Doing Business Right Blog

Editor's note: Samuel Brobby graduated from Maastricht University's Globalisation and Law LLM specialising in Human Rights in September 2020. A special interest in HRDD carries his research through various topics such as: the intersection between AI and HRDD, the French Devoir de Vigilance or mHRDD at the EU level. Since April 2021 he has joined the Asser Institute as a research intern for the Doing Business Right project.

I am not convinced that inherently evil technology exists, rather, bad business models perpetuate and accentuate existing problems. AI is no exception to this phenomenon and diligent discussion is required to ensure that the negative impacts of artificial intelligence are meticulously scrutinised. In the end, transparency, responsibility and accountability must be ensured around technology that has the power to be an important tool for Human Rights and to provide support for development across every sector of society.  Given that this very same technology, if used irresponsibly, has the power to compound and accelerate the very issues we would like it to help solve, it is the intention of this blog to raise further questions and continue to provide discussion surrounding AI and responsibility. In the first part of this publication, I discussed how AI has the potential to contribute to HRDD by being technologically integrated into the process. However, before AI will even be considered as a possible tool to aid in the HRDD process, it will play a large part in making businesses more profitable. It will also be used by civil society, States and State-backed institutions in the pursuit of their respective goals.

AI and its declinations are, and will, continue to be deployed in a number of sectors including, marketing, healthcare, social media, recruitment, armed conflicts and many more. Thus, given that AI has the potential for contributing negatively to Human Rights and the environment, it is important to discuss the risks and potential legal challenges surrounding AI and responsibility. Identifying these is crucial to the goal of taming AI in an attempt to mitigate some of the potential negative impacts it may have on Human Rights. The pervasive nature of this technology along with the particular place AI developers hold in supply chains warrants some attention. As such, this section aims at analysing the HRDD obligations of AI developing businesses. To do so, we will illustrate some of the Human Rights (and environmental) risks linked to the creation of these AI agents before looking at the manner through which ex ante responsibility through HRDD can be applied to AI developing businesses in the creation and commercialisation of AI algorithms. More...

Editor's note: Mercedes is a recent graduate of the LL.B. dual-degree programme English and German Law, which is taught jointly by University College London (UCL) and the University of Cologne. She will sit the German state exam in early 2022. Alongside her studies, she is working as student research assistant at the Institute for International and Foreign Private Law in Cologne. Since September 2020, she joined the Asser Institute as a research intern for the Doing Business Right project.

On the international stage, Germany presents itself as a champion for human rights and the environment. However, as this blog will show, when it comes to holding its own corporations accountable for human rights violations and environmental damage occurring within their global supply chains, it shows quite a different face.

In recent years, German companies were linked to various human rights scandals. The German public debate on corporate accountability kickstarted in earnest in September 2012, when a factory in Karachi, Pakistan, burned down killing almost 300 people. The factory had supplied KiK, Germany’s largest discount textile retailer with cheap garments. Then, over a year and a half ago, a dam broke in Brazil, killing 257 people. The dam had previously been certified to be safe by TÜV Süd Brazil, a subsidiary of TÜV Süd, a German company offering auditing and certification services. There are many more examples of incidents in which German companies were involved in human rights violations occurring within their supply chains, yet eight years after the factory in Pakistan burned down, and nine years after the unanimous endorsement of the UN Guiding Principles on Business and Human Rights by the UN Human Rights Council, there is still no binding German legislation imposing some type of liability onto companies that knowingly, or at least negligently, fail to uphold human and labor rights in their supply chain.

This is despite the fact that Germany, the third-largest importer worldwide, with its economic power and negotiation strength on the international stage, could have a dramatic impact on business practices if it were to embrace a stronger approach to business and human rights.  

In the coming two blogs I am to take a critical look at Germany’s recent policies related to corporate accountability and discuss the current developments (and roadblocks) linked to the potential adoption of a Lieferkettengesetz (Supply Chain Law). In this first post, I focus on the effects of the National Action Plan 2016-2020, building on recently released interim reports. In my second blog, I will then turn to the various proposals and political discussions for mandatory due diligence regulation (Lieferkettengesetz).More...

This event co-organised with FIDH and SOMO aims to provide a detailed overview of the latest developments in the field of BHR regulation. The first part of the afternoon will be dedicated to a comparative review of some national developments in BHR regulation. The speakers have been asked to focus their presentations (max 10 minutes) on outlining the recent (and sometimes future) changes in the various regulatory models introduced by specific European states. They will also discuss the (expected) effects of the different regulatory models based on comparative analyses and empirical data gathered so far.

