iv. National Human Rights Institutions (NHRIs)
National Human Rights Institutions (NHRIS) 1 are national independent public bodies established by states in accordance with the 1993 UN Paris Principles, which set out the criteria for a legitimate and credible NHRI. 2 A NHRI’s main role is to promote and protect Human Rights, and their functions include monitoring and advising home governments, raising awareness through Human Rights education activities and coordinating local initiatives with international bodies.
The International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), an international association of NHRIS tasked with the coordination and promotion of the work of NHRIS, was established in 1993. The ICC also accredits NHRIS according to their degree of conformity with the Paris Principles. As of April 2021, 117 countries have established ICC accredited NHRIS, with 84 maintaining an “A-level” accreditation, which denotes full compliance with the Paris Principles. 3
There are different models of NHRIS: Human Rights Commissions, Human Rights ombudsman institutions, hybrid institutions, consultative and advisory bodies, institutes and centres, and multiple institutions. Core functions of NHRIS include complaint handling, Human Rights education and making recommendations on law reform. 4 They are part of the State apparatus and are funded by the State. However, according to the Paris Principles, they should operate and function independently from governments. NHRIS can have formal and coercive powers of investigation, or powers to make binding recommendations without an adjudication function. For instance, some NHRIS have a mandate to deal with complaints from individuals or groups of individuals, who are victims of violations of Human Rights. Others do not have direct adjudicatory functions concerning complaints of Human Rights violations and will rather focus on the detection and prevention of systemic Human Rights violations (this can include reviewing governmental policies and state compliance with Human Rights obligations) with powers including the conduct of inquiries and the possibility to provide legal advice and representation to persons to take legal action.
With a few exceptions, NRHIs generally do not have the power to make binding decisions 5 .
However, decisions can for instance serve as “authoritative interpretation” and can sometimes be enforceable by national judicial bodies. 6
NHRIS and corporate accountability
In 2009, the ICC established the ICC Working Group on Business and Human Rights in order to support NHRIS with capacity building and strategy development in the field of Business and Human Rights. 7 The Working Group reports to the ICC Bureau twice a year. At the 10th international conference of NHRIS in edinburg, Scotland in 2010, the ICC issued the edinburg Declaration on Business and Human Rights, in which NHRIS agreed to promote and protect Human Rights related to business activities.
Regional networks of NHRIS have also adopted regional action plans on business and Human Rights, including in Africa, 8 Asia-Pacific, 9 Americas 10 and Europe. 11
Work on business and Human Rights greatly varies from one NHRI to another, and in accordance with recent developments on the international level, their expertise in this field has developed quickly over the last years. Some NHRIS, such as those in Australia, Denmark, France, Germany, Indonesia, 12 Kenya, Malaysia, Mexico, Morrocco, South Africa and Thailand, have been particularly active on these issues. Regarding the handling of complaints, some of them are directly or indirectly looking at corporate responsibility by examining complaints related to the discrimination in the workplace. Others, such as the South African Human Rights Commission (SAHRC), have dealt with complaints related to business and Human Rights on different issues, ranging from discrimination, the impacts of the mining industry and price fixing in the food sector. Comprehensive mapping has been undertaken, dealing in detail with the question of NHRI activities on Human Rights and business and what their complaints handling mandate is. 13 Such mapping also make references to public inquiries conducted by some NHRIS, such as in Kenya and Malawi.
Process and Outcome
As there is significant variety in the competences and resources allocated to the NHRIS, as well as their independence from the state, outcomes may vary to a great extent from country to country. The outcomes will vary depending on whether or not the NHRI has the ability to deal with complaints. You should consult with the NHRI relevant to the Human Rights situation (the state where the violation occurred, or potentially the state where the company is based) in order to learn of the potential outcome of a complaint and/or of engaging with an NHRIS. For an updated list of existing NHRIS see the website of ICC: http://nhri.ohchr.org.
NHRIS in action on corporate-related Human Rights abuses
Some, though not all NHRIS, have dealt with complaints related to violations involving companies (Australia, Canada, Indonesia, New-Zealand, Uganda, etc.), mainly related to employment issues. Ombudsman institutions also deal with a range of issues such as public sector employment, which could concern stateowned enterprises. The fact that NHRIS are increasingly paying attention to the issue of business and Human Rights represents an opportunity for civil society to demand that they be proactive in this field and that they benefit from the financial resources to do so. NHRIS have the potential to play an important role in complaint handling and could use the outcomes of complaints to monitor the conduct of TNCs. It would be interesting to further explore the opportunity for NHRIS to consider complaints on the failure of states to ensure that companies based in their territory respect Human Rights in their overseas operations. Indeed, depending on how restrictive the mandate of each NHRI is, it is not excluded that NHRIS explore states’ extraterritorial obligations.
