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.
Human rights require meaningful enforcement
mechanisms. This idea stands at the foundation of the United Nations’ approach
to handling corporate human rights abuses.[1]
An individual that has suffered a human rights harm must freely enjoy access to
justice in order to seek the reparation of that harm. The third pillar of the
UN Guiding Principles on Business and Human Rights (UNGPs) focuses exclusively
on this need to secure access to effective remedy for victims. The remedial
process described therein comprises both the procedural aspects of obtaining a
remedy for an adverse human rights impact and the substantive outcome of those
procedures. This process demands the involvement of all actors including
governments, corporations and civil society.
The commentary to Principle 27 of the UNGPs notes the particularly
important role that national human rights institutions (NHRI) play in providing
access to effective remedy. In his 2008 Report, the UN Special Representative on Business and Human
Rights referred to them as the ‘lynchpins’ of his framework’s entire system of
grievance mechanisms. The reasons justifying this optimistic outlook are not
difficult to uncover. NHRIs are state-based but independent institutions that
have a constitutional or legislative mandate to protect and promote human
rights.[2]
They are focal points of expertise on human rights and they enjoy a presumption
of neutrality and objectivity. Their unique positioning at the crossroads
between governments, corporations and civil society further enables them to
behave as crucial links between these actors. In terms of providing access to
remedy, the 2010 Edinburgh Declaration envisions the participation of NHRIs as either direct
or indirect. Direct participation refers to the handling of complaints relating
to business and human rights cases. An NHRI may for instance assume the role of
an investigator, mediator or conciliator. Indirect participation on the other
hand refers to promoting education, monitoring, capacity-building, advising and
issuing recommendations inter alia.
In this sense, the NHRI becomes a centre for expertise on human rights and a
hub for the exchange of information. The question nevertheless remains if and
to what degree NHRIs have in practice assumed this role in the context of
business and human rights.
This five-part series looks at the extent to which the
the Access to Remedy Pillar of the UNGPs has been fulfilled through the daily
practice of the Dutch, South African, Romanian, Australian and Indian NHRIs.
Ultimately, this series hopes to unravel whether the chosen NHRIs have assumed
the role envisioned for them under the Principles and the differing ways in
which they may have done so.