1 Introduction
This chapter deals with the means of interface between the judiciary and National Human Rights Institutions (“nhris”) to ensure effective remedies to the victims of business-related human rights abuses. While nhris are considered as one of the state-based non-judicial grievance mechanisms for redressing the human rights abuses by business enterprises, lack of enforcement of their recommendations questions the overall effectiveness of the mechanism. This chapter thus looks into the fundamental relationship, including the interconnection and interaction, between the judiciary and nhris to ensure the enforceability of the nhris’ recommendations to have an actual outcome for the victims.
In the first section, the chapter provides the general background as to how nhris have been incorporated within the business and human rights regime and what are their expected roles within the regime. For the matter, the United Nations Guiding Principles, 2011 (“ungps”) is the primary instrument considered for the study. The second section deals with the concept and ways of interface between the judiciary and nhris. It explores the possible avenues to ensure the enforceability of the nhris’ recommendations. The third section considers the National Human Rights Commission of Thailand (“nhrct”) and National Human Rights Commission of Nepal (“nhrcn”) as case studies. The associated laws that provide grounds for the interface between these two state institutions are identified and analyzed. The chapter also explores the possibilities of interface for cases that have extra-territorial implications. While doing so, the possible challenges associated with them and recommendations are also discussed.
2
Traditionally, nhris have focused on the State’s role and monitored the compliance of human rights standards by States only. The Principles Relating to the Status of National Institutions (“Paris Principles”)1 do not require nhris to engage with human rights violations by non-State actors, including business enterprises. According to Cantú Rivera, the Paris Principles “do not explicitly refer to an [nhri’s] advisory role for actors other than the State” and they “do not contain a specific mandate” to redress cases of corporate human rights abuse.2 This lack of a clear mandate for nhris regarding corporate human rights violations dates back to the history of the Paris Principles creation. They were adopted at a time “when the main focus of nhri practice, and the international human rights system as a whole, was on the protection of human rights violations committed by State actors”.3 This conventional backdrop and understanding however does not forbid States to deal with business-related human rights violations. Since States must protect and fulfill human rights, they have the primary duty to regulate business enterprises from violating human rights and redressing, if required. Further, the Paris Principles encourage States to create a “broad mandate” for the nhris, which is the ideal clue to enable nhris to contribute effectively on the matter of promotion and protection of human rights, including business and human rights. John Ruggie, in his “Protect, Respect and Remedy” framework, positioned that nhris provide processes, whether adjudicative or mediation based, that are culturally appropriate, accessible, and expeditious.4 nhris can use their quasi-judicial mandate for the investigative and complaint-handling functions to provide remedies for
In recent times, several developments point toward the prominent roles of nhris in the field. The UN General Assembly in 2009 acknowledged the role of nhris in “the promotion and protection of human rights in all sectors”.6 This is an indication that the role of nhris need not be limited to the public sector only.7 The Edinburgh Declaration 2010, while reaffirming the functions of nhris, identified the roles of nhris to fulfill, promote and protect on the matter of business-related human rights violations. For this matter, the declaration provides lists of activities nhris could consider, such as engaging with governments to promote greater awareness of the impact of business enterprises on the realization of human rights; advocating and advising the government to introduce national legislation; providing guidance to business on how to integrate human rights into their daily business; research business impact on human rights; facilitate dialogue between corporations, government, and civil society; document violations; and examine conditions of access to justice.8 The declaration calls on the nhris with complaint-handling functions to consider utilizing the functions to redress business-related human rights violations and for nhris to mediate between corporations, governments, trade unions, and victims.9
The United Nations Human Rights Council (“unhrc”) Resolution 17/4 also highlights the role of Paris Principles – compliant nhris to work on the matter of business and human rights.10 The unhrc Resolutions “32/10 and 38/13”11
Along with the aforementioned instruments, the ungps accentuate the role of nhris in the business and human rights context. Several roles identified by the ungps include “helping States identify whether relevant laws are aligned with their human rights obligation and are being effectively enforced, and in providing guidance on human rights also to business enterprises and other non-state actors”.14 The ungps refer to the roles of nhris as state-based grievance mechanisms to ensure effective remedies for the victims of business-related human rights abuses. For this chapter, the role of nhris is focused on the third pillar, i.e. ensuring access to remedy for the victims of business-related human rights abuses.
