A/HRC/32/19 I. Accountability and access to remedy: the urgent need for action 1. Business enterprises can be involved with human rights abuses in many different ways; because of the adverse impacts that business enterprises may cause or contribute to through their own activities, or by virtue of their business relationships. 1 Ensuring the legal accountability of business enterprises and access to effective remedy for persons affected by such abuses is a vital part of a State’s duty to protect against business-related human rights abuse.2 2. At present, accountability and remedy in such cases is often elusive. Although causing or contributing to severe human rights abuses would amount to a crime in many jurisdictions, business enterprises are seldom the subject of law enforcement and criminal sanctions.3 Human rights impacts caused by business activities give rise to causes of action in many jurisdictions, yet private claims often fail to proceed to judgment and, where a legal remedy is obtained, it frequently does not meet the international standard of “adequate, effective and prompt reparation for harm suffered”.4 3. State-based judicial mechanisms are not the only means of achieving accountability and access to remedy in cases of business-related human rights abuses. Other possibilities may include State-based non-judicial mechanisms5 and non-State grievance mechanisms, such as operational level grievance mechanisms.6 However, effective State-based judicial mechanisms are “at the core of ensuring access to remedy”. 7 4. Those seeking to use judicial mechanisms to obtain a remedy face many challenges. While those challenges vary from jurisdiction to jurisdiction, there are persistent problems common to many jurisdictions. These include 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. Those problems have all contributed to a system of domestic law remedies that is “patchy, unpredictable, often ineffective and fragile”.8 5. The challenges are exacerbated in cross-border cases.9 While many domestic legal regimes focus primarily on within-territory business activities and impacts, the realities of global supply chains, cross-border trade, investment, communications and movement of people are placing new demands on domestic legal regimes and those responsible for enforcing them. 1 2 3 4 5 6 7 8 9 See the report by J. Zerk entitled “Corporate liability for gross human rights abuses: towards a fairer and more effective system of domestic law remedies”, prepared for OHCHR (February 2014), available from www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/ StudyDomesticeLawRemedies.pdf, pp. 16-30. See principle 25 and commentary of the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (A/HRC/17/31). Note, however, the distinction between corporate sanctions and sanctions on individuals (see A/HRC/32/19/Add.1, para. 4). See the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (General Assembly resolution 60/147, annex), article I.2 (b) and VII. See principle 27 and commentary of the Guiding Principles. Ibid., principle 28 and commentary. Ibid., principle 26 and commentary. See “Corporate liability for gross human rights abuses” (note 2 above), p. 7. For a definition of “cross-border” cases, see A/HRC/32/19/Add.1, box 3. 3