Investigating alleged Human Rights abuses of Thai sugar company in Cambodia 14
The National Human Rights Commission of Thailand (NHRCT) 15 was established by the 1997 Constitution, and, following the enactment of the National Human Rights Commission Act in 1999, started functioning in July 2001. The 1999 Act requires the NHRCT to be independent and impartial, and bestows it with numerous mandates. These include to:
- Promote respect for Human Rights, domestically and internationally;
- Examine acts of Human Rights violations and propose remedies to actors concerned;
- Submit to Parliament and the Government an annual report on the country’s Human Rights situation;
- Propose legal and regulatory reform and policy recommendations for the promotion and protection of Human Rights;
- Disseminate information and promote education and research on Human Rights; and
- Cooperate and coordinate with the Government, NGOs and other Human Rights organisations.
The 2007 Constitution added the following functions to the NHRCT’s mandate:
- It may submit cases and opinions to the Constitutional Court and the Administrative Court where legislative, regulative or administrative acts are deemed detrimental to Human Rights;
- It may file lawsuits on behalf of a complainant in order to redress a general problem of Human Rights violations.
In May 2013, the local NGOs Licadho (Cambodian League for the Promotion and Defense of Human Rights) and Equitable Cambodia filed a complaint with the Thai NHRC on behalf of 602 families from Oddar Meanchey province of Cambodia. The complaint accused the Thai sugar firm Mitr Phol of illegally taking their lands and violating their Human Rights. In 2007, the Government had granted Mitr Phol three plantations totaling more than 20,000 hectares in Samroang City and Chongkal district. The lands of more than 2,000 families are affected, but many have moved away since they lost their lands. Following mounting pressure for greater transparency of global supply chains, it was revealed in 2013 that Mitr Pohl was one of Coca Cola’s three main global suppliers of sugar.
On 13 August 2014, the Thai NHRC backed claims that the Thai Coca Cola supplier illegally acquired the lands of the villagers in Cambodia and violated their Human Rights. In May 2015, Mitr Pohl announced that it had withdrawn from its three Cambodian plantations, though victims have seen no compensation or improvement to their conditions to date. 16
This is not the first case by the Thai NHRC confirming Human Rights violations committed by Thai corporations abroad. In a preliminary report of 2012, the Commission confirmed the allegations of a 2010 complaint submitted by a local aid group, the Community Legal Education Center, against the Thai company Khon Kaen Sugar for forcing hundreds of families off their lands in the Koh Kong province of Cambodia. However, apart from investigating and confirming the Human Rights violations and playing a mediating role between the parties, the Thai NHRC has no other powers to address violations taking place outside Thailand. FIDH and numerous NGOs continue to take action regarding Human Rights abuses occurring on sugar plantations in an effort to secure reparations for affected communities.
As of February 2015, there were plans to merge the NHRCT with the Thai Office of the Ombudsman, who has competence to look at administrative errors or abuses by state agencies. 17 The proposed merger was in strong opposition from NGOs and academia, who are concerned about the independence of the National Human Rights Commission, which enjoys a much broader mandate (see above). Although there was a motion to withdraw the NHRCT from the Constitution during the drafting process of the 2017 constitutional reform, this initiative was not taken up and the NHRCT was neither merged nor abolished.
The Human Rights Commission of Malaysia (SUHAKAM): Cambodian and Thai villagers file complaint against Malaysian company for involvement in don Sahong dam project in Laos 18
The Human Rights Commission of Malaysia (SUHAKAM) was established by the Parliamentary Act 597 “Human Rights Commission of Malaysia Act” of 1999, and was inaugurated on 24 April 2000. Under the 1999 Act, SUHAKAM’s functions are:
- To promote awareness of and education relating to Human Rights;
- To advise and assist the Government in drafting legislation and procedures, and make recommendations for necessary measures;
- To make recommendations to the Government regarding adherence to treaties and other instruments in the field of Human Rights; and
- To inquire into complaints regarding Human Rights infringements.
Furthermore, in order to exercise its functions effectively, the 1999 Act empowers SUHAKAM to:
- Undertake research by conducting programs, seminars and workshops;
- Advise the Government or relevant authorities of complaints against them, and recommend adequate steps to be taken;
- Study and verify Human Rights infringements;
- Visit places of detention, in accordance with legal procedures, and make necessary recommendations;
- Issue public statements on Human Rights as and when necessary; and
- Undertake appropriate activities, as deemed necessary.
