38/20 Improving accountability and access to remedy for victims of business-related human rights abuse through State-based non-judicial mechanisms - Report of the United Nations High Commissioner for Human Rights

GE.18-07714(E)



Human Rights Council Thirty-eighth session

18 June–6 July 2018

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of the

High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Improving accountability and access to remedy for victims of business-related human rights abuse through State-based non-judicial mechanisms

Report of the United Nations High Commissioner for Human Rights

Summary

The present report sets out recommended action to improve accountability and

access to remedy for victims of business-related human rights abuses through State-based

non-judicial mechanisms. It has been compiled as part of the Accountability and Remedy

Project of the Office of the United Nations High Commissioner for Human Rights

(OHCHR), pursuant to the request of the Human Rights Council in its resolution 32/10. It

follows up on the report on accountability and access to remedy through judicial

mechanisms prepared during the first phase of the Project (see A/HRC/32/19 and Add.1).

In the report, the High Commissioner explains the scope of the work involved and

the approach taken by OHCHR, and makes general observations about the role of State-

based non-judicial mechanisms in achieving accountability and access to remedy in

business and human rights cases. The report includes an annex containing a set of

recommended “policy objectives” for States, supported by a series of elements intended to

demonstrate the different ways that States can work towards meeting those objectives.

Additional explanations, drawn from the two-year research process undertaken by

OHCHR, are contained in an addendum to the report (A/HRC/38/20/Add.1).

United Nations A/HRC/38/20

Contents

Page

I. Introduction ................................................................................................................................... 3

II. Accountability and access to remedy: the role of State-based non-judicial mechanisms .............. 3

III. Overview ...................................................................................................................................... 5

A. Scope .................................................................................................................................... 5

B. Methodology ......................................................................................................................... 5

C. Structure and approach of the recommendations .................................................................. 6

D. Target audience ..................................................................................................................... 6

IV. General observations ..................................................................................................................... 6

A. Policy coherence and systemic effectiveness ........................................................................ 6

B. Effectiveness of individual State-based non-judicial mechanisms ....................................... 7

C. State-based non-judicial mechanisms and cross-border cases .............................................. 7

V. Recommendations ......................................................................................................................... 7

Annex

Recommended action to improve the effectiveness of State-based non-judicial mechanisms

relevant to business and human rights ........................................................................................... 9

I. Introduction

1. In 2013, as part of its mandate to advance the protection and promotion of human

rights globally, the Office of the United Nations High Commissioner for Human Rights

(OHCHR) initiated a process aimed at helping States strengthen their implementation of the

pillar on access to remedy of the Guiding Principles on Business and Human Rights (see

A/HRC/17/31, annex).

2. In its resolution 26/22, the Human Rights Council requested the High Commissioner

to continue work on improving access to remedy and to report thereon to the Council. In

November 2014, and pursuant to that mandate, OHCHR launched the Accountability and

Remedy Project, which explored the role and use of judicial mechanisms (namely, domestic

courts). The High Commissioner submitted a report thereon to the Council at its thirty-

second session (A/HRC/32/19 and Add.1).

3. In its resolution 32/10, the Human Rights Council requested the High Commissioner

to identify and analyse lessons learned, best practices, challenges and possibilities to

improve the effectiveness of State-based non-judicial mechanisms that are relevant for the

respect by business enterprises for human rights, including in a cross-border context. The

work carried out by OHCHR pursuant to that request comprises part II of the

Accountability and Remedy Project, which is the subject of the present report (see also

A/HRC/38/20/Add.1).

II. Accountability and access to remedy: the role of State-based non-judicial mechanisms

4. Victims of business-related human rights abuses continue to struggle to achieve

effective remedies for the harm they have suffered. While challenges vary from one context

to another, a number of persistent problems common to many jurisdictions may be

identified: fragmented, poorly designed or incomplete legal regimes; lack of legal

development; lack of awareness of the scope and operation of regimes; structural

complexities within business enterprises; problems in gaining access to sufficient funding

for private law claims; and a lack of enforcement (A/HRC/32/19, para. 4).

5. Ensuring the accountability of business enterprises and access to effective remedy

for victims is a vital part of a State’s duty to protect against business-related human rights

abuses, as required by international human rights law and reflected in the Guiding

Principles. While effective judicial mechanisms are at the core of ensuring access to

remedy (see A/HRC/17/31, annex, principle 26 and commentary), administrative,

legislative and other non-judicial mechanisms play an essential role in complementing and

supplementing judicial mechanisms (ibid., principle 27 and commentary).

6. State-based non-judicial mechanisms may take many different forms. In most

jurisdictions, a range of mechanisms with a role to play in the handling of complaints

and/or resolving disputes arising from business-related human rights abuses may be

identified. Such mechanisms can be found at all levels of government: local, regional and

national. While some have mandates relating to all human rights, many are specialized

bodies that focus on specific human rights-related themes, such as labour rights, non-

discrimination, consumer rights, the right to privacy, environmental rights, or the rights to

water or to health. Common examples of relevant State-based non-judicial mechanisms

include labour inspectorates; employment tribunals; consumer protection bodies (often

tailored to different business sectors); environmental tribunals; privacy and data protection

bodies; State ombudsman services; public health and safety bodies; professional standards

bodies; and national human rights institutions.

7. In addition to the above-mentioned categories, States may innovate further to

respond to specific business-related human rights risks within their jurisdictions, and in

some cases have done so by establishing specialized mechanisms aimed at the protection of

groups identified as being at a heightened risk of vulnerability or marginalization, such as

women, children, migrant workers, persons with disabilities, victims of modern slavery or

bonded labour practices, or members of indigenous communities.

