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Published online by Cambridge University Press: 02 November 2022
The third pillar of the UN Guiding Principles on Business and Human Rights (UNGPs) is often considered the ‘forgotten pillar’,1 especially when compared with the first pillar, where some of the ‘governance gaps’ the State must address in order to comply with its duty to protect under international human rights law are developed with some level of detail. The same happens in relation to the second pillar, which proposes a practical approach for the proactive involvement of companies in the identification and management of the risks their activities and business relationships may produce on human rights.2 However, the third pillar is not necessarily ‘forgotten’, as it is based on one of the core rights of the international human rights regime. In this regard, not only are the various elements and procedures for access to justice developed within each country’s domestic law and within the international legal system, but they have also been subject to detailed studies by the international and regional human rights community.3 However, it is the least proactive pillar of the UN framework on business and human rights, and the one that faces the greatest challenges in terms of making a specific, substantive contribution in light of the vast existence of civil, criminal, administrative and constitutional proceedings in domestic jurisdictions.
1 Human Rights Council, Report of the Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, A/HRC/47/39 (22 April 2021), para 92ff.
2 General Assembly, The Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, A/73/163 (18 July 2017).
3 See, for example, General Assembly, 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, A/RES/60/147 (16 December 2005).
4 See, for example, Jennifer Zerk, Corporate Liability for Gross Human Rights Abuses: Towards a Fairer and More Effective System of Domestic Law Remedies, 2013; Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, A/HRC/17/31 (16 March 2011), Principle 25, Commentary.
5 UNGPs, Principle 26, Commentary.
6 For more information on the Accountability and Access to Remedy Project, see https://www.ohchr.org/EN/Issues/Business/Pages/OHCHRaccountabilityandremedyproject.aspx (accessed 6 September 2022).
7 In this regard, see generally Rivera, Humberto Cantú (ed.), Experiencias latinoamericanas sobre reparación en materia de empresas y derechos humanos (Bogotá: Fundación Konrad Adenauer, 2022)Google Scholar.
8 See Bilchitz, David, ‘A chasm between “is” and “ought”? A critique of the normative foundations of the SRSG’s Framework and the Guiding Principles’ in Deva, Surya and Bilchitz, David (eds.), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge: Cambridge University Press, 2013), 118–123 Google Scholar.
9 Human Rights Council, Improving Accountability and Access to Remedy for Victims of Business-Related Human Rights Abuse: Explanatory Notes for Guidance, A/HRC/32/19/Add.1 (12 May 2016), para 55: ‘In many jurisdictions, a company’s human rights due diligence will be relevant to the question of whether the company had discharged the applicable standard of care for the purposes of private law tests for negligence’.
10 Supreme Court of Justice, Civil Cassation Chamber, SC5686-2018 (19 December 2018).
11 Ibid, 119–120.
12 Ibid, 123–124.
13 The only reference is in the commentary to Principle 17, where it is noted that human rights due diligence allows demonstrating the adoption of reasonable measures of prevention.
14 Human Rights Council, Improving Accountability and Access to Remedy for Victims of Business-Related Human Rights Abuse: The Relevance of Human Rights Due Diligence to Determinations of Corporate Liability – Report of the United Nations High Commissioner for Human Rights, A/HRC/38/20/Add.2 (1 June 2018), para 26.
15 Cantú Rivera, note 7.
16 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, art 8.3.e.
17 Supreme Court of Justice of the Nation, First Chamber, Amparo directo en revisión 5505/2017 (13 January 2021).
18 Ibid, paras 11–116.
19 This judicial doctrine argues that human rights obligations are transversal towards other normative regimes of domestic law, such as civil law and civil procedure rules. Thus, it implies an interpretation of the different legal systems with a human rights lens, which can potentially generate a greater dialogue, proximity and interaction between other legal regimes (including private law) and human rights.
20 Ibid, para 123.
21 Ibid, para 142.
22 For a brief commentary on the case and the court decision, see: The Associated Press, ‘German Court Rejects Case of Deadly Pakistan Factory Fire’, ABC News (10 January 2019), https://abcnews.go.com/International/wireStory/german-court-rejects-case-deadly-pakistan-factory-fire-60281316 (accessed 6 September 2022).
23 National Chamber of Labor Appeals, Chamber V, I., M. G. c. Techint S.A. Compañía Técnica Internacional s/ accidente – ley especial (27 February 2015).
24 Ibid.
25 Supreme Court of Justice of the Nation, Ingenieros, María Gimena c/ Techint Sociedad Anónima Compañía Técnica Internacional s/ accidente – ley especial (9 May 2019).
26 Ibid, 4.