3 Role of nhris in the United Nations Guiding Principles on Business and Human Rights
The third pillar (Principles 25–31) of the ungps elaborates on the obligation of providing remedies to the victims of human rights abuses as a “shared
nhris are intended to both protect and remedy individual’s human rights and to serve the wider public interest in advancing the protection of rights, and to bring overall systemic change. In addition, nhris can employ the process of mediation and conciliation for non-judicial remedies within the scope of their mandates. These kinds of friendly processes contribute to corporate behavioral transformation by making them understand the impacts of their activities.19 Primary functions of nhris thus include “dispute resolution”,20 “standard setting”,21 “investigatory powers”,22 and “remedies”.23 The promotional functions of nhris, while playing a huge role in preventive measures,
4 General Concept of Interface between the Judiciary and nhris
The protection role of nhris, especially the quasi-judicial functions of nhris as aforementioned, can act as a promising avenue to ensure remedies to the victims of business-related human rights abuses. However, most nhris lack enforcement authority. While it is controversial, the lack of enforcement authority on the part of nhris is justifiable to some scholars since these institutions undertake the investigations, and therefore providing them with the authority to issue binding decisions on the same case may raise a concern about institutional biases. Given that fact, in absence of enforcement powers, a conventional nhri cannot ensure an effective remedy.
According to Meg Brodie, although nhris are genuine avenues for ensuring remedies, their reliance on recommendations alone might limit actual or perceived access to effective remedies.24 This inability to provide binding remedies discourages parties from even seeking redress from nhris, which ultimately questions the overall effectiveness of an nhri. Therefore, the assessment of effectiveness must be based on a demonstration of causality.25 An effective nhri is an nhri whose actions cause a particular set of outcomes, whether related to the general goals of protecting and promoting human rights or the specific goals of outlines in its mandate and strategies.26 The effectiveness of nhris is dependent also on the efficiency of other State mechanisms. According to Ryan Goodman and Tom Pegram, “a lack of compliance with nhri recommendations does not reflect the failure of an nhri but rather may reflect the failure of complementary actors to fulfill their democratic or accountability function”.27 Sophie Kalinde considers that the contribution of
The interface between the judiciary and nhris can promote compliance with nhri decisions to ensure their impact.29 Andrew Wolman considers that the interface between the judiciary and nhris helps the latter to achieve “a coercive power that they otherwise lack”.30 This whole idea of the possible interface between the judiciary and nhris has been hinted at by the ungps itself, where nhris are considered as the means to complement and supplement the judicial mechanisms to ensure effective remedies. The report of the ohchr in 2018 describes ways that judicial and non-judicial mechanisms like nhris can complement and supplement each other to ensure access to effective remedies for business-related human rights violations.31 For instance, nhris could seek or recommend the transfer of complaints or disputes for adjudication by judicial mechanisms, and they could refer allegations or evidence of business involvement in human rights abuses to judicial mechanisms or other law enforcement bodies for investigation for further action.32 Thus there are several means of interface between the judiciary and an nhri.