8. State-based non-judicial mechanisms also vary in their originating regimes and

sources of authority. While many have their mandates, functions and powers defined by

statute, some are the consequence of regulations or administrative orders, while others are

on a more informal footing. Some — such as complaint mechanisms relating to

professional standards — exist by virtue of specific regulatory regimes. Others, such as

national contact points under the Guidelines on Multinational Enterprises of the

Organization for Economic Cooperation and Development, are part of implementing

arrangements under an international instrument and/or initiative.

9. These mechanisms are also diverse in their functions and powers; for instance, some

are regulatory and/or adjudicative-type mechanisms, while others provide conciliation

and/or mediation services. Some have self-executing powers (for example, to compel

participation, to require production of information or to enforce remedial outcomes),

whereas others rely on the cooperation of the parties involved. Some have the authority to

conduct investigations on their own initiative, while the procedures followed by others can

only be activated by specific complaints or disputes.

10. State-based non-judicial mechanisms can be broken down into five broad

categories:

• Complaint mechanisms1

• Inspectorates2

• Ombudsman services3

• Mediation or conciliation bodies4

• Arbitration and specialized tribunals5

11. The diversity and widespread use of these mechanisms highlight both their

importance in regulatory terms and their adaptability to different contexts and challenges.

The experiences of those seeking accountability and remedy for business-related human

rights abuses suggest, however, that in many cases these mechanisms are not yet fulfilling

the role envisaged for them in the Guiding Principles (see A/HRC/17/31, principle 27 and

commentary). Haphazard legal and institutional development in some jurisdictions has led

to unevenness and gaps in the extent to which different human rights are protected through

these mechanisms. Complaints about underresourcing and lack of technical capacity are

common. Rights holders’ lack of awareness of their rights, and the lack of accessibility of

mechanisms (particularly by people at a heightened risk of vulnerability and/or

marginalization) are problems in many jurisdictions. In serious or complex cases, it can be

difficult to identify a mechanism (or combination of mechanisms) with a sufficiently broad

1 Typically operated by a State-appointed, State-supported and/or State-approved body with public

regulatory and enforcement responsibilities.

2 Typically operated by a State-appointed, State-supported and/or State-approved body with public

regulatory and enforcement responsibilities and a range of enforcement functions and powers,

including powers of investigation and to prescribe penalties and/or remedial action. Such a

mechanism may take action on its own initiative or in response to a complaint, or both. It may also

have education and awareness-raising functions.

3 Typically with a specialized mandate associated with specific interest groups, regulatory themes or

commercial sectors. Such mechanisms are charged with receiving, investigating and resolving

disputes between individuals and business enterprises, and frequently draw on mediation and/or

conciliation techniques to do so.

4 Similar to ombudsman services, and aimed at finding a mutually acceptable outcome rather than the

apportionment of blame. Mediation and conciliation techniques are often used in the resolution of

consumer, employment or environment disputes and may be the precursor to more formal processes

(for example, arbitration and conciliation).

5 Oversee dispute resolution processes that are adversarial and/or inquisitorial in nature. Such

mechanisms often have a high degree of procedural formality. Some have investigative powers that

can be used on their own initiative. They may have the power to make legally binding determinations.

mandate to address the case in its entirety; responses can therefore be fragmented, and

remedial outcomes may not meet international standards (see annex, para. 4.1). Lastly,

owing to the strictly territorial mandate of many State-based non-judicial mechanisms, they

often have limited, if any, authority to respond to cross-border cases.

12. There is scope for significant improvement in the capacity of State-based non-

judicial mechanisms, working individually and in combination, to deliver effective

remedies in cases where human rights have been adversely affected by business activities.

As a first step, there is a need for a greater understanding of the importance of State-based

non-judicial mechanisms to the fulfilment by each State of its duty to protect against

business-related human rights abuses and the contribution of each of these as part of a

comprehensive State-based accountability and remedy system. Improving the effectiveness

of these mechanisms and ensuring that they can fulfil the functions assigned to them within

these systems (including the vital role of complementing and supporting judicial

mechanisms) will require concerted and multifaceted efforts from all States, unilaterally

and in cooperation.

III. Overview

A. Scope

13. Part II of the Accountability and Remedy Project has the aim of clarifying ways that

States can strengthen their implementation of the pillar on access to remedy of the Guiding

Principles through State-based non-judicial mechanisms, focusing in particular on (a) the

structure and mandate of different mechanisms; (b) investigations and information-

gathering processes; (c) aspects of the “effectiveness criteria” for non-judicial mechanisms

(see A/HRC/17/31, principle 27 and commentary); (d) systemic effectiveness and policy

coherence; and (e) cross-border cooperation.6

14. Many States face wider political, social and economic challenges that may

undermine the effectiveness of State-based non-judicial mechanisms, including with regard

to respect for the rule of law, poverty, corruption, and lack of resources and capacity of key

institutions. The recommended action (see annex) is intended to complement and support

the vital action by States to address these wider challenges.

B. Methodology

15. To better understand the challenges relating to State-based non-judicial mechanisms

at the national level, and the actions likely to be most effective given the diversity of legal

systems, structures and traditions around the world, OHCHR gathered empirical

information from a wide range of jurisdictions, by reviewing more than 430 business and

human rights-related events, news reports, allegations and disputes; conducting a detailed

information-gathering process (comprising a global online consultation and a directed

process involving scholars and practitioners from a wide range of jurisdictions); performing

additional work focusing specifically on the role and activities of national contact points

under the OECD Guidelines and national human rights institutions; participating in a

webinar to gather business views; holding two multi-stakeholder consultations; and

conducting regular online consultative processes at key points in the project. 7 All key

6 The project parameters proposed by OHCHR were reviewed at a two-day expert workshop held in

Geneva on 19 and 20 January 2017. The workshop was attended by representatives of States, civil

society, businesses, United Nations agencies and international organizations, and academics with

expertise in the field of State-based non-judicial mechanisms (see https://business-

humanrights.org/sites/default/files/images/ARPII_FINAL%20Scoping%20Paper.pdf). For the final

list of focus areas and research processes, see https://business-humanrights.org/sites/default/files/

documents/ARPII_phase1_Sector%20Study_Part%201.pdf.

