Doing Business Right Blog

More than twenty years ago nine local activists from the Ogoni region of Nigeria were executed by the then military dictatorship. The story of the Ogoni Nine does not stop in Nigeria; the tale of the nine men, the many lives lost, and the environmental degradation linked to the extraction of oil in the region by Shell has quite literally travelled the world. What is often commonly referred to as the Kiobel case—after the application lodged by Esther Kiobel, the widow of Dr. Barinem Kiobel—originated in Nigeria, has been heard by courts in the USA, and is currently before Dutch courts. The Kiobel case, as well as a flurry of other cases (e.g. the Bralima case before the Dutch NCP, the Nevsun case before the Canadian courts, the Vedanta case before the UK courts, or the Total case before the French courts, among others), embodies the flight of corporate accountability cases out of their original African contexts.

This transnational quest for an effective remedy by those who’s human and/or environmental rights have been violated is understandable, but it also raises serious questions about the consequences of the delocalisation of access to remedies in such cases. This conference aims to provide a forum for critical discussions of the justifications for, and consequences of, using various delocalised ‘sites of justice’ for human and environmental rights violations associated with ‘doing business’ in Africa. The aim is not to focus on Kiobel or Nigeria in particular, although contributions on this case are welcome, but to generally engage in a critical examination of cases that ‘migrate’ between different sites of justice, and the associated benefits and drawbacks of the displacement of corporate accountability out of African courts to courts or non-judicial mechanisms (such as OECD National Contact Points) based in the so-called Global North. In doing so, we strongly encourage applicants to consider a variety of (critical) theoretical perspectives in the analysis of this phenomenon.

In this collaboration between Asser Institute’s Doing Business Right project and AfronomicsLaw, we welcome contributions from scholars working on African international law, African perspectives of international/transnational law, as well as scholars working on business and human rights more generally. The aim is to bring a plurality of voices into conversation with each other, and to generate original (and critical) engagements with the operation of transnational justice in the business and human rights space. With important developments taking place at the international level, such as the drafting of a binding Treaty on Business and Human Rights, the preparation of European legislation on mandatory human rights due diligence, as well as the emergence of the African Continental Free Trade Area (AfCFTA), which is set to foster business across African borders, such discussions are not only timely, they are also necessary.

Deadlines and requirements:

In order to increase engagement from a broader range of actors from the continent, the conference will be bilingual, English and French. The conference presentations and outputs will also be accepted in either language (2,000 word blog post as part of a special symposium on AfronomicsLaw, as well as a full-length paper for a special issue with a journal (journal tbd)).

Overview of deadlines:

• Deadline for abstract submission: 15 January 2021
• Draft papers due: 1 March 2021
• Digital conference: 24-26 March 2021
• Final contribution to blog symposium on AfronomicsLaw: 30 April 2021
• Final papers due for special issue with journal: 1 July 2021

Please submit abstracts in English or French (250 words) accompanied by a short CV (max. 5 pages) to m.plagis@asser.nl by 23:59 CET on 15 January 2021.

The National Human Rights Commission of India (NHRCI) was established on 12 October 1993 on the basis of the Protection of Human Rights Act (PHRA) as amended by the Protection of Human Rights (Amendment) Act No 43 of 2006. It is a quasi-judicial institution whose purpose is to protect and promote human rights, which are understood to be those rights relating to life, liberty, equality and dignity as enshrined in the Indian Constitution and in applicable international covenants (see s.2 (1)(d)). The duties of the Commission include inquiring into complaints ex officio or upon request, intervening in court proceedings relating to human rights, analysing legislative acts and making recommendations, studying international treaties and guiding their effective implementation, undertaking and promoting research, and raising awareness of human rights inter alia (see s.12 (a)-(j)). Section 21 of the PHRA further allows for the establishment of State Human Rights Commissions, which have largely the same mandate as the NHRCI with the exception of section 12 (f) regarding the study of international treaties (see also here). There are presently twenty-five state commissions. The National Human Rights Commission is headquartered in New Delhi.

This article analyses two types of actions in order to observe the extent to which the NHRCI has assumed its role in promoting access to remedy in business and human rights cases. According to the 2010 Edinburgh Declaration of the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), the participation of NHRIs in the remedial process may be either direct or indirect. As will be shown, the National Human Rights Commission of India has been quite shy in tackling issues of access to remedy whether directly or indirectly.

As to direct participation, the Commission is empowered to inquire into complaints alleging violations of human rights or negligence in the prevention of such violations by a public servant. It may do so either ex officio, on petition by a victim or following a court order (see s.12 (a)). While such an inquiry is ongoing, the NHRCI enjoys all the powers of a civil court trying a suit under the Code of Civil Procedure of 1908. Subsequent to reviewing the factors that inhibit the enjoyment of human rights, the Commission may recommend appropriate remedial measures (see s.12 (e)). The PHRA does not explicitly state whether the NHRCI may entertain complaints against companies. Yet the NHRCI’s 2012 Code of Ethics for the Indian Industry points out that there is no apparent reason not to extend the application of s.12 (a) to private persons (see here at page 28-29). This analysis nevertheless seems to be at odds with the practice of the Commission, which has been rather reluctant to exercise jurisdiction over companies. For instance, the NHRCI has carried out numerous investigations into allegations of child labour and bonded labour. These investigations were however carried out as a result of a Supreme Court order vesting the Commission with the power to oversee and monitor the implementation of the Bonded Labour System (Abolition) Act of 1976. The NHRCI has also intervened in cases relating to development-induced displacement, particularly in the cases of Special Economic Zones in India. It did not do so directly however. For example, upon receiving complaints about human rights violations concerning the POSCO project on Odisha, the Commission conducted a fact-finding mission and issued recommendations for the government on how to deal with the matter. Another way in which the Commission has tackled corporate human rights abuses is through its power as a civil court and through the intermediary of the State duty to protect. The NHRCI regularly directs local authorities to inspect businesses or enterprises against which complaints of human rights abuses have been made.[1] If the authorities’ report is unsatisfactory, the Commission may send its own inspectors to conduct a fact-finding mission. In some cases, the NHRCI directs the local authorities to pay relief. The Commission found that its sustained interventions in these cases usually leads to corrective action.[2] The NHRCI therefore seems to have rather opted for a back route to acting on business-related human rights complaints. It is nevertheless difficult to see why the Commission has shown this reluctance seeing as its mandate is rather permissive.  A more explicit mandate to deal with corporate human rights abuses would perhaps spur the NHRCI’s direct participation, which is overall quite lacking.

As to indirect participation, the National Human Rights Commission of India has had a visible presence in the sphere of business and human rights but less so in that of access to remedy. For instance, the NHRCI commissioned a study in April 2012 concerning the development of a Code of Ethics for the Indian Industry. The purpose of this study was to “[…] attempt to understand a range and quantity of ethical issues that reflect the interaction of profit-maximising behaviour with non-economic concerns […]”. Nevertheless, as far as access to remedy is concerned, this study contains nothing more than a reiteration of the UNGPs’ third pillar (see here at page 24). Nonetheless, the Commission has established a Core Group on Business, Environment and Human Rights, has convened no less than forty-three workshops on the elimination of bonded labour, and it has been nominated by the Commonwealth Forum of National Human Rights Institutions as the focal point for business and human rights matters. It also regularly convenes conferences on business and human rights (see for instance here and here). Most recently, following the conference on 2 July 2018, the NCHRI committed to engage with the Indian Ministry of Corporate Affairs in order to formulate a National Action Plan and to conduct a base line survey on business and human rights in the country.

In conclusion, the NHRCI has a wide mandate to protect and promote human rights but has yet to attain its full potential in ensuring access to effective remedy. It has not made full use of its complaint procedure, which could extend to cover human rights abuses by private parties. Furthermore, its role as a focal point for expertise on business and human rights seems to deal with access to remedy as a peripheral issue.

[1]           National Human Rights Commission, ‘Business and Human Rights: The Work of the National Human Rights Commission of India on the State’s Duty to Protect’

[2]           National Human Rights Commission, ‘Business and Human Rights: The Work of the National Human Rights Commission of India on the State’s Duty to Protect’

Editor's Note: Alexandru Rares Tofan recently graduated with an LLM in Transnational Law from King’s College London where he focused on international human rights law, transnational litigation and international law. He is currently an intern with the Doing Business Right project at the Asser Institute in The Hague. He previously worked as a research assistant at the Transnational Law Institute in London on several projects pertaining to human rights, labour law and transnational corporate conduct.

The Australian Human Rights Commission (AHRC) is charged with leading the promotion and protection of human rights in Australia and with ensuring that Australians have access to effective complaint and public inquiry processes on human rights matters (see the Australian Human Rights Commission Act No 125, hereinafter ‘the Act’). The AHRC was established in 1986 as the Human Rights and Equal Opportunity Commission but underwent a name change and several other amendments through the 2003 Australian Human Rights Commission Legislation Bill (see also the Explanatory Memorandum). The AHRC primarily exercises the functions conferred on it by four federal anti-discrimination acts, namely the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975, and the Sex Discrimination Act 1984 (see s.11). It is further empowered to act on the basis of several international human rights instruments such as the ICCPR (see here). Specifically, the AHRC advises the federal government on the compatibility of its legislation with human rights, promotes an understanding and acceptance of human rights in Australia, undertakes research and educational programmes, intervenes in court proceedings as an amicus, and it may handle complaints through its conciliatory process (see s.11 (1) (a)-(o)). Notably, the AHRC enjoys an open-ended mandate in that s.11 (1) (p) stipulates that it may undertake any action that is incidental or conducive to the performance of the functions contained in subparagraphs (a) to and including (o). The Commission is made up of one president and seven specialised commissioners (see s.8 (1)). Its headquarters are located in Sydney.

This article analyses two types of actions in order to assess the extent to which the AHRC has assumed its role in promoting access to remedy in business and human rights cases. According to the 2010 Edinburgh Declaration of the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), the participation of NHRIs in the remedial process may be either direct or indirect. As will be shown, the AHRC’s mandate to entertain complaints against companies is rather limited in terms of subject-matter jurisdiction. On the other hand, the Commission plays a prominent role in the promotion and operationalisation of the UNGPs in Australia.

As to direct participation to access to remedy, three types of complaints fall under the jurisdiction of the Commission’s complaints mechanism. Firstly, the AHRC may resolve complaints alleging unlawful discrimination, harassment and bullying in so far as they relate to one of the prohibited grounds of race, disability, age and sex (including gender identity, intersex status and sexual orientation). The second type of complaints that the Commission may entertain are those relating to discrimination in employment. The prohibited grounds on which such a complaint may be based include a person’s criminal record, trade union activity, political opinion, religion and social origin. Thirdly, the AHRC may resolve complaints arguing breaches of any human right but only to the extent that the alleged perpetrator is the Australian government or one of its agencies. It should be borne in mind however that the Commission is an administrative body and that it therefore does not have the capacity to make binding and enforceable judicial decisions. As the High Court ruled in the Brandy case, such a power would be unconstitutional and the Commission may therefore only act in a conciliatory capacity.

Once such a complaint is filed, the Commission begins a non-adversarial process of conciliation whereby it seeks to help the parties reach an agreeable outcome. The most common types of reparations include apologies, policy changes and pecuniary compensation. Out of 1,262 conciliation processes carried out in 2017-2018, 74% were successfully resolved according to both parties (see here at page 15). Nevertheless, if such an outcome cannot be reached, complaints may be taken further to the federal courts. This process exemplifies the Commission’s complementary role in providing remedy for human rights violations. Nonetheless, the AHRC’s complaints mechanism suffers from a narrow mandate in terms of business and human rights. It may only entertain complaints against companies in so far as these fall under the first or second category of complaints. Other alleged breaches of human rights against companies escape the Commission’s competences. The AHRC’s direct participation in providing access to remedy in business and human rights cases is therefore rather limited. While the conciliatory process fits the role envisioned for NHRIs under the UNGPs, the limitation of the mandate to allegations of discrimination curtails the AHRC’s potential as an alternative to instituting judicial proceedings.

On the other hand, the Commission’s indirect participation in promoting access to effective remedy is slightly more robust. The AHRC has elaborated a fully-fledged business and human rights agenda upon which it has based several activities meant to raise awareness and promote dialogue (see also here at page 23). For instance, the Commission convenes an annual business and human rights dialogue jointly with the Global Compact Network Australia that focuses on capacity-building by helping businesses operationalise the UNGPs. Access to remedy has been a central theme in these dialogues (see for instance the outcomes of the 2015 and 2016 dialogues). The AHRC has further endeavoured to help companies internalise the UNGPs by developing easy to understand factsheets on how to best integrate human rights in business policies and practices. Alongside working with businesses, the Commission has collaborated with the civil society with the purpose of finding a way to better operationalise the UNGPs in Australia. In 2016, the AHRC hosted a roundtable discussion with civil society representatives, which culminated in a joint statement. This tackled among others the upcoming National Action Plan of Australia and the measures this should include to ensure adequate access to remedy. On a regional level, the AHRC has participated in the Interregional Dialogue on Business and Human Rights, which was hosted by the ASEAN Intergovernmental Commission on Human Rights. As a part of this dialogue, the Australian Commission convened a roundtable discussion on the NHRI’s engagement with business and human rights issues under the framework of the UNGPs (see here at page 42).

In conclusion, while the Australian Human Rights Commission plays an important role in the promotion and implementation of the UNGPs in Australia, its role is considerably more prominent in terms of indirect rather than direct participation in providing access to remedy for business-related human rights harms.

Editor's Note: Alexandru Rares Tofan recently graduated with an LLM in Transnational Law from King’s College London where he focused on international human rights law, transnational litigation and international law. He is currently an intern with the Doing Business Right project at the Asser Institute in The Hague. He previously worked as a research assistant at the Transnational Law Institute in London on several projects pertaining to human rights, labour law and transnational corporate conduct.

The Romanian Institute for Human Rights (‘Institutul Român pentru Drepturile Omului’, hereinafter RIHR) was established on 30 January 1991 on the basis of Law No 9/1991. It is an independent public body that has as its main purposes the promotion of human rights education and the monitoring of compliance with human rights in Romania (see Art. 2). The duties of the institute include carrying out research, disseminating information, organising events and conferences for capacity-building and awareness raising, advising the legislative branch on human rights aspects of new enactments, and reporting on compliance with human rights (see Art. 3). The RIHR’s status as a national human rights institution is currently being transferred to the People’s Advocate Institution (see here), which is an ombudsman institution with general jurisdiction. The process for obtaining accreditation from GANHRI is currently in its incipient stages pending the approval by the Senate of Law 382/2018 concerning the amendment of the law governing the People’s Advocate Institution. In view of this development, this article undertakes a forward-looking approach by analysing RIHR’s current efforts on business and human rights as well as any foreseeable changes.

This article analyses two types of actions in order to observe the extent to which the RIHR has assumed its role in promoting access to remedy in business and human rights cases. According to the 2010 Edinburgh Declaration of the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), the participation of NHRIs in the remedial process may be either direct or indirect. As stated above however, the RIHR lacks a complaints mechanism. For this reason, this article will adopt a forward-looking analysis by looking at the complaint mechanism of the People’s Advocate Institution (PAI) to ascertain whether this new procedure complies with the vision for NHRIs under the UNGPs. As will be shown, the field of business and human rights has not been at the top of the RIHR’s agenda. Worryingly, the forthcoming transfer of NHRI status to PAI may in fact represent a step back in this sense.

The Paris Principles (PP) dictate that national human rights institutions may directly participate in providing access to justice by hearing and considering complaints. While this does not fall in the competences of the RIHR, it is interesting to analyse whether its successor’s complaints mechanism is aligned with the PPs in its current form. According to the current legislative proposal, the PAI would have the authority to decide over complaints alleging any violation of human rights but only to the extent that the respondent is a public authority, including public companies (see Art. 11 (c)). Should it satisfy itself that a right has been breached, it may request the public authority to take compensatory measures and it may award reparation.

Restricting the complaints mechanism’s jurisdiction to cover only public authorities severely limits its usefulness in business and human rights cases. It means that victims of corporate human rights abuses by private companies will not able to enjoy a routinized alternative to instituting legal proceedings. This limited jurisdictional reach also obstructs the fulfilment of the institution’s role as a mediatory or conciliatory body in business and human rights cases. While it is commendable that the PAI may handle cases alleging violations of any human rights, the ratione personae jurisdiction is too limited to foster the achievement of its envisioned purposes under the UNGPs. Extending the scope of the complaints mechanism to cover private persons as offenders would enable its alignment with both the Paris Principles and the UNGPs. It would also in all likeliness lead towards the bettering of its accreditation status under the GANHRI (the RIHR was previously given C-status).

As to indirect participation, the RIHR has only marginally addressed the field of business and human rights in its activities. For instance, in 2014 and 2015, it has conducted research and organised debates based on the UNGPs, the European Strategy for CSR and the Action Plan of the European Network of NHRIs. These debates included talks of a national action plan in which to set out the priorities of the Romanian government in this field. The RIHR has further held separate conferences on business and human rights (such as the one held together with the UNESCO Office for Human Rights, Democracy, Peace and Tolerance) or as part of its annual conferences (see the 2016 conference where business and human rights was treated as a new challenge to the field of human rights). The RIHR is also a founding member of the CLARITY project alongside eleven other national human rights institutions from the EU. This project aims to raise awareness and enhance the general public’s knowledge about their fundamental rights and related enforcement mechanisms. Since March 2018, CLARITY has begun work on a project focusing on access to remedy improvements in business and human rights cases. On the other hand, the activities of the People’s Advocate Institution do not currently encompass the field of business and human rights at all. This means that the sporadic involvement of the Romanian NHRI in the field of business and human rights will in all likelihood diminish in the future.

To conclude, the field of business and human rights has not been at the top of the RIHR’s agenda in its almost thirty years of activity. Nor is this likely to change under the auspices of its successor – the People’s Advocate Institution. The latter institution does not have a mandate to handle human rights complaints against private companies, and the field of business and human rights is not in its sight. This forthcoming transfer of responsibility may therefore, at least in the short run, not be a good news for access to remedy in business and human rights cases in Romania.

Editor's Note: Alexandru Rares Tofan recently graduated with an LLM in Transnational Law from King’s College London where he focused on international human rights law, transnational litigation and international law. He is currently an intern with the Doing Business Right project at the Asser Institute in The Hague. He previously worked as a research assistant at the Transnational Law Institute in London on several projects pertaining to human rights, labour law and transnational corporate conduct.

The South African Constitution provides in Chapter Nine for the creation of several institutions meant to strengthen constitutional democracy. The South African Human Rights Commission (SAHRC) is one of these institutions. Its constitutional mandate grants it authority to promote, protect, monitor and investigate non-compliance with human rights in South Africa (see s.181 (1) (b) jo. s.184 (1)-(4)). Alongside this constitutional basis, the SAHRC enjoys a legislative mandate in that it was established by the Human Rights Commission Act No 54 of 1994. This act was later repealed by the South African Human Rights Commission Act No 40 of 2013 (‘the Act’), which entered into force on 5 September 2014 and which currently governs the Commission jointly with the constitution. This act details the Commission’s functions and powers in sections 13 and 14. The SAHRC is empowered to make recommendations to state organs for the adoption of measures for the promotion and observance of human rights, undertake studies, request information, develop and conduct educational programmes, review and propose government policies and legislation relating to human rights, monitor implementation and compliance, and undertake investigations into allegations of human rights violations inter alia (see s.13 and 14 of the Act). The SAHRC is based in Johannesburg but it has regional offices in the other eight South African provinces as well.

This article analyses two types of action in order to observe the extent to which the SAHRC has assumed its role in promoting access to remedy in business and human rights cases. According to the 2010 Edinburgh Declaration of the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), the participation of NHRIs in the remedial process may be either direct or indirect. As will be shown, the South African Human Rights Commission has adopted a far-reaching and comprehensive approach to both direct and indirect participation in the provision of access to remedy.

As to direct participation, the SAHRC’s mandate to receive, investigate and provide redress for human rights violations is governed both by the constitution and the Act. Section 184 (1) (b) of the Constitution dictates that the Commission must promote the protection of human rights while Section 184 (2) (a)-(b) states that it has powers to investigate and to take steps to secure appropriate redress where human rights have been violated. The Act further details that the Commission may resolve any dispute or rectify any act or omission emanating from or constituting a violation of or threat to any human rights (see s.14 (a) and (b)). It can do so by mediation, conciliation or a negotiation endeavour. The SAHRC published its updated complaints handling procedures on 1 January 2018. These reaffirm the Commission’s broad mandate in that they state that the SAHRC is competent to investigate any alleged violation of human rights whether upon receipt of a complaint or ex officio (see Article 3 (1)). Complaints may treat businesses as the offender without limitations as to the type of company or violation. The SAHRC may also institute legal proceedings in its own name or on behalf of a person or a group or class of persons (see s.13 (3) (b)). The case load of the Commission averaged 4633 complaints per year between 2012/13 – 2016/17 (see Table 1).

Under the UNGPs, NHRIs are supposed to offer an alternative to instituting legal proceedings. This is reflected in the practice of the SAHRC, which focuses on alternative dispute resolution (ADR) mechanisms such as mediation, conciliation and negotiation. A trends analysis by the Commission has revealed the fact that ADR mechanisms have a high rate of successful resolution. For the period 2016-2017, 90% of the complaints addressed through ADR mechanisms were successfully resolved (see here at page 42 and 43). For this reason, the SAHRC’s approach to handling complaints relies first on negotiation and conciliation, and, if these fail, the Commission attempts to mediate the matter. Making use of the South African courts becomes in this sense the last resort. Moreover, the Commission has taken a preventive approach to the handling of grievances by conducting targeted investigations on systemic issues (see, e.g., the SAHRC’s national hearing on the underlying socio-economic challenges of mining-affected communities in South Africa). This extensive report does not only identify and analyse the underlying issues, but it also includes concrete recommendations as to what stakeholders could do to ensure access to remedy. For instance, the report states that it is worrisome that some mining companies do not have complaint monitoring and resolution mechanisms in place as per the UNGPs (see the Report on page 79). This practice resonates with the vision for NHRIs under the UNGPs, which note that gaps in the provision of remedy could be filled by mediation-based, adjudicative or other culturally appropriate and rights-compatible non-judicial mechanisms. Alongside its complaints procedure, the Commission further promoted access to remedy by acting as an amicus in various business and human rights cases (see for instance the case of University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others).This, paired with its far-reaching complaints mechanisms, shows that the SAHRC plays a much wider role than the Dutch NHRI in providing direct  access to remedy for victims of business-related human rights abuses.