4.1
There can be direct and indirect ways of interface between the judiciary and nhris to facilitate remedies by nhris. The direct means, for instance, includes a situation when an nhri can provide direct remedies via their binding recommendations, which would ultimately reduce the burden or pressure on courts. However, if the direct remedies provided by nhris are merely recommendatory, the affected individuals or nhris may need to approach courts to secure binding enforcement.33 The quasi-judicial mandates of nhris thus provide a potential basis for future litigation to ensure tangible remedies for business-related human rights victims, opening the doors for indirect ways of interface between the judiciary and nhris. Indirect means, for instance, include scenarios where an nhri refers to or initiates a case in the court to obtain injunctive relief, use powers of investigation from the court, provide legal assistance to affected communities, support human rights defenders trying to hold companies accountable, intervene in judicial proceedings etc., depending on their legal mandate, which helps to obtain an actual outcome.34
The quasi-judicial mandate of nhris is actually a promising means of ensuring effective remedies in case of non-enforcement of nhris’ recommendations. However, it should not be assumed that it will dilute or duplicate the role of the judiciary. nhris are designed in such a way to “supplement the role of democratic institutions like judiciary so as to ensure that issues of human rights remain in the central focus of political discourse in every society”.35 nhris fit perfectly fine in the governance system to fill in the “accountability gap” that exists in business and human rights. For instance, while the judiciary is concerned with all disputes in society and may not have sufficient time and resources to focus exclusively on human rights issues, nhris can step in to perform the task. Likewise, nhris generally tend to have a broader mandate when it comes to their jurisdictional operation and are in a better position to take cognizance of human rights violations than the judiciary, which will feel restrained based on certain laws, rules and regulations as to how and when
This chapter deals with the indirect means of interface between the judiciary and nhris for the nhri whose recommendations are not enforceable. The interface between the judiciary and the nhri, however, requires elaborate rules of procedure to facilitate the cooperation between the two institutions.38 The absence of such rules of procedure for cooperation may result in duplication of tasks and encroachment on the powers of each institution. According to Andrew Wolman, there are three ways of indirect interface between the judiciary and nhris, namely “initiation of cases, intervention in the ongoing case, and amicus curiae submission”.39 Claire Metheven O’Brien and Thomas Pegram have extended the ways of the interface to include “representation by nhris in the public interest litigation before the court and recommendation of free legal aid for the victims to the concerned authority/institution by nhris to ensure accessibility to the court”.40
The ways of interface between the judiciary and nhris are to be clearly provided by the legal mandates of nhris. Not all nhris have the power to initiate a case or legal petition authority to challenge the human rights abuses, or to enforce their orders or recommendations under their name unless they are directly aggrieved. For example, the 2007 Constitution of Thailand, for the first time, explicitly gave the National Human Rights Commission of Thailand (“nhrct”) the ability to file lawsuits on behalf of victims of human rights abuses.41 Given this power, the determinant question, however, is whether the
The interface between the judiciaries and nhris is not limited only to the aforementioned ways. The court or prosecutorial referral of cases from nhris can also be another means of interface, which can take place at any stage of investigation by nhris. The interaction between the judiciaries and nhri, where nhri can refer complaints of alleged human rights violations within the jurisdiction of national courts, can significantly aid the enforcement of human rights obligations.43 Such referrals will be made if, for example, a recommendation is not acted on by the parties; a settlement of the case cannot be secured; the terms of an agreed settlement have not been met; there is a lack of cooperation on the matter of the investigation; the investigation reveals the reasonable likelihood that a criminal act or disciplinary offence under the law has been committed that requires intervention by the prosecuting authorities; and the investigation reveals that another body or agency may more appropriately deal with the matter.44
The referrals of complaint by the nhri to the courts will require the later to address several issues. The court in question will have to decide “whether it is within its jurisdiction concerning the subject matter; the implications of the case (for instance relating to financial compensation); geographical competence; and the need to protect the client, for instance in relation to confidentiality”.45 The issue of confidentiality and protection of victims’ interests also become vital for these kinds of referrals. For instance, whether the nhris should be obliged to testify as witnesses and/or submit evidence and
The possibility of interface between the judiciary and the nhris should be inscribed in the laws that establish these bodies. The following are the case study illustrations of nhri in Thailand and Nepal, with the focus on the practice of interface between the judiciaries and nhris.
5 Practice of Interface between the Judiciary and the National Human Rights Commission of Thailand
The nhrct is governed by two domestic laws, namely the Constitution of the Kingdom of Thailand (2017) and the Organic Law on nhrct (2017) (the
Under the current Thai laws, in the case of non-enforcement of the recommendations within a period of time prescribed by the Commission
Other forms of interface between the judiciary and the nhrct can be interpreted from other provisions of the Constitution and the Organic Act. For instance, section 27(3) of the Organic Act vests in the nhrct, along with other institutions, the power to cooperate and coordinate with other State agencies.57 This provision is open to interpretation, which could include means of interface such as the transfer of evidence for the investigations conducted, being an expert witness, submitting the amicus curiae upon the request of the court, etc. The nhrct can submit its recommendations to the court as evidence or be present in the court as an expert witness for the cases it had investigated with which the victims were not satisfied.58 Also, the nhrct can assist victims with legal aid to ensure their proper representation in the court and ensure their access to remedy.59 Except for the initiation and referral of the cases to the court, nhrct can exercise other ways of interface to ensure effective remedies for the victims.