7 See OHCHR, “Accountability and Remedy Project Part II: State-based non-judicial mechanisms:

State-based non-judicial mechanisms for accountability and remedy for business-related human

documents and milestones of the project were communicated directly to States and made

available to other stakeholders through relevant platforms and information-sharing

channels.8 In addition, a meeting to gather feedback directly from representatives of States

and State-based non-judicial mechanisms was held in Geneva on 22 and 23 February 2018.

C. Structure and approach of the recommendations

16. The recommended action comprises a number of policy objectives and elements to

demonstrate the different ways that policy objectives can be achieved (see annex). This

structure, based on an approach similar to that used for the final report on part I of the

Accountability and Remedy Project (A/HRC/32/19 and Add.1), is deliberately flexible. To

ensure global relevance and applicability, the recommended action is designed to be readily

adaptable to different legal systems and contexts while also practical, forward-looking and

reflective of international standards on access to remedy.

17. The recommended action should not be regarded as a finite list of possible solutions.

There may indeed be other ways of achieving the underlying goal of improving

implementation by States of the Guiding Principles in general and the effectiveness criteria

for non-judicial grievance mechanisms (see A/HRC/17/31, principle 31 and commentary)

in particular. Nor should it be read as an exhaustive list of the actions to be taken by States

to implement the pillar on access to remedy of the Guiding Principles.

18. Nevertheless, the recommended action will be a significant resource for States

seeking to improve the effectiveness of their non-judicial mechanisms with respect to

business and human rights challenges, as well as constituting a possible platform for future

dialogue, cross-fertilization of ideas, innovation and progress.

D. Target audience

19. The recommended action is addressed primarily to States and State agencies

concerned with the design, development, administration and oversight of relevant State-

based non-judicial mechanisms. States can implement these policy objectives in a variety of

ways, for example, through a domestic review process, as part of national action plans on

business and human rights, in strategies to improve access to justice or through other

processes more suitable to the national context. The recommended action will also be

relevant to policymakers and practitioners, including those involved in the management of

State-based non-judicial mechanisms, law enforcement and national human rights

institutions. The policy objectives may also help to inform the ongoing work of

international bodies with mandates relevant to business and human rights, including human

rights treaty bodies and the open-ended intergovernmental working group on transnational

corporations and other business enterprises with regard to human rights. Various elements

of the recommended action may be used to guide business enterprises and may be drawn

upon by other stakeholders, such as civil society organizations and trade unions. Additional

explanations of the different elements of recommended action (and suggested ways that

they can be implemented) are contained in the addendum to the present report.

IV. General observations

20. The recommended action focuses on the steps that States can take to improve the

effectiveness of State-based non-judicial mechanisms, at both the systemic and individual

levels, in providing accountability and access to remedy in cases of business-related human

rights abuses.

rights: Supporting actors or lead players?”, discussion paper prepared for the 6th UN Annual Forum

on Business and Human Rights, Geneva, 27–29 November 2017, 2 November 2017.

8 See www.ohchr.org/EN/Issues/Business/Pages/ARP_II.aspx.

A. Policy coherence and systemic effectiveness

21. In many (if not all) jurisdictions, the goals of improved accountability and access to

remedy for business-related human rights abuses are often best served by providing

affected individuals and communities with a range of options for seeking redress, which

could involve judicial mechanisms, non-judicial mechanisms or, in some cases, a

combination of them.

22. Part I of the recommended action addresses the challenges faced in achieving policy

coherence between these diverse mechanisms, and the various ways in which States can

work towards developing a legal and regulatory environment that enables these various

mechanisms to make a positive collective contribution to accountability and remedy in

business and human rights cases. It has been designed to help States (a) to identify the

important interlinkages between the different bodies that make up a comprehensive State-

based system to remedy business-related human rights abuse; and (b) to improve them

where possible so that domestic laws and policies, taken as a whole, are able to provide

affected individuals and communities with realistic and readily identifiable pathways to

remedial outcomes that meet international standards with respect to the components of

effective remedy, and make a positive contribution to future prevention.

B. Effectiveness of individual State-based non-judicial mechanisms

23. Part II of the recommended action concerns the effectiveness of individual State-

based non-judicial mechanisms relevant to business respect for human rights. While

different human rights-related risks and operating contexts will often require different

regulatory and law enforcement responses, the elements of effectiveness of non-judicial

mechanisms, and the steps needed to implement them effectively, are common to many

different types of mechanisms. The recommended action in part II draws from the various

information-gathering activities undertaken by OHCHR as part of the project, and

highlights the different ways in which the various effectiveness criteria set out in Guiding

Principle 31 can be implemented in practice.

C. State-based non-judicial mechanisms and cross-border cases

24. At present, relatively few State-based non-judicial mechanisms have the legal

authority and capacity to respond to cross-border cases (see para. 15 above). In some

jurisdictions, such mechanisms have been established to provide a means by which

concerns about business-related human rights abuses in other jurisdictions can be raised and

mediated, the national contact point system under the OECD Guidelines being a notable

example. These mechanisms are, for the most part, mediation-type mechanisms with

limited formal investigative powers of their own, and rely for their effectiveness on the

cooperation of the business enterprises concerned. State-based non-judicial mechanisms

that have strong enforcement powers and the ability to investigate allegations on their own

initiative (namely, those mechanisms with specific regulatory mandates) tend to be limited

to addressing within-territory harm.

