National Human Rights Institutions: The Missing Link in Business and Human Rights Governance?

1 Introduction

In 2008, the Special Representative to the Secretary-General on Business and Human Rights (SRSG) John Ruggie presented the Protect–Respect–Remedy Framework^[1] which has triggered the development of a regulatory dynamic resulting in what Ruggie has called a ‘business and human rights ecosystem’.^[2] The SRSG stressed the role of National Human Rights Institutions (NHRIs), noting that:

The actual and potential importance of these institutions cannot be overstated. Where NHRIs are able to address grievances involving companies, they can provide a means to hold business accountable. NHRIs are particularly well-positioned to provide processes – whether adjudicative or mediation-based – that are culturally appropriate, accessible, and expeditious. Even where they cannot themselves handle grievances, they can provide information and advice on other avenues of recourse to those seeking remedy. Through increased interchange of information, they could act as lynchpins within the wider system of grievance mechanisms, linking local, national and international levels across countries and regions.^[3]

The idea that NHRIs have an important role to play in the quest to hold business accountable for human rights abuse, be it as advisors, mediators or adjudicators is increasingly being recognized. The 2011 UN Guiding Principles on Business and Human Rights (UNGPs) point out several roles that NHRIs can take on in the business and human rights domain such as ‘helping States identify whether relevant laws are aligned with their human rights obligations and are being effectively enforced, and in providing guidance on human rights also to business enterprises and other non-State actors’^[4] and as an example of State-based grievance mechanisms.^[5] NHRIs themselves are increasingly claiming a role in this field^[6] and various international organizations have pointed out that NHRIs have a role to play.^[7]

This development is also reflected in the ongoing process towards an international treaty on business and human rights (BHR-Treaty). This process, which started at the United Nations in 2014^[8], has culminated in a draft text, a zero-draft, in 2018.^[9] The text of an Optional Protocol to the BHR-Treaty was also released^[10] and contains an obligation for States Parties to establish a National Implementation Mechanism (NIM).^[11] The Optional Protocol has NHRIs in mind given the reference to the so-called Paris Principles, the Guidelines relating to the status of NHRIs.^[12] The Optional Protocol carves out a key role for such National Implementation Mechanisms to promote, monitor and implement the BHR-Treaty. With such an institutional arrangement, the future treaty would join the ranks of what has been called a new generation of human right treaties which call for the establishment of independent national bodies to connect a top down with a bottom up approach.^[13] Such institutional innovation dispersing and localizing authority aims to address the disconnect that exists in global human rights governance between international rules and domestic practice. As will be discussed in Section 6, similar institutional innovation can also be found in the governance design of the Optional Protocol to the Convention against Torture^[14] (OPCAT) and the Convention on the Rights of Persons with Disabilities^[15] (CRPD). These instruments mark a move from rule-making to rule implementation, formalizing relations among intermediaries, aimed at advancing global rules at the domestic level.^[16] The Optional Protocol reflects this emerging trend of localization of authority by envisioning a role for NHRIs in the governance structure of the future business and human rights treaty. As stated above, the call for a role for NHRIs in this field has become louder, yet, their role in human rights governance in general, and in the business and human rights domain in particular, is not yet well understood and undertheorized.^[17] The proposal for a national implementation mechanism in the Optional Protocol to the treaty on business and human rights offers an example of how the relationships between key governance actors are being rearticulated in the global human rights governance architecture in general. This paper critically examines the significance of NHRIs in the business and human rights domain.

NHRIs will first be introduced and examples of their current engagement with business and human rights will be provided. In particular, the prospects of these institutions to effectuate State compliance, promoting corporate respect of human rights and securing remedy for victims of business-related human rights abuse will be discussed. The paper identifies areas of common interest in the work of NHRIs on business and human rights and presents examples of concrete activities undertaken by NHRIs in this area to date. It will be shown how NHRIs are uniquely positioned to take up the issue of business and human rights but they face a number of challenges. With a view to encouraging and facilitating more effective engagement by NHRIs, the paper reflects on opportunities for supporting and perhaps expanding the role of NHRIs in this field. From this perspective, it will be discussed whether the role foreseen in the Optional Protocol to the business and human rights treaty holds promise. (How) can NHRIs as intermediates contribute to closing governance gaps in the business and human rights field? It will be discussed how the evolution of the role of NHRIs in the business and human rights domain fits into what a broader development towards what has been called global experimentalist governance.^[18] Finally, with this analysis the article aims to add insight into NHRIs as a significant new class of formal organization in human rights governance.

2 National Human Rights Institutions (NHRIs)

To analyze the role of NHRIs^[19] in the business and human rights field, a better understanding of NHRIs is necessary. A NHRI is a ‘body which is established by a Government under the Constitution, or by law or decree, the functions of which are specifically defined in terms of the promotion and protection of human rights’.^[20] The idea of establishing national human rights institutions was first conceived in the aftermath of World War II. In 1946, the UN Economic and Social Council invited Member States to consider establishing information groups or local human rights committees. Subsequently, the UN General Assembly requested the Secretary-General to submit a detailed report on NHRIs. In 1991, the first international workshop on National Institutions for the Promotion and Protection of Human Rights took place in Paris. A key outcome of this conference was the adoption by the UN General Assembly in 1993 of the Paris Principles relating to the status of national institutions (hereinafter: the Paris Principles), now broadly accepted as the international standard for NHRIs testing an institution’s legitimacy and credibility.^[21] The Paris Principles lay down the requirements an entity must meet to show it has the capacity to be a NHRI. These requirements are quite general and focus on such things as the necessity of a broad mandate and independence. But there is no prescribed model for an NHRI and thus the diversity among NHRIs is great. Around the world six models can be discerned: human rights commissions; human rights ombudsman institutions; hybrid institutions; consultative and advisory bodies; institutes and centres and multiple institutions.^[22] The main types of NHRIs are national human rights commissions or institutes and national human rights Ombudsperson institutions. Mandates, resources and local context differ substantively. Given the vast diversity, the Paris Principles have formulated a rather generic description of what requirements a NHRI must meet, putting specific attention on formal independence, composition, mandate and competence of the institution. According to the Paris Principles, a NHRI must:

1. be established by law;

2. have a clearly specified role and a mandate that is as broad as possible;

3. reflect pluralism in governing structures and independence of appointment procedures;

4. have an infrastructure in accordance with its functions, with particular importance attached to the need for adequate funding;

5. have the ability to perform a monitoring, advisory and recommendation function on various matters relating to human rights;

6. relate to regional and international organizations;

7. must promote public awareness, teaching and research on human rights;

8. provide the possibility of handling individual complaints or petitions on human rights grounds.^[23]

The United Nations Global Alliance of National Human Rights Institutions (GANHRI)^[24] is mandated to review and accredit NHRIs that are in compliance with the Paris Principles.^[25] This is done through a peer-review process undertaken by GANHRI’s Sub-Committee on Accreditation (SCA). When compliant with the Paris Principles, the GANHRI can grant the institution A^[26] or B^[27] status. In general, GANHRI only accredits one institution per jurisdiction.^[28] Fully compliant NHRIs are granted the A-status which provides them with certain prerogatives. A-status NHRIs may make an oral statement under all substantive agenda items of the Human Rights Council; participate through video messages in the HRC plenary debates, including during the adoption of the outcome of the Universal Periodic Review of the country by the Council, the interactive dialogue following the presentation of a country mission report by a special procedures mandate holder and panels or annual discussions; submit documents, which will be issued with UN Document symbol; and take separate seating in all sessions. As pointed out by Reif, the accreditation-process of GANHRI that puts certain pressure on NHRIs and States to comply with the Paris Principles in order to be bestowed with certain (reputational) prerogatives, thus functions as a gatekeeper mechanism.^[29]

In their interactions with the human rights’ supervisory mechanisms, NHRIs form a bridge between the national and the international level. NHRIs are actively involved in the national reporting cycles and monitor follow up of international recommendations. In accordance with the Paris Principles, NHRIs shall promote and protect human rights at the national level. Human rights promotion is understood as to ‘include those functions which seek to create a society where human rights are more broadly understood and respected. Such functions may include education, training, advising, public outreach and advocacy.’^[30] Typically, NHRIs will be involved in advising government on legislation with a human rights dimension, monitoring compliance with international treaty obligations, pushing for the ratification of human rights treaties and protocols, human rights education and overall monitoring of the human rights situation in the country.^[31] The protection functions of NHRIs ‘may be understood as those that address and seek to prevent actual human rights violations. Such functions include monitoring, inquiring, investigating and reporting on human rights violations, and may include individual complaint-handling’.^[32] The Paris Principles do not require NHRIs to have a complaints-handling function yet some NHRIs do have the mandate that allows individual dispute resolution. Even though it is not required, it has been recommended that NHRIs may handle complaints submitted to them by a complainant and by settling the case through conciliation and mediation, thereby relieving the existing case-load of courts; ensuring victims of human rights violations receive compensation, including encouragement of the establishment of the fund for this purpose; assisting victims seeking redress with information on the law and the legal system’ as well as seeking ‘informal legal redress mechanisms through conciliation or through binding decisions.^[33] Finally, the importance is stressed of ‘regular and constructive engagement with all relevant stakeholders’, through ‘working relationships, as appropriate, with other domestic institutions established for the promotion and protection of human rights, including sub-national statutory human rights institutions, thematic institutions, as well as civil society and non-governmental organizations.^[34]

In 1990, there were only eight institutions that could be considered as official NHRIs. The fact that there are now 114 accredited NHRIs^[35] (of which 80 have been found to be fully compliant with the Paris Principles and thus accredited with A-status) reflects the proliferation of these institutions in recent years.^[36] Besides the cooperation in GANHRI at the global level, NHRIs have also devised networks for collaboration at the regional level. In Europe, NHRIs collaborate in the European Network of National Human Rights Institutes (ENNHRI).^[37] In Africa, transnational collaboration takes place in the Network of African National Human Rights Institutions (NANHRI) created in 2007.^[38] In the Asia-Pacific region, an alternative peer review mechanism has developed known as the Asia Pacific Forum established in 2006.^[39] This forum administers its own evaluation of prospective and current members according to the Paris Principles. In the Americas, NHRIs collaborate in the Network of National Institutions of Human Rights of the American Continent.^[40] In addition to the regional networks, NHRIs also collaborate in several cross-regional forums.^[41]

The Paris Principles^[42] as a framework and the collaboration between NHRIs reflects what Pegram has defined as ‘regulatory stewardship’; the governance structure is designed of mutual-monitoring and support responsibilities among intermediaries themselves. ^[43] As will be further discussed in Section 7, such a networked governance^[44] design helps to protect the independence of NHRIs which is crucial for the effective functioning of these entities.

3 Emerging Recognition of NHRIs in the Business and Human Rights Field

Traditionally, NHRIs have focused on the State and its compliance with human rights. In recent years, we see NHRIs increasingly using their mandate to address human rights abuse by private actors.^[45] At the time when the Paris Principles were adopted, there was less attention for the impact of corporations on human rights than is the case nowadays. The traditional State-centric focus of international human rights law may provide an explanation for the fact that the Paris Principles do not explicitly mention the need for NHRIs to engage with non-State actors.^[46] Nevertheless, it is argued that the Paris Principles do provide sufficient space for NHRIs to take up a critical role in preventing and responding to human rights violations committed by corporations. Brodie distinguishes four specific ways in which the Paris Principles can be read as encouraging NHRI engagement with business and human rights.^[47] In general, the Paris Principles state that NHRIs must be vested with competence to promote and protect human rights and be given as broad a mandate as possible. The Paris Principles do not limit this to State actors. Secondly, under ‘methods of operation’, the Paris Principles state that NHRI may engage with non-state actors by providing that an NHRI shall ‘freely consider any information and any documents necessary for assessing situations falling within its competence’.^[48] Furthermore, the Paris Principles require institutions to ‘maintain consultations with other bodies, whether jurisdictional or otherwise, responsible for the promotion and protection of human rights’.^[49] Moreover, in the General Observations which provide interpretations of the Paris Principles, it is stated that:

an NHRI’s mandate should be interpreted in a broad, liberal and purposive manner to promote a progressive definition of human rights which includes all rights set out in international, regional and domestic instruments, including economic, social and cultural rights. Specifically, the mandate should: extend to the acts and omissions of both the public and private sectors.^[50]

