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OHCHR submission on the Second Revised Draft of the Binding Treaty

"Improving Accountability and Access to Remedy for Business and Human Rights Abuses: A submission from the Office of the United Nations High Commissioner for Human Rights (OHCHR) on the Second Revised Draft of the legally binding instrument (LBI) to regulate, in international human rights law, the activities of transnational corporations and other business enterprises", 16 October 2020.

The purpose of this note is to draw attention to OHCHR’s work on accountability and access to remedy which might usefully be considered by members of the open-ended intergovernmental working group...in the context of the negotiations to take place at its Sixth Session...

OHCHR’s Accountability and Remedy Project (ARP) has delivered credible and workable recommended actions to enhance the effectiveness of different remedial mechanisms (both judicial and non-judicial) in cases involving business-related human rights abuse...

OHCHR’s work on accountability and remedy (in particular, ARP) and the treaty process share a common goal: increasing access to effective remedy for victims of corporate abuses and ensuring accountability for such abuses.

This note focuses on those articles of the Second Revised Draft LBI that address mandatory human rights due diligence, mutual legal assistance, international cooperation, and protection from retaliation, as these are areas where there is significant overlap with OHCHR’s recent work on accountability and remedy for business-related human rights cases...

a.Mandatory Human Rights Due Diligence (Articles 6 and 8)

...A number of important insights – relating particularly to the interplay between the matters covered in Article 6 (Prevention) and Article 8 (Legal Liability) – have emerged from the ARP I phase of work, and subsequent follow-up activities undertaken by OHCHR...The ARP I report calls on States to align principles for assessing corporate liability with the responsibility of companies to exercise human rights due diligence across their operations (ARP I Annex, Policy Objectives 3 and 14). Further, the report recommends that sanctions and private law remedies reflect the degree of culpability of the relevant company, which should take into account the extent to which human rights due diligence was exercised...Following up on this report, OHCHR produced a technical issues paper in June 2020 to help policy- makers unpack the different policy choices that could arise when designing mandatory human rights due diligence regimes...

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