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 recalls 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. Since 2014, the Office of the UN High Commissioner for Human Rights (OHCHR) has examined how these mechanisms have been functioning in business and human rights cases and has produced guidance on ways to enhance the effectiveness of each mechanism through its Accountability and Remedy Project (ARP).

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/72/162), 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. Building on OHCHR’s ARP I work, 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).

Project on the 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 build on OHCHR’s ARP II work  "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 consulted NHRIs and other relevant stakeholders. The Working Group held consultations with both individual NHRIs and their regional networks. These consultations were complemented by a Global Consultation, as per the Human Rights Council resolution, in Geneva in October 2019. The findings of the project were presented in June 2020.

Related documents of the Global Consultation:

• Concept note, Global Consultation NHRIs and access to remedy English | Français | Español
• Annotated Agenda, Global Consultation NHRIs and access to remedy
• Access the video of the multi-stakeholders consultation: http://conf.unog.ch/digitalrecordings/
• Access an audio recording of the session: https://conf.unog.ch/digitalrecordings/#

Other consultations with NHRIs:

• "Annual General Meeting of the Asia Pacific Forum of NHRIs" held in Hong Kong on 18-19 September 2018
• "NHRI Conference on Business and Human Rights and Access to Remedy" held in Berlin on 22-23 October 2018

Session with NHRIs during the UN Forum:

At the 2018 UN Forum, the Working Group organized an interactive dialogue on the "Role of NHRIs in facilitating access to remedy for business-related human rights impacts".

Statements made by NHRIs:

• Statement by Mr. Ambuj Sharma, Secretary General, National Human Rights Commission of India
• Statement by Ms. Prakairatana Thontiravong, Commisisoner, National Human Rights Commission of Thailand
• Statement by Mr. JHO Kyoung-Jae, Deputy Director, National Human Rights Commission of Korea
• Statement by Dr. Aishah Bidin, Commissioner, Malaysian Human Rights Commission
• Statement by Ms Tuenjai Deetes, Commissioner, National Human Rights Commission of Thailand

Relevant OHCHR work on the role of NHRIs in facilitating access to remedy:

• OHCHR Accountability and Remedy Project, Phase II
• ARP II Main Report: A/HRC/38/20
• ARP II Addendum: Explanatory Notes to Final Report: A/HRC/38/20/Add.1