Despite the fact that the nhrct cannot file cases on behalf of victims, Civil Society Organizations (“csos”) in Thailand, as the third party in coordination
The proactive csos in Thailand might not always necessarily result in positive outcomes for the business-related human rights abuses where transnational business enterprises are involved. In the case of Pak Beng Hydropower Dam in Lao pdr, “a complaint was submitted to the nhrct in 2016 by the members of Mekong communities in Thailand against Thai officials and governmental agencies, challenging their prior consultation process in Thailand that could have potential environmental impact”.63 The case was taken to the Thai administrative court by two Mekong resident’s groups, the Rak Chiang Kon Conservation Group and the Thai Mekong People’s Networks from Eight Provinces, to retract an environmental assessment performed by Thai agencies that was used to support the decision by the Mekong River Commission to allow the project to move forward.64 The lower court, along with the central administrative court, rejected the appeal with the justification that they had no jurisdiction over the case.65 The intervention by the csos in this case did not pan out in the victims’ favour. The efforts of the csos in Thailand and the roles played by them cannot be thwarted by such cases. They have helped in
The role of the csos in Thailand has not only been limited to interface between the judiciary and the nhrct. They have played a prominent role in expanding the mandate of the nhrct for extraterritorial obligations on the matter of business-related human rights abuses. The nhrct in recent years has expanded its mandate in an innovative manner for transnational business-related human rights violations. The nhrct was the first nhri in Southeast Asia to investigate a case extending its mandate to the extraterritorial obligations in the popular Sugarcane Case, filed by a Cambodian ngo in January 2010.66 In 2012, the commission concluded that it had jurisdiction to investigate the case, despite the investment’s location in Cambodia. The nhrct’s report in 2014 concluded that human rights abuses had occurred, including the right to manage and benefit from resources and the right to life. The commission also concluded that both the Thai government and the Thai company had failed in their respective responsibilities and duties to protect human rights, and made recommendations to the company and Thailand’s Ministry of Foreign Affairs and Ministry of Commerce.67 While some families received compensation in this case, there are families who are yet to be compensated for the loss of their land.68
Likewise, in the Dawei Special Economic Zone case,69 the nhrct in 2015, with the help of csos, found that the construction of infrastructure facilities within the Special Economic Zone implemented by a Thai-listed construction company had abused the rights of people in Myanmar. Local villagers were found to have lost their houses and farmlands, and had their livelihood adversely impacted.70 The outcome of this intervention by the nhrct resulted in a resolution by the Thai Cabinet that allocated tasks to Ministries to ensure that Thai outbound investors will not violate human rights.71 It is noteworthy that the complaint was filed by the victims of Myanmar in the nhrct and the resolution was based on the findings of the nhrct.
6 Practice of Interface between the Judiciary and the National Human Rights Commission of Nepal
The Constitution of Nepal 2015 and the National Human Rights Commission Act 2012 (the “nhrcn Act”) govern the functions, duties, and powers of the nhrcn as an independent and autonomous body. Pursuant to Article 249 of the Constitution, the nhrcn has the power to conduct inquiries into and investigations of human rights violations, and make recommendations for action against the perpetrators, based on information received from any sources, or on its own initiative.73 The mandates do not prohibit the exercise of extraterritorial obligations for the nhrcn. Further, the interpretation of the broad mandate according to the Paris Principles justifies the possibility of looking into cases having extra-territorial impact.74 Section 4 of the nhrcn Act has detailed the functions, duties, and powers of the nhrcn, which is in line with the constitutional provisions of Nepal. Unlike the nhrct, the nhrcn, with the permission of the court, can conduct investigations in any sub-judice case
There are several provisions in the laws that can be interpreted to constitute aspects of the interface between the judiciary and nhrcn. According to Article 249(2)(c) of the Constitution of Nepal, the nhrcn can make recommendations to lodge a petition in court against a person or institution that has violated human rights. The initiation of the case based on this Article, however, is conditioned upon the approval of the Attorney General (“ag”) of Nepal.79 This requirement under the law was challenged in the Supreme Court of Nepal in 2013. The Supreme Court ruled that as a constitutional body, the nhrcn was capable of and empowered to decide if a case should be pursued, and that the ag could not overrule such decisions.80 The decision holds high significance, since it recognizes the constitutional status of the nhrcn and strengthens its mandate by making it mandatory for the ag to act on the recommendations of the nhrcn to investigate and, where appropriate, prosecute cases. However, to date, the nhrcn has not used this constitutional power in any kind of human rights violations, not even in gross human rights violations let alone business-related human rights violations.81 For the cases to be initiated, the ag does not readily follow the recommendations by the nhrcn in practice. They consider that the investigation by the nhrcn is inadequate, since nhrcn lacks police personnel as one of the investigating officials.82 This provision is applicable