25. Recent State practice, however, suggests a growing willingness by some State-based

non-judicial mechanisms, and national human rights institutions in particular, to enter into

ad hoc cooperative arrangements with counterparts in other States to investigate and

identify ways of addressing the adverse effects of business-related activities on human

rights that cross national boundaries.

26. Part III of the recommended action highlights the various ways in which the capacity

of State-based non-judicial mechanisms respond to cross-border cases could be enhanced in

practice.

V. Recommendations

27. OHCHR recommends that Member States:

(a) As part of their implementation of the pillar on access to remedy of the

Guiding Principles, consider undertaking a review of the scope and effectiveness of

relevant State-based non-judicial mechanisms using the policy objectives and elements

set out in the recommended action together with the model terms of reference (see

A/HRC/38/20/Add.1) as a starting point;

(b) Develop a comprehensive strategy for the implementation of the policy

objectives in a manner that responds appropriately to local legal structures,

challenges and needs, for instance, as part of national action plans on business and

human rights9 and/or as part of strategies to improve access to justice in general;

(c) Take steps, using the policy objectives and elements set out in the

recommended action as a starting point, to enhance the ability of State-based non-

judicial mechanisms to respond to cases of business-related human rights abuses

where the relevant facts, evidence, harm and/or actors are located in more than one

jurisdiction, to the extent appropriate in the light of the mandates and functions of the

mechanisms.

9 See Guidance on National Action Plans on Business and Human Rights, Working Group on Business

and Human Rights, December 2014.

Annex

Recommended action to improve the effectiveness of State- based non-judicial mechanisms relevant to business and human rights

Part I. Improving the effectiveness of State-based non-judicial mechanisms

within the context of the State’s broader system of laws, policies and regulatory institutions

Policy objective 1: State-based non-judicial mechanisms, individually and in

combination, contribute to the effective implementation of the State’s international

legal obligations and policy commitments with regard to accountability and remedy

for business-related human rights abuses in a manner that is consistent with domestic

legal structures and constitutional principles, and responsive to local needs and

operating conditions, in particular the type, nature and severity of business-related

human rights risks.

1.1 The State has conducted a comprehensive review process and consulted

appropriately with stakeholders to determine (a) the range and types of State-based non-

judicial mechanisms established in its jurisdiction that are relevant to respect by business

enterprises of human rights; (b) whether their degree of independence, mandates, functions

and powers are appropriate and sufficient, when analysed together with relevant laws and

policies, to provide a legal and regulatory environment conducive to business respect for

human rights; and (c) whether they meet the needs and sufficiently safeguard the rights of

the individuals and/or communities for whom those mechanisms are intended.

1.2 The State has taken the steps necessary to correct any deficiencies identified with

respect to the issues mentioned in paragraph 1.1 above.

1.3 Where relevant and appropriate, State-based non-judicial mechanisms are

encouraged (and provided with the resources necessary) to engage and cooperate with other

relevant State-based non-judicial mechanisms, law enforcement bodies and regulatory

agencies for the purposes of improving the effectiveness of communication and

coordination between the various mechanisms, bodies and agencies.

1.4 The State regularly reviews the effectiveness of the overall contribution of State-

based non-judicial mechanisms to accountability and remedy for business-related human

rights abuses, taking particularly into account matters such as (a) the extent to which there

is policy coherence (see A/HRC/17/31, principle 8 and commentary) between the

respective roles, policies and practices of relevant State-based non-judicial mechanisms and

those of other relevant governmental departments, regulatory agencies and other State-

based institutions; (b) areas where communication and coordination between different

mechanisms, bodies and agencies could be improved in the light of their mandates and

functions; (c) the degree of awareness and understanding of key personnel of State-based

non-judicial mechanisms of the State’s international legal obligations with regard to human

rights and the role of such mechanisms in meeting those obligations; (d) whether these

mechanisms meet the needs and sufficiently safeguard the rights of individuals and/or

communities for whom they are intended; and (e) the recommendations of relevant

oversight bodies, including peer review mechanisms. The State makes public the findings

arising from such review processes and implements the necessary legal, policy and

structural reforms and administrative improvements.

Policy objective 2: Individuals and communities affected by or at risk of business-

related human rights abuses have a realistic and readily identifiable pathway to an

effective remedy.

2.1 Information regarding the various complaint handling and/or dispute resolution

options and mechanisms that may be available in different types of contexts and cases are

made available to rights holders in a manner that is readily understandable by them.

2.2 Advisory and support services are made available to rights holders, which includes

advice with regard to (a) the relative advantages and disadvantages of different complaint

handling and/or dispute resolution options; and (b) the types of remedial outcomes that may

be achieved through different mechanisms (including judicial ones).

2.3 The State encourages and provides the resources necessary to enable providers of

the information and/or advisory and support services mentioned in 2.1 and 2.2 above to

engage in appropriate physical outreach activities among relevant rights holders to promote

the widest possible awareness of the various complaint handling and/or dispute resolution

options and mechanisms that may be available in different contexts and cases, including

through regional offices and service centres, mobile offices and “road shows”.

