Editor's Note: Alexandru Rares Tofan recently graduated with
an LLM in Transnational Law from King’s College London where he focused
on international human rights law, transnational litigation and
international law. He is currently an intern with the Doing Business
Right project at the Asser Institute in The Hague. He previously worked
as a research assistant at the Transnational Law Institute in London on
several projects pertaining to human rights, labour law and
transnational corporate conduct.
The national human rights institution of the
Netherlands is the College voor de Rechten van de Mens (i.e. ‘the Netherlands Institute for Human Rights’).
It was established on 1 October 2012 with the entering into force of the Netherlands Institute for Human Rights Act of 24 November 2011 as supplemented by the Explanatory Memorandum (EP). It is an independent public body whose mission
is to promote, monitor and protect human rights in practice, policy and
legislation (see NIHR Act s.1 (3)). For these purposes, it enjoys a wide competence
that spans the full breadth of human rights whether stemming from national or
international legislation (see EP at page 7). The Institute’s duties include
conducting investigations, reporting and making recommendations, advising,
providing information, encouraging research, pressing for the observance of
internationally recognised human rights, and assessing any complaints alleging
violations that it may have received (see NIHR Act s.3). The types of
complaints it may entertain are nevertheless rather limited – the Institute may
only investigate claims alleging discrimination or unequal treatment (see NIHR
Act s.10 (1)).
This article analyses two types of actions in order to assess the extent to which the Institute has assumed its role in promoting
access to remedy in business and human rights cases. According to the 2010 Edinburgh Declaration of the International Co-ordinating Committee of
National Institutions for the Promotion and Protection of Human Rights (ICC),
the participation of NHRIs in the remedial process may be either direct or
indirect. As will be shown, the Dutch NHRI is envisioned as an institution that
leans more on indirect rather than direct participation in providing access to
remedy.
In terms of direct participation, the complaints
procedure of the Netherlands Institute for Human Rights has a rather narrow
scope. Section 10 of the Act stipulates that the Institute may conduct
investigations into allegations of violations in so far as they relate to
discrimination or unequal treatment under the Equal Treatment Act, the Equal Treatment (Men and
Women) Act or Article 646, Book 7 of the Dutch Civil Code. Although the complaint may be submitted against any
type of Dutch-based company (see S. 10 (2) (a)–(e)), the limited subject matter jurisdiction prevents
the Institute from being a one-stop shop for business-related human rights
abuses. This is especially true for transnational corporate misconduct, which
normally entails cross-cutting/intersectional human rights abuses. In the same
vein, the Institute may only bring a legal action before the courts if this
claim relates to discrimination under the aforementioned legislation (see S.13). The Memorandum attached to the Act explains that ‘[…] [g]iven the legal protection already
available in the Netherlands and the possibility of lodging a complaint with an
ombudsman the government sees no good reason to give the Institute its own
jurisdiction to hear legal actions in the broad field of human rights […]’ and
that ‘[…] [i]n response to a complaint,
the National Ombudsman may investigate whether or not the state has acted
properly […] To prevent overlapping it is therefore undesirable for this
responsibility to be given to the Institute […]’. The National Ombudsman
may nevertheless only exercise authority over public bodies (see Article 1a). In turn, this means that complaints lodged against
private actors arguing violations of human rights other than discrimination
escape both the Institute and the National Ombudsman. While it is true that the
general legal protection available in the Netherlands would apply in those
cases, the role of the NHRI as a complementary grievance mechanism is in this
way restricted. Under the UNGPs, NHRIs are supposed to offer an alternative to
instituting legal proceedings. The rationale behind this is that bringing a
legal action may involve many obstacles for the victim such as prohibitive
costs, imbalance of expertise between parties, lack of standing for foreign
nationals, and protracted duration. Conversely, an NHRI complaints mechanism is
perceived as more accessible, expeditious and culturally-appropriate.[1]
The limited subject matter jurisdiction of the Institute in handling complaints
may therefore be seen as impeding its full direct participation in providing
access to remedy.
As to indirect participation, one of the main tasks of
the Institute is to promote and monitor human rights (see S.3). The Institute has a rather robust presence in the
area of business and human rights in the Netherlands and performs an important
role in promoting human rights in this policy area. For instance, the Institute
drew up a comprehensive response to the National Action Plan on Business and Human Rights put forward by the Dutch
government in December 2013. This response entailed an in-depth examination of
the plan’s compatibility with the UNGPs as well as advice and recommendations
for its improvement. Notably, it included a rights-based approach in that it
looked at the issue of access to remedy from the victims’ perspectives. The
Netherlands Institute for Human Rights further advised the government on the
proposed law on child labour in supply chains, the human rights implications of the new model
bilateral investment treaty, and it partook in the discussions regarding the national sector covenants (e.g. the Agreement on Sustainable Garments and Textile). It further participates in the annual UN Forum on Business and Human Rights alongside other
stakeholders. Furthermore, the cross-cutting nature of business-related human
rights abuses means that they permeate the Institute’s work in other policy
areas. For instance, the Institute’s work on the right to housing implies the
usage of the UNGPs as a framework to ascertain the human rights
responsibilities of housing corporations. In the same vein, one of the four
themes from the Institute’s Strategy Plan for 2016-2019 is discrimination and stereotyping in the labour
market. This necessarily involves an assessment of the human rights obligations
of corporations. The Institute has therefore assumed a firm standing in terms
of indirect participation in the implementation of the UNGPs. It promotes
education, monitors human rights implementation, undertakes capacity-building
exercises, advises and issues recommendations. Nevertheless, one cannot help
but notice the absence of business and human rights from the Institute’s Strategic Plan for 2016-2019.
To conclude, the Netherlands Institute for Human
Rights seems to have only partially assumed the role envisioned for it under
the UNGPs as a national human rights institution. On the one hand, it did
establish itself as a focal point for expertise on human rights issues in the
Netherlands and has taken important steps to promote and advise on issues of
business and human rights. On the other hand, a broader mandate would conform
more to the second leg of the Paris Principles and to the spirit and aim of the Third Pillar of the
UNGPs – the protection of human rights by receiving, investigating and
resolving complaints.