In Nepal, even though the nhrcn does not go to the court, either on its own or on behalf of the victim, the practice of using the extraordinary jurisdiction of the Supreme Court of Nepal in the form of public interest litigation is recurrent.83 Frequent public interest litigation in the Supreme Court of Nepal for the commission recommended cases or for the complaints registered in nhrcn is noticeable.84 Legally, there is no restriction or obstacle in using the extra-ordinary jurisdiction of the Supreme Court of Nepal for such abuses to ensure remedy for the victims.85
The nhrcn Act also leaves it open to interpretation on the possible interface between the nhrcn and the court under Section 18. The section mentions the coordination or collaboration of the nhrcn with other agencies; the judicial institutions could be one of those agencies. Section 19 deals with the role of the nhrcn in providing expert services to any agency. This can be interpreted to include the interface of nhrct with the court for the cases where nhrcn has conducted the investigation in the form of a witness or expert in the case. This section can also be interpreted to incorporate the possible role of the nhrcn as an amicus curiae for the cases. The law does not forbid the nhrcn to be an amicus curiae in these cases, however, for the business-related human rights violations it is yet to happen.86 The interface between the court and the nhrcn also exists in the form of legal aid referrals to the concerned institutions on these kinds of human rights violations.87 Another form of interface, according to Section 22, is the power to refer cases to the court on the matter on which it had launched an investigation or inquiry if the nhrcn is satisfied that the victim shall get justice in the court.88 This provision needs further clarification. For instance, the grounds for the nhrcn to decide that victim needs to get justice in the court is to be stipulated in the law. In absence of such guidelines, nhrcn’s judgment on the matter might be haphazard,
7 Conclusion
nhris are resource-constrained in almost all countries, particularly in developing countries. Caution should be ensured to not overshadow other roles of nhris while exercising the quasi-judicial mandates which open doors for the interface between the judiciary and nhris. While there are several ways of interface to ensure that the recommendations of the nhris produce actual outcomes, these come with several challenges, as seen in the practice of the nhrct and the nhrcn. These challenges need to be mitigated in a manner that the functioning of the courts is not jeopardized. There needs to be procedures to avoid duplication of work, for instance, on the matter of the in-depth investigation of the same matter simultaneously without exchanging information. The collaboration between the courts and the nhris should be clearly identified. The competence, jurisdiction, and collaboration of both institutions should be outlined in laws to avoid confusion for the victims who seek remedies for business-related human rights violations. The laws, for instance, should clarify matters regarding limitations on the competence of the nhris, to decide when cases shall be forwarded to the court at a given stage, or in relation to the implementation of the decision of the human rights institutions. Further, precautions should be undertaken to ensure that complaints do not unnecessarily transfer between different institutions, thereby clogging up a system that may already be over-stretched, under-staffed, and under-funded.
The nhrct has concretized the extraterritorial obligations of human rights of the Thai state and business-enterprises, which does set up a bar for a developing country like Nepal. Nepal, factually in the current context, is not in a state to make trans-boundary investments in other countries, unlike Thailand. However, the nhrct’s practice regarding the extraterritorial obligations, where victims of other countries were allowed to file complaints in nhrct, sets a precedent for the victims of Nepal to file cases, for instance, in the investing countries for business-related human rights abuses. But of course, the possible challenges associated to do so still exist.
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Humberto Fernando Cantú Rivera, “National human rights institutions and their (extended) role in the business and human rights field,” in Research Handbook on Human Rights and Business, eds. Surya Deva and David Birchall (Cheltenham: Edward Elgar, 2020), 497–98.
