Access to Remedy
Access to effective remedy is a core component of the UN Guiding Principles on the Business and Human Rights (UNGPs). Guiding Principle 1 requires States to take "appropriate steps to prevent, investigate, punish and redress" business-related human rights abuses within their territory and/or jurisdiction. Guiding Principle 22, in Pillar II, provides that where "business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes". Guiding Principle 25, in Pillar III on access to remedy, reminds States to "take appropriate steps to ensure" that those affected by business-related human rights abuses within their territory and/or jurisdiction "have access to effective remedy".
The UNGPs envisage the following three types of mechanisms to provide access to effective remedy in business-related human rights abuses: state-based judicial mechanisms, state-based non-judicial grievance mechanisms, and non-state-based grievance mechanisms.
The Working Group has a mandate to "continue to explore options and make recommendations at the national, regional and international levels for enhancing access to effective remedies available to those whose human rights are affected by corporate activities, including those in conflict areas". The Working Group’s access to remedy work builds on and complement the OHCHR’s
Accountability and Remedy Project.
What is an effective remedy?
In its 2017 report to the UN General Assembly (A/71/162), the Working Group unpacks the concept of access to effective remedies under the UNGPs. The report clarifies the interrelationship between the right to effective remedy, access to effective remedy, access to justice and corporate accountability. It examines the issue of effective remedies from the perspective of rights holders and proposes that remedial mechanisms should be responsive to the diverse experiences and expectations of rights holders. Affected rights holders should be able to claim what may be termed a "bouquet of remedies" without fear of victimisation.
The report also outlines what may be termed as an "all roads to remedy" approach to realising effective remedies, which implies that access to effective remedy is taken as a lens to guide all steps taken by States and businesses and that remedies for business-related human rights abuses are located in diverse settings. The report ends with specific recommendations to States, business enterprises, civil society organisations and human rights defenders.
Cross-border cooperation between States
In its resolution
32/10, the Human Rights 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. The report focuses on cooperation with respect to the investigation and prosecution of criminal and administrative law offences and makes a number of recommendations to States to strengthen cross-border cooperation in cases related to business-related human rights abuses (A/HRC/35/33).
Role of NHRIs in facilitating access to remedy
The UNGPs acknowledge that while judicial mechanisms are "at the core of ensuring access to remedy", non-judicial mechanism such as national human rights institutions (NHRIs) have "an essential role in complementing and supplementing judicial mechanisms". The
Edinburgh Declaration also outlines the potential of NHRIs in improving access to effective remedy for business-related human rights abuses.
In July 2018, the Human Rights Council (A/HRC/RES/38/13) requested the Working Group "to analyse further the role of national human rights institutions in facilitating access to remedy for business-related human rights abuses, and to convene a two-day global consultation on these issues, open to all stakeholders, and to inform the Council by its forty-fourth session as appropriate".
In carrying out this project, the Working Group is consulting NHRIs and other relevant stakeholders. The Working Group is holding consultations with both individual NHRIs and their regional networks. These consultations will be complemented by a Global Consultation, as per the Human Rights Council resolution, to be held in Geneva on 10-11 October 2019. The findings of this project will be presented to the Council in June 2020.
Further information about this project is available.