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

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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

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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.

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