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.