National Human Rights Institutions – Critical but, Overlooked Actors

National Human Rights Institutions (NHRIs) are a critical but often overlooked actor in the context of the European Union’s Corporate Sustainability Due Diligence Directive (CSDDD). As state-mandated bodies, independent of government influence, with a broad constitutional or legal mandate to protect and promote human rights at the national level, NHRIs can play a key role in ensuring that the CSDDD meets its objectives of protecting human rights and fostering responsible corporate behaviour across global value chains. NHRIs are often perceived as a more “neutral” actor in the ecosystem of stakeholders involved in the corporate accountability arena. They are not NGOs with a specific campaigning agenda, nor are they governmental institutions which must align with their respective governments’ positions – rather, their mandates position them as expert institutions interested in promoting the respect for international, regional and national human rights instruments by their government and other actors within their jurisdictions.

These features mean that NHRIs are uniquely placed to ensure that the transposition of the CSDDD into national laws is done in a manner which accords with international human rights and environmental standards as well as playing a role in the implementation of those laws. European NHRIs are already engaged on this agenda, both specifically on the CSDDD, but also generally in terms of business and human rights issues in the national context. In addition to national level work, NHRIs also collaborate and exchange perspectives from their jurisdictions on aspects of engagement on the CSDDD through the Working Group on Business and Human Rights of the European Network of NHRIs (ENNHRI) and other sub-regional peer-learning exchanges. During its 2024 annual conference, the Global Alliance of NHRIs (GANHRI) adopted a statement reiterating NHRIs’ commitment to promoting mandatory human rights due diligence at the domestic, regional and international levels, including by facilitating dialogues and partnerships between governments, businesses, and civil society.

This piece briefly outlines the role that NHRIs have played so far in the negotiation phase of the CSDDD and the role that they are envisaged to play during transposition and implementation, drawing from the experiences of NHRIs who already have mandatory due diligence laws in force.

Negotiation

NHRIs have already been actively engaged in the CSDDD negotiations. Through ENNHRI, European NHRIs have developed statements and consultation responses that have been used in the negotiations and as talking points for a range of stakeholders in favour of a human rights-based approach to the CSDDD. GANHRI has also gathered the expertise of its members on the material scope of the CSDDD, adding a valuable global perspective to the negotiations. While individual NHRIs may still face challenges in accessing specific policymakers, as well as pressure related to strained financial and human resources within their institutions, collective NHRI action has opened the door to positioning NHRIs as relevant actors in this field. Despite these challenges, a number of European NHRIs have engaged with their national policymakers in support of the adoption of the CSDDD and to argue for alignment with the UN Guiding Principles on Business and Human Rights (UNGPs), including through expert analyses (e.g., Denmark, France, Germany). This has included the adoption of their own public statements (e.g., Belgium, Sweden, Germany, Latvia, Luxembourg) shared through broader media platforms (e.g., Greece, Sweden), letters to and meetings with policymakers, including relevant ministers (e.g., France, Slovenia) and national business authorities (e.g., Denmark).

Transposition

NHRIs are uniquely placed to ensure that the transposition of the CSDDD into national laws is done in a manner which accords with international human rights and environmental standards as well as playing a role in the implementation of those laws. As human rights experts well versed in the national context, NHRIs can provide expert legal advice on transposition laws to ensure that they meet the expectations of the Directive, and potentially seek a higher level of ambition where possible. For example, the German Institute for Human Rights was involved in all stages of the legislative process for the German Supply Chain Act and will accompany the CSDDD transposition process. NHRIs are mandated to provide legal analyses and recommendations to policymakers, contribute research and data critical to developing an effective transposition law. For more technical aspects of the law, NHRIs can, for example, be consulted with regard to designating the right Supervisory Authority and designing the authority’s mandate to allow it to deliver on expectations in the CSDDD. In the two-year transposition phase, NHRIs should have a key role to play in advising and assisting policymakers. NHRIs’ expertise can contribute to policy coherence and alignment with existing business and human rights standards.

