Abstract

Abstract In 2014, the United Nations established a working group to elaborate an international treaty on business and human rights. In October 2018, negotiations on a first draft of the actually text took place. Besides this zero-draft, the working group released the draft text of an Optional Protocol containing several institutional arrangements. The Optional Protocol carves out a key role for national implementation mechanisms to promote compliance with, monitor and implement the treaty on business and human rights. With such an institutional arrangement, the future treaty would join the ranks of what can be called a new generation of human right treaties which institutionalize a top down with a bottom up approach aiming to address the disjuncture between rules and practice. The Optional Protocol indicates that this role of national implementation mechanism could be taken up by National Human Rights Institutions (NHRIs). This follows an increased recognition of NHRIs as significant actors in the business and human rights domain. Yet, the role of NHRIs in human rights governance in general, and in the business and human rights field in particular, is not yet well understood and undertheorized. The aim of this article is to add insight into the role of NHRIs in business and human rights by, first, describing some of the current activities undertaken by NHRIs in this field in order to analyze whether the role ascribed to them is actually being taken up and what challenges NHRIs face. From this perspective, it will be discussed whether the role foreseen in the Optional Protocol of the future business and human rights treaty holds promise.

Highlights

  • 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

  • With such an institutional arrangement, the future treaty would join the ranks of what can be called a new generation of human right treaties which institutionalize a top down with a bottom up approach aiming to address the disjuncture between rules and practice

  • This paper critically examines the significance of NHRIs in the business and human rights domain

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Summary

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. 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] 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 subnational statutory human rights institutions, thematic institutions, as well as civil society and non-governmental organizations.[34]. 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

Emerging Recognition of NHRIs in the Business and Human Rights Field
45 On the role of NHRIs in implementing the UNGPs see generally
NHRIs and Business and Human Rights
Challenges
The Optional Protocol to the Business and Human Rights Treaty
Joining the Ranks of a New Generation of Human Rights Instruments
A National Implementation Mechanism
Conclusion
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