The second part of the afternoon will then focus on discussing the latest draft of the proposed binding treaty on BHR. The speakers have been asked to prepare short presentations (max 10 minutes) on the strengths and weaknesses of the current draft (with an eye on the changes introduced with regard to the Zero draft). The presentations will be followed by open exchanges with the participants on the various points raised (including concrete proposals for improvement).

Where: Asser Institute in The Hague

When: 14 November from 13:00

Draft programme: 

13:00 – 13:15 Welcome

13:15 – 15:00 - BHR regulation: Recent Developments in Europe – Chair Maddalena Neglia (FIDH)

• Nadia Bernaz (Wageningen University) – Recent developments in the UK
• Anna Beckers (Maastricht University) – Recent developments in Germany
• Antoine Duval (Asser Institute) – Recent developments in France
• Lucas Roorda (Utrecht University/College voor de Rechten van de Mens) – Recent developments in the Netherlands
• Irene Pietropaoli (British Institute of International and Comparative Law) – Recent developments in BHR regulation: A comparative perspective

15:00 – 15:15 Coffee Break 

15:15 – 17:00 – Revised Draft of the Binding BHR Treaty: Strengths and weaknesses – Chair Mariëtte van Huijstee (SOMO)

• Nadia Bernaz (Wageningen University)
• Anna Beckers (Maastricht University)
• Antoine Duval (Asser Institute)
• Irene Pietropaoli (British Institute of International and Comparative Law)
• Lucas Roorda (Utrecht University/ College voor de Rechten van de Mens)

17:00 -  Closing Reception.

This event is organised with the support of:

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

Human rights due diligence (HRDD) has emerged as a dominant paradigm for doing business with respect for human rights. It is a central concept to the UNGPs and describes what ‘steps a company must take to become aware of, prevent and address adverse human rights impacts’ in order to discharge the responsibility to respect.[1] The case studies examining Adidas’ and Unilever’s HRDD practices (the Case Studies) have demonstrated how businesses are working with the concept of HRDD and translating it into practice. They provide an opportunity to consider the adaptable nature of HRDD and whether it has the potential to transform business internal frameworks in order to generate greater corporate respect for human rights. This will be reflected on in this final blog of our series of articles dedicated to HRDD. It will also reflect on the role that hard law initiatives play in incentivising substantive human rights compliance by business (in addition to soft law initiatives such as the UNGPs).

The Adaptable Nature of HRDD

There is no ‘one-size-fits-all’ approach that can be taken by businesses when implementing HRDD. Although the elements and parameters of HRDD are defined in the UNGPs (discussed in detail in a previous blog in this series), it is, by its very nature, an open-ended concept that has been ‘articulated at a certain level of abstraction’. Indeed, this level of abstraction was arguably intentional given the use of the term ‘due’ in HRDD, which ‘implies variation of effort and resources necessary to address effectively adverse impacts in a particular context’.[2]

The flexibility built into the concept of HRDD acknowledges that there are more than ‘80,000 multinational corporations, ten times as many subsidiaries and countless national firms’ globally that differ in many respects.[3] Accordingly, the shape of HRDD within one business cannot be the same as that of another business – it should be ‘determined by the context in which a company is operating, its activities, and the relationships associated with those activities’.[4] As Ruggie acknowledged in 2010, his aim was to ‘provide companies with universally applicable guiding principles for … conducting due diligence’, rather than prescriptive guidance. Therefore, the ‘complexity of tools and the magnitude of processes’ employed by businesses will vary depending on the circumstances. As such, businesses can exercise a great deal of discretion as to how to translate HRDD into practice.

However, this adaptable nature of HRDD has been critiqued for lacking clarity, embodying a ‘high degree of fragility and flexibility’ and for containing an ‘inbuilt looseness’.[5] These complexities arise due to the absence of ‘sufficient specificity of expected action’.[6] Bijlmakers argues that the ‘ambiguity and openness’ of HRDD can ‘lead to uncertainty about what conduct is required from companies for the effective implementation of their responsibilities’.[7] This can result in a lack of compliance by businesses or differing levels of compliance, which ultimately means that HRDD ‘may or may not achieve the desired outcome – i.e. non-violation of human rights – in all cases’.[8] Indeed from the Case Studies it is clear that despite the extensive efforts made by Adidas and Unilever to put HRDD into practice, there are still gaps between the paper-based processes and practices of both businesses, e.g. there are human rights abuses present within their supply chains that are not being identified by their current HRDD practices and therefore not being addressed. Mares also argues that the looseness surrounding HRDD as a concept can also result in ineffective implementation, whereby businesses take action that is ‘largely symbolic, generates limited improvements, and fails to address underlying issues’.[9] As a result, businesses are not addressing the root causes of human rights issues within their business, but rather ‘applying bandaids to symptoms’. [10]

The flexibility of HRDD as a concept also allows businesses to employ various tools and processes in order to ‘create plausible deniability’, instead of discovering and understanding issues within their supply chains and how they should be managed.[11] Through conducting on the ground research at the local level, Bartley demonstrates that businesses appear to be using these tools and processes in order to ‘collect just enough information to produce assurances of due diligence’, allowing human rights issues and impacts to be kept out of sight.[12] Accordingly, their is a risk that businesses take advantage of the open-ended nature of HRDD by implementing HRDD processes as window-dressing to give the impression that they are engaging with the human rights risks and impacts in the context of their business, when in fact they are not.

However, despite these critiques the Case Studies demonstrate that the adaptable nature of HRDD has proven to be transformative on businesses. Embracing HRDD has led Adidas and Unilever to transform their operations to fit the different phases of the HRDD process. In doing so, they have avoided using a cookie-cutter approach that does not account for the differences between the businesses and they way they operate.

The use of customised HRDD approaches is of particular importance given that the salient human rights risks and impacts identified by a business will always differ in some respects to those of another business. With respect to Adidas and Unilever, despite having some overlapping identified risks (e.g. discrimination, working hours, freedom of association and fair wages), both businesses also focus on a number of specific salient risks, which are determined using various factors including the assessed risks of the countries in which they operate. On one hand, land rights are a particular focus for Unilever given the negative impacts it can have on individual’s and communities’ land tenure rights, particularly through its suppliers. On the other hand, child labour is more of a salient risk for Adidas given the pressure on brands in the apparel sector to produce garments at low costs in a quick time frame. In light of this, the HRDD processes followed by each business after identifying these risk areas are different such that the actions taken to integrate and address risks and impacts are directly responsive to those risks.

Is HRDD Effective to Foster Corporate Respect of Human Rights? 

The Case Studies also demonstrate that HRDD is not solely a paper tiger. Businesses that truly engage with the HRDD process can indeed transform internal processes, enhancing corporate attention on human rights. Both Adidas and Unilever have not sought to use HRDD as a buzzword with no institutional consequences. Instead they have introduced concrete mechanisms aimed at preventing human rights impacts from arising within their business context. 

So how has HRDD had a transformative impact on Adidas and Unilever? As I have shown in the Case Studies, it has provided a framework for embedding institutional and regulatory changes geared towards the prevention of adverse human rights impacts. On paper, they have translated the cycle of HRDD into a maze of internal procedures involving different stages of their activities as well as different corporate entities integrated in their supply chains. Moreover, they have built-up enforcement mechanisms in an attempt to trigger change if a potential human rights risk is identified. In short, the transformative impact of HRDD on the structure and operations of the two corporations is clear, whether this impact is effective to tackle human rights violations in their supply chains is another matter. The Case Studies conducted cannot evidence effectiveness, as it would require much more time-consuming and expensive on-field studies to observe whether the compliance of, for example, the working conditions of Adidas’ or Unilever’s suppliers with core labour rights improves thanks to these changes.    

It is certain that neither Adidas nor Unilever have a perfect HRDD process in place – gaps and blindspots will always exist which allow serious human rights issues to continue to emerge in their supply chains. Nonetheless, as evidenced above, it is also true that embracing HRDD had a transformative impact in the way these businesses operate. Whether these transformations are correlated with a decrease in human rights violations across their supply chains is a fundamental question that cannot be answered by my research, even though it will be at the centre of future assessments of the practical effects of HRDD on human rights throughout supply chains.    

The Catalyst Role of Hard Law Initiatives

Soft law HRDD initiatives such as the UNGPs and the OECD Guidelines have been primarily relied upon to date in order to regulate corporate human rights behaviour. Over the past years, however, several countries have either adopted or started to consider adopting legislation that embeds HRDD into their legal framework. For example:

• The UK and Australia have both adopted legislation requiring specific businesses to report on their HRDD processes and efforts in their operations and supply chains in relation to modern slavery.
• The Netherlands has adopted legislation that requires specific companies to undertake HRDD related to child labour in their supply chains.
• France has taken a broader approach, rather than focusing on thematic issues, and adopted legislation that requires certain businesses to undertake HRDD to identify and prevent serious violations of human rights and fundamental freedoms, health and safety as well as the environment.
• Further, the Human Rights Council’s Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights is in the process of developing a binding business and human rights treaty. The current draft of the treaty includes a HRDD article requiring state parties to ensure that their domestic legislation requires all businesses to which the treaty applies to undertake HRDD throughout their business activities.[13]

