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
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents