Doing Business Right Blog

T.M.C. Asser Instituut

Doing Business Right – Monthly Report – July & August 2019 - By Maisie Biggs

17. September 2019 Antoine Duval (0)

Editor's note: Maisie Biggs graduated with a MSc in Global Crime, Justice and Security from the University of Edinburgh and holds a LLB from University College London. She is currently working with the Asser Institute in The Hague. She has previously worked for International Justice Mission in South Asia and the Centre for Research on Multinational Corporations (SOMO) in Amsterdam.

 

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

Revised Draft of Treaty on Human Rights and TNCs has been published

The Revised Draft has been released here by the Permanent Mission of Ecuador. The Draft comes ahead of the intergovernmental negotiations to be held at the 5th session of Open-Ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights (OEIGWG). For further comment and context, see Larry Catá Backer's blog, the BHRRC's debate the treaty section on the revised draft, as well as the BHRJ Blog's series on the revised draft.

Business Roundtable redefined the group’s Purpose of a Corporation 

A prominent group of business leaders has redefined its purpose of a corporation to include stakeholder interests. In a statement signed by 181 CEO members of the Business Roundtable, an American group of business leaders, the statement of “the purpose of a corporation” has been altered from the long-standing commitment to shareholder primacy, to a broader ‘Commitment to All Stakeholders’. The change was announced in an advertisement in the Wall Street Journal and signed by 181 members, including the business leaders of Amazon, American Airlines, Bank of America, Coca-Cola, Marriott, Lockheed Martin, Morgan Stanley, UPS, and Walmart.

Chairman of Business Roundtable and CEO of JPMorgan Chase, Jamie Dimon, explained in the release: “The American dream is alive, but fraying. Major employers are investing in their workers and communities because they know it is the only way to be successful over the long term. These modernized principles reflect the business community’s unwavering commitment to continue to push for an economy that serves all Americans.”

This reconceptualisation of the purpose of corporations has been met with cautious enthusiasm; however, the statement has no bearing on the legal obligations of the signatories, and whether this materially alters business conduct by the signatories’ companies is yet to be seen.

The ‘Business Roundtable Statement on the Purpose of a Corporation’ can be found here.

UK Supreme Court to hear Okpabi case against Shell

The Supreme Court has granted permission for Nigerian communities to appeal their case concerning environmental degradation against Royal Dutch Shell. Previously the Court of Appeals rejected jurisdiction for the claimants, however the Court’s reasoning was fundamentally undermined by the subsequent Supreme Court judgement in Vedanta. See our previous post here concerning how these cases are related, and how Vedanta has paved the way for jurisdiction to be found in the Okpabi case. See the statement by Leigh Day, working with the appellants, here.

In another case concerning the liability of a UK parent company for harms perpetrated abroad by a subsidiary that hinged on jurisdiction, the Supreme Court refused permission in AAA v Unilever PLC for Unilever subsidiary employees to appeal. Leigh Day have announced they will now move to file cases with the UN Working Group and the OECD.

Samsung France indicted for deceptive commercial practices for not abiding by CSR statements

NGOs Sherpa and ActionAid France have successfully obtained an indictment against Samsung France for deceptive commercial practices. Preliminary charges were lodged in April by a Paris investigating magistrate in the first French case in which ethical commitments have been recognised as likely to constitute commercial practice.

The organisations argue that public ethical commitments by Samsung to workers' rights were misleading, citing alleged labour abuses and child labour in factories in China, South Korea and Vietnam. The case represents a novel approach to litigating extraterritorial business human rights abuses; even in the aforementioned Vedanta case in the UK, there was a similar (brief) suggestion that CSR-style public commitments could be actionable.

Guatemalan shooting victims announce settlement with Pan American Silver in Canada

It has been announced that landmark 2017 Canadian case Garcia v. Tahoe Resources has been resolved between the parties. The case concerned remedy for 2013 shooting of protesters by Tahoe Resources mine security on April 27, 2013 outside Tahoe’s Escobal Mine in south-east Guatemala. The resolution included a public apology from Pan American Silver, who acquired Tahoe Resources earlier this year, while other terms of the settlement remain confidential. Settlements were reached with three of the claimants earlier, but the remaining four only settled on 30 July when PAS issued a public apology and acknowledgement of the violation of their human rights by Tahoe.

In 2017, the BC Court of Appeal confirmed jurisdiction over the case in Canada, finding that the “highly politicized environment” surrounding the mine meant that there was a “real risk” that the plaintiffs would not obtain justice in Guatemala, permitting the claimants to use the Canadian forum. The head of security for the mine is also facing criminal proceedings in Guatemala.

Remedy being reached has led to celebration from commentators, however no further legal precedent has been set than that from the 2017 appeal, so it might have limited value for future claimants. It has been surmised that settlement was reached because of the overwhelming evidence in the case: video footage from security cameras showed protestors being shot in the back as they fled the mine site.

See also: The Guardian – Brazilian mining company to pay out £86m for disaster that killed almost 300 people and San Francisco Chronicle – Suit alleging US chocolate makers collaborated in slave labor proceeds for US developments.

 

UN and International Organisations Publications and Statements

NGOs, NHRIs, CSOs and Human Rights Organisations Publications and Statements 

Government Press Releases and Publications

In Court

In the News

Academic Materials

Blogs           

Call for Papers, Submissions and Abstracts

Upcoming Events

Comments are closed
Doing Business Right Blog | Accountability for the exploitation of North Korean workers in the Shipbuilding Industry through Dutch Criminal Law – By Imke B.L.H. van Gardingen

Doing Business Right Blog

T.M.C. Asser Instituut

Accountability for the exploitation of North Korean workers in the Shipbuilding Industry through Dutch Criminal Law – By Imke B.L.H. van Gardingen

26. November 2018 Antoine Duval (0)

Editor’s note: Imke B.L.H. van Gardingen (LLM Int. and EU labour law, MA Korean Studies) is a policy advisor on labour migration at the Dutch Federation of Trade Unions (FNV) and a researcher on DPRK overseas labour.