The rapid rise of such hard law initiatives imposing HRDD across the board means that transformation observed in the context of Unilever and Adidas will spread to many more businesses in the coming years. The turn to binding HRDD might be a response to the lack of willingness of businesses to embrace HRDD voluntarily. This is particularly the case in light of the dire landscape highlighted by benchmarking initiatives. For example, the results of the Corporate Human Rights Benchmark demonstrates that 40% of the companies ranked scored no points at all in relation to the systems they have in place to ensure that due diligence processes are implemented.

Hard law that complements the business and human rights soft law already in existence might create the ‘compliance pull’ that is needed to ensure that businesses undertake HRDD by legally mandating that they engage in the process. Further, it can clarify and create greater certainty as to the expectations on business with respect to HRDD, as well as incentivise meaningful HRDD by imposing the risk of civil liability onto businesses failing to conduct proper HRDD. The turn to binding HRDD will necessarily have transformative effects on the way affected businesses operate. It will trigger the emergence of a whole HRDD bureaucracy involving rules, processes and institutions. Yet, whether it will lead to greater respect for human rights remains to be seen in practice and depends on the way HRDD will be implemented as well as on the intensity of control exercised by national authorities.

Conclusion

This blog series has delved into the operationalisation of HRDD from theory to practice by business. Through the detailed examination of the HRDD practices of Adidas and Unilever in their supply chains, it has demonstrated that HRDD can profoundly change the internal operations of businesses embracing it.

Despite the fragility and flexibility of the concept that gives rise to uncertainty and ambiguity as to how it should be complied with, businesses that choose to fully engage with the process are transformed by it with a potential effect on their human rights footprint. Truly implementing HRDD throughout a business’ operations and supply chains has the potential to result in human rights risks and impacts being better embedded within the business’ corporate governance framework. This is because HRDD focuses on identifying and managing these risks and impacts and to use those findings to inform business decisions, such as whether to engage in business activities in a particular country or whether to enter into contractual relations with a particular supplier. The development and adoption of hard law imposing HRDD complementing existing soft law initiatives contributes to the diffusion of HRDD into a greater number of businesses.

This blog series paves the way for further research into whether the HRDD mechanisms implemented by Adidas, Unilever and other businesses are truly effective to protect human rights. On the ground research at a local level involving engagement with the relevant business being assessed and its stakeholders is crucial to determining the effectiveness of specific HRDD mechanisms in practice. A broader examination of a greater number of businesses’ HRDD practices will allow for conclusions to be drawn as to how businesses can effectively conduct HRDD and whether there are particular practices and mechanisms that are more effective.

[1] Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie: Protect, Respect and Remedy: a Framework for Business and Human Rights (7 April 2008), UN Doc. A/HRC/8/5, [56] [2008 Report].

[2] Radu Mares, “Respect” Human Rights: Concept and Convergence, in R Bird, D Cahoy and J Darin (eds) Law, Business and Human Rights: Bridging the Gap, Edward Elgar Publishing (2014), p 8.

[3] John Ruggie, The Corporate Responsibility to Respect Human Rights (2010).

[4] 2008 Report, supra note 1, [25].

[5] Justine Nolan, The Corporate Responsibility to Respect Human Rights: Soft Law of Not Law?, in S Deva and D Bilchitz (eds), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (2013), p 140 [Nolan]; Radu Mares, Human Rights Due Diligence and the Root Causes of Harm in Business Operations: A Textual and Contextual Analysis of the Guiding Principles on Business and Human Rights, 10(1) Northeastern University Law Review 1 (2018), p 45 [Mares].

[6] Mares, ibid, p 6.

[7] Stephanie Bijlmakers, Corporate Social Responsibility, Human Rights, and the Law, London: Routledge (2018), p 120.

[8] Ibid; Surya Deva, Treating Human Rights Lightly: A Critique of the Consensus Rhetoric and the Language Employed by the Guiding Principles, in S Deva and D Bilchitz (eds) Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, Cambridge University Press (2013), p 101.

[9] Mares, supra note 5, p 45.

[10] Ibid, p 1.

[11] Tim Bartley, Rules without Rights: Land, Labor, and Private Authority in the Global Economy, Oxford University Press (2018), p 178.

