ARP I Questionnaire for prosecutors

Phases of the Accountability and Remedy Project

For background on the greater Accountability and Remedy Project, consult the ARP information note. For information on specific phases: