OHCHR Accountability and Remedy Project II: Enhancing effectiveness of State-based non-judicial mechanisms in cases of business-related human rights abuse



Overview

Council Mandate:
Resolution 26/22 (para. 7)
Focus of the report:
Effectiveness of State-based non-judicial grievance mechanisms, including but not limited to:

- OECD National Contact Points
- National human rights institutions
- Labour inspectorates
- Employment tribunals
- Consumer protection bodies
- Environmental tribunals
- Privacy and data protection bodies
- Public health and safety bodies
- Professional standards bodies
Council Response:
Resolution 38/13 (paras. 1, 4, 8 - 11)

Background

The OHCHR Accountability and Remedy Project (ARP) began in 2014 with the aim of delivering credible and workable recommendations for enhancing accountability and access to remedy in cases of business-related human rights abuse (background on each phase of ARP).

The second phase of the project (ARP II) began in response to a mandate from the Human Rights Council in resolution 32/10 (June 2016) requesting OHCHR:

toidentify 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, and to submit a report thereon to be considered by the Council at its thirty-eighth session.

Over the course of 2016-2018, and following ARP’s multi-stakeholder, consultative methodology, OHCHR developed numerous papers regarding the role and effectiveness State-based non-judicial mechanisms, including a project scoping paper, sector study, discussion paper, and consultation draft.

At the Human Rights Council’s thirty-eighth session in June 2018, OHCHR presented the ARP II final report and its explanatory addendum (see how to read an ARP report). These documents contain:

  • general observations regarding State-based non-judicial mechanisms (in the report);
  • a series of recommended actions for improving the effectiveness of these mechanisms, drawing upon good-practice lessons uncovered during the two-year project (in the annex of the report);
  • detailed explanations and context for these recommendations (found in the addendum); and
  • a model terms of reference States can use to review the scope, functions and effectiveness of relevant non-judicial mechanisms (found in the addendum).

Follow-up work on ARP II is currently being conducted through the fourth phase of the project (ARP IV).

For any questions or comments regarding the ARP II work, please contact business-access2remedy@ohchr.org.

Summary

The Guiding Principles recognize that while effective judicial mechanisms are “at the core of ensuring access to remedy,” administrative, legislative, and other non-judicial mechanisms play an essential role in complementing and supplementing judicial mechanisms.  However, in many cases these mechanisms are not yet fulfilling the role envisaged for them in the UNGPs.

State-based non-judicial mechanisms may take many different forms and can be found at all levels of government (local, regional, and national). There is great diversity in their mandates, originating regimes, sources of authority, functions, and powers.

Haphazard legal and institutional development in some jurisdictions has led to unevenness and gaps in the extent to which different human rights are protected through these mechanisms. Particularly in a serious or complex case, it can be difficult to identify a mechanism (or combination of mechanisms) with a sufficiently broad mandate to address the case in its entirety; responses can therefore be fragmented, and remedial outcomes may not meet international standards.

There is a need for a greater understanding of (1) the importance of State-based non-judicial mechanisms in meeting States’ duty to protect, and (2) the contribution of such mechanisms as part of a comprehensive State-based accountability and remedy system.

The recommendation actions found in the annex of the ARP II report focus on the steps that States can take to improve the effectiveness of State-based non-judicial mechanisms, at both the systemic and individual levels.

Documents

Events, Meetings, Etc.

This section includes select events and other types of meetings in which OHCHR took part, and which can be made public. This list is not exhaustive, nor is it representative of the geographic reach of the project, which was global in nature (see ARP II Discussion Paper, pp. 7-8, 27-30 for details on the ARP II methodology).

OHCHR is actively seeking to participate in events related to accountability and access to remedy for business-related human rights abuse. If you would like to notify the ARP team of, or invite us to, relevant events, or propose organizing an event with us, please contact business-access2remedy@ohchr.org.

Event

Date

Place

Additional information

OHCHR Multi-Stakeholder Expert Meeting

28-29 March 2018

Switzerland

 

OHCHR Consultation with States

22-23 February 2018

Switzerland

 

Session at the 2017 UN Forum on Business and Human Rights

November 2017

Switzerland

Webinar on business perspectives on the role of State-based NJMs

12 September 2017

Virtual

 

OHCHR Multi-Stakeholder Expert Meeting

19-20 January 2017

Switzerland

 

Session at the 2016 UN Forum on Business and Human Rights

November 2016

Switzerland

 


Questionnaires

The following questionnaires were made available to solicit input into the ARP II report.

Phases of the Accountability and Remedy Project

For background on the greater Accountability and Remedy Project, consult the ARP background page. For information on specific phases:

ARP Phase

Major Outputs

ARP I: Enhancing the effectiveness of judicial mechanisms

ARP II: Enhancing the effectiveness of State-based non-judicial mechanisms

ARP III: Enhancing the effectiveness of non-State-based grievance mechanisms

ARP IV: Enhancing the accessibility, dissemination and implementation of ARP findings

  • Ongoing

Reports



Introduction


On 30 June 2016, the Human Rights Council adopted resolution 32/10 by consensus which welcomed OHCHR’s work on improving accountability and access to remedy for victims of business-related human rights abuse and requested OHCHR 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, and to submit a report thereon to be considered by the Council at its thirty-eighth session.” (OP 13, emphasis added)

In response to this mandate, OHCHR launched phase two of its Accountability and Remedy Project (ARP II).