 

On November 8, 2018 a North Korean overseas worker who had worked in slave like conditions for a Polish shipyard, a supplier of a Dutch shipbuilding company, has filed a criminal complaint against the Dutch firm. The Dutch Penal Code, article 273f(6), includes a provision criminalizing the act of ‘profiting’ from labour exploitation, targeting not the direct perpetrators in the labour exploitation, but the ones profiting from this exploitation. This is a unique case that aims to hold the company at the top of the chain accountable for modern slavery in its supply chain. A chain that in the case of shipbuilding is rather short; the buyer subcontracts the core business of building the complete hull under detailed instructions cheaply abroad.

Research on DPRK workers in Poland
The case of the DPRK workers in two Polish shipyards was brought to light in two reports, published by the LeidenAsiaCentre (available online here and here), a research institute affiliated with Leiden University.[1] In this research we demonstrated how well documented the case of the exploitation of DPRK workers in Poland is. Due to EU-mandated minute record-keeping and frequent inspections by the labour inspectorate, a very precise picture was obtained of how the workers work, live, and are managed. How they are or are not paid and who their actual or paper employers were, as well as under what specific circumstances they work. In both reports it was established that the working conditions and the situation of DPRK workers amount to labour exploitation. What makes the EU case particularly interesting is that the rights of migrant workers in the EU are quite well protected, at least on paper. This offers interesting angles to explore concrete routes in the context of the EU legal arena.[2]

Explanation of the case
DPRK workers are recruited in North Korea to work overseas. The selection criteria range from being a loyal party member to being married and preferably having children to secure the risk of defection. Only shortly before departure do the workers receive information on the country they will go to; the travel is arranged for and mostly through North Korean embassies abroad. Upon arrival the workers hand in their passports and start working right away without ever receiving a working contract, having a bank account or obtaining knowledge on the working conditions and height of the salary. The workers are mostly employed by a DPRK company registered in Poland or a Polish-North Korean joint venture and detached to other companies, which is often illegal according to their working permits. As contractors, the DPRK companies of the joint ventures receive payment for the assignment. A fraction of that amount is paid to the workers. There is a wide gap between the formal monthly payment, of which the payslips with falsified signatures are included in the labour inspection report, and the payment the workers actually receive. The payment is irregular, sometimes once a month, but mostly not. Also the amount of the payment is variable, it can range from a few dollars to a few hundred dollars a month, minus arbitrary deductions for housing, but also party loyalty fees. The Labour Inspectorate has often reported hazardous working situations, and also documented one fatal accident where none of the required safety measures were met. Workers live in poor conditions; too cramped, moisty with fungus causing headaches, without proper washing facilities so workers had to wash on the working site. Excessive overwork is common as workers are presented as never having to take a rest and as being able to work continuously, day and night 7 days a week. And being DPRK citizens, they are not free to leave from the worksite, nor to anyplace else.

All in all, it is safe to conclude that the labour of DPRK workers in Poland can be labelled as ‘forced labour’, as is also confirmed by the Polish labour inspectorate in the documentaries ‘Cash for Kim’ and ‘Dollar Heroes’ (produced by the Why Foundation in a series called ‘Why Slavery’), the UN special rapporteur on DPRK and the US report  on human trafficking. The question then is who can be held accountable for violating the labour and human rights of DPRK workers and account for the profits made as a consequence of these violations.[3] The DPRK supplying the workers, the direct or indirect employers as the perpetrators, subsidiaries or business partners giving the orders and profiting from it, or all of them? The issue of liability can shift from fault based liability to strict liability, which could be justified by the fact that all the parties involved profited from –intolerable - slave labour.

Our first and second report on DPRK labour in Poland have shown that Polish Shipbuilding companies in Gdynia and in Szczecin work together closely with Dutch Shipbuilding partners on financing vessels, supplying parts, project management, technical know-how, security, obtaining quality certificates and sharing EU funding.[4] The cases offer sufficient proof of close partnership and cooperation. The key question is whether in the case of proved abuse and labour exploitation, the Dutch legal framework can be used to hold the partner companies accountable. If so, companies could also be held accountable for criminal offenses if the exploitation is deemed severe enough to fulfil the conditions enshrined in Article 273 of the Dutch Penal Code, and specifically Article 273f(6), criminalising ‘profiting from the exploitation of a person’. Prof. Ryngaert from Utrecht University believes it is a very real possibility. He states,

It is the territorial benefit which a corporation draws from exploitive practices, regardless of location, that serves as the jurisdictional linchpin. Accordingly, Article 273f(6) of the Dutch Penal Code creates opportunities to trigger Dutch jurisdiction over corporations linked to acts of exploitation somewhere down the supply chain, and ultimately hold them liable.[5]

In terms of liability he argues,

In general however, it can be stated that a corporation's liability will be engaged when it consciously accepted the risk that the goods it bought were produced in substandard conditions, including conditions of labour exploitation, even if the corporations did not intend such conditions to occur, and if the corporation did not have positive knowledge of the conditions

It is now up to the Dutch Prosecution Office whether they will take up the case and prosecute the suspected Dutch company for ‘profiting’ from labour exploitation. There will be legal counter-arguments raised, but other considerations will undoubtably also play a role. Such as the lack of capacity at the Dutch prosecution office that is severely understaffed, pressure from politicians and businesses who might prioritize short term economic interests. In any event, it will be an important and interesting case to follow. For the value of this case in particular, but  also for the window it might open for other cases in which workers are exploited to the benefit of the corporations sitting at the top of the chain.

