The move toward the legalization of the second pillar of the UN Guiding Principles for Business and Human Rights continues to gain momentum. That momentum was once focused almost exclusively on the constitution of a universal international instrument for the the corporate responsibility to respect human rights (independent of the first pillar duty of states to protect human rights which can be more narrowly scoped within a strict application of international law principles). As the treaty project sputtered to its inevitable irrelevance, attention turned to the domestication of the legalization of markets driven global standards within the domestic legal orders of leading states. The resulting itch for each jurisdiction to develop its own version of what a legalized second pillar ought to look like required scratching. Universalized through the outward projection of these strong state measures through their controlled global production chains, something like the equivalent effect of an international instrument might be achieved. Eventually.
Yet this itch scratching carries a risk of regulatory incoherence. Risk minimization requires, at a minimum, that the centralizing organs of the the appropriate UN institutions provide some much needed authoritative guidance on the development of this project. And with any kind of luck, with some substantially influential coordination. The stakes are high. In the absence of a visible and effective project of convergence (at least as to norms, scope, methods, and reach), the legalization of the second pillar and its human rights due diligence mechanisms in national law will tend to formally fracture the unitary framework around which the 2nd Pillar was crafted. More importantly, it will contribute to confusion and likely conflict as state efforts to project their version of a legal regime for human rights due diligence will likely meet resistance from states into which those standards (and the power of home state courts) projects. At its limit, these well intentioned but nationally limited projects may contribute to regulatory incoherence and to a greater scope of strategic behavior by enterprises and thus undermine the business and human rights regulatory project. It remains, however, very much a liberal democratic project--andto the extent that there is little effort to embed the emerging counter systems of socialist human rights frameworks (now projected outward through the Belt and Road Initiative), it can produce, at best a partical advance and one that eventually will have to engage with that other system--either for purposes of convergence or as a competitor system.
It is with a sensitivity to these risks that the OHCHR Accountability and Remedy Project (ARP) has announced its next consultation exploring the links between human rights due diligence (HRDD), accountability, and access to remedy, along with a call for input.
The next major ARP consultation will take place during 3-4 March 2022 and will focus on exploring the links between human rights due diligence (HRDD), accountability, and access to remedy. All participants are required to register through this link.
A draft concept note and agenda is now published and follows below. Sessions will examine global developments, as well as the connections between HRDD regimes and · courts (building on our legal liability report), · administrative supervision (building on our recent policy paper), and · private grievance mechanisms (building on ARP III).
More information about the consultation and its format will be shared on our ARP IV page when it is available. |
Call for Input for ARP IV Report and HRDD Consultation Deadline: 1 March 2022 |
To provide additional opportunities to contribute to the consultation, as well as to feed into the next ARP report to the Human Rights Council, we have opened a call for input. The short questionnaire (3 questions) is available in English, French, and Spanish. Answers can be submitted through: · an online form; or · a Word document, emailed to ohchr-business-access2remedy@un.org.
Please submit your input by Tuesday, 1 March 2022. |
The Consultation Draft Concept Note and Cnsultaiton Agenda (with links to ARP materials and prior reports) follows.
OHCHR Accountability and Remedy Project
Exploring the links between human rights due diligence, accountability,
and access to remedy
Multi-Stakeholder Consultation
Draft Concept Note and Agenda
3-4 March 2022, 10h-12h and 15h-17h CET
Interpretation available in English, French, and Spanish
Registration Link
Background
Accountability and Remedy Project
The UN Guiding Principles on Business and Human Rights (UNGPs) are the global standard for
preventing and addressing human rights harms connected to business activity. Pillar II of the UNGPs
covers the corporate responsibility to respect human rights and explains how companies can identify,
prevent, mitigate, and account for how they address their adverse human rights impacts through the
exercise of human rights due diligence (HRDD). Pillar III of the UNGPs is devoted to the need for
victims to have access to effective remedy when their rights have been abused, and it details the
complementary roles of judicial and non-judicial mechanisms in ensuring access to remedy.
OHCHR’s Accountability and Remedy Project (ARP) aims to strengthen accountability and access
to remedy in cases of business-related human rights abuse. Since its official launch in 2014, and in
response to multiple Human Rights Council mandates, guidance has been produced on how to enhance
the effectiveness of each category of grievance mechanism referred to in the third pillar of the UNGPs:
judicial mechanisms, State-based non-judicial mechanisms, and non-State-based grievance
mechanisms.
