32nd session of the UN Human Rights Council (June 2016)

ESC Rights Update from Geneva: 32nd session of the UN Human Rights Council (June 2016)

32nd session of the UN Human Rights Council 13 June to 1 July 2016 This Update aims to provide a summary of the initiatives regarding economic, social and cultural (ESC) rights at the 32nd session of the Human Rights Council (June 2016). It provides information on the following ESC rights initiatives:

Right to education Right to health Women’s economic, social and cultural rights Extreme poverty and human rights Environment and climate change Business and human rights Other initiatives of interest

Right to education

The Special Rapporteur on the right to education, Mr Kishore Singh presented his final report to the Human Rights Council before his mandate ends. His report (A/HRC/32/37) addresses issues and challenges to the right to education in the digital age, with a focus on higher education. It discusses how the norms and principles that underlie the right to education should be upheld while embracing digital technologies.

In his report Mr Singh considers how digital technologies are rapidly transforming higher education, including the emergence of massive open online courses as an alternative path to higher education. He identifies concerns about the quality of such courses, lack of regulation, the risk of fraud, the recognition of certifications and lack of face-to-face learning: ‘In the light of the rise of online and web-based learning, the Special Rapporteur considers it important to recognize the limits of the pedagogical value of technology-based and distance education, putting a premium on face-to-face learning and human interactions in education. All forms of online education may help increase access to higher education, but only if they are a supplement to, and not a replacement for, proven pedagogical practices.’

The Special Rapporteur also expresses concerns about the digital divide, particularly between ‘developing’ and ‘developed’ countries, rural and urban populations, for women and girls and disadvantaged groups, and about how it affects fundamental principles, such as equality of opportunity. He looks at disparities in access to the internet and digital technologies and infrastructure constraints.

The report also emphasizes the importance of preserving the human rights values in digital education and ensuring that the humanistic mission of education is not lost. Mr Singh acknowledges that the private sector are key players in digitization but cautions against the commodification of knowledge and universities moving away from their social function.  He urges States to safeguard against the forces of privatization in education, which are particularly pronounced for digital education.

The Special Rapporteur sets out policy and legal responses to address these issues and also highlights the repercussions of digital technologies on public investment in education and on the quality of education, especially in respect of preserving human values in education. Importantly, he underlines the need to safeguard education as a public good and to ensure effective regulation of digital education.

Resolutions

The annual resolution on the right to education was adopted at this session (A/HRC/RES/32/22) without a vote. Portugal was the proponent of the resolution and mustered at least 70 co-sponsors. The resolution picked up some of the key recommendations of the report of the Special Rapporteur including issues of access, quality and equity in the use of information and communications technology in education to bridge the digital divide and assessing the quality of online and internet education and certification.

A large group of education and human rights NGOs, including GI-ESCR, applauded the adoption of the resolution and in particular its emphasis on ensuring effective regulation of public and private education providers and on the importance of investment in public education and preserving education as a public good. See HERE

There was also a resolution on ‘realising the equal enjoyment of the right to education by every girl’ which was presented by the United Arab Emirates and adopted by consensus (A/HRC/RES/32/20). The resolution linked back to the panel discussion held by the Council during its 29th session, on this topic and the OHCHR report on that panel discussion (A/HRC/30/23).

The resolution urged States to eliminate discrimination against girls in education and remove all obstacles such as discriminatory laws, custom, tradition or religious considerations, financial barriers, violence, child labour, harmful practices (eg: FGM), gender stereotypes, child early and forced marriage and early pregnancy.  It also called on States to:

• ensure that educational institutions are safe and free from violence and abuse and girls can travel to and from and attend school safely;

• address the school drop-out rate of girls and ensure that there are primary and secondary school places available for girls within a reasonable distance from home;

• provide equal access to education for girls from marginalized and excluded groups, with disabilities, indigenous girls, ethnic, religious and linguistic minorities, girls in rural areas and economically disadvantaged girls;

• provide every primary and secondary school with professionally trained and qualified teachers, including female teachers and with full access to separate, adequate and safe water and sanitation services;

• develop an non-discriminatory, inclusive, accessible and culturally sensitive, safe, supportive and secure environment conducive to providing a quality education, including human rights education….and financial literacy …. to enable girls to be proactive actors in society;

• eliminate gender based stereotypes from all educational processes, practices and teaching materials;

• prioritise education in state budgets, increase investments and international cooperation to allow all girls to complete free, equitable, inclusive and quality education and support developing countries through financial and technical resources for ‘country-led national education plans’; and

• support access to education for girls in emergency situations, migrant, internally displaced and refugee girls and those in humanitarian crises and conflict situations.

