A/HRC/29/39 I. Introduction A. Background and mandate 1. Ensuring access to effective remedy for those affected by business-related human rights abuses is one of the three pillars of the Guiding Principles on Business and Human Rights (A/HRC/17/31, annex), which were endorsed by the Human Rights Council in June 2011. The right to a remedy for victims of human rights abuses is a core tenet of the international human rights system. In the Guiding Principles, it is recognized that ensuring access to effective remedy is part of the duty of all States to prevent human rights abuses from being committed within their territory and/or jurisdiction by third parties, including business enterprises. Guiding Principle 26 provides that States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing businessrelated human rights abuses, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy. 2. In the commentary to Guiding Principle 26, the challenges faced by individuals seeking remedies in cases of business-related human rights abuses are highlighted. Extensive research by civil society organizations and others into the accessibility and utility of judicial mechanisms as a means of obtaining remedy in cases of business-related human rights abuses have confirmed that those adversely affected by such abuses frequently struggle to access effective remedies. Particular problems have been noticed in cases that may amount to gross human rights abuses and international crimes, in which the combined effect of factors such as a lack of adequately functioning domestic judicial mechanisms, a lack of clarity about the relevant legal standards and fears of reprisals against victims and witnesses will often prevent victims from obtaining any redress at all. 3. In 2013, as part of its core mandate to advance the protection and promotion of human rights globally and of its ongoing work to advance the implementation of the Guiding Principles, the Office of the United Nations High Commissioner for Human Rights (OHCHR) commissioned an initial study into the effectiveness of domestic judicial mechanisms in cases of alleged business involvement in gross human rights abuses. 1 Reviewing empirical evidence from 11 different jurisdictions and around 40 legal cases, the study concluded that the present system of domestic law remedies for these kinds of cases is “patchy, unpredictable, often ineffective and fragile”.2 It outlined a number of areas where further clarification of policy and principle may help improve access to remedy for victims, and also called for more attention to be paid to the reasons behind the apparently 1 2 Jennifer Zerk, “Corporate liability for gross human rights abuses: towards a fairer and more effective system of domestic law remedies”, study prepared for OHCHR in February 2014 (http://www.ohchr.org/EN/Issues/Business/Pages/OHCHRstudyondomesticlawremedies.aspx). The author notes that, in its Interpretive Guide to the Corporate Responsibility to Respect Human Rights, OHCHR writes that there is no uniform definition of gross human rights abuses in international law and she does not seek to establish her own definition. However, also according to the Interpretive Guide, the following practices would generally be included: genocide, slavery and slavery-like practices, summary or arbitrary executions, torture, enforced disappearances, arbitrary and prolonged detention, and systematic discrimination. Other kinds of human rights violations, including violations of economic, social and cultural rights, can also count as gross violations if they are grave and systematic, for example if they take place on a large scale or are targeted at particular population groups. The Interpretive Guide is available from www.ohchr.org/Documents/Publications/HR.PUB.12.2_En.pdf. Jennifer Zerk, “Corporate liability for gross human rights abuses”, p. 7. 3