In February 2017, and through a consultative process, OHCHR produced an initial draft scoping paper , which provided a preliminary assessment of practices and challenges with respect to the use of State-based non-judicial mechanisms (NJMs) to remedy business-related human rights abuse. The paper also identified areas in need of further research and/or legal development.

In May 2017, OHCHR released a sector study focused on the historical and potential responses of State-based NJMs to adverse human rights impacts occurring in four “focus” business sectors:

  • extractives, mining and natural resources;
  • agribusiness and food production;
  • infrastructure and construction; and
  • textiles and manufacture of clothing.

Focussing in particular on the types of remedies available, as well as issues of policy coherence, the sector study concludes: “While State-based NJMs appear to offer a route to a partial remedy in some cases, States are not, at present, generating sufficient (and sufficiently varied) opportunities for affected individuals and communities to seek and obtain adequate and effective remedies for adverse human rights impacts arising in these focus business sectors via State-based NJMs.”

Following numerous information-gathering activities (including through questionnaires, research on focus jurisdictions, consultations with rights holders and their representatives on their experiences with NJMs, etc.), OHCHR produced a discussion paper in November 2017 identifying a number of legal, structural, practical and policy challenges in relation to State-based NJMs.

This paper was followed up by a consultation draft in January 2018 providing a draft set of policy objectives and elements of good State practice proposed for the final report.

At the Human Rights Council’s thirty-eighth session in June 2018, OHCHR presented the ARP II final report and its explanatory addendum. The report’s annex contains a set of (1) policy objectives for States addressing both procedural and substantive aspects of access to non-judicial remedy, and (2) elements to demonstrate different ways that the policy objectives can be achieved in practice. These policy objectives and elements capture “good practice” lessons, were developed through inclusive multi-stakeholder processes, and were designed to take into account different legal systems, cultures, traditions and levels of economic development.

The ARP II explanatory addendum, which should be read alongside the main report, explains key concepts and the main findings emerging from ARP II in further detail. Additionally, this document includes a model terms of reference that can be used by States to review the effectiveness of their relevant non-judicial mechanisms.

Follow-up work on ARP II is currently being conducted through the fourth phase of the project (ARP IV).

For any questions or comments regarding the ARP II work, please contact business-access2remedy@ohchr.org.


Documents



Events, Meetings, Etc.


This section includes select events and other types of meetings in which OHCHR took part, and which can be made public. This list is not exhaustive, nor is it representative of the geographic reach of the project, which was global in nature (see ARP II Discussion Paper, pp. 7-8, 27-30 for details on the ARP II methodology).

OHCHR is actively seeking to participate in events related to accountability and access to remedy for business-related human rights abuse. If you would like to notify the ARP team of, or invite us to, relevant events, or propose organizing an event with us, please contact business-access2remedy@ohchr.org.

  • OHCHR Multi-Stakeholder Expert Meeting, Switzerland, 28-29 March 2018
  • OHCHR Consultation with States, Switzerland, 22-23 February 2018
  • 2017 UN Forum on Business and Human Rights Session, Switzerland, November 2017
  • Webinar on business perspectives on the role of State-based NJMs, 12 September 2017
  • OHCHR Multi-Stakeholder Expert Meeting, Switzerland, 19-20 January 2017
  • 2016 UN Forum on Business and Human Rights Session, Switzerland, November 2016

Questionnaires


The following questionnaires were made available to solicit input into the ARP I report.


Background on the Accountability and Remedy Project


The Accountability and Remedy Project aims to strengthen implementation of the “Access to Remedy” pillar of the UN Guiding Principles on Business and Human Rights. Since its launch in 2014, this multi-year project has examined access to remedy challenges at the national level and the actions (legal, policy-related, and practical) likely to be most effective at addressing them. To ensure that our findings are globally relevant and implementable, information is collected from as many jurisdictions as possible, drawn from all UN regional groupings, and reflecting a wide range of legal structures, systems and traditions. Contributions are encouraged from as many stakeholders as possible in order to build a thorough understanding of the needs and perspectives of users of grievance mechanisms in a range of contexts.

OHCHR has completed three phases of the project, each focusing on a different category of grievance mechanism. OHCHR’s findings in relation to judicial mechanisms can be found in the 2016 report and explanatory addendum presented to the Human Rights Council (and a companion Paper on Illustrative Examples).  Its findings on the use of State-based non-judicial mechanisms are set out in its 2018 report and that report’s explanatory addendum. The findings of the third phase of the project on non-State-based grievance mechanisms are set out in the 2020 report and its explanatory addendum.  

In 2020, OHCHR launched a fourth phase of the project (ARP IV) to enhance the accessibility, dissemination and implementation of the findings from the first three phases of the project.