A recent Dutch judgment from May 2018 is interesting in this respect, it involved the managing director of a Dutch large shipping company who was held liable for wrongdoings happening in –amongst other places- Bangladesh and who was sentenced to a fine of €50.000 and disqualified from his profession for a year.[6] Primarily, this case focussed on environmental offenses. The managing director violated ‘the stipulations of the European Regulation (EG) Nr. 1013/2006 of the European Parliament and the council of 14 June 2006 with regard to the transfer of waste materials (EWSR).’[7] But the following considerations are also included in the judgment and have played an important role in it:

Besides, the working conditions are appalling. The ships are manually scrapped by untrained labourers, who do not have the knowledge and expertise to recognize hazardous materials to take precautions and to follow procedures and who do not get sufficient protective clothing and auxiliary materials either. With such scrapping practices, several people are killed annually. Moreover, there is still child labour in the scrapping companies in Bangladesh.
The suspect has closed his eyes to this problem, of which certainly he as an executive director of a large shipping company must have been aware. With his considerations, he obviously only has had eyes for the commercial interest of the companies for which he was responsible.[8]

Furthermore, the judges concluded in their judgment:

‘[…] a fine in itself does not do justice to the severity of the facts. That is why a disqualification from his profession for the duration of one year will be imposed on the suspect. That also expresses the social importance that should be attached to an integer management. The suspect in particular, as CFO of a large company, who also bears final responsibility for the management, may be expected to take the additional social consequences of the performance of his tasks into consideration beside the business economic consequences of his decision, such as in this case the negative consequences for the environment and the health of the labourers in the shipbreaking yards. [9]

The suspect was therefore convicted of a ‘fine of €50,000,-, in default of full payment and full recovery to be replace by 285 days of detention’ and imposed ‘as an additional punishment on the suspect a disqualification of the right to practice the profession of (direct or indirect) executive director, supervisory board member, advisor or employee with a shipping company of any part thereof, such for the duration of 1 (one) year.’[10]


To conclude, the criminal complaint of the North Korean worker is potentially a ground-breaking complaint to enhance the accountability of Dutch corporations for labour exploitation occurring in their supply chains. The ball is now in the court of the prosecutor’s office, it’s up to them to decide whether they choose to let the corporations off the hook or to tackle the issue of slavery and forced labour in supply chains head-on by criminalising the irresponsible behaviour of certain corporations.


[1] Remco Breuker & Imke van Gardingen (eds.), North Korean Forced Labour in the EU, the Polish case: How the Supply of a Captive DPRK workforce fits our demand for cheap labour, Leiden: LeidenAsiaCentre, 2016; Remco Breuker & Imke van Gardingen (eds.), People for Profit; North Korean Forced Labour on a Global Scale, Leiden: LeidenAsiaCentre, 2018.

[2] The conclusions are substantiated in detail in a chapter forthcoming and to be published by Seoul National University.

[3] This question of accountability also raised and examined in more detail in the report, People for Profit, See Imke van Gardingen, ‘Accountability for DPRK Workers in the Value Chain: The Case of Partner Shipyard, a Polish Shipbuilder and its Dutch Partners’, p. 12-42

[4] The case study on Partner Shipyard and the possible legal routes, is extensively laid out in People for Profit, See Imke van Gardingen, ‘Accountability for DPRK Workers in the Value Chain: The Case of Partner Shipyard, a Polish Shipbuilder and its Dutch Partners’, p. 12-42

[5] See Cedric Ryngaert, ‘Domestic Criminal Accountability for Dutch Corporations Profiting from North Korean Forced Labour,’ in People for profit. p. 201

[6] Judgment of the court of Rotterdam, three-judge economic division for criminal matters, Court of Rotterdam, date of judgment: 15-03-2018, case number: 10/994550-15, p. 1 (translated version)

[7] Ibid., p. 2

[8] Ibid., p. 34

[9] Ibid., p. 35

[10] Ibid., p. 36-37

Comments are closed
Doing Business Right Blog | The Rise of Human Rights Due Diligence (Part V): Does it Foster Respect for Human Rights by Business?

Doing Business Right Blog

T.M.C. Asser Instituut

The Rise of Human Rights Due Diligence (Part V): Does it Foster Respect for Human Rights by Business?

29. June 2019 Antoine Duval (0)

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.

 

Human rights due diligence (HRDD) has emerged as a dominant paradigm for doing business with respect for human rights. It is a central concept to the UNGPs and describes what ‘steps a company must take to become aware of, prevent and address adverse human rights impacts’ in order to discharge the responsibility to respect.[1] The case studies examining Adidas’ and Unilever’s HRDD practices (the Case Studies) have demonstrated how businesses are working with the concept of HRDD and translating it into practice. They provide an opportunity to consider the adaptable nature of HRDD and whether it has the potential to transform business internal frameworks in order to generate greater corporate respect for human rights. This will be reflected on in this final blog of our series of articles dedicated to HRDD. It will also reflect on the role that hard law initiatives play in incentivising substantive human rights compliance by business (in addition to soft law initiatives such as the UNGPs).

 

The Adaptable Nature of HRDD

There is no ‘one-size-fits-all’ approach that can be taken by businesses when implementing HRDD. Although the elements and parameters of HRDD are defined in the UNGPs (discussed in detail in a previous blog in this series), it is, by its very nature, an open-ended concept that has been ‘articulated at a certain level of abstraction’. Indeed, this level of abstraction was arguably intentional given the use of the term ‘due’ in HRDD, which ‘implies variation of effort and resources necessary to address effectively adverse impacts in a particular context’.[2]

The flexibility built into the concept of HRDD acknowledges that there are more than ‘80,000 multinational corporations, ten times as many subsidiaries and countless national firms’ globally that differ in many respects.[3] Accordingly, the shape of HRDD within one business cannot be the same as that of another business – it should be ‘determined by the context in which a company is operating, its activities, and the relationships associated with those activities’.[4] As Ruggie acknowledged in 2010, his aim was to ‘provide companies with universally applicable guiding principles for … conducting due diligence’, rather than prescriptive guidance. Therefore, the ‘complexity of tools and the magnitude of processes’ employed by businesses will vary depending on the circumstances. As such, businesses can exercise a great deal of discretion as to how to translate HRDD into practice.