Finally, the resolution requests the OHCHR to prepare a report to be presented at the June 2017 session of the Human Rights Council on the topic: ‘the realization of the equal enjoyment of the right to education by every girl’, ‘obstacles limiting effective access’ and ‘make recommendations on appropriate measures to eliminate gender disparities in education by 2030, taking into account Goal 4 of the SDGs’.

There was also a resolution on youth and human rights (A/HRC/RES/32/1) in which the Council decided to convene a panel discussion during its September 2016 session on ‘Youth and human rights’, with the objective ‘to identify, challenges, best practices and lessons learned in the exercise of human rights by young people as well as relevant opportunities for empowerment of youth in the exercise of their rights’.

Right to health

The Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (A/HRC/32/32), Mr Dainius Pūras, was presented at the 32nd session, together with his mission reports on Paraguay and Nigeria.  The report explores the right of adolescents (aged 10 – 19 yrs) to the enjoyment of the highest attainable standard of physical and mental health and on implementation of measures necessary to guarantee optimum health and development in accordance with the unique nature of adolescence.

The report focuses in particular on mental health, substance use and abuse and drug control, and the rights to sexual and reproductive health because of the particular challenges they pose in balancing adolescents’ emerging autonomy with their right to protection.

The Special Rapporteur recognises adolescence as a period of transition and a critical developmental stage which lays the foundations for future health.  He identifies challenges and opportunities (creativity, energy, use of social media and technologies) particular to adolescents and looks at the specific social determinants of health for adolescents.

In relation to mental health the Special Rapporteur recommends that States:

• Formulate and implement a national adolescent mental health policy with a spectrum of preventive and curative services, in consultation with adolescents, that is sensitive to their rights and needs and includes independent monitoring of mental health facilities; and

• Implement adolescent-friendly psychosocial interventions at the community level in a manner that is ethical, evidence-based and consistent with adolescents’ rights, and avoid institutionalisation and the excessive use of psychotropic medications.

In relation to sexual and reproductive rights, the Special Rapporteur recommends States:

• adopt a comprehensive sexual and reproductive health policy for all adolescents which ensures universal access to adolescent-friendly, non-judgmental services;

• decriminalize abortion and ensure access to confidential and non-discriminatory sexual and reproductive health information, services and goods;

• guarantee the provision of age-appropriate, comprehensive and inclusive sexuality education, based on scientific evidence and human rights, as part of the school curriculum; and

• repeal laws criminalizing or discriminating against individuals on the basis of their sexual orientation or gender identity.

In relation to substance abuse and drug control, he calls for the closing of drug detention centres and the development of prevention and harm reduction policies and dependence treatment services.

The Special Rapporteur also presented a Study on ‘Sport and healthy lifestyles as contributing factors to the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ (A/HRC/32/33).

Resolutions

First, there was a resolution focusing on mental health and human rights (A/HRC/RES/32/18). Portugal and Brazil were the main sponsors of the resolution which was adopted by consensus. A short and pithy resolution, it reaffirmed State obligations to ensure that mental health policies and services comply with human rights norms and recognised the need for active steps to fully integrate a human rights perspective into mental health services.

The resolution mandates the OHCHR to prepare a report to the March 2017 session of the Council, on ‘the integration of a human rights perspective in mental health and the realisation of the human rights of persons with mental health conditions or psychosocial disabilities or persons using mental health services'.

In addition, there was a resolution on access to medicines and the right to health (A/HRC/RES/32/15) which was adopted by consensus after oral revisions. This resolution presented by the core group of Brazil, China, Egypt, India, Indonesia, Senegal, South Africa and Thailand, addresses the on-going debates over access to medicines and intellectual property rights that have played out in the WTO and the WHO.  The resolution calls on States to recognise that access to medicines for all is a fundamental element of the right to health and to ensure access to medicines, including through its negotiations and agreements in the WTO and decides to convene a panel discussion on this topic at the March 2016 session of the Council.

