A/HRC/35/33 I. Introduction 1. In its resolution 32/10, the Human Rights Council recognized the importance of dialogue and cooperation among all stakeholders to ensure the effective implementation of the Guiding Principles on Business and Human Rights, in particular with respect to improving corporate accountability and access to remedy for victims of business-related human rights abuses. Against that backdrop, the Council requested the Working Group to present a study on best practices and how to improve on the effectiveness of cross-border cooperation between States with respect to law enforcement on the issue of business and human rights. 2. Owing to the reference to law enforcement, in the present study the Working Group focuses on cooperation with respect to the investigation and prosecution of criminal and administrative law offences. Since certain jurisdictions do not recognize the application of this body of law to business entities, the report includes studies of cases involving economic actors more generally, which include individual business people. However, given the seriousness of certain cross-border harms, States are encouraged where appropriate to investigate and prosecute companies as such, in addition to natural persons. Sometimes it is not possible to identify key individuals responsible for a crime while it is possible to identify the company. Moreover, even if certain individuals are punished, the company could continue its unlawful conduct; thus, the prosecution of companies may create a needed deterrent beyond that which exists by prosecuting individual actors. 3. Principle 2 of the Guiding Principles encourages States to set out the expectation that all business enterprises domiciled in their jurisdiction respect human rights throughout their operations, and recognize that one way of achieving this is through criminal regimes that allow for prosecutions, no matter where the offence occurs, so long as there is a recognized jurisdictional basis. 1 Furthermore, Principle 26 calls upon States to protect against business-related human rights abuse by taking appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing such harm. For crossborder cases2 of human rights abuse, in which multiple States are involved in some way, cooperation between these States’ law enforcement is key to ensuring any “effective” redress. 4. However, to date, there has been little progress in cross-border cooperation that has led to successful law enforcement action in cases focused on business-related human rights abuses. Much of the existing research has focused on the challenges and obstacles to successful prosecution. 3 Indeed, civil society organizations have tried without success to bring claims to national prosecuting authorities. There remains a lack of political will by States to address business-related human right abuses through the lens of criminal law. 5. In the present report, the Working Group examines how States have cooperated successfully in areas related to criminal law and human rights. It also provides a road map of the key tools that could be used in instances where States are presented with cases relating to cross-border human rights abuse linked to business activity. After a discussion on cross-border cooperation practices that work across many types of offences, there is a focus on how States have worked together effectively to deal with international crimes more broadly. While the examples are few, existing models in this context could be deployed more proactively when economic actors are involved in international crimes and 1 2 3 See A/HRC/17/31, annex. A cross-border case is one where “the relevant facts have taken place in, the relevant actors are located in or the evidence needed to prove a case is located in more than one State”. See A/HRC/32/19/Add.1, box 3. See, for example, Commerce, Crime and Human Rights Project, “The Corporate Crimes Principles: Advancing Investigations and Prosecutions in Human Rights Cases” (2016), available from www.commercecrimehumanrights.org/wp-content/uploads/2016/10/CCHR-0929-Final.pdf. See also Amnesty International, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy (London, 2014). 3