However, this adaptable nature of HRDD has been critiqued for lacking clarity, embodying a ‘high degree of fragility and flexibility’ and for containing an ‘inbuilt looseness’.[5] These complexities arise due to the absence of ‘sufficient specificity of expected action’.[6] Bijlmakers argues that the ‘ambiguity and openness’ of HRDD can ‘lead to uncertainty about what conduct is required from companies for the effective implementation of their responsibilities’.[7] This can result in a lack of compliance by businesses or differing levels of compliance, which ultimately means that HRDD ‘may or may not achieve the desired outcome – i.e. non-violation of human rights – in all cases’.[8] Indeed from the Case Studies it is clear that despite the extensive efforts made by Adidas and Unilever to put HRDD into practice, there are still gaps between the paper-based processes and practices of both businesses, e.g. there are human rights abuses present within their supply chains that are not being identified by their current HRDD practices and therefore not being addressed. Mares also argues that the looseness surrounding HRDD as a concept can also result in ineffective implementation, whereby businesses take action that is ‘largely symbolic, generates limited improvements, and fails to address underlying issues’.[9] As a result, businesses are not addressing the root causes of human rights issues within their business, but rather ‘applying bandaids to symptoms’. [10]

The flexibility of HRDD as a concept also allows businesses to employ various tools and processes in order to ‘create plausible deniability’, instead of discovering and understanding issues within their supply chains and how they should be managed.[11] Through conducting on the ground research at the local level, Bartley demonstrates that businesses appear to be using these tools and processes in order to ‘collect just enough information to produce assurances of due diligence’, allowing human rights issues and impacts to be kept out of sight.[12] Accordingly, their is a risk that businesses take advantage of the open-ended nature of HRDD by implementing HRDD processes as window-dressing to give the impression that they are engaging with the human rights risks and impacts in the context of their business, when in fact they are not.

However, despite these critiques the Case Studies demonstrate that the adaptable nature of HRDD has proven to be transformative on businesses. Embracing HRDD has led Adidas and Unilever to transform their operations to fit the different phases of the HRDD process. In doing so, they have avoided using a cookie-cutter approach that does not account for the differences between the businesses and they way they operate.

The use of customised HRDD approaches is of particular importance given that the salient human rights risks and impacts identified by a business will always differ in some respects to those of another business. With respect to Adidas and Unilever, despite having some overlapping identified risks (e.g. discrimination, working hours, freedom of association and fair wages), both businesses also focus on a number of specific salient risks, which are determined using various factors including the assessed risks of the countries in which they operate. On one hand, land rights are a particular focus for Unilever given the negative impacts it can have on individual’s and communities’ land tenure rights, particularly through its suppliers. On the other hand, child labour is more of a salient risk for Adidas given the pressure on brands in the apparel sector to produce garments at low costs in a quick time frame. In light of this, the HRDD processes followed by each business after identifying these risk areas are different such that the actions taken to integrate and address risks and impacts are directly responsive to those risks.

 

Is HRDD Effective to Foster Corporate Respect of Human Rights? 

The Case Studies also demonstrate that HRDD is not solely a paper tiger. Businesses that truly engage with the HRDD process can indeed transform internal processes, enhancing corporate attention on human rights. Both Adidas and Unilever have not sought to use HRDD as a buzzword with no institutional consequences. Instead they have introduced concrete mechanisms aimed at preventing human rights impacts from arising within their business context. 

So how has HRDD had a transformative impact on Adidas and Unilever? As I have shown in the Case Studies, it has provided a framework for embedding institutional and regulatory changes geared towards the prevention of adverse human rights impacts. On paper, they have translated the cycle of HRDD into a maze of internal procedures involving different stages of their activities as well as different corporate entities integrated in their supply chains. Moreover, they have built-up enforcement mechanisms in an attempt to trigger change if a potential human rights risk is identified. In short, the transformative impact of HRDD on the structure and operations of the two corporations is clear, whether this impact is effective to tackle human rights violations in their supply chains is another matter. The Case Studies conducted cannot evidence effectiveness, as it would require much more time-consuming and expensive on-field studies to observe whether the compliance of, for example, the working conditions of Adidas’ or Unilever’s suppliers with core labour rights improves thanks to these changes.    

It is certain that neither Adidas nor Unilever have a perfect HRDD process in place – gaps and blindspots will always exist which allow serious human rights issues to continue to emerge in their supply chains. Nonetheless, as evidenced above, it is also true that embracing HRDD had a transformative impact in the way these businesses operate. Whether these transformations are correlated with a decrease in human rights violations across their supply chains is a fundamental question that cannot be answered by my research, even though it will be at the centre of future assessments of the practical effects of HRDD on human rights throughout supply chains.    