Some of the interesting paragraphs include:

• recognising the interrelatedness between poverty and the right to health and that ill health can be both a cause and consequence of poverty;

• recognising that universal health coverage implies access to essential and affordable medicines;

• regretting the high number of people without access to affordable, safe, efficacious and quality medicines and expressing deep concern at recent outbreaks of highly infectious pathogens with epidemic potential;

• reiterating that health research and development should be needs-driven, evidence-based, guided by the core principles of affordability, effectiveness, efficiency and equity and considered a shared responsibility;

• calling on States to continue to collaborate on models and approaches that support the delinkage of the costs of new research and development from the prices of medicines, vaccines and diagnostics for diseases that predominantly affect developing countries; and

• calling for policy coherence in the areas of human rights, intellectual property and international trade and investment when considering access to medicines.

Finally, there was a resolution put forward by Algeria, Iran, Pakistan, China, Brazil, Egypt and South Africa on ‘enhancing capacity building in public health’ (A/HRC/RES/32/16). The resolution recognised the importance of strong public health systems, particularly in the context of epidemics and of investment and international co-operation.  It also emphasised the vital role of civil society, of women’s participation and of ensuring universal access to sexual and reproductive health-care services.

The resolution urged States to increase investment, strengthen capacity building, promote access to medicines including through the Agreement on Trade-Related Aspects of Intellectual Property Rights, increase aid to developing countries and recognise the importance of the transfer of technologies.

Finally, the resolution decided to convene a panel discussion at the Council’s 35th session (June 2017) with the objective of exchanging experiences and practices on realising the right to health by enhancing capacity building in public health.

The EU made an ‘Explanation of Position’ in respect of this resolution which complained of a lack of transparency in the negotiations and some ‘unpredictable changes of position by the core group’. It also expressed reservations about the over-emphasis on access to medicines and said the language in PP4 and OP3 was not considered consensual by the EU.

Extreme Poverty and Human Rights

The Special Rapporteur on extreme poverty and human rights, Mr Philip Alston, presented a challenging and thought-provoking report (A/HRC/32/31) to the Council detailing his contention that economic and social rights are marginalized in the human rights sphere.

The Special Rapporteur begins by arguing that contrary to the conventional wisdom that economic and social rights have made significant advances in recent years and enjoy widespread constitutional recognition and justiciability, in fact social and economic rights ‘remain largely invisible in the law and institutions of the great majority of States’. Paradoxically, constitutional recognition has not translated into legislative recognition, Courts remain resistant to acting on economic and social rights, principal national-level institutions for promoting human rights ignore economic and social rights and national level accountability mechanisms for economic and social rights are rare.

This marginalization is evident also in the general assumption that economic and social rights are synonymous with development and poverty alleviation. Yet this is not the case: development initiatives might not be rights promoting or protecting. The Special Rapporteur explains the importance of treating economic and social rights as human rights, rather than desirable goals, development challenges or social justice concerns, since human rights: focus attention on the rights of individuals; direct policymakers to the internationally agreed standards and jurisprudence and accountability principles; introduce an element of immediacy; and recognize and insist on dignity and agency (participation) of all individuals (universality) and are intentionally empowering.

The report discusses the consequences of neglecting economic and social rights, including the: undermining of indivisibility; fracturing of the hard-fought ideological and political compromise reflected in the UDHR; diminished prospects for eliminating extreme poverty and extreme inequality; production of conditions conducive to violent extremism; and legitimacy and credibility of the human rights enterprise, particularly in the ‘eyes of the billions of people whose fundamental needs continue to be of only minor relevance to the core human rights agenda’.

The Special Rapporteur proposes a framework for ensuring that economic and social rights are recognized and implemented: recognition, institutionalization and accountability (RIA). He then examines international monitoring of economic and social rights by the Human Rights Council through the UPR and by the Committee on Economic, Social and Cultural Rights.  In respect of the UPR, Mr Alston considers the significant under-representation of economic and social rights in the UPR recommendations and especially the recognition, institutionalization and accountability of such rights.

