Editor's note: Samuel
Brobby graduated from Maastricht University's Globalisation and Law LLM
specialising in Human Rights in September 2020. A special interest in
HRDD carries his research through various topics such
as: the intersection between AI and HRDD, the French Devoir de Vigilance
or mHRDD at the EU level. Since April 2021 he has joined the Asser
Institute as a research intern for the Doing Business Right project.
The recent surge in developments and debate surrounding Artificial
Intelligence (AI) have been business centric, naturally so. The conversation
has long been centred on the possible gains “digitally conscious” companies can
recoup from their sizeable investments in the various forms this technology can
take. The ink continues to flow as numerous articles are released daily;
debating between the ultimate power of artificial intelligence (and topical
subsets like machine learning) on the one hand, versus the comparatively more
philistinish views regarding what these technologies can offer on the other.
Our objective here is not to pick a side on the AI debate. Rather, we would
like to explore the Business & Human Rights implications of the development
of AI and, in particular its intersection with the human rights due diligence
(HRDD) processes enshrined in the UN Guiding Principles on Business and Human Rights and subsequent declinations. How compatible is AI with HRDD obligations? Where does AI fit into the
HRDD process? Can AI be used as a tool to further HRDD obligations? Can the
HRDD process, in return, have an effect on the elaboration and progress of AI
and its use in transnational business? And, to which extent will the roll out
of AI be affected by HRDD obligations? These are all questions we hope to tackle
in this blog.
In short, it seems two distinct shifts are occurring,
rather opportunely, in close time frames. The impending mass adoption of AI in
transnational business will have strong consequences for the state of Human
Rights. This adoption is not only substantiated by an uptick of AI in business,
but also in policy documents produced or endorsed by leading institutions such
as the ILO or the
OECD for instance. Inversely,
we must consider that HRDD obligations elaborated by the BHR community will
also have strong implications for the development and roll out of AI. These two
transformations will interact increasingly as their positions are consolidated.
It is these interactions that we wish to analyse in the two parts of this
article. Namely, the emergence of Artificial intelligence as a tool to shape
and further HRDD obligations (1) and the emergence of HRDD as a process to shape
the development of AI (2). More...
On 27 February 2019, in a 7-1
decision, the US Supreme Court made an end to the absolute immunity from
suit that international organisations (IOs) had consistently enjoyed in
US courts. The decision realigns the immunity regime for IOs with that
for foreign states, which leaves the opportunity to sue organisations
such as the International Finance Corporation (IFC) when they engage in
commercial activities. In a flare of enthusiasm among academics and
(human rights) activists, the decision was immediately granted a
landmark status and marked as a turning point in the long history of
impunity for social, ecological and human harm caused by the activities
of IOs. This Doing Business Right Talk will
summarise the reasoning in the decision and explore the foreseeable
effects on the legal accountability of IOs, and international financial
institutions in particular. The most immediate effect, in that sense,
might not be located on the avenue of adjudication, but in the various
accountability mechanisms that have been created within IOs themselves.
Dimitri van den Meerssche
is a researcher in the Dispute Settlement and Adjudication strand at
the T.M.C. Asser Instituut. His research reflects on the law of
international organisations, international legal practices and
technologies of global governance. This work is inspired by insights
from science and technology studies, performativity theory and
actor-network theory. Dimitri is currently finalising his doctoral
dissertation at the European University Institute, which he expects to
defend in winter 2019. His dissertation is entitled “The World Bank’s
Lawyers – An Inquiry into the Life of Law as Institutional Practice”. In
the context of this dissertation, Dimitri has worked for three months
at the World Bank Legal Vice-Presidency and spent one semester as
visiting doctoral researcher at the London School of Economics.
When: Wednesday 24 April 2019 at 16:00
Where: Asser Institute in The Hague
Register Here
Editor’s
note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of
European and International Human Rights Law at Leiden University in the
Netherlands. Prior to commencing the LLM, she worked as a business and human
rights solicitor in Australia where she specialised in promoting business
respect for human rights through engagement with policy, law and practice.
Introduction
This report compiles all relevant news,
events and materials on Doing Business Right based on the coverage provided on
our twitter feed @DoinBizRight and on various websites. You are invited to
contribute to this compilation via the comments section below, feel free to add
links to important cases, documents and articles we may have overlooked.
The
Headlines
German
Development Ministry drafts mandatory human rights due diligence
It was reported
on 10 February 2019 that the German Federal Ministry of Economic Cooperation
and Development has drafted legislation (unpublished) on mandatory human rights
due diligence for German companies. It is reported that the law will apply to
companies with over 250 employees and more than €40 million in annual sales.