As to indirect participation, the South African Human Rights Commission is mandated to promote respect for human rights, monitor and assess the observance of human rights, carry out research and educate inter alia. In terms of business and human rights, the Commission has comprehensively grappled with these duties. The SAHRC participated in multiple international conferences devoted to discussing the role of NHRIs in the field of business and human rights. For instance, the Commission was one of the institutions that participated in the Global Alliance of NHRIs’ 2010 conference on the role of NHRIs in business and human rights. Similarly, in 2011 the Commission participated in the Network of African NHRIs in business and human rights, which resulted in the Yaoundé Declaration. This affirmed the collective commitment of NHRIs to strengthen their capacity on business and human rights and to address related human rights abuses. Nationally, the SAHRC carried out multiple awareness raising and educational initiatives. These include the hosting of the 2013 Business and Transparency Forum, the 2015 roundtable discussion on ‘Children’s Rights and Business Principles’, the 2016 conference ‘Access to Justice: Creating Access to Effective Remedies for Victims of Business Related Human Rights Violations’, and the 2018 ‘Business and Human Rights Dialogue’. The SAHRC focused on business and human rights as a key strategic focus area both in 2014-2015 and 2015-2016 (see here at page 10). In March 2015, the SAHRC together with the Danish Institute for Human Rights published the ‘Human Rights and Business Country Guide for South Africa’, a highly comprehensive guide tackling all aspects of this field in South Africa. This guide notably includes information under each rights area about the remedy mechanisms available to redress violations and how these mechanisms can be bettered. In sum, the SAHRC’s indirect participation in the provision of access to remedy is quite extensive. It has been undertaking capacity-building exercises, educational programmes and it has established itself at the forefront of the business and human rights field in South Africa.

In conclusion, the South African Human Rights Commission has fully assumed the role envisioned for it under the UNGPs. As an NHRI, the Commission provides a holistic complaints procedure that functions on the full spectrum of human rights and regardless of the type of company. Alongside this, it has undertaken numerous educational programmes, published reports and conducted awareness raising initiatives that have shone a light on business-related human rights abuses in South Africa.

Editor's Note: Alexandru Rares Tofan recently graduated with an LLM in Transnational Law from King’s College London where he focused on international human rights law, transnational litigation and international law. He is currently an intern with the Doing Business Right project at the Asser Institute in The Hague. He previously worked as a research assistant at the Transnational Law Institute in London on several projects pertaining to human rights, labour law and transnational corporate conduct.

The national human rights institution of the Netherlands is the College voor de Rechten van de Mens (i.e. ‘the Netherlands Institute for Human Rights’). It was established on 1 October 2012 with the entering into force of the Netherlands Institute for Human Rights Act of 24 November 2011 as supplemented by the Explanatory Memorandum (EP). It is an independent public body whose mission is to promote, monitor and protect human rights in practice, policy and legislation (see NIHR Act s.1 (3)). For these purposes, it enjoys a wide competence that spans the full breadth of human rights whether stemming from national or international legislation (see EP at page 7). The Institute’s duties include conducting investigations, reporting and making recommendations, advising, providing information, encouraging research, pressing for the observance of internationally recognised human rights, and assessing any complaints alleging violations that it may have received (see NIHR Act s.3). The types of complaints it may entertain are nevertheless rather limited – the Institute may only investigate claims alleging discrimination or unequal treatment (see NIHR Act s.10 (1)).

This article analyses two types of actions in order to assess the extent to which the Institute has assumed its role in promoting access to remedy in business and human rights cases. According to the 2010 Edinburgh Declaration of the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), the participation of NHRIs in the remedial process may be either direct or indirect. As will be shown, the Dutch NHRI is envisioned as an institution that leans more on indirect rather than direct participation in providing access to remedy.