2.4 Where the realization of an effective remedy is likely to require or benefit from the

involvement of more than one State-based non-judicial mechanism, law enforcement body

and/or regulatory agency, arrangements have been made to facilitate (as appropriate in the

light of the mandates, functions and powers of the relevant agencies or mechanisms) the

referral or exchange of information, proceedings and/or enquiries between the relevant

agencies, bodies or mechanisms in a manner that is equitable, predictable, rights-

compatible and transparent; consistent with domestic legal structures and constitutional

principles; consistent with the objective of reducing barriers to remedy and not erecting

barriers to prevent legitimate cases from being brought before rights holders’ preferred

mechanisms; takes into due account rights holders’ needs and preferences with regard to

access to different kinds of mechanisms; and also takes into due account the need for

confidentiality in certain circumstances, and particularly with regard to the identity of

individuals who may be at risk of threats, harassment or reprisals.

Policy objective 3: State-based non-judicial mechanisms and judicial mechanisms

complement and support each other in a manner that promotes accountability and

access to remedy for business-related human rights abuses.

3.1 There is delineation between the roles and responsibilities of State-based non-

judicial mechanisms and judicial mechanisms. This delineation is appropriate to the type,

nature and severity of different business-related human rights abuses, and recognizes that

there will be cases where judicial recourse is an essential part of gaining access to remedy.

3.2 To the extent relevant and appropriate in the light of their mandates and functions,

State-based non-judicial mechanisms can readily seek assistance from judicial mechanisms

in relation to specific matters, such as the use of powers of investigation, in obtaining

injunctive relief or in the enforcement of legally binding remedial outcomes.

3.3 Where relevant and appropriate in the light of their mandates and functions, State-

based non-judicial mechanisms may (a) seek or recommend the transfer of complaints

and/or disputes for adjudication by judicial mechanisms and/or (b) refer allegations or

evidence of business involvement in human rights abuses to judicial mechanisms and/or

other law enforcement bodies for investigation and/or further action. The procedures

governing such transfers or referrals are equitable, predictable, rights-compatible and

transparent, and take into due account rights holders’ needs and preferences with respect to

different complaint handling and/or dispute resolution options, and the need for

confidentiality in certain circumstances, particularly with regard to the identity of

individuals who may be at risk of threats, harassment and reprisals.

3.4 Rights holders are made aware of (a) the circumstances in which, and the procedural

stages at which, judicial mechanisms may become involved in the investigation,

adjudication and/or resolution of complaints and/or disputes that have been initiated in or

referred to State-based non-judicial mechanisms; and (b) their rights to challenge and/or to

request a review of decisions by a State-based non-judicial mechanism with respect to the

transfer or referral of proceedings, allegations or evidence to judicial mechanisms and/or

other law enforcement bodies.

3.5 The procedural rules and practices of judicial mechanisms provide for the

participation of State-based non-judicial mechanisms in judicial proceedings to the extent

relevant and appropriate (for example, as prosecutors, advocates, representatives, expert

witnesses or as persons authorized to intervene on the basis of having a specific interest or

relevant expertise).

3.6 State-based non-judicial mechanisms and judicial mechanisms have adopted and

implemented equitable, predictable, rights-compatible and transparent procedures to be

followed in the event that more than one mechanism (whether judicial or non-judicial) has

been called upon to investigate, adjudicate upon and/or mediate a set of allegations arising

from a single event and/or similar sets of circumstances and involving the same business

enterprises.

3.7 Rights holders retain the ability to alter a remedial course of action in response to

evolving circumstances, including by transferring a complaint and/or dispute from a State-

based mechanism to a judicial mechanism in the event that it becomes clear that judicial

recourse is an essential part of having access to remedy and/or alternative methods of

achieving effective remedy are unavailable.

3.8 In cases where both State-based non-judicial mechanisms and judicial mechanisms

may have a role in the delivery of an effective remedy, their procedural rules and practices

operate in a manner that serves to reduce barriers to remedy for rights holders and does not

contribute to the creation of new barriers to remedy.

Policy objective 4: State-based non-judicial mechanisms, individually and in

combination, contribute to the realization of effective remedial outcomes for

individuals and communities that have been subjected to business-related human

rights abuses.

4.1 The State adopts and implements laws and policies with respect to State-based

mechanisms that are aligned with the principles of equal and effective access to justice,

adequate, effective and prompt reparation for harm suffered, and access to relevant

information concerning violations and reparation mechanisms. 1 To this end, laws and

policies relevant to the realization of remedial outcomes in cases of business-related human

rights abuses draw appropriately from all recognized categories of full and effective

reparation (namely, restitution, compensation, rehabilitation, satisfaction and guarantees of

non-repetition),2 and wherever possible, provide for choice by rights holders of the type of

remedial outcomes most appropriate in the light of the specific circumstances of the case.

4.2 The State has made appropriate arrangements to address the risk of non-

implementation of remedial outcomes (including non-compliance with the terms of a

remedial agreement or determination), which may include (depending upon the mandates

and functions of the relevant mechanisms) (a) the use of robust self-executing enforcement

powers; (b) the possibility of enforcement through judicial mechanisms; (c) regulatory or

administrative follow-up activities (including monitoring); or (d) the imposition of

regulatory and/or other consequences. Agencies responsible for enforcement, follow-up,

monitoring or other action are appropriately responsive to requests by rights holders to

exercise their powers of enforcement and/or supervision (as relevant), and operate in a

manner consistent with international standards relating to the prompt implementation of

remedial outcomes in cases of human rights abuse.

1 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross

Violations of International Human Rights Law and Serious Violations of International Humanitarian

Law (General Assembly resolution 60/147, annex).

2 Ibid., sect. IX, para. 18.

Part II. Improving the effectiveness of individual State-based non-judicial

mechanisms relevant to the respect by business enterprises for human

rights

Policy objective 5: State-based non-judicial mechanisms are effective mechanisms for

dealing with business-related human rights harm.