This provides NHRIs with the mandate to engage with national, regional and international bodies that work on business and human rights such as the OECD and its National Contact Points or the UN Working Group on Business and Human Rights. Fourthly, Brodie points out that the requirement that a NHRI must consult with various representative groups can be read as to include also the private sector.^[51] Thus, Brodie concludes that such a reading of the Paris Principles provides that legislation establishing an NHRI should enable engagement with corporations or at the very least not exclude such engagement.^[52] Recently, NHRIs have actively started to utilize the room the Paris Principles allow to engage with the issue of business and human rights. The next section will provide some illustrations of such activities.

Collaborative networks of NHRIs have confirmed that NHRIs have a role to play in addressing business and human rights issues.^[53] In 2009, the global network of NHRIs, GANHRI (then called the International Coordinating Committee, ICC), established a Working Group on Business and Human Rights, the first ICC’s thematic Working Group. In 2010, the ICC’s 10th Biennial Conference held in Scotland was dedicated to the topic of business and human rights. Over 80 NHRIs adopted the Edinburgh Declaration.^[54] This declaration affirms the mandate, identifies the role and indicates the functions of NHRIs on business and human rights across the three pillars of the UN Protect, Respect and Remedy Framework. The Edinburgh Declaration emphasized ‘the important role national human rights institutions can play in addressing corporate-related human rights challenges, both as a body at the international level, at the regional level and individually at the national level’.^[55] The Declaration provides a number of examples of activities NHRIs could take up, such as: engaging with governments to promote greater awareness of the impact of business enterprises on the realization of human rights^[56] and advocating and advising government to introduce national legislation^[57]; provide guidance to business on how to integrate human rights into their daily business^[58]; research business impact on human rights^[59]; facilitate dialogue between corporations, government and civil society^[60]; document violations and examine conditions of access to justice^[61]. The Edinburg Declaration also calls on NHRIs with complaint handling functions to consider utilizing these to address business and human rights issues and for NHRIs to mediate between corporations, governments, trade unions and victims.^[62]

Regional collaborative networks have also recognized the role NHRIs can play in the field of human rights and business. On the African continent, NHRIs cooperating in NANHRI adopted the 2011 Yaoundé Plan of Action affirming their collective commitment to strengthen their capacity on business and human rights, address business-related human rights abuses, highlighting three specific areas: labour, environment and land related human rights abuses.^[63] In Europe, the NHRIs collaborate in ENNHRI, the European Network of National Human Rights Institutions.^[64] One of its four working groups engages with business and human rights.^[65] In the Americas, in 2011, the NHRI-Network organized a regional seminar on business and human rights, resulting in a declaration and action plan.

Besides NHRI claiming a role for themselves, international organizations have also increasingly started to acknowledge NHRIs as important actors in the field. When the Human Rights Council adopted the UNGPs, the Council welcomed ‘the important role of [NHRIs] established in accordance with the Paris Principles in relation to business and human rights, and encourages [NHRIs] to develop further their capacity to fulfil that role effectively’.^[66] The role envisioned in most documents concerns mainly the promotional tasks of NHRIs such as providing information and advice to government, corporations and civil society. But increasingly, expectations are also expressed regarding the functions of NHRIs in protecting human rights by facilitating access to remedy. As the above mentioned quote by the SRSG Ruggie makes clear, NHRIs are seen as particularly adept at facilitating access to remedy by acting ‘as lynchpins within the wider system of grievance mechanisms’.^[67] The UN Working Group on Business and Human Rights has started a project to analyze the role of NHRIs in facilitating access to remedy for business-related human rights abuses.^[68]

The growing expectations regarding a role for NHRIs in the field of business and human rights, NHRIs have culminated in the Optional Protocol to the future BHR treaty which envisions a role for national implementation mechanisms to promote compliance, monitor and implement the future treaty. What this role would imply exactly will be further discussed in Section 5.

In sum, a development can be discerned where there is an increasing expectation that NHRIs have a significant role to play in addressing business and human rights issues. NHRIs have gradually seized the room that the Paris Principles allow for these entities to take up such a role. In the next section, some examples of NHRI engagement will be discussed.

4 NHRIs and Business and Human Rights: Current Practice and Challenges

The previous section has demonstrated how NHRIs are increasingly are being referred to as actors of growing significance in the business and human rights domain, a role NHRIs are gradually starting to acknowledge and take up themselves. But only NHRIs with jurisdiction over both public and private actors and broad promotion and protection powers are able to engage with business and human rights matters in practice. This section provides an overview of some of the activities that NHRIs have started to deploy in this field, independently and/or in collaboration with others. This is by no means an exhaustive overview but rather serves to illustrate some of the current involvement of NHRIs which brings to light several challenges facing NHRIs involvement in this field.^[69] NHRIs differ vastly when it comes to their mandates, resources and capacities and as a result their activities in the field of business and human rights also differ considerably. It is thus not possible to speak of the role for NHRIs in the business and human rights domain. The diverse landscape makes is hard to compare or present a comprehensive overview. Yet, by discussing some of the recent activities of various NHRIs, it is possible to draw some conclusions about the common challenges NHRIs face when engaging with business and human rights.

At the national level, NHRIs are increasingly picking up a role in the BHR domain across the three pillars of the ‘Protect, Respect and Remedy’ framework.

