Statement by the Working Group Chairperson to the 72nd session of the General Assembly

New York, 17 October 2017

Ms / Mr Chair, Excellences, distinguished delegates, ladies and gentlemen,

I am honored to present to the General Assembly today the report of the Working Group on Business and Human Rights.

In June 2011, the Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights to operationalize the United Nations “Protect, Respect and Remedy” framework.  This created the first global standard for preventing and addressing business-related human rights abuses. The Guiding Principles, which provide a roadmap to both States and businesses, are structured on three pillars: the State duty to protect human rights, the corporate responsibility to respect human rights, and access to remedy.

In the report before you, the Working Group focuses on the access to remedy pillar, examining what an effective remedy means under the Guiding Principles.

As rights without remedies do not mean much in practice, realizing access to effective remedies is a priority area for the Working Group.  This report complements previous reports presented to the General Assembly and the Human Rights Council.  It also builds on guidance provided by the Office of the United Nations High Commissioner for Human Rights to improve accountability and access to remedy for victims of business-related human rights abuses (see A/HRC/32/19).

Mr / Ms Chair,

Since the Working Group’s last report to the General Assembly, we have continued to receive information about human rights abuses linked to business.  Human rights defenders, environmentalists, migrant workers, women, children, indigenous communities and other individuals have suffered attacks and human rights abuses linked to business activities.  These sufferings of rights holders cannot be ignored by the international community and this is why it is so important that States and businesses come together to prevent such abuses and ensure effective remedies in cases where preventive efforts fail.

Before setting out some key findings and recommendations of this year’s report, I would like to highlight a number of positive developments in the sphere of business and human rights and some of the Working Group’s activities.

The Working Group welcomes Member States’ efforts to improve regulatory frameworks to address business-related human rights abuses.  One positive example is the Australian government’s decision to launch an inquiry into enacting a modern slavery law, inspired by the United Kingdom’s 2015 Modern Slavery Act.  Modern-day slavery laws can be one important step to help protect some of the most vulnerable and exploited individuals and groups.  Other important developments include the 2017 Indonesian Ministerial Regulation to protect against human rights abuses in the fishing industry and the 2017 French duty of vigilance law.

I am also happy to report to you that the Working Group has provided recommendations to Governments and businesses on the business and human rights dimension of the sustainable development agenda.  As the Working Group underlined, a development path in which human rights are not respected cannot be sustainable.  During the OECD Global Forum on Responsible Business Conduct, the Working Group promoted an information note with 10 key recommendations to Governments and businesses.  The note sets out key steps to embed human rights in the 2030 Agenda.  In line with its mandate renewed by the Human Rights Council in June 2017 (res. 35/7, para. 12), the Working Group will continue to advocate for human rights to be at the heart of the sustainable development goals. 

You may be pleased to note that the Working Group is developing guidance to enable businesses to respect and support human rights defenders and preserving civic space in line with the Guiding Principles.  We have also recently launched a thematic project to unpack the gender dimension of the Guiding Principles, which should help in mainstreaming discussion about how the intersection of business with human rights impacts women.

Ladies and Gentlemen,

Let me now update you on the progress made by Member States through their efforts to produce national actions plans on business and human rights.  The momentum is growing.  As of now, 17 countries have adopted national action plans, nine of which were launched over the past 12 months (Belgium, Chile, France, Germany, Italy, Poland, Spain, Switzerland, and the United States of America).  Another 22 countries are in the process of developing such plans or have committed to doing one. In a further nine countries, either the national human rights institution or civil society has taken steps to start the process of developing plans.

The Working Group commends these efforts and hopes that the national action plans can help foster a race to the top amongst States and businesses.  I am also pleased to inform you that the Working Group is engaged in consultations in different world regions to facilitate a sharing of experiences and peer learning.

Distinguished delegates,

The report before you elaborates what is an effective remedy under the Guiding Principles and how States and businesses can ensure that rights holders are at the heart of remedies.  The Working Group also outlines what may be termed as an “all roads to remedy” approach that should inform the action of all relevant stakeholders to realize effective remedies for those affected by business-related human rights abuses.

However, merely providing access to remedial mechanisms will not suffice.  There should be an effective remedy in practice at the end of the remedial process.  This is why the Guiding Principles recognize that access to an effective remedy has “both procedural and substantive aspects”.  As duty bearers, States should ensure that they put in place effective remedial mechanisms that can deliver effective remedies.  Similarly, when a business enterprise provides remediation in cases in which it identifies that it has caused or contributed to adverse impacts, such remediation should be effective in terms of both process and outcome.

The report highlights the need for remedies to be effective.  The right to an effective remedy from harm is a core tenet of international human rights law and is also a core component of the Guiding Principles.