[12] Ibid.

[13] The HRDD article of the treaty is discussed in further detail in a previous blog.

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

The consumer goods industry is shaped by businesses’ desire to engage with the best-quality suppliers at the cheapest price in order to sell goods at a high-profit margin in the burgeoning consumer markets. Accordingly, they continue to build their value chains in order to provide goods to consumers. The resulting effect of this is that potential human rights risks and impacts are likely to arise in the supply chains of businesses that operate in the industry. Risks that often arise in this sector include forced labour, non-compliance with minimum wage laws and excessive work hours, land grabbing and discrimination. Accordingly, businesses such as Unilever face the challenge of preventing, mitigating and addressing adverse human rights impacts in their supply chains through conducting human rights due diligence (HRDD). As Paul Polman (former CEO of Unilever) has stated: ‘We cannot choose between [economic] growth and sustainability—we must have both.’

This fourth blog of a series of articles dedicated to HRDD is a case study looking at how HRDD has materialised in practice within Unilever’s operations and supply chains. It will be followed by another case study examining another that has also taken steps to operationalise the concept of HRDD. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect of human rights by businesses.More...

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

The tragic collapse of Rana Plaza in Bangladesh in 2013, which killed over one thousand workers and injured more than two thousand, brought global attention to the potential human rights risks and impacts that are inherent to the garment and footwear sector.[1] This sector employs millions of workers within its supply chain in order to enable large-scale production of goods as quickly as possible at the lowest cost as market trends and consumer preferences change.[2] These workers are often present in countries where the respect for human rights and labour rights is weak. This creates an environment that is conducive to human rights abuses. Key risks in this sector include child labour, sexual harassment and gender-based violence, forced labour, non-compliance with minimum wage laws and excessive work hours.[3] Accordingly, brands such as Adidas face the challenge of conducting effective human rights due diligence (HRDD), particularly in their supply chains. 

This third blog of a series of articles dedicated to HRDD is a case study looking at how HRDD has materialised in practice within Adidas’ supply chains. It will be followed by another case study examining the steps taken by Unilever in order to operationalise the concept of HRDD. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect of human rights by businesses. More...

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

The UNGPs second pillar, the corporate respect for human rights, is built around the concept of human rights due diligence (HRDD). Since 2011, following the resounding endorsement of the UNGPs by the Human Rights Council, it has become clear that HRDD constitutes a complex ecology of diverse practices tailored to the specific context of a particular business. The UNGPs are not legally binding and there is no institutional mechanism in place to control how they are to be translated into practice by the companies that purport to endorse them. Nonetheless, numerous companies and regulatory schemes have embraced the idea of HRDD (such as the OECD Guidelines, the French law on the devoir de vigilance, the UK and Australian modern slavery laws and the Dutch Agreement on Sustainable Garment and Textile). 

The operationalisation of HRDD has been shaped over the past 8.5 years by a variety of actors, including international organisations, consultancies and audit firms, as well as non-governmental organisations. These actors have conducted research and developed various methodologies, instruments and tools to define what HRDD is and what it entails in order to assist or influence businesses in its operationalisation. The interpretation of the requirements imposed by HRDD process outlined in the UNGPs is open to a variety of potentially contradictory interpretations. This pluralism is well illustrated by the diversity of actors involved in an ongoing struggle to define its scope and implications.

This second blog of a series of articles dedicated to HRDD looks at it through the lens of the most influential players shaping HRDD in practice by examining their various perspectives and contributions to the concept. Case studies will then be undertaken to look at how HRDD has materialised in practice in specific companies. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect for human rights by businesses. More...

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands and a contributor to the Doing Business Right project of the Asser Institute. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

Human right due diligence (HRDD) is a key concept of Pillar 2 of the UN Guiding Principles on Business and Human Rights (UNGPs), the corporate responsibility to respect human rights. Principle 15 of the UNGPs, one of the foundational principles of Pillar 2, states that in order to meet the responsibility to respect human rights, businesses should have in place a HRDD process to ‘identify, prevent, mitigate and account for how they address their impacts on human rights’. However, how was the concept of HRDD developed? What does it mean? What are its key elements?

This first blog of a series of articles dedicated to HRDD answers these questions by providing an overview of the concept of HRDD and its main elements (as set out in the UNGPs) as well as how the concept was developed. It will be followed by a general article looking at HRDD through the lens of a variety of actors including international organisations, non-state actors and consultancy organisations. Case studies will then be undertaken to look at how HRDD has materialised in practice. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect of human rights by businesses. More...

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.