Finally, the Special Rapporteur considers the record of NGOs and finds encouraging developments, but that ‘some major international NGOs continue to approach economic and social rights in ways that do very little to change the marginality of those rights within the field.’ He encourages NGOs to focus their efforts on advocating for the ‘basic building blocks of recognition, institutionalization and accountability’ before delving into the more sophisticated techniques for monitoring and promoting economic and social rights that preoccupy many international NGOs.

Women’s economic, social and cultural rights

As is traditional for the June session of the Council, there were a number of important initiatives on women’s rights. On 16 June the Council held its annual full day discussion on women’s rights. The day was comprised of 2 panel discussions, which both involved significant discussion of economic, social and cultural rights.

The first panel focused on ‘violence against indigenous women and girls and its root causes’, and addressed: challenges and good practices and underlying discrimination and marginalization; eliminating structural and institutional discrimination and harmful stereotypes; promoting access to protection measures and services; and ensuring accountability for perpetrators of violence and access to an effective remedy for survivors. It also specifically looked at the role of indigenous women and girls in addressing the violence directed against them.  The panel included the President of the Council, the Deputy High Commissioner for Human Rights, a Member of EMRIP, the Special Rapporteur on Violence Against Women and a number of indigenous women representatives.

Panelists explained that violence against women could not be understood in isolation because it is a cause and consequence of subordination, exclusion and discrimination.  The link to poverty and denial of social and economic rights such as access to land and productive resources, housing, education and social security were emphasized as both root causes and as critical to protection and prevention. Some speakers highlighted the impact of early child marriage, harmful practices and negative stereotypes of women.

The international legal framework of State obligations to eliminate discrimination and violence against women was also outlined and the challenges of access to justice for indigenous women and ultimately, impunity for violence against them, was highlighted.  An unofficial summary of the discussion can be found HERE.

The second panel focused on ‘women’s rights and the 2030 Agenda for Sustainable Development: Delivering on the promise to leave no one behind’.  This panel addressed how to operationalize the Sustainable Development Goals in compliance with human rights obligations, particularly related to gender equality and paying attention to the impact of intersecting forms of discrimination.

The discussion highlighted the potential for the SDGs to significantly advance women’s rights but underscored the need for leadership, investment, accountability and participation, in order for Goal 5 (gender equality) to be realised. A number of speakers linked the achievement of gender equality to addressing the higher levels of poverty of women and inequalities (Goal 10).  Some speakers also discussed the need for increasing women’s participation in economic spheres and the need for taxation reform and recognition of the unpaid work of women.  An unofficial summary of the panel discussion is HERE.

Violence against women

The Special Rapporteur on violence against women, its causes and consequences, Dr Dubravka Simonović, in her first report (A/HRC/32/42) to the Council since commencing last August, outlined her vision and priorities for the mandate:

• The use of data on violence against women as a tool for prevention;

• The establishment of a ‘gender-related killings of women watch’;

• Protection and services for women survivors of violence;

• Connections between fundamentalism, extremism and violence against women;

• Security and safety of girls and women in the context of forced displacement and refugees; and

• Online violence against women.

Resolution A resolution on violence against women (A/HRC/RES/32/19) was presented by the traditional main sponsor, Canada, and focused on violence against indigenous women and girls.  The resolution was adopted by consensus with at least 82 co-sponsors and included emphasis on the links between the denial of social and economic rights for women and girls and particularly indigenous women and girls, and violence against them.  The resolution renewed the mandate of the Special Rapporteur and also:

• Recognised that the absence of gender statistics and disaggregated data impeded efforts to design successful intervention strategies and encouraged States to improve the collection, harmonization and use of statistics and data;

• Expressed concern about the low levels of birth registration of indigenous women and that this makes them more vulnerable to exclusion, discrimination, violence, exploitation and abuse and called on States to address this;

• Emphasized the importance of training, sensitization and capacity building of public officials, the judiciary, the police and military and those working in the areas of education, health, social welfare and immigration;

• Emphasised a multi-sectoral approach to prevention and protection strategies, including health and public housing services;

• Encouraged the media to examine the impact of gender-role stereotypes that foster gender-based violence and inequalities and to promote zero tolerance for such violence;

• Called on States to take measures to empower women, strengthen their economic autonomy and ensure their participation in society and decision-making and by implementing social and economic policies guaranteeing access to education, financial resources, decent work, land and property rights and inheritance rights.