 

The Catalyst Role of Hard Law Initiatives

Soft law HRDD initiatives such as the UNGPs and the OECD Guidelines have been primarily relied upon to date in order to regulate corporate human rights behaviour. Over the past years, however, several countries have either adopted or started to consider adopting legislation that embeds HRDD into their legal framework. For example:

  • The UK and Australia have both adopted legislation requiring specific businesses to report on their HRDD processes and efforts in their operations and supply chains in relation to modern slavery.
  • The Netherlands has adopted legislation that requires specific companies to undertake HRDD related to child labour in their supply chains.
  • France has taken a broader approach, rather than focusing on thematic issues, and adopted legislation that requires certain businesses to undertake HRDD to identify and prevent serious violations of human rights and fundamental freedoms, health and safety as well as the environment.
  • Further, the Human Rights Council’s Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights is in the process of developing a binding business and human rights treaty. The current draft of the treaty includes a HRDD article requiring state parties to ensure that their domestic legislation requires all businesses to which the treaty applies to undertake HRDD throughout their business activities.[13]

The rapid rise of such hard law initiatives imposing HRDD across the board means that transformation observed in the context of Unilever and Adidas will spread to many more businesses in the coming years. The turn to binding HRDD might be a response to the lack of willingness of businesses to embrace HRDD voluntarily. This is particularly the case in light of the dire landscape highlighted by benchmarking initiatives. For example, the results of the Corporate Human Rights Benchmark demonstrates that 40% of the companies ranked scored no points at all in relation to the systems they have in place to ensure that due diligence processes are implemented.

Hard law that complements the business and human rights soft law already in existence might create the ‘compliance pull’ that is needed to ensure that businesses undertake HRDD by legally mandating that they engage in the process. Further, it can clarify and create greater certainty as to the expectations on business with respect to HRDD, as well as incentivise meaningful HRDD by imposing the risk of civil liability onto businesses failing to conduct proper HRDD. The turn to binding HRDD will necessarily have transformative effects on the way affected businesses operate. It will trigger the emergence of a whole HRDD bureaucracy involving rules, processes and institutions. Yet, whether it will lead to greater respect for human rights remains to be seen in practice and depends on the way HRDD will be implemented as well as on the intensity of control exercised by national authorities.

 

Conclusion

This blog series has delved into the operationalisation of HRDD from theory to practice by business. Through the detailed examination of the HRDD practices of Adidas and Unilever in their supply chains, it has demonstrated that HRDD can profoundly change the internal operations of businesses embracing it.

Despite the fragility and flexibility of the concept that gives rise to uncertainty and ambiguity as to how it should be complied with, businesses that choose to fully engage with the process are transformed by it with a potential effect on their human rights footprint. Truly implementing HRDD throughout a business’ operations and supply chains has the potential to result in human rights risks and impacts being better embedded within the business’ corporate governance framework. This is because HRDD focuses on identifying and managing these risks and impacts and to use those findings to inform business decisions, such as whether to engage in business activities in a particular country or whether to enter into contractual relations with a particular supplier. The development and adoption of hard law imposing HRDD complementing existing soft law initiatives contributes to the diffusion of HRDD into a greater number of businesses.

This blog series paves the way for further research into whether the HRDD mechanisms implemented by Adidas, Unilever and other businesses are truly effective to protect human rights. On the ground research at a local level involving engagement with the relevant business being assessed and its stakeholders is crucial to determining the effectiveness of specific HRDD mechanisms in practice. A broader examination of a greater number of businesses’ HRDD practices will allow for conclusions to be drawn as to how businesses can effectively conduct HRDD and whether there are particular practices and mechanisms that are more effective.

[1] Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie: Protect, Respect and Remedy: a Framework for Business and Human Rights (7 April 2008), UN Doc. A/HRC/8/5, [56] [2008 Report].

[2] Radu Mares, “Respect” Human Rights: Concept and Convergence, in R Bird, D Cahoy and J Darin (eds) Law, Business and Human Rights: Bridging the Gap, Edward Elgar Publishing (2014), p 8.

[3] John Ruggie, The Corporate Responsibility to Respect Human Rights (2010).

[4] 2008 Report, supra note 1, [25].

[5] Justine Nolan, The Corporate Responsibility to Respect Human Rights: Soft Law of Not Law?, in S Deva and D Bilchitz (eds), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (2013), p 140 [Nolan]; Radu Mares, Human Rights Due Diligence and the Root Causes of Harm in Business Operations: A Textual and Contextual Analysis of the Guiding Principles on Business and Human Rights, 10(1) Northeastern University Law Review 1 (2018), p 45 [Mares].

[6] Mares, ibid, p 6.

[7] Stephanie Bijlmakers, Corporate Social Responsibility, Human Rights, and the Law, London: Routledge (2018), p 120.

[8] Ibid; Surya Deva, Treating Human Rights Lightly: A Critique of the Consensus Rhetoric and the Language Employed by the Guiding Principles, in S Deva and D Bilchitz (eds) Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, Cambridge University Press (2013), p 101.

[9] Mares, supra note 5, p 45.

[10] Ibid, p 1.

[11] Tim Bartley, Rules without Rights: Land, Labor, and Private Authority in the Global Economy, Oxford University Press (2018), p 178.

[12] Ibid.

[13] The HRDD article of the treaty is discussed in further detail in a previous blog.

Comments are closed
Doing Business Right Blog | Doing Business Right – Monthly Report – May & June 2019 - By Shamistha Selvaratnam & Maisie Biggs

Doing Business Right Blog

T.M.C. Asser Instituut

Doing Business Right – Monthly Report – May & June 2019 - By Shamistha Selvaratnam & Maisie Biggs

9. July 2019 Antoine Duval (0)

Doing Business Right – Monthly Report – May & June 2019

 

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. Maisie Biggs graduated with a MSc in Global Crime, Justice and Security from the University of Edinburgh and holds a LLB from University College London. She is currently working with the Asser Institute in The Hague. She has previously worked for International Justice Mission in South Asia and the Centre for Research on Multinational Corporations (SOMO) in Amsterdam.

 

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

Dutch Court allows Case against Shell to Proceed

On 1 May the Hague District Court rules that it has jurisdiction to hear a suit brought against the Royal Dutch Shell by four Nigerian widows. The widows are still seeking redress for the killing of their husbands in 1995 in Nigeria. They claim the defendants are accomplices in the execution of their husbands by the Abasha regime. Allegedly, Shell and related companies provided material support, which led to the arrests and deaths of the activists. Although Shell denies wrongdoing in this case, the Court has allowed the suit to proceed. The judgment is accessible in Dutch here. An English translation is yet to be provided.

