Clever Complementarities: What the OHCHR’s Accountability and Remedy Project Adds to the Treaty Discussions

Margaret G. Wachenfeld, Themis Research & Senior Research Fellow, Institute for Human Rights and Business

This blog is part of the Reflections on the Zero Draft blog series on the proposed binding treaty on business and human rights. We present this series as part of our work to highlight key developments and opportunities for change, with the aim of empowering advocates in civil society, governments and businesses with the evidence and guidance to help define their position and engagement in the treaty process. We believe this initiative is complementary to the implementation of the UN Guiding Principles, and that an inclusive and open debate is crucial to ensure these initiatives deliver for everyone, and that the business & human rights movement continues its 'unity in diversity'.

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In June 2014, the Human Rights Council raised some eyebrows by creating not just one, but two parallel processes on corporate accountability in human rights-related cases.  The first process, set out in Resolution 26/9 called for the establishment of “an open-ended intergovernmental working group … to elaborate an international legally binding instrument to regulate … the activities of transnational corporations and other business enterprises”.  The second one, Resolution 26/22, which was adopted by consensus, requested the UN High Commissioner for Human Rights to facilitate a consultative process with states, experts and others to explore “the full range of legal options and practical measures to improve access to remedy for victims of business-related human rights abuses.”  Four years later, with a considerable amount of work accomplished and a number of important milestones reached, there is now a much clearer sense of the complementarity between them.

At the time of writing of this blog, the first process, the intergovernmental working group on a treaty on business and human rights is in its fourth session (15-19 October 2018) gathering feedback from States and other stakeholders on its “Zero Draft” of a future treaty.  In parallel, the second process, the “ARP” (OHCHR’s Accountability and Remedy Project), as it has fondly become known to those of us who have been participating in the process over the years, has made substantial progress.  OHCHR has to date published two major reports on access to remedy: one setting out advice on how to improve access to remedy through judicial mechanisms, and more recently, a second report on ways to improve the effectiveness of State-based non-judicial mechanisms in business and human rights cases.  The third phase of this process is just getting underway and will focus on the role of private (i.e. “non-State”) grievance mechanisms.

There are a number of differences – in both aims and scope – between the work of the intergovernmental working group on the new treaty (IGWG) and OHCHR’s Accountability and Remedy Project.  The first and most obvious difference is that the work of the IGWG is directed towards a future binding treaty, whereas the Accountability and Remedy Project presents States with a menu of options that States can consider right now to progressively and incrementally improve the effectiveness of their institutions from an access to remedy perspective, but without making pre-judgments as to which will be the most effective strategies in different contexts.  While the development of an international treaty is a long term proposition, the stated aim of the Accountability and Remedy Project is to focus on areas that require urgent attention and/or where developments are capable of delivering improvements to accountability and remedy in the short to medium term.  Secondly, the Accountability and Remedy Project, while recognising the importance of strong legal frameworks, also identifies steps that could be taken at a practical (e.g. administrative) level to ensure that benefits are felt on the ground for those whose human rights have been adversely affected.  Thirdly, the Accountability and Remedy Project is concerned with all business enterprises – big and small, transnational and local – whereas the IGWG’s Zero Draft is primarily concerned with enterprises operating transnationally. 

But the other important message is that these are complementary – not competing – processes. Although there are clear and deliberate differences in aims and scope, the work done thus far under the auspices of the OHCHR’s Accountability and Remedy Project potentially complements the IGWG process in a number of important and specific ways as follows.

First, the ARP I Guidance highlights the various legal reforms that may need to be considered in order to meet future treaty commitments in practice, taking account of the different structures and conditions that may exist in different jurisdictions.  For instance, the sections of the ARP I Guidance aimed at ensuring that there are statutory offences and causes of action in place could be relied on by prosecutors and victims in practice.  ARP I Guidance, Annex, Policy Objectives 1 and 12 are highly relevant to the provisions in the Zero Draft relating to the rights of victims to access to judicial and other processes (see Zero Draft, Article 8) and legal liability generally (see Zero Draft, Article 10).  Similarly, the  aspects of the ARP I Guidance relating to human rights due diligence, which were supplemented in follow-up work carried out by OHCHR, identify a number of legal strategies that could be considered to help meet the Zero Draft’s objectives in this regard (see Zero Draft, Article 9).

Second, the ARP I Guidance provides some suggestions as to the policy and procedural matters that will need to be taken into account to ensure that remedies are effective in practice.  For instance, the sections of the ARP I Guidance relating to the design of remedies - including the importance of future prevention, establishing systems for proper follow up by authorities to ensure that remedies are implemented in practice and the need for proper consultation to stakeholders (see ARP I Guidance, Annex, Policy Objectives 11 and 19) – are highly relevant to the provisions of the Zero Draftrelating to effective remedies (see especially Zero Draft, Article 8(1)).

Third, as noted above, the ARP I Guidance highlights the importance of attention to the detail of practical implementation and makes a number of suggestions as to practical steps that could be considered to make regimes more effective and user-friendly for those who rely on them.  For instance, while the Zero Draft and the ARP I Guidance both rightly emphasise the importance of robust mutual legal assistance regimes in cross-border cases, the ARP I Guidance makes use of its more flexible format to suggest some very straightforward practical, administrative steps that States could consider to make these regimes run more smoothly and efficiently.  Similarly, the ARP I Guidance makes of number of practical suggestions on enhancing the effectiveness of enforcement agencies (see Annex, Policy Objective 5-8) and on reducing financial barriers to civil claims (see Policy Objectives 15 and 16) which could be potentially useful when it comes to implementing the corresponding provisions of an eventual treaty (see Zero Draft, Article 8, see especially sub-clauses (3),(5), (6) and (7)).

But the complementarity also works at a more general level as well.  The treaty process calls on States to work together to tackle challenges arising from transnational business enterprises do not in any way diminish the importance of concerted efforts at domestic level to improve accountability and access to remedy in relation to all kinds of business enterprises large and small.  On the contrary, timely and focussed interventions by effective domestic institutions (the main thrust of OHCHR’s work on the Accountability and Remedy project) can be vital in preventing concerns and disputes over human rights-related harms from escalating into major incidents with cross-border implications.  In reality, as has been echoed many times about the “forgotten pillar,” improvements are needed at all levels – locally and nationally as well as internationally – to achieve that “smart mix” of practical, policy-based, legislative and cooperative measures that can start to make access to remedy more than just a pipedream.