In October 2014, rural Cambodian and Thai villagers filed a complaint with their NGO representatives to SUHAKAM against the Malaysian company Mega First for the company’s work on the Don Sahong dam project in Laos. The dam project is likely to have serious and irreversible effects on the environment, as well as the communities living in the river areas. The project is located less than two kilometres upstream from the Cambodia-Laos border, and scientists have warned that the project will seriously disturb fish migration between Cambodia, Laos and Thailand. Villagers also warn that the project will largely undermine food and livelihood security for communities in Laos, Thailand, Cambodia and Vietnam. While SUHAKAM initially accepted the complaint, in its 2015 Annual Report it concluded that it did not have the mandate to investigate a transnational case and could not proceed with the investigation. Nevertheless, it made certain recommendations to both the Malaysian government and Mega First on the impact of operating abroad companies on human rights and the environment. 19
Singapore’s Transboundary Haze Pollution Act 20
On 2014 Singapore adopted the Transboundary Haze Pollution Act, which allows the Governement to act against companies contributing to haze and fine them. On this basis companies contributing to the haze could be held accountable. Until now, 6 companies have been compelled to take action to stop burning and to seek information with regard to haze causing activities by their subsidiaries and suppliers.
The National Commission on Human Rights of the Philippines inquiry into the human rights impacts of Carbon Major companies in the Philippines 21
The Commission on Human Rights (CRH) 22 was created under the 1987 Philippine Constitution established on 5 May 1987 by virtue of Executive Order No. 163. It has the following powers and functions: 23
- Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights;
- Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court;
- Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection;
- Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights;
- Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families;
- Monitor the Philippine Government’s compliance with international treaty obligations on human rights;
- Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority;
In 2015, the CHR of the Philippines announced an inquiry in response to a petition from Greenpeace Southeast Asia (GPSEA) and numerous other Filipino organizations and individuals affected by Typhoon Haiyan. They demanded the CHR to investigate a general issue—“the human rights implications of climate change and ocean acidification and the resulting rights violations in the Philippines”—and a more specific one—“whether the investor-owned Carbon Majors have breached their responsibilities to respect the rights of the Filipino people.” The original petition identifies 50 companies with the strongest impact on climate change and refers to their duties under the UN Guiding Principles on Business and Human Rights.
In March 2018, the Commission held its first public hearings to investigate the alleged responsibility of major fossil fuel companies or “carbon majors” for climate change and the potential impacts on the human rights of Filipinos. Although at the time of this publication, the Commission has not yet submitted its final report, in December 2019, during the COP25 in Madrid, it announced in its findings that climate change constitutes an emergency situation that demands urgent action and that carbon majors played a clear role in anthropogenic climate change and its impacts. It stated that the largest greenhouse gas-emitting corporations could be found legally and morally liable for human rights harms to Filipinos resulting from climate change. The commission also added that these companies have an obligation to respect human rights as established by the United Nations Guiding Principles on Business and Human Rights. While the Commission’s mandate was not to adjudicate the responsibility of the Carbon Major companies, it concluded that people affected by climate change and whose human rights have been harshly impacted deserve access to remedy and access to justice. Moreover, the Commission found that in circumstances involving obstruction, deception, or fraud, the relevant mens rea (criminal intent) may exist to hold companies accountable under civil but also criminal laws.
It is the first time an investigation of this nature has been conducted focusing on how major fossil fuel producers contribute to human rights violations due to climate change. And while the findings of this NHRI will not necessarily have binding results, they can be taken into account to support future legal challenges in the Philippines and around the world.
ICC Working Group on Business and Human Rights 24
Following a roundtable on Human Rights and Business held in July 2008 and convened by the Danish Institute for Human Rights, a thematic Working Group on the issue of Business and Human Rights was established by the International Coordination Committee of National Institutions (ICC) in August 2009. 25
The Working Group’s mission is to: “facilitate collaboration among National Human Rights Institutions in relation to strategic planning, joint capacity building and agenda-setting in the field of business and Human Rights, in order to assist National Human Rights Institutions in promoting corporate respect and support for international Human Rights principles; and in strengthening Human Rights protection and remediation of abuses in the corporate sector in collaboration with all relevant stakeholders at the domestic, regional and international levels.” 26
United Nations Working Group on Human Rights and transnational corporations and other business enterprises
In Human Rights Council resolution 38/13 of 2018 entitled “Business and human rights: improving accountability and access to remedy”, the Council recognised “the important role of national human rights institutions in supporting activities to improve accountability and access to remedy for victims of business-related human rights abuse, including through supporting the effective implementation of the Guiding Principles on Business and Human Rights. 27
Indeed, in this resolution, the UN Working Group was requested “to analyse further the role of national human rights institutions in facilitating access to remedy for business-related human rights abuses, and to convene a two-day global consultation on these issues, open to all stakeholders, and to inform the Human Rights Council by its forty-fourth session as appropriate”.
To this end, the Working Group held a global consultation of NHRIs in October 2019. 28 The findings of this project were presented to the Council in June 2020 and at the center of a report by the Danish Institute for Human Rights. 29