Doing Business Right 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 and a contributor to the Doing Business Right project at 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.

Introduction

This report compiles all relevant news, events and materials on Doing Business Right based on the coverage provided on our twitter feed @DoinBizRight and on various websites. You are invited to contribute to this compilation via the comments section below, feel free to add links to important cases, documents and articles we may have overlooked.

The Headlines

US Supreme Court decision: World Bank can be sued for projects that impact on local communities

In late February, the US Supreme Court handed down its judgment in Jam et al. v. International Finance Corporation, ruling that the World Bank does not enjoy absolute immunity from being sued in the United States, including in relation to its commercial activities. In this case, members of a minority fishing community in India sued the International Finance Corporate (IFC) (an arm of the World Bank) in order to hold it accountable for various harms caused by the Tata Mundra power plan, an IFC-financed project. The federal district court found that the IFC enjoys ‘virtually absolute’ immunity from suits. The US Court of Appeals upheld this decision. However, the US Supreme Court overturned this decision finding that international organisations can now be sued in the United States. Read the judgment here. The Asser Institute will be holding an event on 24 April 2019 which will summarise the reasoning in the decision and explore the foreseeable effects on the legal accountability of international organisations, and international financial institutions in particular. Register for the event here.

Australian Government releases draft guidance in relation to modern slavery

The Australian Government has published its draft guidance for reporting entities under the Modern Slavery Act 2018 (Cth), which was passed by Parliament in December 2018. The draft sets out what entities need to do to comply with the reporting requirement under the Act. Usefully, the draft informs entities on how to determine whether it is a reporting entity and how to prepare a modern slavery statement. It offers suggestions on how to meet the seven reporting criteria, including how to scope out an entity’s modern slavery risks and possible actions that can be taken to assess and address risks identified. Read the draft here. More...

 Editor’s note: Maisie Biggs recently graduated with a MSc in Global Crime, Justice and Security from the University of Edinburgh and holds a LLB from University College London. She is currently an intern with the Doing Business Right project at the Asser Institute in The Hague. She previously worked for International Justice Mission in South Asia and the Centre for Research on Multinational Corporations (SOMO) in Amsterdam.

“No one who comes to these courts asking for justice should come in vain. The right to come here is not confined to Englishmen. It extends to any friendly foreigner. He can seek the aid of our courts if he desires to do so. You may call this ‘forum shopping’ if you please, but if the forum is England, it is a good place to shop in both for the quality of the goods and the speed of service.”

Lord Denning in The Atlantic Star [1973] 1 QB 364 (CA) 381–2

The United Kingdom Supreme Court today has handed down Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) [2019] UKSC 20, a significant judgement concerning parent company liability and the determination of jurisdiction for these claims. Practically, it now means for the first time a UK company will face trial and potentially accountability in their home jurisdiction for environmental harms associated with operations of foreign subsidiaries. 

This is a closely-watched jurisdiction case concerning a UK parent company’s liability arising out of the actions of its foreign subsidiary. The claimants are 1826 Zambian citizens from the Chingola region of the Copperbelt Province. This group action is against UK-domiciled Vedanta Resources PLC and its subsidiary KCM, a second defendant which is incorporated in Zambia. The original claims concern discharges from the KCM-owned Nchanga mine since 2005 which have allegedly caused pollution and environmental damage leading to personal injury, damage to property and loss of income, amenity and enjoyment of land. 

Following the initiation of this claim, in 2015 Vedanta and KCM challenged the jurisdiction of the English courts, however Coulson J dismissed their applications. The Court of Appeal then upheld the dismissal of those applications, so the defendants appealed to the Supreme Court. (See our previous blog on the case here).

The Supreme Court today denied the appeal by Vedanta Resources and KCM, and allowed the claim to proceed to merits in England. The Court made it clear the real risk that the claimants would not obtain access to substantial justice in Zambia was the deciding factor in the case. The Court denied there was an abuse of EU law by the claimants using Vedanta as a jurisdictional hook to sue both the parent company and subsidiary in England, and the claimants succeeded in demonstrating there was a “real triable issue”, nonetheless Zambia was held to be the “proper place” for the case. However, because the Court supported the finding of the first instance judge regarding the risks faced by claimants in accessing substantial justice in Zambia, the appeal was denied, and the case can proceed in England. 

This is a significant judgement, as it now means for the first time a UK company will face trial and potentially accountability in their home jurisdiction for environmental harms associated with operations of foreign subsidiaries. Lord Briggs delivered the judgement on four major issues: the potential for abuse of EU law; whether there was a real triable issue against Vedanta; whether England is the proper place for these proceedings; and whether there was a real risk that substantial justice would not be obtainable in that foreign jurisdiction. 

Why is this significant? For those following this case, and the appeals of Okpabi & Ors v Royal Dutch Shell Plc & Anor (Rev 1) [2018] EWCA Civ 191 and AAA & Ors v Unilever Plc & Anor [2018] EWCA Civ 1532 in the English courts, there are two major findings in this judgement that will likely impact future cases concerning parent company liability. Firstly, the reasoning behind the finding of a “real triable issue” between a foreign claimant and UK parent company, and secondly the primacy the Supreme Court placed on the significance of access to justice as a jurisdictional hook for claims in England. More...

On 27 February 2019, in a 7-1 decision, the US Supreme Court made an end to the absolute immunity from suit that international organisations (IOs) had consistently enjoyed in US courts. The decision realigns the immunity regime for IOs with that for foreign states, which leaves the opportunity to sue organisations such as the International Finance Corporation (IFC) when they engage in commercial activities. In a flare of enthusiasm among academics and (human rights) activists, the decision was immediately granted a landmark​ status and marked as a turning point in the long history of impunity for social, ecological and human harm caused by the activities of IOs. This Doing Business Right Talk ​will summarise the reasoning in the decision and explore the foreseeable effects on the legal accountability of IOs, and international financial institutions in particular. The most immediate effect, in that sense, might not be located on the avenue of adjudication, but in the various accountability mechanisms that have been created within IOs themselves.