5.1 The State adopts and implements laws and/or policies with regard to the

establishment and administration of State-based non-judicial mechanisms that are aligned

with the effectiveness criteria set out in Guiding Principle 31.

5.2 State-based non-judicial mechanisms operate in a manner that is consistent with the

recommendations of relevant oversight bodies, and take into due account the

recommendations of other entities concerned with monitoring and evaluating their

performance, such as peer review mechanisms.

Policy objective 6: State-based non-judicial mechanisms are legitimate.3

6.1 The State has made the structural, institutional, administrative and resourcing

arrangements needed to (a) provide each State-based mechanism with a degree of

operational autonomy from government functions that is appropriate in the light of its

specific mandate and functions; (b) minimize the risk of conflicts of interest for the State-

based mechanism (or any of its personnel) with respect to the discharge of its powers and/or

functions; and (c) minimize the risk of any undue influence of any one actor or group of

actors.

6.2 Where they are vested with powers to investigate allegations and/or complaints on

their own initiative, State-based non-judicial mechanisms exercise such powers in an

equitable, rights-compatible, predictable, transparent, timely and professional manner.

6.3 State-based non-judicial mechanisms have adopted and implemented appropriate

procedures in the light of their mandates and functions to enable rights holders and other

stakeholders to raise concerns or complaints about the manner in which such mechanisms

have discharged specific functions or powers, such as the way they have responded to,

investigated, adjudicated or resolved complaints and/or disputes.

6.4 The State has made appropriate arrangements to provide for the possibility to review

a State-based non-judicial mechanism’s decisions, actions or non-action in certain

circumstances, such as where there is evidence of a possible conflict of interest, a

procedural irregularity or other impropriety.

6.5 State-based non-judicial mechanisms are subject to periodic review by a suitable

oversight body or peer review mechanism, which can offer advice as to how their

performance and effectiveness might be improved.

6.6 State-based non-judicial mechanisms have adopted and implemented appropriate

policies and procedures to detect, avoid and respond appropriately to conflicts of interest

(both actual and potential), including those that may arise where the relevant mechanism

has had conferred upon it a range of functions, such as education and awareness-raising, in

addition to addressing complaints and resolving disputes.

Policy objective 7: State-based non-judicial mechanisms are accessible.4

7.1 State-based non-judicial mechanisms work proactively to raise awareness among

rights holders of their mandates, functions and activities, including through targeted

outreach activities.

7.2 The State takes such steps as are reasonable and appropriate in the light of the

mandates and functions of the State-based non-judicial mechanism concerned to enable and

3 A/HRC/17/31, principle 31 (a) and commentary.

4 Ibid., principle 31 (b) and commentary.

to encourage to make complaint handling and/or dispute resolution services of the

mechanism available to parties free of charge.

7.3 Where possible, financial assistance is made available to rights holders to help to

defray the costs associated with assessing the relevant services. Proactive steps are taken to

ensure that information about such financial assistance is conveyed to the rights holders for

whom it is intended.

7.4 Complaint handling and/or dispute resolution processes are designed to be as user-

friendly as possible and, where appropriate, allow for the possibility of (a) representation in

person (namely, without the need for legal counsel); and/or (b) the assistance of a

representative or other third party; and (c) collective redress.

7.5 State-based mechanisms take appropriate steps to enable rights holders to access and

participate in complaint handling and/or dispute resolution processes in ways most

convenient to them, including through online forms, telephone reporting, by post or in

person.

7.6 State-based non-judicial mechanisms make available, free of charge, (a) advisory

and support services necessary to promote easy access by individuals and communities to

complaint handling and/or dispute resolution processes, including through online resources,

such as downloadable pamphlets and videos, paper resources, and telephone helplines; and,

(b) where relevant and appropriate, suitable advisory or “triage” services to ensure that

complaints and/or disputes can be swiftly directed to the place where they can most

quickly, efficiently and appropriately be resolved in the light of all relevant circumstances.

7.7 The materials, resources and advisory services referred to in paragraphs 7.5 and 7.6

above are made available (a) in formats that meet the needs and are consistent with the

rights of persons with disabilities, including persons with impairments to hearing, sight or

mobility; and (b) to an appropriate extent, in the light of the relevant mechanism’s mandate

and functions, in the languages of the rights holders for whom they are intended.

7.8 Periods of limitations, to the extent that they apply to the complaint handling and/or

dispute resolution functions of State-based non-judicial mechanisms, are set in accordance

with certain factors, such as the nature and severity of human rights risks addressed by the

mechanism, and other issues, such as the remoteness of individuals and communities likely

to be at risk and the particular needs of the rights holders for whom the mechanism is

designed to help.

7.9 State-based non-judicial mechanisms have put in place measures designed to allow

access to and use of the mechanisms by rights holders on an equal basis with others, for

instance by improving physical and communicational accessibility to premises and by

making adjustments to processes and procedures to facilitate their use (and reduce barriers

to participation) by persons with disabilities, including deaf persons and persons with

intellectual or psychosocial impairments, and older persons.

7.10 State-based non-judicial mechanisms adopt and implement procedures and practices

to protect confidentiality where the context and circumstances of the case would make it

necessary, particularly with respect to the identity of individuals who may be at risk of

threats, harassment or reprisals, and appropriate safeguarding arrangements for the

protection of rights holders, taking into account the particular needs of persons at greater

risk of vulnerability and/or marginalization.

7.11 The confidentiality of the private information of users of State-based non-judicial

mechanisms is protected by robust domestic law regimes on privacy and the protection of

personal data.