1. State duty to protect

According to principle 1 of the UNGPs:

States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.^[70]

Furthermore, ‘States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.’^[71] And Principle 3 explains how States should operationalize their obligation to protect by enforcing laws; making sure that other laws and policies do not constrain but enable business respect for human rights; provide effective guidance to business enterprises on how to respect human rights and encourage, business enterprises to communicate how they address their human rights impacts.^[72] The Commentary to Principle 3 states that NHRIs that are compliant with the Paris Principles ‘have an important role to play in helping States identify whether relevant laws are aligned with their human rights obligations and are being effectively enforced, and in providing guidance on human rights also to business enterprises and other non-State actors’.^[73]

Several NHRIs have taken up a role in monitoring the State obligation to protect against corporate human rights abuse. NHRIs have been involved, to different degrees, in the creation of National Action Plans on Business and Human Rights (NAPs). The European Union called on its members to adopt national action plans laying out how they would implement the UNGPs.^[74] The development of NAPs on Business and Human Rights has been pushed by civil society organizations^[75] and is also found strong support with the UN Working Group on Business and Human Rights.^[76] In 2014, the Human Rights Council encouraged all UN Member States to adopt NAPs.^[77] Also at the regional level, States have been called upon to adopt national action plans on business and human rights.^[78] At the time of writing, 23 countries across the world have adopted a NAP and 14 countries are in the process of doing so.^[79] The UN Working Group on Business and Human Rights has recommended that NHRIs are invited to contribute to the process of creating a NAP and should also be involved in the monitoring thereof.^[80] In several countries, NHRIs have indeed played an active role, to different degrees, in the NAP process. For example, the NHRIs of Germany and Zambia undertook a national base-line assessment in preparation of the NAP. NHRIs in countries such as the Netherlands, Scotland, Kenya and North Ireland have been involved in different ways in the development of NAPs. Many NAPs make direct reference to NHRIs, some highlighting specific roles. For example, the NAP of Chile, commits the Chilean NHRI to train staff, update material, and introduce the UNGPs into the recommendations they make to the State.^[81] Notably, Italy’s NAP mandates that the State establish an NHRI.^[82]

Besides a role in the creation of National Action Plans on Business and Human Rights, various NHRIs have advanced specific proposals for legal reform to promote the implementation of the UNGPs at the national level.^[83] For example, NHRIs have been engaged, with the nascent trend towards the adoption of national laws mandating human rights due diligence.^[84] Several NHRIs have conducted research in specific areas which have led to evidence-based recommendations for adjusting laws.^[85]

Moreover, an increasing number of NHRIs are addressing the duties of States regarding business and human rights in their interactions with international and regional human rights bodies. For example, The Canadian and Danish NHRI have included relevant recommendations in the second round of the Universal Periodic Review. The European network of NHRIs has taken a position on the BHR-treaty calling on States to actively contribute to the negotiations.^[86]

1. Corporate responsibility to respect.

According to Principle 11 of the UNGPs: ‘Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’^[87] The UNGPs explain which processes and policies companies must have in place to act with due diligence and meet their responsibility to respect. NHRIs are only briefly mentioned in the commentary to Principle 23 which addresses the responsibility of corporations when operating in conflict-affected areas. The commentary provides that ‘in complex contexts such as these, business enterprises should ensure that they do not exacerbate the situation. In assessing how best to respond, they will often be well advised to also […] consult externally with credible, independent experts, including from Governments, civil society, national human rights institutions and relevant multi-stakeholder initiatives.’^[88] NHRIs have started to play a role in the second pillar of the Framework by providing expertise and advise to business and human rights issues. Notably, the Danish Human Rights Institute has taken on an active role in advising companies on the corporate responsibility to respect.^[89] Other NHRIs have also developed guidance for business on human rights.^[90] Often, these activities such as promoting ways to combat discrimination in hiring and employment termination or covering other labor issues are not labelled as ‘business and human rights’ matters which is often associated more with addressing transnational corporate activity. However, these promotional activities must also be considered as belonging to the business and human rights domain.^[91]

1. Access to remedy

The third pillar of the Protect, Respect, Remedy Framework addressed access to remedy:

As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.^[92]

It is especially in the field of providing access to remedy for victims of corporate related human rights abuse where high expectations for a role for NHRIs are held. In fact, the UNGPs envision NHRIs as State-based, non-judicial grievance mechanisms which can provide effective and accessible remedies for business-related human rights abuse. According to Principle 27, States should provide effective and appropriate non-judicial grievance mechanisms and the Commentary to this Principle stipulates that NHRIs ‘have a particularly important role to play’ as State-based non-judicial grievance mechanism.^[93]

Access to remedy can be considered in a narrow and in a broader sense.^[94] In a narrow sense, access to remedy concerns adjudicating individual or collective disputes. As mentioned previously, the Paris Principles do not require NHRIs to have a complaint handling mandate but where NHRIs do have such a mandate it is argued that these NHRIs can contribute to improve access to remedy in cases of adverse human right effect caused by business activity. Some NHRIs have a mandate for adjudicative dispute resolution regarding human rights in general or with regard to certain categories, for example, employment discrimination or labour disputes.^[95] In such cases, NHRI may issue binding decisions or non-binding recommendations. NHRIs sometimes have the mandate to act as mediators or conciliators, in other words these NHRIs can play a role in agreement-based dispute resolution.^[96] Many NHRIs, however, do not have the mandate to directly address individual complaints of corporate abuse.^[97]