Throughout the Accountability and Remedy Project, attention has been paid to the interlinkages
between HRDD, accountability, and access to remedy. For instance, in 2017, a consultation explored
the relationship between HRDD and corporate liability (Further ARP materials relating to HRDD may be found on the ARP IV webpage.). Recent efforts to encourage (and sometimes mandate) HRDD by companies have renewed discussions on the many ways in which conducting HRDD may relate to accountability and access to remedy. This two-day consultation is concerned with the implications for accountability and remedy of legal regimes that seek to either encourage or require the performance of human rights due diligence by business enterprises (HRDD
regimes).
General Context
In recent years, a number of governments around the world have introduced or have begun considering
new HRDD regimes. Notable examples can be found in mandatory human rights due diligence regimes
at the domestic level, the Sustainable Corporate Governance Initiative at the European Union level, and
the legally binding instrument being negotiated at the international level. While there are some
similarities between these efforts – substantially, as well as in terms of their overarching regulatory
objectives – differences in scope and implementation are to be expected. Differences will also be found in terms of modes of enforcement. For instance, while some rely primarily on domestic administrative
supervision to bring about their intended results, others provide for the possibility for affected people
to raise grievances directly with State bodies about non-compliance with legal standards, or to seek
financial damages for harm using judicial processes.
There are clear differences of opinion between – and within – different stakeholder groups as to how
compliance by companies with human rights due diligence standards is best secured. The role of
criminal liability remains a contentious issue, and the possibility that regulatory action might constrain,
rather than enhance, opportunities for affected people to seek remedies for themselves (and especially
through courts) has emerged as a key concern.
These concerns can be addressed by paying greater attention to the importance of coherence and
complementarity between the various processes that may be relevant to accountability and remedy, both
within the ambit of HRDD regimes and extraneous to them. But without a sound understanding of
linkages between the preventative and remedial aspects of these new regulatory models, opportunities
to improve their effectiveness, particularly in terms of their responsiveness to the needs of affected
people and communities, may be missed.
Aims
In resolution 44/15, the Human Rights Council requested OHCHR to convene consultations to discuss
challenges, good practices, and lessons learned in enhancing access to remedy for victims of business-
related human rights abuse. In the context of that resolution, this consultation aims to hear from diverse
stakeholders about the various ways in which HRDD regimes can enhance accountability and access to
remedy for business-related human rights harms around the world, and to clarify emerging areas of
challenge and concern.
An overview of the consultation will be included in the next ARP report, to be presented to the Human
Rights Council at its fiftieth session in June 2022.
Format
Due to COVID-19 restrictions, the meeting will take place in a virtual format using the Zoom platform.
Written inputs to the consultation can be sent through this form by 1 March 2022.
The consultation will take place from 10-12h and 15-17h CET on 3 and 4 March 2022. Simultaneous
interpretation in English, French, and Spanish will be provided.
For each session, there will be an opening panel of pre-identified speakers to help introduce the key
issues and different stakeholder perspectives, followed by a period for open discussion.
Overview of Consultation Sessions
Session 1: Global developments and trends
What are the key drivers of recent legal developments relating to HRDD? What kinds of HRDD regimes
have emerged to date? What forms are they taking and what regulatory levers do they use? What kinds
of harms are they concerned with? What is their geographic scope? What are the perspectives of
stakeholders affected by these HRDD regimes (including those outside of the regulating State)? This
opening session will aim to lay the groundwork for a productive discussion in the three substantive
sessions to follow, by
building up a comprehensive picture of recent regulatory developments, trends, and underlying
drivers;
developing a workable “typology” of HRDD regimes to assist discussion;
considering the relevance of recent and ongoing international initiatives and developments;
reflecting on the responsiveness of HRDD regimes to cross-border business activities and
commercial relationships (e.g. complex global supply chains) and relevant legal and policy
challenges; and
considering the implications of HRDD regimes for accountability of business actors and
remedy for business-related human rights harms more broadly.
