A/HRC/29/39
International Labour Organization (ILO) treaties and protocols, aimed at combating two
specific areas of business-related human rights abuses, namely forced labour and the worst
forms of child labour.6 The aims of the study were:
(a)
To examine the approach of certain ILO treaties to cross-border issues and
problems, in particular the extent to which States parties are required to regulate foreign
parties and conduct and cooperate in respect of the identification, investigation and
enforcement of offences;
(b)
remedy;
To clarify the geographical scope of treaty provisions relating to access to
(c)
To gather information relating to State practice under these treaty provisions
in order to gain an insight into how States parties are interpreting their treaty obligations
with respect to regulation, enforcement and access to remedy in practice.
39.
OHCHR carried out the project in February and March 2015 as a desk review, with
inputs from ILO. The review of international instruments focused on key treaties and ILO
recommendations relating to forced labour and the worst forms of child labour. In addition,
given that migrant workers and members of indigenous communities are at particular risk
of such abuses, the review also covered ILO treaties relating to these groups. To gain a
better understanding of State practice in relation to the two focus areas, the review was
followed by an analysis of the most recent comments of ILO treaty monitoring bodies in
relation to a sample group of 35 jurisdictions (which included the 25 focus jurisdictions
selected for the purposes of the detailed comparative process).
40.
The results of the preliminary study suggest that, even where States parties are
strongly encouraged to consider the use of extraterritorial jurisdiction to combat serious
human rights abuses by its own nationals, this is a regulatory method that is resorted to
rarely in practice and then only in relation to a narrow range of offences. The measures
implemented by States parties with respect to business enterprises seem to focus almost
entirely on cases affecting human rights within the national territory. No examples of
measures aimed specifically at addressing extraterritorial impacts of business enterprises
were identified in the course of the study, although examples of “domestic measures with
extraterritorial implications”, such as public information campaigns that are delivered
through foreign diplomatic missions and the close monitoring of recruitment organizations,
were identified. In addition, the study identified many and varied examples of international
and regional cooperation initiatives. These included information-gathering and informationsharing initiatives to aid the detection of crimes, technical assistance, capacity-building and
awareness-raising projects, bilateral and regional agreements covering operational matters
and initiatives aimed at informing people of their rights and victims of abuse of where to
get help.
D.
Preparatory work relating to project component 3: overcoming
financial obstacles to legal claims
41.
Successive investigations into barriers to accessing remedy, including the initial
study commissioned by OHCHR in 2013, confirm that financial obstacles to legal claims
can be among the most difficult to overcome in practice. This is also recognized in the
Guiding Principles. In the commentary to Principle 26, it is noted that practical and
procedural barriers to accessing judicial remedy can arise where the costs of bringing
6
The full study is available from
www.ohchr.org/EN/Issues/Business/Pages/OHCHRstudyondomesticlawremedies.aspx.
13
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