Nevertheless, many NHRIs play a role in access to remedy if this is perceived in a broader sense as facilitating such access by supporting victims, providing information and advice on which remedy-avenues are available or by using their investigatory powers to identify obstacles for victims and suggest improvements in national legislation to improve access to remedy. In recent years, several NHRIs have used their mandate to conduct inquiries to investigate specific situations of human rights abuse and remedy-related issues. For example, in 2018, the Australian NHRI announced a national inquiry into sexual harassment in Australian workplaces.^[98] In 2016, Kenya’s National Commission on Human Rights has conducted a public inquiring into certain mining activities. Based on these experiences, the Commission reached the conclusion that the public inquiry’s is a successful instrument to provide remedy to victims of business-related human rights abuses as it brings together multiple duty-bearers and rights-holders.^[99] The Portuguese NHRI, which is the Ombudsman, has the mandate to investigate. Moreover, the Ombudsman is entitled to compel evidence as well as testimony, conduct inspection visits without prior notice and request actions within the investigation.^[100] An example of a creative interpretation of the mandate of a NHRI is the ongoing investigation by the Commission on Human Rights of the Republic of the Philippines. The Commission has held public hearings in various places around the world on the potential liability of major fossil fuel companies for climate change-related impacts on human rights in the Philippines.^[101]

In sum, as mentioned previously, in the UNGPs, the potential of NHRIs in the field of business and human rights is stressed. This expectation has resonated in multiple policy documents and been repeated by many scholars. NHRIs are frequently referred to as promising actors in the business and human rights domain. As the examples above show, NHRIs are indeed involved in many ways ranging from the promotion of human rights towards States and corporations and also in protecting human rights by facilitating access to remedy in a narrow and in a broader sense. NHRIs have started to take up these functions across the three pillars of the Protect-Respect, Remedy Framework. Nevertheless, the engagement with business and human rights matters remains quite limited in light of the mounting expectations. The next section will address some of the challenges NHRIs face when engaging with business and human rights.

5 The Optional Protocol to the Business and Human Rights Treaty: The Role of NHRIs

How does the draft Optional Protocol to the BHR-Treaty envision the role of NHRIs and how should this proposal be evaluated also in light of the discussion of the current obstacles NHRIs face? In accordance with Article 1 of the Optional Protocol, each State Party shall designate or establish, within 2 years a National Implementation Mechanism (NIM) to promote compliance with, monitor and implement the treaty on business and human rights. With a reference to the Paris Principles States parties are required, inter alia, to ensure the independence of the NIM and its officers and ensure necessary resources.^[109] According to the draft Optional Protocol, the NIM would have three key functions:

1. raising awareness of the BHR-Treaty at the domestic level;

2. conducting due diligence reviews;

3. running a mediation process.

The first task of the NIM would be to make the treaty content known to the general public, business and victims; to cooperate with other national institutions, foreign NIMs and civil society organizations and to raise awareness on the implementation of the treaty^[110] and to make recommendations to a State Party’s competent authorities.^[111] Beyond these awareness-raising activities, which fit well with the promotional tasks NHRIs have, the NIM would have quite far-reaching investigatory and review-competences. According to Article 5, the National Mechanism would be granted the competence to conduct reviews on the implementation of due diligence obligations as provided in the BHR-Treaty. Article 9 of the zero draft of the BHR-Treaty provides that

State Parties shall ensure in their domestic legislation that all persons with business activity of transnational character within such States Parties’ territory or otherwise under their jurisdiction or control shall undertake due diligence obligations throughout such business activities […].^[112]

A very broad range of actors may request the NIM to conduct a review of the due diligence obligations: ‘victims, natural or legal persons conducting business activities of a transnational character, or all other persons with a legitimate interest’.^[113] To prevent human rights violations in the context of business activities, the OP states that NIMs would have the power to request all necessary information from a State Party in relation to the implementation of the treaty which may include reports on human rights matters provided by natural or legal persons under their jurisdiction. Presumably, the power to request all necessary information refers to the information corporations would be required to produce in the context of their due diligence obligations. The article refers to information concerning ‘internal policies, outcomes and indicators of environmental and human rights impact assessments.^[114] The NIM would also have the power to request such information from other State Parties in the case of transnational business activity.^[115] This addresses the restrictions most NHRIs now face in addressing the transnational activities of multinational enterprises. To conduct due diligence reviews, the national implementation mechanism would have the competence to visit and inspect business enterprise’s facilities, and conduct joint visits and inspections with other NIMs to monitor the implementation and follow up of due diligence plans or policies.^[116] Provisions that would equip the NIM to request and cooperate with mechanisms in other countries would overcome the jurisdictional restraints NHRIs currently often face in the business and human rights field. In case of non-compliance, the NIM would provide recommendations to natural or legal persons conducting business activities in order for it to bring its operation into compliance, or inform the competent authorities.^[117]

By granting the NIM the competence to review the implementation of due diligence, the Optional Protocol aims to address an important gap in the current business and human rights governance structures. As pointed out by Bernaz, increasingly, ‘corporations are required to report on their human rights performance but there is no consequence for poor reporting, and no systematic process to check whether corporations have done enough, or even the veracity of those reports. Instead, states rely on civil society scrutiny.’^[118] As will be discussed in Section 7, this relates to what some scholars have identified as ‘a principle deficiency’^[119] of the UNGPs, the failure to institutionalize, to provide tools to empower the participatory rights and roles of civil society. Institutionalizing this role by granting the NIM the power to conduct such reviews would be a significant step towards bridging the governance gap that currently exists. In the next section, it will be explained how the proposal to establish national implementation mechanisms fits in a broader development towards institutional innovation in human rights governance.

The Optional Protocol also carves out a role for the NIM in providing access to remedy. National Mechanisms may have the competence ‘to receive and consider complaints of human rights violations alleged to have been committed by natural or legal persons conducting business activities of a transnational nature brought by victims, their representatives or other interested parties’.^[120] In the course of such proceedings the NIM may, inter alia, request and receive all information, conduct visits and receive testimony.^[121] Subsequently, the national mechanism will offer its good offices in order to reach an amicable settlement and, if reached, monitor compliance with this settlement.^[122] This function is similar to the mediation role that the OECD National Contact Points currently undertake.