Discrimination against women in law and practice

The Working Group on discrimination against women in law and practice presented its report (A/HRC/32/44) to the Council focusing on women’s health and safety, the barriers to women’s autonomous, effective and affordable access to health care and how the instrumentalisation of women’s bodies impedes their equal rights to health and safety.

Unpacking the meaning of equality in women’s health and safety, the report points out that:

‘Substantive equality in the area of health and safety requires differential treatment. …. Women have specific biological functions, are exposed to health problems that affect only women, are victims of pervasive gender-based violence and, statistically speaking, live longer than men, resulting in their greater need to access health services frequently and into older age. Hence, women and girls experience the negative effects of insufficiencies in health-care services more intensively than men.’

It goes on to discuss discriminatory practices which result in denial of access to health services and explains that a holistic approach, which considers women’s whole life-cycle, is needed. The Working Group also identifies multiple and intersecting forms of discrimination and how it impacts women’s health and safety, specifically addressing: women and poverty, rural women, women migrants, women with disabilities, indigenous women and other groups.

The report calls for autonomous, affordable and effective access to health care for women and for States to take measures to combat the instrumentalisation of women’s bodies.

Resolution The annual resolution on discrimination against women (A/HRC/RES/32/4) was adopted without a vote.  The resolution took up a number of the elements in the Working Group’s report, although was noticeably weaker and avoided the more robust recommendations relating to the instrumentalisation of women’s bodies. Importantly, the resolution renewed the mandate of the Working Group and urged States to: ‘ensure equal access to and equal treatment of women and men in education and health care, and to enhance women’s sexual and reproductive health …. training health providers and other health-care workers on gender equality and non-discrimination, respect for women’s rights and dignity ….. abolishing discriminatory practices that hinder women’s access to health services, and providing age-appropriate, sexual health information, education and counselling, based on scientific evidence and human rights’.

Environment & Climate change

There were a number of initiatives on human rights and the environment and climate change at this session of the Human Rights Council.

OHCHR study - climate change and the right to health OHCHR submitted a study on the relationship between climate change and the right to health (A/HRC/32/23). The study was informed by the panel discussion on this topic, held at the March 2016 session of the Council, together with stakeholder submissions.  The report summarises the now familiar information about the negative impacts of climate change on health, rights and the social and environmental determinants of health. It identifies some of the key impacts of climate change on health: heat-related; air pollution; extreme weather events and natural disasters; expanding disease vectors; nutrition; and mental health impacts. It also discusses the disproportionate vulnerability to adverse impacts, of those already marginalized, identifying gender, children, migrants and indigenous peoples, as relevant groups.

The study also considers the inter-linkages between climate change and the human right to health. Articles 1 & 4 of the UNFCCC refer to the the health impacts of climate change and the human right to health was linked to climate change first in a 2010 decision of the Conference of the Parties (UNFCCC) and most significantly in the human rights language in the 2015 Paris Agreement on Climate Change.

It also discusses the importance of a human-rights based approach to health and climate change, which has been affirmed in a number of international climate change and development agreements. It identifies the key elements of a human-rights based approach and how they should be integrated into climate change adaptation and mitigation measures. The report insists that respecting rights is not enough: States must take affirmative action to respect, protect, promote and fulfil all human rights for all persons, emphasizing participation, accountability, transparency and non-discrimination. It points out that following these principles will lead to more sustainable interventions with potential health co-benefits.

Resolution

A core group of Bangladesh, the Philippines and Vietnam, presented the now annual resolution on human rights and climate change, which was adopted without a vote as orally revised (A/HRC/RES/32/33) and co-sponsored by at least 53 States. Perhaps as a reflection of the growing focus and consensus on climate change following the Paris Agreement, the number of co-sponsors has grown and now includes a number of ‘Northern’ States.

