A/HRC/35/33
could also be used when businesses are implicated in general cross-border human rights
abuses.
6.
Many more cases of successful cooperation to investigate and prosecute economic
actors exist in other areas closely linked to human rights. Thus, the report contains an
examination of law enforcement practices in the context of other cross-border crimes, such
as trafficking in persons, environmental crimes, transnational bribery and corruption, to
highlight what types of tools could be used in business and human rights cases. Those cases
demonstrate that when States have the political will to act against cross-border harms, they
can work together effectively.
7.
In the report, the Working Group shows that States already largely possess the tools
needed to cooperate effectively with respect to cross-border harms relating to business and
human rights. What is needed is a willingness by law enforcement to explore all potential
legal avenues for investigating and prosecuting misconduct by economic actors, be it
through the lens of international crimes, domestic criminal or administrative offences, or
the other types of crimes discussed in the report, where human rights harms occur alongside
additional offences. Once the appropriate avenue is decided, the tools discussed can be
used, directly or by analogy, to ensure effective cross-border cooperation and, ultimately,
greater access to remedy.
II. General practices in cross-border cooperation between law
enforcement
8.
There are examples of generally applicable best practices involving cross-border
cooperation between law enforcement agencies. Those practices are useful techniques that
may be deployed regardless of the type of offence being pursued or the type of actor being
investigated or prosecuted. The outcome documents of the Accountability and Remedy
Project, conducted by the Office of the High Commissioner for Human Rights, laid the
groundwork for what should be done to ensure accountability and access to remedy in this
regard.4 To the extent possible, States should implement and adapt those practices in all
cases where economic actors are implicated in criminal or administrative offences linked to
human rights abuse. In the Working Group’s calls for input for the current study, 5 States,
national human rights institutions, experts, practitioners, civil society organizations and
multilateral institutions provided further information about general practices that should be
adopted to ensure effective cooperation in criminal and administrative cases involving
business and human rights.
9.
States should adopt an appropriate and enabling legal framework that not only
prohibits misconduct by economic actors that infringe on human rights but also provides a
basis for cooperation between States’ law enforcement agencies when violations occur in
cross-border cases. Numerous international 6 and regional7 instruments, as well as bilateral
agreements, have detailed provisions on mutual legal assistance and other forms of
4
5
6
7
4
See A/HRC/32/19, paras. 24-28 and annex, and paras. 9.1-10.1 and 17.1-18.2; and
A/HRC/32/19/Add.1, paras. 32-38 and 62-68. See also
www.ohchr.org/EN/Issues/Business/Pages/OHCHRstudyondomesticlawremedies.aspx for a link to
illustrative examples and guidance to improve corporate accountability and access to judicial remedy
for business-related human rights abuse, specifically for objectives 9.1-10.1 and 17.1-18.2.
For the present study, the Working Group conducted interviews, held and participated in expert
consultations and sent out surveys to numerous stakeholders.
For example, the United Nations Convention against Transnational Organized Crime.
For example, the Treaty on Mutual Legal Assistance in Criminal Matters of the Association of
Southeast Asian Nations (2004); the Inter-American Convention on Mutual Assistance in Criminal
Matters (1992); and the Convention on Mutual Assistance in Criminal Matters between the member
States of the European Union (2000).
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