Dimitri van den Meerssche is a researcher in the Dispute Settlement and Adjudication strand at the T.M.C. Asser Instituut. His research reflects on the law of international organisations, international legal practices and technologies of global governance. This work is inspired by insights from science and technology studies, performativity theory and actor-network theory. Dimitri is currently finalising his doctoral dissertation at the European University Institute, which he expects to defend in winter 2019. His dissertation is entitled “The World Bank’s Lawyers – An Inquiry into the Life of Law as Institutional Practice”. In the context of this dissertation, Dimitri has worked for three months at the World Bank Legal Vice-Presidency and spent one semester as visiting doctoral researcher at the London School of Economics.

When: Wednesday 24 April 2019 at 16:00

Where: Asser Institute in The Hague

Register Here

This autumn, two oil industry executives may be indicted in Sweden for aiding and abetting international crimes in Sudan. Furthermore, the public prosecutor will also likely seek forfeiture of $400 million from their company, Lundin Petroleum, reflecting the benefits derived from its Sudanese operations. The case follows the 2018 French indictment of LafargeHolcim for alleged crimes committed in Syria, showing that corporate liability for international crimes is gaining traction, before European courts at least.

This event aims to discuss the Lundin case, which has the potential of becoming a landmark trial because of the novelty and complexity of the legal issues that the court will have to decide. In particular, with regard to the assessment of the individual criminal liability of the executives of Lundin, the determination of the applicable standards of proof, the question whether a lack of due diligence is sufficient for a finding of guilt, and the limits and overlap of individual criminal liability of corporate directors on the one hand and corporate criminal liability of organisations on the other.

The event will feature three speakers, who will be presenting the various dimensions of the case and will put it into the more general context of the current legal developments with regard to criminal liability of corporations (and their executives) for human rights violations:

• Egbert Wesselink will provide an introduction to Sudan’s oil war, describe Lundin’s role in it, and examine the human rights responsibilities of the company and its shareholders.
• Dr. Mark Taylor will discuss how the Lundin case sits in global developments regarding the criminal liability of corporations for human rights abuses in the context of conflicts.
• Miriam Ingeson will give a Swedish perspective to the legal framework of the case and analyse the legal issues that it raises at the intersection between national and international law.

The speakers:

• Egbert Wesselink serves as Senior Advisor in PAX, the Dutch peace movement, where he is responsible for the programme on Natural Resources, Conflict and Human Rights, that focusses on the impact of international enterprises on the rights and interests of communities, notably in Sudan, South Sudan, DRC and Colombia. He represents PAX in several multi-stakeholder initiatives, including the Voluntary Principles on Security and Human Rights in an effort to increase the impact of emerging international guidelines, and advises various enterprises.
• Dr. Mark Taylor is a Postdoctoral Fellow, Department of Private Law, University of Oslo and presently a Visiting Fellow at the Amsterdam Center for International Law, University of Amsterdam. Mark writes on legal and policy frameworks applicable to responsible business and will publish the book “War Economies and International Law: Regulating the Economic Activity of Armed Conflict” (based on his PhD thesis) with Cambridge University Press. Mark is an advisor to various initiatives in the field of responsible business and is a member of the Norwegian Ethics Information Commission (2018-2019), a government commission which is considering a proposed law on human rights information in the global value chains of Norwegian business.
• Miriam Ingeson is a PhD candidate at Uppsala University, Sweden.  Her research project explores corporate criminal liability in international criminal law, and the intersection of domestic criminal law and public international law. She has previously held positions with the Swedish Prosecution Authority, the Folke Bernadotte Academy and the Swedish Ministry of Justice.

The moderator:

• Dr. Antoine Duval is Senior Researcher at the Asser Institute and the coordinator of the Doing Business Right project.

For some background material on the case and its wider context, see www.unpaiddebt.org & www.lundinhistoryinsudan.com.

More information and registration Here!

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...

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.

Introduction

This report compiles all relevant news, events and materials on Doing Business Right based on the coverage provided on our twitter feed @DoinBizRight and on various websites. You are invited to contribute to this compilation via the comments section below, feel free to add links to important cases, documents and articles we may have overlooked.

The Headlines

German Development Ministry drafts mandatory human rights due diligence

It was reported on 10 February 2019 that the German Federal Ministry of Economic Cooperation and Development has drafted legislation (unpublished) on mandatory human rights due diligence for German companies. It is reported that the law will apply to companies with over 250 employees and more than €40 million in annual sales. The draft legislation targets, inter alia, the agriculture, energy, mining, textile, leather and electronics production sectors. Companies that fall within the scope of the legislation will be required to undertake internal risk assessments to identify where human rights risks lie in their supply chains. Companies would also be required to have a Compliance Officer to ensure compliance with due diligence requirements. The Labor Inspectorate, the Federal Institute for Occupational Safety and Health and the Human Rights Commissioner of the Federal Government would be responsible for enforcing the legislation, with penalties for non-compliance of up to €5 million (as well as imprisonment and exclusion from public procurement in Germany).

Kiobel case heard in the Netherlands

On 12 February 2019, the Dutch courts heard a lawsuit involving Esther Kiobel and three other women against Shell. The plaintiffs allege that Shell was complicity in the 1995 killings of their husbands by Nigeria’s military. The husbands were Ogoni activists that were part of the mass protests against oil pollution in Nigeria’s Ogoniland. The judgment is expected to be handed down in May 2019. Read more here. 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.

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.