Surya Deva, “Corporate human rights abuses: what role for the national human rights institutions?,” in Human Rights in The Asia-Pacific Region: Towards Institution Building, eds. Hitoshi Nasu and Ben Saul, (London: Routledge, 2011), 236.
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Claire Methven O’Brien and Thomas Pegram, “Guaranteeing access to remedies for business-related human rights abuses: role of nhris,” International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights and Working Group on Business and Human Rights, March 2, 2016, 4–5 (text available at ssrn,
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Id. at C and D.
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“Business and human rights: improving accountability and access to remedy,” ohchr, July 15, 2016,
Nora Götzmann and Sébastien Lorion, “National Human Rights Institutions and Access to Remedy in Business and Human Rights: Part 1: Reviewing the Role and Practice of nhris,” The Danish Institute for Human Rights, March 6, 2020, 9
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Carolin Rees, “Mediation in Business Related Human Rights Disputes: Objections, Opportunities and Challenges,” Harvard Kennedy School, February 2010, 16,
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Renee Jeffery, “Assessing the Effectiveness of National Human Rights Institutions,” in Steven L. B. Jensen and Marie Juul Petersen, Documenting Results: A Review of Survey-Based Reports Based on Data from National Human Rights Institutions, (Copenhagen: The Danish Institute for Human Rights, 2019).
Id.
Ryan Goodman and Thomas Pegram, “Introduction: National Human Rights Institutions, State Conformity, and Social Change,” in Human Rights, State Compliance, and Social Change: Assessing National Human Rights Institutions, eds. Ryan Goodman and Thomas Pegram (Cambridge University Press, 2011), 15.
Sophie Kalinde, “Case Study: Concerned Villagers around Kazilira Dambo Vs Dwangwa Cane Growers Limited,” presented at the European Group of nhris Workshop on Business and Human Rights, Berlin, September 5–7, 2012, in “The Role of Non-EU National Human Rights Institutions in the Implementation of the UN Guiding Principles on Business and Human Rights,” European Parliament, 2012, 20,
For the purpose of this chapter, the term “interface” here refers to the functional relationship between the court and the nhri. To elaborate, it incorporates the idea of interconnection between the court and the nhri and also the situation where these institutions interact so as to bring out the new effect in this case, the enforceability of the nhri’s recommendations or decisions.
Andrew Wolman, “National Human Rights Institutions and the Courts in the Asia-Pacific Region”, Asia Pacific Law Review 19, no. 2 (2011): 242,
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Id.
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O’Brien and Pegram, “Guaranteeing access to remedies,” supra note 5, at 5.
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Id. at 109.
Id.
O’Brien and Pegram, “Guaranteeing access to remedies,” supra note 5, at 6.
“State-based non-judicial mechanisms for accountability and remedy for business-related human rights abuses: supporting actors or lead players?,” ohchr, November 2, 2017, 13,
Constitution of the Kingdom of Thailand, b.e. 2560 (2017), Article 247 (English translation available at “Constitution of the Kingdom of Thailand, b.e. 2560 (2017),” The Administrative Court of Thailand, August 2, 2022,
Organic Act on the National Human Rights Commission, b.e. 2560 (2017), Section 26.
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Id. at Section 37.
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Id.
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Id.
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Id.
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The Constitution of Nepal, 2072.6.3, September 20, 2015, Article 249.
Interview with a Staff, nhrcn, January 4, 2023. The author conducted the interview for her PhD thesis, “The Role of the National Human Rights Institutions to Ensure Effective Remedies for Human Rights Abuses by Business Enterprises” (not yet published).
Nepalese National Human Rights Commission Act, 2068.10.7, January 21, 2012, Section 4(b).
Interview with a Staff, nhrcn, January 4, 2023, supra note 74.
National Human Rights Commission Act, supra note 75, at Section 17(3).
Interview with a Commissioner, nhrcn, January 4, 2023, supra note 74.
National Human Rights Commission Act, supra note 75, at Section 17(10).
Om Prakash Aryal v. Council of Minister, Supreme Court of Nepal, Writ No. 068sws0063, Decision No. 107561, March 6, 2013.
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Id.
Id.
Id.
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