The Netherlands Adopts Child Labour Due Diligence Law

On 14 May the Dutch Government passed legislation requiring certain companies to carry out due diligence related to child labour in their supply chains. The law applies to companies that are either registered in the Netherlands that sell or deliver goods or services to Dutch consumers or that are registered overseas but sell or deliver goods or services to Dutch consumers. These companies will have to submit a statement declaring that they have due diligence procedures in place to prevent child labour from being used in the production of their goods or services.

While it is not yet clear when the law will come into force, it is unlikely to do so before 1 January 2020. The Dutch law is part of the growing movement to embed human rights due diligence into national legislative frameworks. The law is accessible in Dutch here.

First case under the French Due Diligence law initiated against Total

French NGOs Amis de la Terre FR and Survie have initiated civil proceedings against French energy company Total for the planned Tilenga mining project in Uganda. These organisations and CRED, Friends of the Earth Uganda and NAVODA have sent a formal notice to Total in relation to concerns over the potential expropriation of people in proximity to the site of the Tilenga project and threats to the environment. Information on the case from the initiating civil society organisations can be found here. This is the first initiated case under the new French Due Diligence law, and may act as a test case for future litigation.

In a similar vein, civil society organisations CCFD-Terre Solidaire and Sherpa have launched Le Radar du Devoir de Vigilance [The Vigilance Duty Radar], a resource to track the compliance of French companies to the law. The site lists potentially subjected companies, and their published vigilance plans (or lack thereof).

Bolstering the UK Modern Slavery Act

During a speech at the International Labour Organisation’s centenary conference on 11 June 2019, Theresa May outlined the UK Government’s further commitments to strengthen the Modern Slavery Act 2015; these included a central public registry of modern slavery transparency statements by businesses (in a similar vein to the Gender Pay Gap Service), and the extension of reporting requirements to the public sector. Individual ministerial departments will be obliged to publish modern slavery statements from 2021, while central Government has committed to publish voluntarily this year. The focus on public sector procurement will apparently also include a “new programme that will improve responsible recruitment in parts of our public sector supply chains that pass through Asia.”

The Final Report of the Independent Review of the Modern Slavery Act 2015 was released in May, and considered in Westminster Hall on 19th June.

 

UN and International Organisations Publications and Statements 

•       European Commission – Corporate Social Responsibility, Responsible Business Conduct, and Business & Human Rights: Overview of Progress

•       International Labour Organisation – Public sector clients pledge action to foster fair recruitment

•       OHCHR – Statement by the United Nations Working Group on Business and Human Rights: Time for the G20 to act on commitments and step up leadership on business and human rights

 

NGOs, NHRIs, CSOs and Human Rights Organisations Publications and Statements

•       Amnesty International – Thailand: Defamation charges for exposing labour abuse

•       Business & Human Rights Resource Centre – Out of Sight: Modern Slavery in Pacific Supply Chains of Canned Tuna: A Survey & Analysis of Company Action

•       Business & Human Rights Resource Centre – Out of Sight: Modern Slavery in Pacific Supply Chains of Canned Tuna: A Survey & Analysis of Company Action

•       Center for International Legal Cooperation – Summary of Sounding Board Consultation Round 1 – Results Elements Paper on the Hague Rules on Business and Human Rights Arbitration

•       Clean Clothes Campaign – Questions raised after agreement reached on Bangladesh Accord

•       Coalition for Human Rights in Development – Uncalculated Risks: Threats and attacks against human rights defenders and the role of development financiers

•       Conectas – Following Pressure, Vale Withdraws from UN Social Responsibility Network

•       Conflict and Environment Observatory – New UN legal report addresses the responsibility of states and corporations for environmental damage in conflict

•       CORE – 49 global CSOs call for justice for Nigerian villages devastated by Shell oil spill

•       CORE – Improving the effectiveness of the supply chain reporting requirement in UK Modern Slavery Act 2015 and moving towards mandatory human rights due diligence

•       European Coalition of Corporate Justice – Finnish Government commits to HRDD legislation

•       FERN, Tropenbos International and Fair Trade Advocacy Office – Towards sustainable cocoa supply chains: Regulatory options for the EU

•       Justice Project Pakistan & Equidem Research and Consulting – Through the Cracks: The Exploitation of Pakistani Migrant Workers in the Gulf Recruitment Regime

•       Mahidol University, ASEAN CSR Network & Article Thirty – Human Rights Disclosure in ASEAN

•       MVO Platform – MVO Platform position paper on due diligence and certification

•       MVO Platform – The Netherlands takes an historic step by adopting child labour due diligence law

•       OECD Watch – The State of Remedy under the OECD Guidelines: Understanding NCP cases concluded in 2018 through the lens of remedy

•       OECD Watch – Use with caution: The role of the OECD National Contact Points in protecting human rights defenders

•       Sancroft – The Sancroft-Tussell Report: Eliminating modern slavery in public procurement

•       SOMO – European Development Bank significantly strengthens its grievance mechanism

•       SOMO – Shell put Nigeria under pressure with ISDS process to obtain oil field OPL 245

•       SwedWatch – Copper with a Cost: Human rights and environmental risks in the mineral supply chains of ICT: A case study from Zambia

•       The Danish Institute for Human Rights – Nestlé first company to publicly share its human rights training for employees

•       The Freedom Fund – Going Dutch: The Netherlands’ Adoption of a Child Labour Law Reaffirms Trend of Mandating Corporate Due Diligence

•       Treaty Alliance Germany – Briefing Paper on Zero Draft: Unpacking Arguments against a Treaty