In sum, the Optional Protocol foresees a role for NHRIs as National Implementation Mechanisms in the future BHR-Treaty which would entail awareness-raising, a task NHRIs are familiar with, and quite far-reaching powers to conduct reviews of human rights due diligence obligations. Moreover, the future NIM would have a role as mediator in business and human rights conflicts. Besides the review and mediation by the NIM, the Optional Protocol relies on international supervision by establishing an individual complaint procedure mirroring the procedures of traditional international human rights treaties. According to Article 8, States Parties to the draft Optional Protocol recognize the competence of the committee supervising compliance with the business and human rights treaty, ‘to receive and consider communications from or on behalf of individuals or group of individuals and [those parties that have reached an amicable agreement], with regards to human rights violations in the context of business activities of transnational character under the jurisdiction of a State Party […].’^[123] A rather novel element is that the supervisory body will have the competence to not only invite concerned States Parties but also ‘the involved person conducting business activities of a transnational character to co-operate in the examination of the communications received’.^[124] After the examination, the committee will send its findings and recommendations to the State Party but also to involved person conducting the business activity.^[125] Directly involving corporations in the UN supervisory proceedings is potentially groundbreaking.

The reception of the Optional Protocol was lukewarm. Whereas employers’ organizations criticized the Optional Protocol for going too far, several civil society organizations felt the Optional Protocol does not go far enough. The International Organization of Employers (IOE) criticized the unclear status of the NIM pointing out the competence to conduct visits and inspections to business’ facilities is ‘very vague and problematic’ as ‘only competent national authorities should have the authority to visit and inspect company facilities’.^[126] However, it should be pointed out that many NHRIs currently already have similar investigatory powers. The employers also raised many practical issues such as the question how a NIM would deal with the sheer number of due diligence reviews it could potentially be confronted with.^[127]

NGOs have been especially dismissive of the fact that enforcement is left to an international supervisory body of experts and national implementation mechanisms. Relying on mediation will not provide better access to remedy and would in fact even weaken the provisions in the BHR-Treaty it is argued. NGOs would like to see the NIM have standing to bring business and human rights cases before a court of law.^[128] They argue that the focus in the Optional Protocol is too much on conciliation and mediation and no reference is made to the protection function of NHRIs as mentioned in the Paris Principles, especially the possibility of hearing complaints or petitions of human rights violations, and transmitting them to the competent administrative and judicial national authorities.^[129]

It is true that the track-record of the international human rights supervisory bodies is less than glorious when it comes to monitoring State compliance. Yet the fact that a draft for an international treaty follows the same supervisory structures as other international treaties hardly comes as a surprise. The drafters of the Optional Protocol have stressed the conciliatory role for NHRIs. Other, possibly more adjudicative functions are not explicitly mentioned. In light of the continuing problems victims of corporate-related human rights abuse face, it is understandable that the lack of attention for access to remedy was met with disappointment by human rights advocates. However, it is argued here that dismissing the potential of National Implementation Mechanisms in the field of business and human rights altogether may be a bit too hasty. Institutionalizing a role to review compliance with due diligence obligations could be a potent step as such a formal role is presently missing in the emerging business and human rights architecture. Currently, monitoring corporate respect for human rights is mostly left to civil society. Implementing this idea in practice no doubt will pose challenges^[130] but mandating an organization with the power to review due diligence obligations is a significant step towards closing existing governance gaps.

6 Joining the Ranks of a New Generation of Human Rights Instruments

With the requirement to establish a national implementation mechanism, the draft Optional Protocol to the future business and human rights treaty joins the ranks of a new generation of human rights treaties which have triggered institutional innovation. These treaties have taken a more ‘intrusive governance architecture via intermediation’^[131] compared to traditional human rights treaties. Where conventional human rights treaties rely on monitoring compliance through international expert bodies that monitor State compliance by means of reporting and constructive dialogue, the new generation of human rights treaties has added an additional monitoring structure at the domestic level. The obligation to set up National Implementation Mechanisms mirrors comparable obligations under the Optional Protocol to the Convention Against Torture (OPCAT)^[132] and in the Convention on the Rights of the Persons with a Disability (CRPD).^[133] Similar institutional innovations can be found in treaties in other fields such as chemical weapons^[134] and tobacco^[135]. Here, the focus will be on the human rights treaties that have incorporated an obligation to establish a formal role for an intermediary to promote, monitor and implement the treaty. As will be discussed, with the introduction of a new tier of domestic in-between actors connecting international top down rules with bottom-up monitoring and participation, institutional innovation is taking place that incorporates certain features of experimentalist governance^[136] and new governance^[137] into traditional human rights treaties. De Burca, Keohane and Sabel identify a broader emerging development, which they label ‘experimentalist governance’ in various arenas of global governance, towards

a form of adaptive, open-ended, participatory, and information-rich cooperation in world politics in which the local and the transnational interact through the localized elaboration and adoption of transnationally agreed global norms, subject to periodic revision in light of knowledge locally generated.^[138]

Implementation of broadly framed goals is left to lower-level entities that have knowledge of local conditions and can adapt global norms to the local context.^[139] They discuss several examples that illustrate this development, among which CRPD.^[140]

Before discussing how the proposal to establish a National Implementation Mechanism can potentially address a gap in the emerging business and human rights regulatory architecture, similar institutional arrangements under CRPD and OPCAT will first be discussed. How does the obligation to create a national mechanism in the Optional Protocol to the BHR-Treaty compare to the provisions in OPCAT^[141] and CRPD?