7.12 The State adopts and enforces laws and takes other measures to protect individuals

and communities from the risk of reprisals, harassment and discrimination as a consequence

of having referred any business and human rights-related allegation, claim, complaint or

dispute to a State-based non-judicial mechanism.

Policy objective 8: State based non-judicial mechanisms are predictable.5

8.1 In addition to the steps described in paragraph 7.1 above, State-based non-judicial

mechanisms work proactively to raise awareness among rights holders about the stages of

relevant complaint handling and/or dispute resolution processes, including information

about (a) any preliminary requirements that must be met; (b) what parties can expect at

each stage, the time frames within which key decisions will be taken and milestones

reached; (c) the rights of parties to withdraw from complaint handling and/or dispute

resolution processes once commenced; (d) the legal consequences of remedial outcomes;

(e) procedures for monitoring remedial outcomes of complaint handling and/or dispute

resolution processes; and (f) the contents of any regulatory standards, codes of conduct or

policies relating to any of the above.

8.2 To the extent relevant and appropriate in the light of their mandates and functions,

permitted by applicable laws, standards and policies with respect to confidentiality and

protection of whistle-blowers and individuals who may be at risk of threats, harassment or

reprisals, and appropriate for the purposes of enhancing public understanding of complaint

handling and/or dispute resolution processes and methodologies used in practice, State-

based non-judicial mechanisms publish readily understandable information relating to past

cases and/or determinations, such as case histories and/or aggregated information relating

to the types of claims, complaints or disputes referred, the types of remedial outcomes and

the time taken to achieve them.

Policy objective 9: State-based non-judicial mechanisms are equitable.6

9.1 In addition to the steps described in paragraphs 7.1 and 8.1 above, State-based non-

judicial mechanisms work proactively to raise awareness among rights holders about

sources of further information, advice and assistance available to enable them to participate

fairly and effectively in the relevant processes.

9.2 State-based non-judicial mechanisms have adopted and implemented the procedures

and practices necessary, in the light of their mandates and functions, to ensure that parties

to a complaint and/or dispute receive (a) adequate and timely information concerning the

arguments, allegations and evidence provided by the other party; (b) copies of or access to

documentary or other evidence; (c) adequate opportunity to comment on each and all of the

items mentioned in points (a) and (b) prior to any final decision or determination; (d)

sufficiently detailed written reasons for decisions; and (e) readily understandable

information concerning the steps to be taken, and the time limits that apply, should a party

wish to seek review of or challenge a final decision or determination.

9.3 The procedural rules, policies and practices of State-based non-judicial mechanisms

respect the rights of rights holders to withdraw from complaint handling and/or dispute

resolution processes if they are dissatisfied with those processes and do not unfairly

preclude access by rights holders to judicial recourse.

9.4 State-based non-judicial mechanisms have adopted and implemented policies,

procedures and practices to ensure that its personnel disclose promptly any possible conflict

of interest with respect to any complaint or dispute that they are asked to handle or resolve,

and that following such a disclosure, the person concerned has no further involvement with

the matter and is suitably replaced.

Policy objective 10: State-based non-judicial mechanisms are transparent.7

10.1 In addition to the steps described in paragraphs 7.1, 8.1 and 9.1 above, State-based

non-judicial mechanisms work proactively to raise awareness among rights holders with

respect to (a) procedural rules, policies, codes of conduct or standards that will govern

complaint handling and/or dispute resolution processes, including liaison with parties

and/or any investigation or fact-finding activities; (b) the adherence of the mechanism to

5 Ibid., principle 31 (c) and commentary.

6 Ibid., principle 31 (d) and commentary.

7 Ibid., principle 31 (e) and commentary.

performance standards and the status of relevant certifications; and (c) other information

likely to be important to rights holders, such as information about the average duration of

complaint handling and/or dispute resolution processes and the likely costs in different

scenarios.

10.2 State-based non-judicial mechanisms have put in place procedures to ensure that

parties to a complaint and/or dispute are kept informed of key developments and

requirements, including through online accounts, telephone helplines or dedicated case

workers, as appropriate.

10.3 State-based non-judicial mechanisms publish and take proactive steps to disseminate

periodic reports on their activities and performance that set out in a readily understandable

format information likely to be useful to relevant rights holders, such as (a) the types of

complaints and/or disputes referred to the mechanism in a given period; (b) the percentage

of cases successfully resolved, and in what time period; (c) the percentage of cases rejected

by the mechanism, and on what grounds; and (d) common challenges.

10.4 Information with respect to the activities and performance of State-based non-

judicial mechanisms that are overseen by or operate within government departments is

accessible to members of the public pursuant to domestic regimes on freedom of access to

governmental information.

Policy objective 11: State-based non-judicial mechanisms are rights-compatible.8

11.1 The State adopts and implements laws and/or policies with regard to the

administration of State-based non-judicial mechanisms that are consistent with the State’s

obligations under international human rights law, including the rights to equality of

treatment and to non-discrimination.

11.2 State-based non-judicial mechanisms exercise their mandates and functions in a

manner that promotes (a) equal and effective access to justice; (b) adequate, effective and

prompt reparation for harm suffered; and (c) access to relevant information concerning

violations and reparation mechanisms.9

11.3 State-based non-judicial mechanisms have, with a view to achieving prompt,

adequate and effective remedial outcomes for business-related human rights abuses,

adopted and implemented procedures and practices designed to ensure, within the

framework of and subject to their mandates and functions, that (a) complaints and/or

disputes are addressed and concluded without undue delay; (b) in cases of severe or

irremediable harm, the mechanism can take pre-emptive action to mitigate the harm; (c)

rights holders are properly consulted with regard to the elements of an adequate and

effective remedy in their specific case; (d) rights holders are properly consulted about and

given an opportunity to comment on (and, where appropriate, provided with opportunities

to take further or corrective action prior to) any decision by the mechanism to reject, defer,

abandon or settle a complaint or dispute; and (e) following conclusion of a complaint

handling and/or dispute resolution process, rights holders are provided with information

regarding their options for further action, including on the steps that they should take in the

event of non-compliance by a party with the terms of a remedial outcome of a non-judicial

process.