Session 2: The role of courts
Courts have a multi-faceted role in HRDD regimes. For instance, they may act as issuers and/or
enforcers of criminal penalties, or they may be responsible for determining civil liability claims based
on statutory causes of action. Additionally, as is highlighted in previous OHCHR work, they may draw
from human rights due diligence concepts to inform their decision-making in a range of other contexts,
such as whether a company, and/or its managers, have been negligent towards affected people, or for
the purposes of assessing a suitable legal penalty where liability has been established.
This session will build on OHCHR’s previous work on legal aspects of human rights due diligence by
inviting stakeholders to reflect on
the varying contributions made by judicial mechanisms to accountability and access to remedy
in cases where a lack of HRDD is alleged;
the extent to which these judicial approaches are aligned with UNGP human rights due
diligence concepts and methodologies;
the interface between statutory causes of action (under HRDD regimes) and broader legal
theories of liability (e.g. under criminal law or the law of tort), and how this should be
managed;
the legal, jurisdictional, and practical issues that might limit the ability of courts and law
enforcement agencies to respond rapidly and effectively to allegations of business-related
human rights harms (or business failure to identify, mitigate, and address these according to
standards laid down in HRDD regimes) in other jurisdictions, and how these can be addressed;
and
areas where further innovation may be necessary to enhance accountability and access to
remedy through judicial mechanisms.
Session 3: The role of administrative supervision
As a recent joint paper by Shift and OHCHR makes clear, well-organised and well-resourced
administrative supervisory bodies (or “regulators”) can play a valuable complementary role to courts in
enhancing accountability and access to remedy for business-related harms. Beyond providing a
potential means through which affected people may raise concerns about non-compliance by companies
with human rights due diligence standards, regulators may perform a vital role in judicial processes
(e.g. as a source of expert testimony, or to reduce evidential and other burdens that may otherwise fall
on claimants). As implementation of regulatory initiatives and work on new proposals gathers pace, it
is timely to reflect on whether the vision of “complementarity” set out in the UNGPs and elaborated in
OHCHR’s ARP II report is being realised in practice – and what is needed to help ensure that it is.
The aim of this session will be to
explore the varying ways in which the work of administrative supervisory bodies may be
relevant to accountability and access to remedy;
hear and reflect on stakeholder views on the performance of these bodies thus far, including
where further improvements or innovation may be needed;
reflect on the interface between administrative supervision and judicial remedy, and how
“complementarity” between the two can be enhanced; and
clarify the features of HRDD regimes (both in terms of design and implementation) that are
needed to ensure that people seeking remedy retain adequate choices as regards their routes to
remedy.
Session 4: HRDD regimes and private grievance mechanisms
The UNGPs recognize potential benefits of the use of non-State-based grievance mechanisms (or
“private” grievance mechanisms), such as speed of access and remediation, reduced costs and/or
transnational reach. Additionally, such mechanisms can play an important role in HRDD efforts, for
instance by acting as a vital source of information about (i) existing and emerging human rights risks
and (ii) the effectiveness of an organisation’s actions to address such risks. This raises important
questions regarding whether, and how, requirements to establish and administer private grievance
mechanisms (such as operational-level grievance mechanisms) might be integrated into legally binding
HRDD commitments and standards.
Legally binding obligations to establish private grievance mechanisms can arise in various ways, for
instance
as part of measures agreed in a settlement of a dispute;
as part of a judicially determined remedy;
under contractual arrangements (e.g., between suppliers and buyers within a supply chain); or
explicitly under the provisions of HRDD regimes themselves.
OHCHR’s ARP III report sets out a series of recommendations aimed at ensuring that private grievance
mechanisms can make a positive contribution to accountability and remedy, and that these are effective
in their day-to-day operations. Drawing from ARP III outcomes and experiences from HRDD regimes
to date, participants in this final session will be invited to reflect on
the various ways in which private grievance mechanisms feed into and interrelate with HRDD
processes;
the extent to which UNGP provisions relating to private grievance mechanisms can be
translated into binding legal standards relating specifically to “private remedy,” and the key
elements of what such legal standards should entail;
ways to assess the “effectiveness” of private grievance mechanisms, and how this could be
implemented into strategies for supervision of HRDD regimes more broadly; and
challenges faced by private grievance mechanisms in responding to cases where harm has
occurred in other jurisdictions (or in multiple jurisdictions), and practical strategies for
overcoming these.
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