A/HRC/11/13
page 21
V. ACCESS TO REMEDY
86. Access to effective remedy, the framework’s third pillar, is an important component of
both the State duty to protect and of the corporate responsibility to respect. This section is
divided into four parts. The first seeks to clarify ambiguities concerning States’ obligations in
this area. The second addresses the relationship between judicial and non-judicial mechanisms.
The third and fourth parts describe the Special Representative’s current work and thinking on
judicial and non-judicial mechanisms.
A. State obligations
87. As part of their duty to protect, States are required to take appropriate steps to investigate,
punish and redress corporate-related abuse of the rights of individuals within their territory
and/or jurisdiction - in short, to provide access to remedy. Without such steps, the duty could be
rendered weak or even meaningless. Remedy may be provided through judicial, administrative,
legislative or other appropriate means. States may also be required to provide adequate
reparation, including compensation, to victims.50
88. This State obligation to provide access to remedy is distinct from the individual right to
remedy recognized in a number of international and regional human rights conventions. While
the State obligation applies to corporate abuse of all applicable human rights, it is unclear how
far the individual right to remedy extends to non-State abuses. However, an individual right to
remedy has been affirmed for the category of acts covered by the United Nations 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), “irrespective of who may
ultimately be the bearer of responsibility for the violation”.51
89. Some international and regional human rights bodies have addressed what States are
expected to do in providing access to remedy for corporate-related abuse. For example, they
have emphasized establishing effective complaints mechanisms for employment-related
grievances; minimizing the potential for extractive companies to impair the ability of
communities affected by their operations, especially indigenous peoples, to access remedial
mechanisms; and ensuring that effective remedial processes exist for abuses by private
companies carrying out “State functions”. However, guidance continues to vary as to: whether
States are expected to punish corporate entities directly, apart from individuals acting on their
behalf; when States are expected to provide individuals with civil causes of action regarding
corporate-related abuse; and whether and to what extent States should hold corporations
accountable for alleged rights abuses overseas.
90.
These complex issues are further elaborated in the addendum to this report.
50
Several core international and regional human rights treaties provide for these elements;
where they do not, there has been some useful commentary from human rights bodies.
51
Principle 3 (c).
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