A/HRC/44/32/Add.1
and laws on defamation) to find an accommodation that prevents the use of legal processes
as a means of retaliation.
19.
Human rights defenders will require additional legal protection due to the nature of
their work. For instance, while safeguards to protect the identity of persons raising grievances
may help to address the risk of retaliation in many contexts, this will not assist trade union
representatives who work openly and in full view of employers and others.
20.
Retaliatory behaviour (and the risks of the same) may not be obvious to law
enforcement agencies, highlighting the need for greater institutional awareness of different
forms that retaliation can take in practice (2.2). Institutional awareness can be enhanced
through the establishment of specialist units, 21 ongoing engagement with affected
stakeholders (and particularly those who may be at heightened risk of vulnerability or
marginalization), risk assessments and training. Such efforts should promote a proper
appreciation of the structural, sociocultural and economic issues that can underpin or
exacerbate risks and the risks that arise in challenging operating contexts, such as conflictaffected areas or areas in transition from conflict.
21.
Legal regimes and their enforcement (2.1), efforts to increase institutional awareness
of relevant institutions (2.2) and measures to provide access to assistance and support (2.3)
need to take account of the particular risks that may be faced by women and the way that
entrenched social attitudes and discrimination can serve to exacerbate the physical,
psychological and economic harm caused by retaliatory acts.22 The importance of engaging
directly with, and drawing from the knowledge of, people who have experienced retaliation
first hand as a result of their interactions with such grievance mechanisms cannot be overstated.
3.
The need for realistic and readily-identifiable pathways to an effective remedy
22.
In many cases, the remedies obtainable from non-State-based grievance mechanisms
are only partial (for instance, because they can address only the future conduct of the
company concerned, or because the mechanism has insufficient leverage over the company
in question). In such cases, rights holders benefit from having the flexibility to pursue
different remedies through different mechanisms, perhaps in combination, as part of a
remedial strategy that best meets their needs.
23.
State agencies can play a useful role in raising awareness of the availability and
advantages of different courses of action to rights holders (3.1(a)). It may be relevant to
highlight, for instance, the circumstances in which dialogue-based methods may yield better
remedial outcomes than adjudicative processes (3.1(b)), whilst also noting the utility of
adjudicative processes in cases where a more formal process, perhaps with binding outcomes,
may be needed.
24.
The most suitable providers of information and advice will vary depending on the
legal structures and existing institutions of the State concerned; however, in many
jurisdictions and contexts, national human rights institutions and other bodies with mandates
expressed in human rights terms are likely to have an important role to play. Such bodies
may be able to help address the imbalances in power that frequently exist between parties to
grievances (3.1(c)).
25.
In cases where there may be routes through which a remedial outcome might be
legally enforced (e.g. by constructing it as a binding contract) rights holders should be made
aware of this through the appropriate channels (3.1(d)). Similarly, in cases where a grievance
(or aspects of a grievance) may be able to be referred to a State-based mechanism, rightholders should have ready access to the necessary information to be able to engage with the
relevant processes as easily and efficiently as possible, and in such a way as to avoid
unnecessary duplication of effort (3.1(e)).
21
22
8
See A/HRC/32/19, annex, policy objective 6.
See A/HRC/41/43, paras. 11–21.
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