The right to an effective remedy has a close relationship with the notion of corporate accountability.  As remedies for business-related human rights abuses address both individual and societal goals, effective remedies should result in some form of corporate accountability.

A key point made in the report is that rights holders should be central to the entire remedy process.  Any process to remedy human rights harms should take rights holders and their sufferings seriously: the opinion of informed and empowered rights holders should matter the most in determining the effectiveness of remedies.

Allow me to elaborate on this point and highlight some key observations made in the report.

First, the remedy process should be sensitive to the diverse experiences of rights holders.

Rights holders are not a homogenous group.  Different groups of rights holders, especially those living in vulnerable or marginalized situations, experience the impacts of business-related human rights abuses differently and may have varied expectations with regard to remedying the harm suffered.  Some groups also face additional barriers in seeking access to effective remedies.  States and business enterprises should therefore be sensitive to this diversity among rights holders, in order to be able to provide effective remedies to all.

Second, remedies should be accessible, affordable, adequate and timely.

It is generally accepted that remedies, to be effective, should be accessible, affordable, adequate and timely.  It is, however, critical that the meaning of these elements is considered from the perspective of affected rights holders seeking remedies.  For example, rights holders would consider a remedy to be accessible only if they know about its existence and could gain access to it without too much expense, inconvenience or the help of technical experts.  Similarly, what may be regarded as an affordable remedy by some, might not be considered affordable by the actual affected communities.

Third, rights holders seeking remedies should not fear victimization.

If rights holders fear victimization in the process of seeking remedies for a human rights abuse, they may not avail such remedies in practice, even if those remedies appear to be effective on paper.  That is why freedom from fear of victimization in seeking remedies is an integral component of access to effective remedies. No additional harm should be caused in the process of redressing the initial harm.  States should therefore ensure that people and communities adversely affected by business activities face no obstacles in approaching remedial mechanisms.  Business enterprises should also play their part in cooperating with such efforts by States, including by ensuring that their actions to defend corporate interests do not have a chilling effect on the legitimate exercise of seeking an effective remedy.

Fourth, rights holders should be able to seek, obtain and enforce a “bouquet of remedies”.

In order to address a harm suffered by certain rights holders, multiple forms of remedies may be required, as no single remedy may be effective in itself and different remedies may be more appropriate in different situations.  Moreover, available remedies should combine preventive, redressive and deterrent elements.  If any one of these three elements is missing, it will undermine the overall effectiveness of remedies.

Ladies and Gentlemen,

A second key point made in the report is the need for adopting an “all roads to remedy” approach.

This approach has three components: First, access to effective remedy should be taken as an all-pervasive lens.

There is a tendency to consider access to remedy as solely a pillar III issue. However, as the three pillars of the Guiding Principles are to be understood as “a coherent whole”, access to effective remedies should be regarded as a common thread running through all three interconnected and interdependent pillars.  Whatever action is taken by States as part of pillar I and by business enterprises as part of pillar II will have some positive or negative bearing on access to effective remedies under pillar III.  For example, States – as part of their duty to achieve policy coherence under Principle 10 – should ensure that policies of multilateral trade or financial institutions do not have an adverse impact on access to effective remedies.

Second, realizing effective remedies in the field of business and human rights require concerted action by key players (including States, businesses, civil society organizations and human rights defenders).

States have both an individual and collective responsibility to ensure that people and communities affected by business-related human rights abuses have access to effective remedies.  Business enterprises have an independent but complementary role to play in realizing effective remedies: this report highlights four remedy-related responsibilities flowing from pillars two and three of the Guiding Principles.  Similarly, civil society organizations and human rights defenders – as “justice enablers” for the victims of corporate human rights abuses – have a critical role to play in facilitating access to effective remedies.  States should safeguard civic space and businesses should support such efforts.  

Third, the “all roads to remedy” approach means that effective remedies could be sought in diverse settings, including in consumer courts, labour tribunals and environmental courts, and that mechanisms are in place to avoid negative impacts of other parallel regimes, such as dispute settlement under trade or investment agreements.

We end our report with concrete recommendations addressed to States, business enterprises, civil society organizations and human rights defenders.  The Working Group hopes that these recommendations will be well received and we look forward to continuing our dialogue with all stakeholders in our efforts to promote the implementation of the Guiding Principles on Business and Human Rights.  

Ms / Mr Chair

In closing, let me draw your attention to the Annual Forum on Business and Human Rights, which is guided by the Working Group.  The Forum will take place in Geneva from 27 to 29 November under the theme “Realizing Access to Effective Remedy”.  It will be an opportunity for States, businesses and civil society to share experiences on emerging good practices and innovations to improve access to effective remedies.

I encourage all Member States to join the Forum.  By working together, we can make a positive difference to the lives of rights holders, who are looking towards us with hope to provide justice.

I thank you for your attention and look forward to hearing your views.

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