In terms of direct participation, the complaints procedure of the Netherlands Institute for Human Rights has a rather narrow scope. Section 10 of the Act stipulates that the Institute may conduct investigations into allegations of violations in so far as they relate to discrimination or unequal treatment under the Equal Treatment Act, the Equal Treatment (Men and Women) Act or Article 646, Book 7 of the Dutch Civil Code. Although the complaint may be submitted against any type of Dutch-based company (see S. 10 (2) (a)–(e)), the limited subject matter jurisdiction prevents the Institute from being a one-stop shop for business-related human rights abuses. This is especially true for transnational corporate misconduct, which normally entails cross-cutting/intersectional human rights abuses. In the same vein, the Institute may only bring a legal action before the courts if this claim relates to discrimination under the aforementioned legislation (see S.13). The Memorandum attached to the Act explains that ‘[…] [g]iven the legal protection already available in the Netherlands and the possibility of lodging a complaint with an ombudsman the government sees no good reason to give the Institute its own jurisdiction to hear legal actions in the broad field of human rights […]’ and that ‘[…] [i]n response to a complaint, the National Ombudsman may investigate whether or not the state has acted properly […] To prevent overlapping it is therefore undesirable for this responsibility to be given to the Institute […]’. The National Ombudsman may nevertheless only exercise authority over public bodies (see Article 1a). In turn, this means that complaints lodged against private actors arguing violations of human rights other than discrimination escape both the Institute and the National Ombudsman. While it is true that the general legal protection available in the Netherlands would apply in those cases, the role of the NHRI as a complementary grievance mechanism is in this way restricted. Under the UNGPs, NHRIs are supposed to offer an alternative to instituting legal proceedings. The rationale behind this is that bringing a legal action may involve many obstacles for the victim such as prohibitive costs, imbalance of expertise between parties, lack of standing for foreign nationals, and protracted duration. Conversely, an NHRI complaints mechanism is perceived as more accessible, expeditious and culturally-appropriate.[1] The limited subject matter jurisdiction of the Institute in handling complaints may therefore be seen as impeding its full direct participation in providing access to remedy.

As to indirect participation, one of the main tasks of the Institute is to promote and monitor human rights (see S.3). The Institute has a rather robust presence in the area of business and human rights in the Netherlands and performs an important role in promoting human rights in this policy area. For instance, the Institute drew up a comprehensive response to the National Action Plan on Business and Human Rights put forward by the Dutch government in December 2013. This response entailed an in-depth examination of the plan’s compatibility with the UNGPs as well as advice and recommendations for its improvement. Notably, it included a rights-based approach in that it looked at the issue of access to remedy from the victims’ perspectives. The Netherlands Institute for Human Rights further advised the government on the proposed law on child labour in supply chains, the human rights implications of the new model bilateral investment treaty, and it partook in the discussions regarding the national sector covenants (e.g. the Agreement on Sustainable Garments and Textile). It further participates in the annual UN Forum on Business and Human Rights alongside other stakeholders. Furthermore, the cross-cutting nature of business-related human rights abuses means that they permeate the Institute’s work in other policy areas. For instance, the Institute’s work on the right to housing implies the usage of the UNGPs as a framework to ascertain the human rights responsibilities of housing corporations. In the same vein, one of the four themes from the Institute’s Strategy Plan for 2016-2019 is discrimination and stereotyping in the labour market. This necessarily involves an assessment of the human rights obligations of corporations. The Institute has therefore assumed a firm standing in terms of indirect participation in the implementation of the UNGPs. It promotes education, monitors human rights implementation, undertakes capacity-building exercises, advises and issues recommendations. Nevertheless, one cannot help but notice the absence of business and human rights from the Institute’s Strategic Plan for 2016-2019.

To conclude, the Netherlands Institute for Human Rights seems to have only partially assumed the role envisioned for it under the UNGPs as a national human rights institution. On the one hand, it did establish itself as a focal point for expertise on human rights issues in the Netherlands and has taken important steps to promote and advise on issues of business and human rights. On the other hand, a broader mandate would conform more to the second leg of the Paris Principles and to the spirit and aim of the Third Pillar of the UNGPs – the protection of human rights by receiving, investigating and resolving complaints.

[1]           UN Human Rights Council, ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises – Protect, Respect and Remedy: A Framework for Business and Human Rights’ (7 April 2008) A/HRC/8/5 at page 25.

Editor's Note: Alexandru Rares Tofan recently graduated with an LLM in Transnational Law from King’s College London where he focused on international human rights law, transnational litigation and international law. He is currently an intern with the Doing Business Right project at the Asser Institute in The Hague. He previously worked as a research assistant at the Transnational Law Institute in London on several projects pertaining to human rights, labour law and transnational corporate conduct.

Human rights require meaningful enforcement mechanisms. This idea stands at the foundation of the United Nations’ approach to handling corporate human rights abuses.[1] An individual that has suffered a human rights harm must freely enjoy access to justice in order to seek the reparation of that harm. The third pillar of the UN Guiding Principles on Business and Human Rights (UNGPs) focuses exclusively on this need to secure access to effective remedy for victims. The remedial process described therein comprises both the procedural aspects of obtaining a remedy for an adverse human rights impact and the substantive outcome of those procedures. This process demands the involvement of all actors including governments, corporations and civil society.