Nevertheless, the fault lines that were almost the undoing of the Paris COP last year, remain evident in the Council discussions on climate change.  Whilst supporting the resolution, the European Union made an ‘Explanation of Position’ which noted that whilst it is important to encourage consideration of human rights principles in the UNFCCC work, the Council should not provide an alternative forum for climate change work.  Further it underlined that all countries are vulnerable to climate change and that human rights must be respected regardless of the economic conditions. The EU stressed that the principle of common but differentiated responsibilities can never be applied to human rights and it is not the only relevant principle in climate action.

The resolution:

• Calls particular attention to the impacts of climate change on children, migrants and non-nationals and on economic, social and cultural rights;

• Welcomes the Paris Agreement and affirms that human rights obligations and principles ‘have the potential to inform and strengthen international, regional and national policymaking in the area of climate change’;

• Acknowledges the principle of common but differentiated responsibilities which emanates from the climate change negotiations and that responses to climate change should avoid adverse impact on social and economic development;

• Calls upon States to enhance international co-operation for developing countries and implement the UNFCCC commitments;

• Decides to hold a panel discussion at its March 2017 session on ‘the adverse impact of climate change on States’ efforts to realize the rights of the child and related policies, lessons learned and good practices’; and

• Requests the OHCHR to conduct a study on ‘the relationship between climate change and the full and effective enjoyment of the rights of the child’ to be submitted before the Council’s June 2017 session.

Business and Human Rights

The 32nd session also saw the presentation of the report of the Working Group on the issue of human rights and transnational corporations and other business enterprises (A/HRC/32/45) which looked at state-owned or controlled enterprises.

It clarifies State duties in respect of such enterprises, outlining the ‘additional steps’ required to protect against human rights abuses required by Guiding Principle 4 of the UNGPs and the benefits of such steps in terms of policy coherence, international legal obligations (human rights treaties), reputation and credibility. The Working Group emphasies that States should ‘lead by example’ and suggests a range of measures to operationalize these ‘additional steps’.

The Working Group describes the significant and growing assets and influence of State-owned enterprises in the global economy and the trend for them to operate globally and outside traditional sectors. It recognises the link between corporate governance and human rights and the usefulness of the corporate governance framework for implementing human rights requirements.  In this respect it highlights the OECD Guidelines on Corporate Governance of State-Owned Enterprises and the OECD Guidelines for Multinational Enterprises, as helpful guidance which is compatible with human rights responsibilities.

Suggestions for operationalizing the requirement to take additional steps include:

• setting and communicating human rights expectations of SOEs;

• using ownership arrangements to set and manage expectations;

• using the relationship between the State and company board to set expectations and provide the mandate to respect human rights and ensure monitoring and accountability and require human rights due diligence;

• establish oversight and follow-up mechanisms, such as targets and goals and assessment tools and auditors;

• promote capacity-building, awareness-raising and training on human rights standards;

• establish disclosure, transparency and reporting requirements relating to human rights;

• ensure access to effective remedies for victims of abuse through complaints policies and grievance mechanisms, litigation policies and co-operation with State-based non-judicial mechanisms.

In addition, the OHCHR submitted its report on ‘Improving accountability and access to remedy for victims of business-related human rights abuse’ (A/HRC/32/19) which was the culmination of the substantial 2-year Access to Remedy project of OHCHR, mandated by Council resolution 26/22.

The report sets out ‘Guidance’ to States on how to improve accountability and access to remedy for victims of business-related human rights abuse, at the domestic level. The first part of the report explains the urgent need for action, the scope, methodology, structure and target audience (State agencies and judicial bodies) of the Guidance and identifies three cross-cutting issues that are important to understand for effective implementation of the Guidance: structural and managerial complexity of business enterprises (separate corporate personality, subsidiaries); challenges particular to cross-border cases and the importance of international cooperation; and the need for policy coherence.