Implementation

The CSDDD will require a broad spectrum of expertise in a range of legal and policy areas – among others, corporate law, commercial law, competition law, international private law, conflict of laws but also environmental law, EU access to information law, human rights law and other developments relating to reporting expectations, environmental, social and governance aspects, and wider sustainability issues. It also requires consideration of the realities of industries, sectors, and other context-specific knowledge that one single actor cannot provide: in this context, gathering rightsholder perspectives and exchanging stakeholders’ knowledge to build a substantial understanding of concrete issues related to the application of human rights frameworks becomes essential. This includes issues related to labour rights and conditions, environmental issues, broader anti-discrimination work – all of which are areas NHRIs are already actively working on in their jurisdictions and beyond.

The CSDDD makes direct reference to NHRIs as key stakeholders to involve in companies’ due diligence processes (Article 3(1)(n)). Examples in Europe and beyond have demonstrated the ability of NHRIs to create spaces for constructive policy dialogues that allow for meaningful stakeholder engagement, such as by convening stakeholders around the CSDDD (e.g., Germany, Latvia, Slovenia) or contributing human rights expertise in broader platforms on corporate responsibility (e.g., Denmark, France, Greece).

Supervisory Authorities overseeing compliance with the CSDDD will need to have capacity across a broad range of competencies. NHRIs can play a role in building human rights expertise within the Supervisory Authority. There are already examples of this in practice in those European jurisdictions where mandatory due diligence laws are in force. For example, the Norwegian Centre for Human Rights regularly meets, exchanges and consults with the Consumer Protection Authority tasked with the monitoring of the Norwegian Transparency Act and the OECD National Contact Point, among other stakeholders. Similarly, the German Institute for Human Rights consults with the Federal Office for Economic Affairs and Export Control, which supervises the German Act on Due Diligence in Supply Chains, alongside the German Helpdesk, which itself is tasked with an educational mandate for companies and business associations. In all of these collaborative setups, the NHRI is a resource for human rights expertise and convener of dialogues. This also makes them well placed to develop or contribute to guidance, as well as deliver trainings or other capacity building, for businesses, civil society, trade unions and other actors that will play a part in the implementation of the law.

Monitoring implementation through data gathering and benchmarking exercises (e.g., Denmark, Finland) is made possible with the NHRIs’ research mandate, which could also be implemented at regional level in a collaborative effort to compare progress across jurisdictions. This will particularly be pertinent in the review of the Directive, required under Article 29, which is set to take place six years after adoption, and where it is envisaged that the European Commission will consult stakeholders and benefit from data-based and research-informed reports, including from NHRIs. The review clause also provides opportunities for revising the law, including to align it further with international business and human rights standards.

NHRIs equally have an important role to play in ensuring that access to justice for victims remains at the core of national laws transposing the CSDDD and provide support to victims of human rights abuses to use accountability mechanisms required by those laws. Some NHRIs have a monitoring mandate and can receive complaints, which they can investigate or refer to other enforcement mechanisms; others can contribute views in ongoing processes; and all can raise awareness on existing remedy avenues and contents of the CSDDD for rightsholders and representative groups, and elevate the voices of victims of business related human rights harms.

Conclusion

The negotiations of the CSDDD and the broader policy developments related to business and human rights have presented opportunities for NHRIs to provide analyses, leverage their influence and advocate for the better protection of human rights, which they have seized, both collectively and individually. Leveraging the breadth of their mandates and their specific role in the stakeholder landscape, NHRIs have been and can continue to be key experts to actively consult throughout the next stage of the CSDDD and beyond. Ensuring that the development and implementation of national laws meets States’ obligations to protect and promote human rights, including in respect of businesses related human rights impacts, will be one of the roles of NHRIs. However, while NHRIs have demonstrated that they can take on this role, challenges around the ability to engage policymakers and build their own capacity on highly technical issues like those contained in the CSDDD remain. Yet, to be able to deliver on their full potential, NHRIs must be armed with the adequate financial, human and technical resources. Our project, Building the capacity of NHRIs is one step towards enabling the NHRI community to leverage their broad mandates becomes critical to the effective implementation of the CSDDD, and to ensure that the transposition laws are instruments for changing the way businesses conduct their operations across global value chains and raise the bar on expectations of responsible business conduct.