According to OPCAT States Parties are required to:

[…] maintain, designate or establish, at the latest one year after the entry into force of the present Protocol or of its ratification or accession, one or several independent national preventive mechanisms [NPMs] for the prevention of torture at the domestic level. […].^[142]

To date, there are 68 designated NPMs. Like the Optional Protocol to the BHR-Treaty, OPCAT stresses the need for functional independence of the national mechanisms and refers to the Paris Principles which States must take into account when designing their national mechanisms. Consequently, the majority of these national mechanisms are NHRIs.^[143] The independent NPMs must have unrestricted access to places of detention to ‘regularly examine the treatment of the persons deprived of their liberties’ and must have the ability to engage with people in detention.^[144] NPMs can also engage in awareness-raising activities. NPMs have formal linkages with the Sub-committee on the Prevention of Torture (SPT) which has a uniquely far-reaching mandate in the human rights field to conduct country-visits in places of deprivation of liberty.^[145] In his analysis of OPCAT, Pegram identifies some of the benefits of the establishment of the preventive mechanisms at the national level. As he points out, ‘NPMs provide the SPT with an additional lever to enhance the legitimate authority of the OPCAT-architecture, as well as consistency in application of standards at the local level’.^[146] The NPM also offers a way to ‘enagage in orchestration activities with other torture prevention actors, including civil society and media’.^[147] An effective NPM, according to Pegram, can ‘not only advance compliance with torture prevention standards, but also advance compliance through socialization of domestic actors’.^[148] In other words, the NPM are key players not only to monitor State compliance but to involve all stakeholders in the implementation of the norms. This reflects elements of new governance approaches which typically seek to incorporate new mechanisms of stakeholder participation.

The institutional requirements under OPCAT are more detailed and more intrusive than those of the national monitoring mechanism under CRPD. Article 33 CRPD stipulates that besides a ‘focal point within government for matters related to the implementation of the Covenant’^[149],

[…] States Parties shall […] maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms […] to promote, protect and monitor implementation of the present Convention.^[150]

Different from the NIM in the Optional Protocol to the BHR Treaty, CRPD does not speak of implementation as one of the tasks of the National Monitoring mechanism. Rather this mechanism will promote, protect and monitor the treaty. To promote disability rights, the NMM needs to foster an acceptance of the values underlying CRPD. The national mechanism thus plays an important role in the socialization of the norms in CRPD. To protect disability rights requires the NMM to help disabled persons claim their rights when they deem they are violated. Monitoring CRPD implies the evaluation of compliance of both legislation and practice with disability rights. Like OPCAT and the OP-BHR Treaty, CRPD refers to the Paris Principles.^[151] As explored by The Beco, in light of their mandate NHRIs are well placed to take on the tasks of NMM under article 33 CRPD.^[152] In 2017, 32 equality bodies and NHRIs were designated as NMM to promote, protect and monitor the implementation of the CRPD in 29 countries.^[153] Different from OPCAT and the draft Optional Protocol to the BHR-Treaty this obligation is not in a separate protocol but part of the main treaty text of CRPD. The central motto of the disability rights movement ‘nothing about us without us’, explains the importance attached in CRPD to giving a voice to the rightsholders and institutionalizing this by means of a national monitoring mechanism. CRPD is unique in that it brings in beneficiaries as active participants into the monitoring process. CRPD, requires civil society, in particular persons with disabilities and their representative organizations, to be involved and participate fully in the monitoring process.^[154] These participatory features are why De Burca, Keohane and Sabel view CRPD as an example par excellence of experimentalist governance.^[155] Besides participation another central element of experimentalist governance is the learning from continuous feedback and peer-review. This can be found in CRPD in the provision for the holding of an annual Conference of the Parties. The peer review element is also found in the BHR-Treaty which likewise provides for a Conference of States Parties.^[156]

Both CRPD and OPCAT have created novel national mechanisms that localize authority as part of their governance architecture. There are some striking differences. The NPM under OPCAT is more intrusive compared to the national mechanism under CRPD. Torture prevention is much more adversarial than disability rights which explains these differences. The proposed National Implementation Mechanism under the OP to the BHR-treaty resembles the institutional innovation in CRPD and OPCAT. Different from CRPD, where the National Monitoring Mechanism is tasked to ‘promote, protect and monitor’ the treaty, the National Implementation Mechanism on business and human rights would seem to go a lot further. Besides promoting and monitoring, the NIM would have an active task in implementing the BHR-Treaty. In this sense the proposed NIM would have more intrusive tasks alike the NPMs under OPCAT. One of the main tasks of the NIM would consist of reviewing corporate due diligence obligations, a task, as mentioned previously, currently falls mostly on civil society watchdogs.

While it is probably too early to tell whether the governance regimes that display some experimentalist or new governance features are adequately addressing the problems they are meant to tackle, it is argued that the institutionalization at the national level has the potential to be a constructive development.^[157] The discussion of the institutional arrangements under OPCAT and CRPD bring forward some of the potential benefits of introducing formalized structures at the national level. These benefits include the creation of avenues to include other actors in the governance of the issue at hand, enhancing informal spaces for dialogue, socialization of norms and adding legitimacy to the international standards and structures. Increasingly NHRIs are looked at to take up such a role as national monitoring body. In the General Observations which interpret the Paris Principles, such a role for NHRIs is recognized. General Observation 2.8 assesses NHRIs as National Preventive and National Monitoring Mechanisms. The next section discusses how the creation of a national mechanism might bridge an existing regulatory gap in the business and human rights field.

7 A National Implementation Mechanism: The Missing Link in Business and Human Rights?

The UN Guiding Principles have proven a catalyst for a growing business and human rights governance architecture. The UNGPs embody a new governance approach, ie an approach that decenters the State, emphasizing the role of the State as an ‘orchestrator’^[158] promoting and empowering a broader network of public, private and civil society actors. However, the UNGP have been critiqued for failing to formally empower civil society as a key actor in such polycentric new governance. Melish and Meidinger have pointed out this missing link in the emerging governance architecture in the domain of business and human rights.^[159] In their analysis they argue that the weak point of the UNGPs is the lack of formalization of participation: ‘[although the guiding principles do call for transparency and participation in the conduct of corporate due diligence responsibilities, such participation is not required under the framework; nor can it be asserted by civil society groups as a “right” conferred under the framework.’^[160] Melish and Meidinger reach the conclusion that the UN Framework is conceptually flawed by not explicitly recognizing a right to participate for stakeholders. They state that:

under the current conceptual framework, a business can legitimately claim that it need not allow for civil society participation in external monitoring of any of the aforementioned due diligence activities. This apparent corporate right of control over who has access to relevant information for human rights monitoring and impact assessment and who can speak on behalf of communities in voluntary consultation processes is a major operational gap in the Ruggie framework. Indeed, corporate actors are unlikely, at least in the short term, to see external monitoring of their operations on the human rights of affected communities as consistent with their economic interests.^[161]

