Update on consultation on early drafts of OHCHR recommendations & guidance to States (Geneva, 19-20 nov 2015)

Office of the UN High Commissionner for Human Rights, Accountability and Remedy Project

A very successful round of consultations on the OHCHR Accountability and Remedy Project took place in November 2015 in Geneva, following the fourth annual Forum on Business and Human Rights.

Representatives of NGOs, victims’ support organisations, academic institutions, business networks and 25 States convened for one and a half days of discussion focussing on an early draft of recommendations and guidance to States to enhance corporate accountability and access to remedy.  This early draft was released as an OHCHR discussion paper in advance of the UN Forum.

The first day’s discussions focused on the overall approach, draft recommendations and findings in relation to domestic law tests for corporate legal liability (“project component 1” of the six components comprising the ARP) and good practice indicators to overcome financial barriers to bringing claims in the courts (“project component 3”). The second day covered draft findings and recommendations in relation to good practices in criminal law sanctions and civil law remedies (“project components” 4 and 5 respectively).

The draft findings and recommendations have been developed based on inputs and evidence received during OHCHR’s two parallel research processes. Between May and August 2015, OHCHR hosted a global open consultation, which received around 130 responses from 60 different jurisdictions on how domestic legal regimes currently function when companies are alleged to have been involved in severe human rights abuses.

Proposed approach to practical guidance for States

As explained in the discussion paper OHCHR has is proposing to present a series of “Good Practice Indicators”, arranged by different policy themes, which can be used by States to assess the effectiveness of existing domestic legal regimes. These indicators are supplemented by further guidance and explanation and, where possible, illustrative examples derived from State practice.  A key theme emerging from the opening round of consultation discussions was the need for any recommendations and guidance to be sufficiently adaptable to take account of differences in legal structures and traditions, while at the same time being forward looking and capable of bringing about positive change at domestic level.

Consultation discussions

During the consultation, stakeholders provided feedback on OHCHR’s draft recommendations and findings, including the choice and scope of the different policy themes, and made a number of suggestions regarding the substance and arrangement of “good practice indicators”.  Ideas were exchanged about the various ways that present tests for corporate liability (criminal, quasi criminal and civil) could potentially be improved to take greater account of the realities and challenges involved in the management of corporate groups and supply chains.  Participants generally encouraged OHCHR to provide States with concrete ideas as to the different reform and policy options that could be considered and potentially adapted to their own legal systems.

Many suggestions were made as to further “good practice indicators” that might be considered, particularly on the issues of financial obstacles to legal claims, criminal law sanctions and civil law remedies, as well as potentially useful “illustrative examples” from existing State practice around the world.A number of participants stressed the importance of taking account of victims’ perspectives in designing and implementing criminal sanctions.

Participants also made a number of suggestions as to the standards that should govern civil law remedies, and stressed the importance of a “rights-respecting” approach to civil remedies that takes proper account of issues of gender, vulnerability and/or marginalization.  Challenges associated with the distribution of civil remedies were noted, and participants provided examples of both good and bad practice with respect to the design and implementation of remedies resulting from civil law processes.

OHCHR would like to thank all participants in this multi-stakeholder consultation for their valuable contributions and comments.

Further opportunities for comments and revised version of draft guidance

Further written comments to the discussion paper are welcome by 15 December 2015 via email to [email protected]. Based on feedback received during the consultation and written comments, an updated draft of the guidance will be published for further consultation in February 2016.

The guidance will eventually be incorporated into OHCHR’s final report to the Human Rights Council on the Accountability and Remedy Project, pursuant to the mandate given to OHCHR under Resolution 26/22, paragraph 7. The report will be considered by the Council at its 32nd session in June 2016.