The Guidance is comprised of 'policy objectives' for domestic legal responses to this problem. For public law offences the Guidance addresses:

• principles for assessing corporate legal liability, which discusses:

  • robust and detailed laws to ensure deterrence and remedy for business-related human rights abuse, corporate criminal liability, evidential burdens of proof, secondary corporate legal liability, due diligence measures, use of strict liability;

  • expectations of standards of management and supervision within corporate groups and supply chains, with respect to identification, prevention and mitigation of human rights impacts;

  • deterrence and remedy in the event of corporate contributions to business-related human rights abuses by 3rd parties;

• supporting the work of State investigation and enforcement agencies, which discusses:

  • clear mandate and political, resource and training support for agencies, but also independence in law and practice;

  • effective working relationships and communication links with other domestic regulatory bodies (eg: regulation of labour, environment)

  • transparency and accountability with respect to enforcement discretion;

  • sensitivity to the safety of victims and systems to protect them.;

• co-operation in cross-border cases (mutual legal assistance with detection, investigation, prosecution and enforcement in cross-border cases); and

• sanctions and other remedies.

For private law offences, the Guidance addresses:

• principles for assessing corporate legal liability, which discusses largely the same issues identified under public law offences above;

• overcoming financial obstacles to private law claims;

  • Access to sources of litigation funding (legal aid, pro bono, collective redress mechanisms, contingency fees, litigation insurance);

  • Reduction of costs (court fees/ waivers, mediation, rules on allocation of legal costs, security for costs, use of communications technologies);

• co-operation in cross-border cases (access to legal assistance from State agencies and judicial bodies in other States for evidence gathering);

• private law remedies (range of remedies available, consultation of claimants, monitoring implementation, prohibit tax deductibility of monetary damages paid by companies).

The Guidance is accompanied by an Addendum report (A/HRC/32/19/Add.1) which sets out Model terms of reference for a domestic review of laws relevant to business-related human rights abuses and ‘Explanatory Notes to the guidance’ (explains key terms, concepts and contextual issues).

Resolution

The bi-annual resolution on business and human rights was also considered at the 32nd session and was adopted without a vote, after oral revisions, with over 60 co-sponsors (A/HRC/RES/32/10). The focus of the resolution was ‘improving accountability and access to remedy’ following the topic of the report of the OHCHR. Interestingly, the resolution did not pick up the topic of the Working Group’s report, State-owned enterprises.

The resolution noted the OHCHR report and encouraged States to consider undertaking the legal review recommended in the report, to develop a strategy for improving accountability and access to remedy for business-related human rights abuses and improve the effectiveness of international co-operation between State agencies and judicial bodies with respect to law enforcement.

One of the oral revisions of the resolution was to include a paragraph inviting States to ‘work through intergovernmental processes’ to enhance accountability and access to remedy, in a clear reference to the Intergovernmental working group on transnational corporations and other business enterprises with respect to human rights.

In addition, the resolution requested the Working Group on business and human rights to prepare a study on ‘best practices and how to improve the effectiveness of cross-border cooperation between States with respect to law enforcement on the issues of business and human rights’ for the June 2017 session of the Council and to include as an agenda item at the 2016 annual Forum on Business and Human Rights ‘challenges, opportunities and lessons learned when improving accountability and access to judicial remedy for business-related human rights abuses’.

For the OHCHR Access to Remedy project, the Council requested it continue its work and convene 2 consultations ‘to identify and analyse lessons learned, best practices, challenges and possibilities to improve the effectiveness of State-based non-judicial mechanisms’ and submit a report thereon for the June 2018 Council session.

Other initiatives of interest:

• Perhaps the biggest news of the session was the establishment of a new special procedures mandate on protection against violence and discrimination based on sexual orientation and gender identity. The Council mandated (A/HRC/RES/32/2) an Independent Expert for a period of 3 years to:

  • assess the implementation of existing international human rights instruments with regard to ways to overcome violence and discrimination against persons on the basis of their sexual orientation or gender identity and to raise awareness of violence and discrimination against persons on that basis; and

  • identify and address the root causes of violence and discrimination.

• The other controversial resolution at this session was on protecting civil society space (A/HRC/RES/32/31) in which 15 hostile amendments proposed by the Russian Federation and others, were fought off by the core group of Chile, Ireland, Japan, Sierra Leone and Tunisia, and supporters. See the International Service for Human Right’s analysis HERE.

• A resolution that extended the mandate of the Special Rapporteur on the right to food (A/HRC/RES/32/8).