Doing Business Right Blog

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.

On Thursday (2 November), the T.M.C. Asser Instituut hosted a roundtable on the role of financial institutions in ensuring responsible business conduct and, in particular, fostering respect for human rights. The discussion focused on the Dutch Banking Sector Agreement on international responsible business conduct regarding human rights (DBSA or Agreement), including details of its key features and the practicalities of its implementation, alongside the theme of responsible banking more generally. More...

Editor's note: This report compiles all relevant news, events and materials on transnational business regulation based on the daily coverage provided on our twitter feed @DoinBizRight. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked. More...

Editor’s note: Constance Kwant is an experienced international lawyer who has worked as in-house senior legal counsel for a top tier international financial institution in both Hong Kong and the Netherlands. She has a specific interest in sustainable business and human rights, including responsible finance.

Introduction

This post aims to outline, briefly analyse and to provide a critical comment in relation to striking a balance between confidentiality and transparency in the procedure followed by the Dutch National Contact Point (‘NCP’) in the Specific instance procedure filed in December 2015 by three former employees (‘Representatives’) on behalf of a group of 168 former employees of Heineken’s subsidiary Bralima SA (‘Bralima’) in Bakavu, located in the eastern part of the Democratic Republic of Congo (‘DRC’).

The case, finalised in August 2017, concerns alleged violations of labour and human rights by Bralima in the period 1999-2003, a period during which the DRC was a highly volatile and conflict-affected country, where the eastern part of the DRC was effectively under control of rebel movement DRC-Goma.The complaint also alleged that Bralima had cooperated with DRC-Goma in a number of ways throughout this period. On the basis of the alleged violations, the Representatives sought financial compensation by filing its notification with the NCP.

Since the allegations were brought forward to the NCP under the OECD Guidelines for Multinational Enterprises, this post will first provide short background information on the OECD Guidelines and the workings of the Dutch NCP, subsequently moving through the proceedings, its outcome, and a brief analysis with a critical note. More...

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

Concerns about adverse human rights impacts related to FIFA's activities have intensified ever since its late 2010 decision to award the 2018 and 2022 World Cup to Russia and Qatar respectively. However, until recently, the world's governing body of football had done little to eliminate these concerns, thereby encouraging human rights advocates to exercise their critical eye on FIFA. 

In response to growing criticism, the Extraordinary FIFA Congress, held in February 2016, decided to include an explicit human rights commitment in the revised FIFA Statutes which came into force in April 2016. This commitment is encapsulated in Article 3 which reads as follows: ''FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights''. At around the same time, Professor John Ruggie, the author of the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles') presented in his report 25 specific recommendations for FIFA on how to further embed respect for human rights across its global operations. While praising the decision to make a human rights commitment part of the organization's constituent document, Ruggie concluded that ''FIFA does not have yet adequate systems in place enabling it to know and show that it respects human rights in practice''.[1]

With the 2018 World Cup in Russia less than a year away, the time is ripe to look at whether Ruggie's statement about FIFA's inability to respect human rights still holds true today. This blog outlines the most salient human rights risks related to FIFA's activities and offers a general overview of what the world's governing body of football did over the past twelve months to mitigate these risks. Information about FIFA's human rights activities is collected primarily from its Activity Update on Human Rights published alongside FIFA's Human Rights Policy in June 2017. More...

Editor's note: Sara Martinetto is an intern at T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.

Since the adoption by the UN Human Rights Council of Resolution 26/9 in 2014, an Open-ended Intergovernmental Working Group (WG) is working on a binding Treaty capable of holding transnational corporations accountable for human rights abuses. Elaborating on the proposal presented by Ecuador and South Africa, the WG has been holding periodical sessions. In much trepidation for what is supposed to be the start of substantive negotiations – scheduled for October 23-27, 2017 – it is worth summarising and highlighting the struggles this new instrument is likely to encounter, and investigating whether (and how) such an agreement could foster transnational corporations’ (TNCs) human rights compliance. More...

The negative impact on human rights of what we wear is not always well-known to the consumer. Our clothing consumption has increased over five times since the Nineties. At the same time, the business model of certain fashion brands is too often dependent on widespread human rights and labour rights violations to be profitable, cheap, and fast. The 2013 tragedy of Rana Plaza, where more than 1100 garment workers died, gives us just a small hint of the true costs of our clothes and footwear. Efforts by governments to tame the negative effects of transnational supply chains have proven difficult due to the extreme delocalisation of production, and the difficulty to even be aware of a company’s last tier of suppliers in certain developing countries. More...

Doing Business has been a (if not the) core concern for the post-WWII world order, leading up to contemporary economic globalisation and the ‘free’ movement of goods, capital and ideas across the globe. With our research project, and the launch of this companion blog, we aim to shift the focus towards Doing Business Right. Thanks to the financial crisis in 2008, there is growing awareness of the fact that Doing Business can lead to extremely adverse social and economic consequences. The trust in Doing Business as a cure-all to modernize, democratize, or civilize the world is fading. Moreover, the damaging externalities prompted by the operation of transnational economic activity are more and more visible. It has become harder, nowadays, to ignore the environmental and social consequences triggered elsewhere by our consumption patterns or by our reliance on certain energy industries. What does Doing Business Right mean? How does the law respond to the urge to do business right? What are the legal mechanisms used, or that could be used, to ensure that business is done in the right way? Can transnational business activity even be subjected to law in a globalized world?

This blog will offer an academic platform for scholars and practitioners interested in these questions. With your help we aim to investigate the multiple legal and regulatory constructs affecting transnational business conduct - ranging from public international law to internal corporate practices. We will do so by hosting in-depth case studies, but also more theoretical takes on the normative underpinnings of the idea of Doing Business Right. We aim to be inclusive in methodological terms, and believe that private and public, as well as national and international, legal (and...) scholars should come together to tackle a genuinely transnational phenomenon. Future posts will cover issues as diverse as national, EU, international, transnational regulations - including self-regulation, voluntary codes, and market-based regulatory instruments  - applying to transnational business conduct. Case law from the CJEU, international tribunals (ICJ, arbitral tribunals) and national courts, as well as decisions from international organisations, national agencies (such as competition authorities) will be recurring objects of discussion and analysis. Yet, our perspective is not solely focused on the (traditional) law: management practices of  companies and their effects will also be scrutinized.

This blog is thought as an open discursive space to engage and debate with a wide variety of actors and perspectives. We hope to get the attention of those who care about Doing Business Right, and to provide useful intellectual and legal weapons for their endeavours.

The Editors:

Antoine Duval is a Senior researcher at the Asser Institute since 2014. He holds a PhD from the European University Institute in Florence in which he scrutinized the interaction between EU law and the transnational private regulation of world sport, the lex sportiva. His research is mainly focused on transnational legal theory, international arbitration, and private regulation.  

Enrico Partiti is researcher at the Asser Institute since 2017. He holds a PhD from the University of Amsterdam on private standards for sustainability. His research interest lies at the intersection of EU and international economic law on the one hand, and private regulation for sustainability on the other. He studies the interactions and reciprocal influence between transnational public and private norms, and how they determine and impact on social and environmental sustainability in global value chains.