•       Trial International – German and Belgian Prosecutors Urged to Shed Light on Exports of Dual-Use Goods to Syria

 

Government Press Releases and Publications

•       Canadian Government – Consultation on labour exploitation in global supply chains

•       Dutch Working Group on Enabling Remediation – Discussion Paper

•       G7 – G7 Social Communique

•       United Kingdom Modern Slavery Unit – Independent Review of the Modern Slavery Act 2015: Final Report

 

In Court 

•       Court of The Hague – Kiobel v Shell

•       Sydney Morning Herald – 'It's game on': BHP hit with record $7b claim in UK over deadly dam collapse

 

In the News 

•       Aljazeera – Brazil indigenous affairs head fired amid push to develop Amazon

•       Amnesty International – Nigeria/Netherlands: Shell ruling “a vital step towards justice”

•       Bloomberg - Kenya Cancels Environment License of $2 Billion Coal-Power Plant

•       Ethical Corporation – 'UK multinationals will face greater scrutiny after the Vedanta decision'

•       EUReporter Economy – Europe takes a big step towards companies having ‘duty of care’ on #HumanRights

•       Financial Times – National courts have global companies in their sights

•       Financial Times – Pressure builds on mining industry over supply chains

•       Financial Times – Vedanta starts arbitration against Zambia after mines seized

•       Financial Times has launched Moral Money, a platform and newsletter to cover ESG, impact investing and sustainable business practice.

•       Ground Up – Aussie company show big profits from South African West Coast mine

•       Japan Times – 'Culture of fear': Report alleges low pay and overwork for laborers at Tokyo Olympics sites

•       Khaleej Times – Worker injured at work in UAE gets Dh1.5 million compensation

•       Le Monde – Bolloré sued by ten NGOs

•       Mail Online – PM to unveil new measures to tackle `abhorrent´ modern slavery

•       Nikkei Asian Review – Uniqlo discloses all garment factories for first time

•       Reuters – UK urged to 'lead by example' on slavery as top state suppliers flout law

•       Reuters – UPDATE 1-BNP Paribas must face revived lawsuit over Sudanese genocide- U.S. appeals court

•       Reuters – Widows of hanged Nigeria activists can continue case vs Shell: Dutch court

•       The Guardian – 'I had pain all over my body': Italy’s tainted tobacco industry

•       The Guardian – Are your tinned tomatoes picked by slave labour?

•       The Guardian – Dozens killed in DRC Glencore copper mine accident

•       The Guardian – Low pay in the garment industry still a reality despite pledges – study

•       The Guardian – Murder, rape and claims of contamination at a Tanzanian goldmine

•       The Guardian – WhatsApp spyware: UK firm promises new 'respect for human rights' following allegations

•       The Sunday Times – Law on parent company liability moving in right direction

•       The Sydney Morning Herald – BHP faces beefed up class action over Samarco disaster

•       Triple Pundit – Companies Need More Than CSR To Tackle Modern Slavery

 

Academic Materials

•       Amy Sinclair and Justine Nolan – Modern Slavery Laws in Australia: Steps in the Right Direction? – Business and Human Rights Journal

•       Bernice Yeung – In a Day's Work: The Fight to End Sexual Violence Against America's Most Vulnerable Workers – Human Rights Quarterly

•       Charlotte Villiers – Global Supply Chains and Sustainability: The Role of Disclosure and Due Diligence Regulation – In Beate Sjåfjell and Christopher M. Bruner (eds), Cambridge Handbook of Corporate Law, Corporate Governance and Sustainability (Cambridge University Press, Forthcoming).

•       David Strouss – Bringing Pesticide Injury Cases to US Courts: The Challenges of Transnational Litigation – Business and Human Rights Journal

•       Dorota Weziak-Blalowolska, Piotr Bialowolski and Eileen McNeely – Worker’s well-being. Evidence from the apparel industry in Mexico – Intelligent Buildings International

•       Girogia Papalia – Doing Business Right: The Case for a Business and Human Rights Treaty – Perth International Law Journal

•       Karin Buhmann, Jonas Jonsson and Mette Fisker – Do No Harm and Do More Good Too: Connecting Business and Human Rights with Political CSR to Identify Business Opportunities for Contributing to the SDGs – The International Journal of Business in Society (Forthcoming)

•       Maddalena Neglia – Striking the Right(s) Balance: Conflicts between Human Rights and Freedom to Conduct a Business in the ILVA Case in Italy – Business and Human Rights Journal

•       Samentha Goethals – Exploring Migrant Employees’ ‘Rights-Talk’ in the British Hospitality Sector – Business and Human Rights Journal

 

Blogs           

Asser Institute Doing Business Right Blog

•       Maisie Biggs – Background Information to the Lundin Case

•       Maisie Biggs – International Criminal Law and Corporate Actors - Part 1: From Slave Trade Tribunals to Nuremberg 

•       Maisie Biggs – International Criminal Law and Corporate Actors - Part 2: The Rome Statute and its Aftermath

•       Maisie Biggs – International Criminal Law and Corporate Actors - Part 3: War Crimes before Domestic Courts

•       Shamistha Selvaratnam – The Rise of Human Rights Due Diligence (Part II): The Pluralist Struggle to Shape the Practical Meaning of the Concept

•       Shamistha Selvaratnam – The Rise of Human Rights Due Diligence (Part III): A Deep Dive into Adidas’ Practices

•       Shamistha Selvaratnam – The Rise of Human Rights Due Diligence (Part IV): A Deep Dive into Unilever’s Practices

•       Shamistha Selvaratnam – The Rise of Human Rights Due Diligence (Part V): Does it Foster Respect for Human Rights by Business?