The draft legislation targets, inter alia, the agriculture, energy, mining,
textile, leather and electronics production sectors. Companies that fall within
the scope of the legislation will be required to undertake internal risk
assessments to identify where human rights risks lie in their supply chains.
Companies would also be required to have a Compliance Officer to ensure
compliance with due diligence requirements. The Labor Inspectorate, the Federal
Institute for Occupational Safety and Health and the Human Rights Commissioner
of the Federal Government would be responsible for enforcing the legislation,
with penalties for non-compliance of up to €5 million (as well as imprisonment
and exclusion from public procurement in Germany).
Kiobel
case heard in the Netherlands
On 12 February 2019, the Dutch courts heard
a lawsuit involving Esther Kiobel and three other women against Shell. The
plaintiffs allege that Shell was complicity in the 1995 killings of their
husbands by Nigeria’s military. The husbands were Ogoni activists that were
part of the mass protests against oil pollution in Nigeria’s Ogoniland. The
judgment is expected to be handed down in May 2019. Read more here. More...
Editor’s
note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of
European and International Human Rights Law at Leiden University in the
Netherlands and an intern with the Doing Business Right project at the Asser Institute. Prior to commencing the LLM, she worked as a business and human
rights solicitor in Australia where she specialised in promoting business
respect for human rights through engagement with policy, law and practice.
Introduction
This report compiles all relevant news,
events and materials on Doing Business Right based on the coverage provided on
our twitter feed @DoinBizRight and on various websites. You are invited to
contribute to this compilation via the comments section below, feel free to add
links to important cases, documents and articles we may have overlooked. More...
Editor’s note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.
The 21st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played. More...
The headline of the New York Times on 24 April summed it up: ‘Supreme Court Bars Human Rights Suits Against Foreign Corporations’. The Jesner decision,
released earlier that day by the U.S. Supreme Court, triggered a tremor
of indignation in the human rights movement given the immunity it
conferred to foreign corporations violating human rights against suits
under the Alien Tort Statute, and led to a flood of legal and academic
commentaries online. This panel discussion, organised with the support
of the Netherlands Network of Human Rights Research, will
address various aspects of the judgment. Its aim is to better
understand the road travelled by American courts leading up to the
decision with regard to the application of the Alien Tort Statute to
corporations, to compare the decision with the position taken in other
jurisdictions, and to discuss the ruling's potential broader impact on
the direction taken by the business and human rights movement.
Where: T.M.C. Asser Instituut in The Hague
When: Thursday 24 May at 2:30 pm
Speakers:
- Phillip Paiement (Tilburg University) - The Jesner case and the ATS: An American perspective
- Lucas Roorda (Utrecht University) - A comparative perspective on Jesner and corporate liability for human rights violations
- Nadia Bernaz (Wageningen University) - Lessons for the business and human rights movement after Jesner
Register here!
Editor's Note: Marie Wilmet is a research intern in Public
International Law at the Asser Institute. She recently graduated from Leiden
University’s LL.M. in Public International Law. Her main fields of interest
include international criminal law, humanitarian law and human rights law as
well as counterterrorism.
The
Alliance for Torture-Free Trade was launched
on 18 September 2017, at the 72nd Session of the United Nations (UN)
General Assembly, by a common initiative of Argentina, the European Union (EU)
and Mongolia. It aims
at ending the trade in goods used to carry out the death penalty and torture.
Indeed, even though torture is unlawful under public international law, these
goods are currently available on the open market across the globe. By banning
such tools from global trade, the Alliance hopes to reduce the possible human
rights violations by complicating the perpetrators’ acquisition of the means to
execute and torture people.
This
initiative is part of a broader agenda both at the UN and EU level. It falls
under the broader umbrella of UN projects such as the UN Guiding
Principles for Business and Human Rights or the UN Global
Compact. Moreover, the EU has tried in the recent years
to strengthen the rule of law by conducting policies where trade
and values are more interrelated. As the EU
Trade Commissioner Cecilia Malmström stated,
“human rights cannot be treated as an afterthought when it comes to trade”.
This
blog will first retrace the origins of the Alliance by outlining the current
factual and legal framework surrounding torture, the death penalty and related
trade. Then, the Alliance and its ambitions will be analysed, along with the
chances of its effective implementation. More...
Editor’s note:
Tomáš Grell holds an LL.M.
in Public International Law from Leiden University. He contributes to
the work of the ASSER International Sports Law Centre as a research
intern.
Concerns about adverse
human rights impacts related to FIFA's activities have intensified ever since its
late 2010 decision to award the 2018 and 2022 World Cup to Russia and Qatar
respectively. However, until recently, the world's governing body of football
had done little to eliminate these concerns, thereby encouraging human rights
advocates to exercise their critical eye on FIFA.