Melish and Meidinger argue that ‘[a]dditional actors, with distinct ways of levering power over corporate and state conduct must be explicitly brought into the framework for it to be effective in closing the current governance gaps.’^[162] The proposal to establish a National Implementation Mechanism can be seen as a step in that direction. Under the Optional Protocol, a broad range of actors, including ‘victims, natural or legal persons conducting business activities of a transnational character, or all other persons with a legitimate interest’, would have standing to request the NIM to conduct a review of the due diligence obligations.^[163] Moreover, an equally broad range of ‘interested parties’ may submit ‘complaints of human rights violations alleged to have been committed by natural or legal persons conducting business activities of a transnational nature’, to the attention of the NIM. Such complaints could prompt investigations and meditation. A national mechanism with this mandate would offer an avenue for civil society and other stakeholders, formalizing their participation in the business and human rights domain. The benefits identified in relation to OPCAT and CRPD could also apply in the business and human rights context. The NIM could be a platform to enhance spaces for dialogue including other actors in the governance of business and human rights. The existence of a national mechanism could further the socialization of norms such as human rights due diligence and add overall legitimacy to the treaty. Moreover, the issues in the business and human rights field are scattered across policy areas and government departments. The monitoring tasks of the NIM may help break down departmental silos and address policy fragmentation. Further research is required into the conditions under which national governance structures can best effectuate these goals.^[164]

Besides these potential benefits there are a range of challenges. One central concern is independence. Human rights governance is notoriously challenging as the State is both the regulator and the target. There is a risk of capture, as pointed out by Pegram, that, as it is left up to States to design their own national mechanisms increases, the independence of such mechanisms will be under strain.^[165] Reluctance to be monitored might constitute a threat to the independence of national mechanisms. Besides safeguards in the law to protect these mechanisms, Pegram points out the importance that intermediates monitor and support each other.^[166] Under OPCAT, the Sub-Committee for the Prevention of Torture actively monitors the independence of the NPMs and the Committee on the Rights of Persons with a Disability has drafted guidelines on the form and functioning of the National Monitoring Mechanisms.^[167] It is conceivable that the committee supervising the BHR-Treaty would be involved in policing the functioning and the independence of the National Implementation Mechanisms. Moreover, the accreditation-process of GANHRI where NHRIs by means of peer review can monitor and support the independence of other NHRIs can also protect a national mechanism against capture.^[168]

There are more potential challenges of a practical and political nature to operationalizing the idea of NHRIs as National Implementation Mechanisms. The question may be raised whether it the prospect of such a mechanism might further undermine willingness to sign and ratify the Future Business and Human Rights Treaty where political support for the binding instrument is already rather low among industrialized countries. Moreover, operationalizing the idea of NHRIs as NIM in the business and human rights field will require mandates to be adjusted and involved regional and subnational commission in many cases. As already mentioned supra, NHRIs face considerable challenges when it comes to funding. Adding yet another task to their mandate beyond their basic responsibilities would require considerable expenditures to prevent underfunding.

It can be concluded that, despite a range of practical and political hurdles to be overcome, novel formal roles for NHRIs as intermediary bodies in the business and human rights domain hold promise. In further developing this idea in the Optional Protocol to the BHR-Treaty, the drafters would be well advised to take on board the insights from the actual functioning of similar institutional arrangements in OPCAT and CRPD.

8 Conclusion

The future business and human rights treaty is breaking new ground in many ways and has sparked a lot of discussion. The institutional innovation that the draft Optional Protocol introduces has received relatively little attention. Yet it is concluded here that the proposals in the Optional Protocol hold potential to address a missing link in the current business and human rights governance architecture. The BHR Treaty establishes a conventional international human rights treaty-monitoring committee of experts but also a novel national level monitoring and implementation body. The Protocol carves out a role for these National Implementation Mechanisms which would entail awareness-raising, and quite far-reaching powers to conduct reviews of human rights due diligence obligations. This could potentially provide some ‘teeth’ to the increasing expectations that corporations will conduct due diligence. Policing corporate conduct is currently mostly left to civil society. The business and human rights architecture misses a formal role for actors to monitor corporate and State behavior. Besides institutionalizing this monitoring function, the future NIM would have a role as mediator in business and human rights conflicts. Access to remedy for victims of corporate related human rights abuse continues to be of major concern. In light of the little progress made in this field, it is perhaps understandable that the institutional arrangements in the Optional Protocol have been met with some disappointment by human rights advocates. The Optional Protocol does not provide for direct access to remedy. However, it is concluded that the idea of a National Implementation Mechanism must not be dismissed too hastily. The institutional innovation fits in a broader nascent development, introduced in a number of other ‘new generation treaties’, which institutionalize a top down with a bottom up approach aiming to address the disjuncture between rules and practice. The Optional Protocol addresses the current void in business and human rights by officializing participation of stakeholders, levering power over corporate and State conduct. Moreover, a national mechanism may further the socialization of human rights due diligence, address fragmentation in policy and enhance the overall legitimacy of the BHR-treaty. By referring to the Paris Principles it is clear that the drafters of the Optional Protocol have NHRIs in mind to take up this role of NIM. This follows an increasing recognition of NHRIs as relevant bodies in the quest for accountability in business and human rights and there are mounting expectations, especially regarding access to remedy. NHRIs are increasingly addressing business and human rights matters albeit in a rather piecemeal fashion. It can be argued that the potential of NHRIs in this field has yet to be fully realized. The proposals in the Optional Protocol are a significant development to strengthen their role. NHRIs are particularly well placed to take on the proposed role given their localized knowledge and independence which finds protection in law and peer-review. Working under a formal mandate would increase the impact of NHRIs as significant ‘in-betweens’ in the business and human rights space.