The commentary to Principle 27 of the UNGPs notes the particularly important role that national human rights institutions (NHRI) play in providing access to effective remedy. In his 2008 Report, the UN Special Representative on Business and Human Rights referred to them as the ‘lynchpins’ of his framework’s entire system of grievance mechanisms. The reasons justifying this optimistic outlook are not difficult to uncover. NHRIs are state-based but independent institutions that have a constitutional or legislative mandate to protect and promote human rights.[2] They are focal points of expertise on human rights and they enjoy a presumption of neutrality and objectivity. Their unique positioning at the crossroads between governments, corporations and civil society further enables them to behave as crucial links between these actors. In terms of providing access to remedy, the 2010 Edinburgh Declaration envisions the participation of NHRIs as either direct or indirect. Direct participation refers to the handling of complaints relating to business and human rights cases. An NHRI may for instance assume the role of an investigator, mediator or conciliator. Indirect participation on the other hand refers to promoting education, monitoring, capacity-building, advising and issuing recommendations inter alia. In this sense, the NHRI becomes a centre for expertise on human rights and a hub for the exchange of information. The question nevertheless remains if and to what degree NHRIs have in practice assumed this role in the context of business and human rights.

This five-part series looks at the extent to which the the Access to Remedy Pillar of the UNGPs has been fulfilled through the daily practice of the Dutch, South African, Romanian, Australian and Indian NHRIs. Ultimately, this series hopes to unravel whether the chosen NHRIs have assumed the role envisioned for them under the Principles and the differing ways in which they may have done so.

[1] Jonathan Drimmer and Lisa J Laplante, ‘The Third Pillar: Remedies, Reparations, and the Ruggie Principles’ in Jena Martin and Karen E Bravo (eds), The Business and Human Rights Landscape: Moving Forward, Looking Back (CUP 2016) 318 and op. cit. 12.

[2] UNDP and UN OHCHR, UNDP-OHCHR Toolkit for Collaboration with National Human Rights Institutions (2010) 2.

Editor's note: Alexandru Rares Tofan recently graduated with an LLM in Transnational Law from King’s College London where he focused on international human rights law, transnational litigation and international law. He is currently an intern with the Doing Business Right project at the Asser Institute in The Hague. He previously worked as a research assistant at the Transnational Law Institute in London on several projects pertaining to human rights, labour law and transnational corporate conduct.

Introduction

In 2014, three Eritrean refugees commenced a representative action in British Columbia against the transnational mining company ‘Nevsun Resources’, pleading both private law torts and violations of customary international law. They alleged that they were subjected to forced labour, slavery, torture, and crimes against humanity while working at an Eritrean gold mine jointly owned by Nevsun (60%) and by the Eritrean State (40%). The representative action was brought on behalf of over a thousand people who had been drafted into the Eritrean National Service Programme (NSP) and subsequently forced to work at the Bisha Mine. The NSP is a governmental apparatus of indefinite and mandatory conscription that is fraught with allegations of forced labour and other human rights abuses. It was established under the authoritarian regime of President Isaias Afwerki who has been ruling Eritrea ever since the country gained independence from Ethiopia in 1993. As Nevsun is incorporated under the laws of British Columbia, the plaintiffs sought relief in the courts of the Canadian province. Notwithstanding the defendant’s attempts to have the proceeding stayed or dismissed, the action was allowed to go through both by the Supreme Court of British Columbia (BCSC) and the Court of Appeals (BCCA). On 14 June 2018, the Supreme Court of Canada granted Nevsun leave to appeal with a tentative hearing date set on 23 January 2019.

This proceeding raises complex issues of transnational law. The plaintiffs are seeking redress in a jurisdiction that is neither the locus delicti nor their country of nationality. Rather, the claimants argue that peremptory norms of customary international law create a private law cause of action and a right to recover damages under Canadian law. In point of fact, the plaintiffs have called attention to several delicate questions. Firstly, can claims of damages arising out of the alleged breach of jus cogens norms form the basis of a civil proceeding? And are corporations bound by these international law norms for that matter? The case is further layered by the involvement of the State of Eritrea. Since Nevsun is argued to be derivatively liable, a finding of guilt on its part would mean that the Canadian courts would be judging the acts of another state. This engages the act of state doctrine, which demands judicial abstention from adjudication of matters touching upon the conduct of foreign states.

Nevsun filed four interlocutory applications seeking to have the claim stayed, dismissed or struck out. This article traces the development of this case through the first three objections to jurisdiction raised by Nevsun and dismissed by the provincial courts: forum non conveniens, the act of state doctrine and the lack of corporate liability under customary international law.  A fourth application argued that the plaintiffs’ claims are not appropriately brought as a representative action (i.e. class action). This application was granted by the Supreme Court of British Columbia and was not appealed by the plaintiffs.[1]

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