In response to growing
criticism, the Extraordinary FIFA Congress, held in February 2016, decided to include an explicit
human rights commitment in the revised FIFA Statutes which came into force in April 2016. This commitment
is encapsulated in Article 3 which reads as follows: ''FIFA is committed to respecting all internationally recognized human
rights and shall strive to promote the protection of these rights''. At
around the same time, Professor John Ruggie, the author of the United Nations Guiding
Principles on Business and Human Rights ('UN Guiding
Principles') presented in his report 25 specific recommendations for FIFA on how to
further embed respect for human rights across its global operations. While
praising the decision to make a human rights commitment part of the
organization's constituent document, Ruggie concluded that ''FIFA does not have yet adequate systems in
place enabling it to know and show that it respects human rights in practice''.[1]
With the 2018 World Cup
in Russia less than a year away, the time is ripe to look at whether Ruggie's
statement about FIFA's inability to respect human rights still holds true
today. This blog outlines the most salient human rights risks related to FIFA's
activities and offers a general overview of what the world's governing body of
football did over the past twelve months to mitigate these risks. Information
about FIFA's human rights activities is collected primarily from its Activity Update on Human Rights published alongside FIFA's Human Rights Policy in June 2017. More...
Editor's note: Sara Martinetto is an intern at T.M.C. Asser Institute.
She has recently completed her LLM in Public International Law at the University of
Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and
European Law, with a special focus on their transnational dimension.
Since the adoption by the UN Human Rights Council of Resolution 26/9 in
2014, an Open-ended Intergovernmental Working Group (WG) is working on a
binding Treaty capable of holding transnational corporations accountable for
human rights abuses. Elaborating on the proposal presented by Ecuador and South
Africa, the WG has been holding periodical sessions. In much
trepidation for what is supposed to be the start of substantive negotiations –
scheduled for October 23-27, 2017 – it is worth summarising and highlighting
the struggles this new instrument is likely to encounter, and investigating whether
(and how) such an agreement could foster transnational corporations’ (TNCs)
human rights compliance. More...
Doing Business has been a (if
not the) core concern for the post-WWII world order, leading up to contemporary
economic globalisation and the ‘free’ movement of
goods, capital and ideas across the globe. With our research project, and the
launch of this companion blog, we aim to shift the focus towards Doing Business
Right. Thanks to the financial crisis
in 2008, there is growing awareness of the fact that Doing Business can lead to extremely adverse social and economic
consequences. The trust in Doing Business
as a cure-all to modernize, democratize, or civilize the world is fading. Moreover,
the damaging externalities prompted by the operation of transnational economic
activity are more and more visible. It has become harder, nowadays, to ignore
the environmental and social consequences triggered elsewhere by our
consumption patterns or by our reliance on certain energy industries. What does
Doing Business Right mean? How does
the law respond to the urge to do business right? What are the legal mechanisms
used, or that could be used, to ensure that business is done in the right way? Can
transnational business activity even be subjected to law in a globalized world?
This blog will offer an academic platform for scholars and practitioners
interested in these questions. With your help we aim to
investigate the multiple legal and regulatory constructs affecting transnational
business conduct - ranging from public international law to internal corporate
practices. We will do so by hosting in-depth case studies, but also more
theoretical takes on the normative underpinnings of the idea of Doing Business Right. We aim to be inclusive in
methodological terms, and believe that private and public, as well as national
and international, legal (and...) scholars should come together to tackle a genuinely
transnational phenomenon. Future posts will cover issues as diverse as
national, EU, international, transnational regulations - including self-regulation,
voluntary codes, and market-based regulatory instruments - applying to transnational business conduct.
Case law from the CJEU, international tribunals (ICJ, arbitral tribunals) and
national courts, as well as decisions from international organisations,
national agencies (such as competition authorities) will be recurring objects
of discussion and analysis. Yet, our perspective is not solely focused on the (traditional)
law: management practices of companies and their effects will also be
scrutinized.
This blog is thought as an open discursive
space to engage and debate with a wide variety of actors and perspectives. We
hope to get the attention of those who care about Doing Business Right, and to provide useful
intellectual and legal weapons for their endeavours.
The Editors:
Antoine Duval is a Senior researcher at the Asser Institute since 2014. He holds a PhD from the European University Institute in Florence in which he scrutinized the interaction between EU law and the transnational private regulation of world sport, the lex sportiva. His research is mainly focused on transnational legal theory, international arbitration, and private regulation.
Enrico Partiti is researcher at the Asser Institute since 2017. He holds a PhD from the University of Amsterdam on private standards for sustainability. His research interest lies at the intersection of EU and international economic law on the one hand, and private regulation for sustainability on the other. He studies the interactions and reciprocal influence between transnational public and private norms, and how they determine and impact on social and environmental sustainability in global value chains.