11.4 In deciding whether to reject, defer, abandon or settle a complaint handling or

dispute resolution process, State-based non-judicial mechanisms give due regard to the

availability (or non-availability) of remedies under alternative mechanisms (including

judicial mechanisms).

11.5 State-based non-judicial mechanisms take steps to ensure that members of their staff

with responsibility for receiving and/or handling complaints and/or adjudicating and

8 Ibid., principle 31 (f) and commentary.

9 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross

Violations of International Human Rights Law and Serious Violations of International Humanitarian

Law, art. IX, para. 18.

resolving complaints and/or disputes arising from adverse human rights impacts that are

business-related and/or providing advice or support to rights holders with respect to the

same (a) are familiar with the needs and rights of the rights holders (whether individuals or

groups) for whom the relevant mechanism is intended, with due consideration for the

particular needs of individuals or groups at a greater risk of vulnerability and/or

marginalization, and (b) have access to the human rights expertise needed to discharge their

responsibilities in a non-discriminatory way and in a manner consistent with the

international legal obligations and policy commitments of the State with respect to business

and human rights.

Policy objective 12: State-based non-judicial mechanisms are a source of continuous

learning.10

12.1 The State makes appropriate use of the expertise of State-based non-judicial

mechanisms with regard to the development of regulatory and enforcement policy relevant

to the respect by business enterprises for human rights. To this end, the mechanisms are

given appropriate opportunities to make recommendations for reforms to institutions,

initiatives and operating practices aimed at improving the effectiveness of State-based non-

judicial mechanisms, and enhancing their contribution to accountability and remedy in

cases of business-related human rights abuses.

12.2 Periodic and/or annual reports by State-based non-judicial mechanisms include, to

the extent possible and relevant, information about (a) regulatory or compliance challenges

in specific operating or industrial contexts, or on systemic or market-related issues that may

be impeding the effectiveness of regulatory strategies or agencies, and (b) legal or policy

interventions that may help to address these challenges, together with information about

their effectiveness, if available. The State draws from this know-how and the

recommendations in developing policies, legislation, regulation and guidance aimed at

addressing business-related human rights risks and protecting against business-related

human rights abuses.

12.3 The State has made arrangements to allow for the sharing of know-how among

State-based non-judicial mechanisms, and between the mechanisms and other regulatory

agencies, to the extent appropriate in the light of their mandates and functions, with a view

to improving the capacity and effectiveness of all domestic bodies and initiatives that,

directly or indirectly, monitor respect by business enterprises for human rights.

Part III. Improving the effectiveness of State-based non-judicial mechanisms in

cross-border cases

Policy objective 13: State-based non-judicial mechanisms have access to information,

advice and assistance from relevant State agencies in other jurisdictions to the extent

and in the manner required for the fulfilment of their mandates and functions.

13.1 The State sets out a clear policy expectation that State-based mechanisms will

respond to cross-border cases to the fullest extent permitted in the light of their mandates

and functions, and considers making appropriate adjustments to such mandates and

functions where this is necessary to respond to business-related human rights risks that are

cross-border in nature.

13.2 The State has made arrangements to enable State-based non-judicial mechanisms, to

the extent appropriate and relevant in the light of their mandates and functions, to seek

assistance from, and to respond to requests for assistance from, State agencies in other

jurisdictions for the purposes of (a) gathering information relating to complaints and/or

disputes, (b) informing complaint handling and/or dispute resolution processes, (c)

adjudicating and resolving complaints and/or disputes, and/or (d) delivering an effective

remedial outcome.

10 A/HRC/17/31, principle 31 (e) and commentary.

13.3 State-based non-judicial mechanisms, to the extent appropriate and relevant in the

light of their mandates and functions, participate in and contribute to the development of

initiatives and networks of State agencies and practitioners from different jurisdictions with

the aim of (a) improving the ease with which and speed at which requests for information,

advice and assistance can be made and addressed; (b) creating opportunities for joint and/or

coordinated responses to complaints and/or disputes arising from business involvement in

human rights abuses that have, or appear to have, a cross-border element; and (c) promoting

peer learning among State agencies about regulatory, complaint handling and dispute

resolution best practices.

13.4 The State has made arrangements for State-based non-judicial mechanisms, to the

extent appropriate and relevant in the light of their mandates and functions, to be able to

call upon their embassies and consular services for assistance with research and

information-gathering for the purposes of investigating, adjudicating and resolving claims,

complaints or disputes arising from adverse human rights impacts that are business related.

13.5 States work through their embassies and consular services to raise awareness and

publicize information about the activities and procedures of relevant State-based non-

judicial mechanisms, including information about their mandates and functions in

investigating, adjudicating and resolving complaints and/or disputes arising from business

involvement in human rights abuses which have, or which appear to have, a cross-border

element.

13.6 State-based non-judicial mechanisms have access to the information, support,

training and resources necessary to enable personnel to make effective use of the

arrangements referred to in paragraphs 13.2, 13.3, 13.4 and 13.5 above.

13.7 The State works through relevant bilateral, regional and multilateral forums and

bodies to strengthen methods, systems and domestic law regimes and initiatives relevant to

investigating, adjudicating and resolving complaints or disputes arising from business

involvement in human rights abuses.