Other Blogs

•       Alessandro Runci – Critical shareholding as a tool to hold Italian corporations accountable – Business & Human Rights Resource Centre

•       Anne Manschot – Audits are failing – brands should cut out waste so suppliers can pay their workers a living wage – Business & Human Rights Resource Centre

•       Benjamin Hoffman – Many segments of the business and human rights field have been co-opted & captured by corporate actors – Business & Human Rights Resource Centre

•       Bobbie Sta. Maria, BHHRC and JJ Rosenbaum – Why women workers in global garment supply chains are saying #MeToo – Business & Human Rights Resource Centre

•       Chiara Macchi – The Human Rights Obligations of International Organisations towards their Civilian Personnel – BHR Journal Blog

•       Daniela Chimisso dos Santos – The Effect on Business: The Reality of the Nevsun Case in Canada – BHR Journal Blog

•       Dr Bärbel Kofler – Duty-bound to protect – Business & Human Rights Resource Centre

•       Ekaterina Aristova – Clarifying the limits of extraterritorial jurisdiction of English courts to try business-related human rights violations – BHR Journal Blog

•       Elena Blanco – Jurisdiction, access to remedy in business and human rights cases and the corporate structure: A tale of two cases – BHR Journal Blog

•       Emily Dwyer – Canada's 'toothless' new corporate watchdog is a broken promise and a major setback for human rights – Business & Human Rights Resource Centre

•       Geert Van Calster – Kiobel v Shell in The Netherlands – GAVC LAW

•       Genevieve LeBaron – How to Spur Corporate Accountability with Modern Slavery Legislation – Delta87

•       Heidi Hautala – Responsible Business Conduct - the European Business model of the 2020s – Business & Human Rights Resource Centre

•       Jolyon Ford – Can consumers and market actors ‘regulate’ corporate reporting on Modern Slavery risk? – Business & Human Rights Resource Centre

•       Joseph Wilde – Going Dutch: Four things you should know about the Netherlands’ new law to eliminate child labour – Business & Human Rights Resource Centre

•       Kelly Groen and Lis Cunha – Due diligence laws must not leave women behind – Business & Human Rights Resource Centre

•       Kristen Casper – Reality bites: Fossil fuel companies face climate liability claims after decades of denial – Business & Human Rights Resource Centre

•       Larry Cata Backer – Norwegian Ethics Information Committee Seeks Input on Methods to Improve Respect For Human Rights Through Supply Chain Transparency Mechanisms – Law at the End of the Day

•       Lauren Armistead and Mark Dummett – Why the UK Supreme Court must hear Nigerian oil pollution appeal – Medium

•       Maria Khan – What are the legal tools for holding corporations to account globally? – Business & Human Rights Resource Centre

•       Marilyn Croser – Towards mandatory human rights due diligence in the UK: Developments and opportunities – Business & Human Rights Resource Centre

•       Martijn Boersma & Justine Nolan – Blockchain can help break the chains of modern slavery, but it is not a complete solution – The Conversation

•       Maysa Zorob and Antonella Angelini – Are shareholders the new champions of climate justice? – Business & Human Rights Resource Centre

•       Miriam Saage- Maaβ – Jabir et al vs. KiK: Do EU companies have an extraterritorial duty towards suppliers in global production chains? – BHR Journal Blog

•       Nora Götzmann – New UN Gender Guidance is a reminder that real equality requires tackling discrimination – Business & Human Rights Resource Centre

•       Peter Barnett – Shareholder litigation as the next frontier in shareholder climate action – Business & Human Rights Resource Centre

•       Phil Bloomer – Europe takes a big step towards companies having a ‘duty of care’ on human rights – Business & Human Rights Resource Centre

•       Sara Seck – Extraterritoriality: A Problem of Terminology – BHR Journal Blog

•       Sara Thornton – Listening to survivors, the role of business and supporting law enforcement  – Independent Anti-Slavery Commissioner Blog

•       Seunghyun Nam and Changrok Soh – Business and Human Rights in the Republic of Korea and Extraterritorial Jurisdiction – BHR Journal Blog

•       Shannan Burrow and Phil Bloomer – Could Finnish presidency fix labour-chain abuse? – EU Observer

•       Sonia HIerzig – Investors need to hold all sectors to account on climate change – not just the fossil fuel industry  – Business & Human Rights Resource Centre

•       Tom Wills – Stop Making The 'Business Case' For A Responsible Private Sector – Huffpost Blog

•       Urs Rybi – What does Switzerland's vote on mandatory due diligence mean - and what happens next? – Business & Human Rights Resource Centre

•       Walker Syachalinga – Vedanta v Lungowe: An irreconcilable regulatory outreach? – BHR Journal Blog

•       William Anderson – Mandatory Human Rights Due Diligence: A business perspective – Business & Human Rights Resource Centre

•       Yousuf Aftab – Business, Human Rights & the Limits of Law – Business & Human Rights Resource Centre

 

Call for Papers, Submissions and Abstracts 

•       Call for blogs – Business and Human Rights Journal Blog – Cambridge University

•       Call for session proposals and snapshot proposals – UN Forum on Business and Human Rights

•       Call for public consultation on the first draft of The Hague Rules on Business and Human Rights - CILC

 

Upcoming Events 

•       22-26 July 2019 – International Summer Course Human Rights Law in Context (special focus on business and human rights) – Centre for Human Rights Erlangen-Nürnberg in cooperation with the European Center for Constitutional and Human Rights, Nuremberg, Germany

•       12-13 September 2019 – Global Business and Human Rights Scholars Association 5th Annual Conference – University of Essex, Colchester, England

•       16-18 October 2019 – 4th Coimbra International Conference on Human Rights: a transdisciplinary approach – CIDH Coimba, Portugal

•       25-27 November 2019 – UN Forum on Business and Human Rights – Geneva, Switzerland

Comments are closed