A/HRC/38/20
I. Introduction
1.
In 2013, as part of its mandate to advance the protection and promotion of human
rights globally, the Office of the United Nations High Commissioner for Human Rights
(OHCHR) initiated a process aimed at helping States strengthen their implementation of the
pillar on access to remedy of the Guiding Principles on Business and Human Rights (see
A/HRC/17/31, annex).
2.
In its resolution 26/22, the Human Rights Council requested the High Commissioner
to continue work on improving access to remedy and to report thereon to the Council. In
November 2014, and pursuant to that mandate, OHCHR launched the Accountability and
Remedy Project, which explored the role and use of judicial mechanisms (namely, domestic
courts). The High Commissioner submitted a report thereon to the Council at its thirtysecond session (A/HRC/32/19 and Add.1).
3.
In its resolution 32/10, the Human Rights Council requested the High Commissioner
to identify and analyse lessons learned, best practices, challenges and possibilities to
improve the effectiveness of State-based non-judicial mechanisms that are relevant for the
respect by business enterprises for human rights, including in a cross-border context. The
work carried out by OHCHR pursuant to that request comprises part II of the
Accountability and Remedy Project, which is the subject of the present report (see also
A/HRC/38/20/Add.1).
II. Accountability and access to remedy: the role of State-based
non-judicial mechanisms
4.
Victims of business-related human rights abuses continue to struggle to achieve
effective remedies for the harm they have suffered. While challenges vary from one context
to another, a number of persistent problems common to many jurisdictions may be
identified: fragmented, poorly designed or incomplete legal regimes; lack of legal
development; lack of awareness of the scope and operation of regimes; structural
complexities within business enterprises; problems in gaining access to sufficient funding
for private law claims; and a lack of enforcement (A/HRC/32/19, para. 4).
5.
Ensuring the accountability of business enterprises and access to effective remedy
for victims is a vital part of a State’s duty to protect against business-related human rights
abuses, as required by international human rights law and reflected in the Guiding
Principles. While effective judicial mechanisms are at the core of ensuring access to
remedy (see A/HRC/17/31, annex, principle 26 and commentary), administrative,
legislative and other non-judicial mechanisms play an essential role in complementing and
supplementing judicial mechanisms (ibid., principle 27 and commentary).
6.
State-based non-judicial mechanisms may take many different forms. In most
jurisdictions, a range of mechanisms with a role to play in the handling of complaints
and/or resolving disputes arising from business-related human rights abuses may be
identified. Such mechanisms can be found at all levels of government: local, regional and
national. While some have mandates relating to all human rights, many are specialized
bodies that focus on specific human rights-related themes, such as labour rights, nondiscrimination, consumer rights, the right to privacy, environmental rights, or the rights to
water or to health. Common examples of relevant State-based non-judicial mechanisms
include labour inspectorates; employment tribunals; consumer protection bodies (often
tailored to different business sectors); environmental tribunals; privacy and data protection
bodies; State ombudsman services; public health and safety bodies; professional standards
bodies; and national human rights institutions.
7.
In addition to the above-mentioned categories, States may innovate further to
respond to specific business-related human rights risks within their jurisdictions, and in
some cases have done so by establishing specialized mechanisms aimed at the protection of
groups identified as being at a heightened risk of vulnerability or marginalization, such as
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