Chapter 14: Access to Remedy: Treaty Talks and the Terms of a New Accountability Accord

Document Type

Article

Publication Date

12-2018

Editor(s)

Surya Deva and David Bilchitz

ISBN

9781316648582

Publisher

Cambridge University Press

Language

en-US

Abstract

For this reason, the authors of this chapter contend that the BHR treaty negotiation must prioritize the question of remedies. This chapter traces the narrative of remedies in the recent efforts to negotiate a legally binding international instrument to regulate the conduct of transnational corporations (TNCs) in international human rights law. The authors offer a descriptive account of the different positions taken by various stakeholders on the question of remedies during the first session of the Open-ended Intergovernmental Working Group (OEIGWG) held in July 2015 in order to offer an objective evaluation of the overall inclusion, understanding and positioning of the concept of remedies in the treaty negotiation process. By analysing the public positions of civil society organizations (CSOs), victim groups and governments, the authors provide a historical record of the initial issues related to assuring an adequate remedy.

We argue that the proposed treaty must provide guidance to states on how to assist victims in overcoming obstacles to accessing remedies regardless of the size, nationality or location of the business enterprise implicated in human rights violations. The authors explore different options for including the right to remedy by looking comparatively at other treaty regimes and monitoring bodies. We believe that whatever is the outcome of the treaty negotiations with regard to an actual binding instrument, it is an important moment in solidifying the international right to an adequate and effective remedy. Finally, this unique opportunity could help to create a culture of accountability which also recognizes that a restorative justice approach will better respect diversity and pluralism through complementary dispute resolution processes while directly addressing power asymmetry between alleged victims and alleged violators.

First, we offer a brief overview of some of the present barriers to access to remedy. Next, we review the stand of different stakeholders involved in negotiating a BHR treaty and the range of perspectives presented at the initial round of treaty talks regarding access to remedy. We show that despite consistent reference to the issue of remedies during the talks, stakeholders did not appear to share a common concept of remedy. Having identified this challenge, we present a typology of the features of existing human rights instruments on the issue of remedies to provide a framework to inform future debates on how remedies could be incorporated into a legally binding international instrument. We explain the substantive right to remedy and the procedural requirements of various enforcement mechanisms of human rights instruments. Finally, we propose specific remedy provisions for a BHR treaty.

This document is currently not available here.

Link to Publisher Site Link to Publisher Site (BU Community Subscription)

Share

COinS