More than twenty years ago nine local activists from the Ogoni region
of Nigeria were executed by the then military dictatorship. The story
of the Ogoni Nine does not stop in Nigeria; the tale of the nine men,
the many lives lost, and the environmental degradation linked to the
extraction of oil in the region by Shell has quite literally travelled
the world. What is often commonly referred to as the Kiobel case—after
the application lodged by Esther Kiobel, the widow of Dr. Barinem
Kiobel—originated in Nigeria, has been heard by courts in the USA, and
is currently before Dutch courts. The Kiobel case, as well as a flurry
of other cases (e.g. the Bralima case before the Dutch NCP, the Nevsun
case before the Canadian courts, the Vedanta case before the UK courts,
or the Total case before the French courts, among others), embodies the
flight of corporate accountability cases out of their original African
contexts.
This transnational quest for an effective remedy by those who’s human
and/or environmental rights have been violated is understandable, but
it also raises serious questions about the consequences of the
delocalisation of access to remedies in such cases. This conference aims
to provide a forum for critical discussions of the justifications for,
and consequences of, using various delocalised ‘sites of justice’ for
human and environmental rights violations associated with ‘doing
business’ in Africa. The aim is not to focus on Kiobel or Nigeria in
particular, although contributions on this case are welcome, but to
generally engage in a critical examination of cases that ‘migrate’
between different sites of justice, and the associated benefits and
drawbacks of the displacement of corporate accountability out of African
courts to courts or non-judicial mechanisms (such as OECD National
Contact Points) based in the so-called Global North. In doing so, we
strongly encourage applicants to consider a variety of (critical)
theoretical perspectives in the analysis of this phenomenon.
In this collaboration between Asser Institute’s Doing Business Right project and AfronomicsLaw,
we welcome contributions from scholars working on African international
law, African perspectives of international/transnational law, as well
as scholars working on business and human rights more generally. The aim
is to bring a plurality of voices into conversation with each other,
and to generate original (and critical) engagements with the operation
of transnational justice in the business and human rights space. With
important developments taking place at the international level, such as
the drafting of a binding Treaty on Business and Human Rights, the
preparation of European legislation on mandatory human rights due
diligence, as well as the emergence of the African Continental Free
Trade Area (AfCFTA), which is set to foster business across African
borders, such discussions are not only timely, they are also necessary.
Deadlines and requirements:
In order to increase engagement from a broader range of actors from
the continent, the conference will be bilingual, English and French. The
conference presentations and outputs will also be accepted in either
language (2,000 word
blog post as part of a special symposium on AfronomicsLaw, as well as a
full-length paper for a special issue with a journal (journal tbd)).
Overview of deadlines:
- Deadline for abstract submission: 15 January 2021
- Draft papers due: 1 March 2021
- Digital conference: 24-26 March 2021
- Final contribution to blog symposium on AfronomicsLaw: 30 April 2021
- Final papers due for special issue with journal: 1 July 2021
Please submit abstracts in English or French (250 words) accompanied by a short CV (max. 5 pages) to m.plagis@asser.nl by 23:59 CET on 15 January 2021.
Editor's note: Mercedes
is a recent graduate of the LL.B. dual-degree programme English and
German Law,
which is taught jointly by University College London (UCL) and the
University
of Cologne. She will sit the German state exam in early 2022. Alongside
her
studies, she is working as student research assistant at the Institute
for International
and Foreign Private Law in Cologne. Since September 2020, she joined the
Asser Institute as a research intern for the Doing Business Right project
On 25
September 2020, the final hearings in the Kiobel case took place before
the Dutch District Court in The Hague. This case dates back to 25 years ago; and
the claimants embarked on a judicial journey that led them from the US to the
Netherlands. On 16 October 2020, the TMC Asser Institute hosted an online
roundtable discussion to present and discuss the arguments raised before the
Dutch court. The three panelists, Tara
Van Ho from Essex University, Tom de
Boer from Prakken d’Oliveira, and Lucas Roorda from
Utrecht University each provided their stance on the case and analyzed the
past, the present and the main issues of the proceedings.
Depending on the outcome of the case, Kiobel could
pave the way for further business human rights litigation in Europe. It raises
questions ranging from jurisdiction, applicable law, parent company liability
and fee arrangements to state sovereignty and the responsibility of former
colonial states vis à vis countries that emerged from colonial rule. Below you
will find the highlights of our discussion, you can also watch the full video
on the Asser Institute’s YouTube channel.More...
Between 2010 and 2015, 7.6 million hectares of
forests were lost every year. Deforestation not only causes immense
biodiversity loss, but it also has extremely negative repercussions on
climate change. Hence, deforestation is one of the world’s most pressing
global challenges.
This online event will discuss the EU Parliament’s new
initiative to tackle deforestation. It will examine the initiative’s
substance, possible implications for fighting deforestation across the
globe, and possible means for enforcement and their challenges, as well
as its impact on EU obligations under international (trade) law.
Background
Research has shown that agricultural production is a
major driver of deforestation. The majority of global tree cover loss
between 2000 and 2015 was caused by agricultural production, and another
quarter was due to forestry activities. Furthermore, a large proportion
of forest clearance occurs in breach of local legal and administrative
requirements. However, only half of the total tropical deforestation
between 2000 and 2012 was caused by illegal conversion. Weak enforcement
of forest laws in certain countries further compounds the problem of
relying on legality as a meaningful threshold to stop conversion for
agricultural purposes, especially where political leaders wilfully
reduce law enforcement and conservation efforts to favour agribusiness.
To tackle these closely intertwined concerns, the EU
is in the process of enhancing its policies on global deforestation
linked to EU imports. In addition to the existent Timber Regulation,
assessing the legality of timber origin, and the Renewable Energy
Directive, establishing sustainability requirements for biofuel crops,
the EU is considering several regulatory and non-regulatory
interventions. Among the most profound measures, the EU Parliament is about to approve a ground-breaking Resolution
that will require the Commission to propose an EU Regulation ensuring
that only agricultural commodities and derived products that are not
linked to deforestation, ecosystem conversion and associated human
rights violations are marketed in the EU. Building on the Timber
Regulation and human rights due diligence responsibilities as prescribed
in the United Nation Guiding Principles on Business and Human Rights,
the proposal would require economic operators to implement the
obligation via non-financial due diligence ensuring that products do not
originate from converted forests and ecosystems, regardless of the
legality of land-use conversion.
Speakers
-
Delara Burkhardt,
European Parliament’s Rapporteur for a Motion for an EU Parliament
Resolution with recommendations to the Commission on an EU legal
framework to halt and reverse EU-driven global deforestation (her draft
report is available here).
-
Andrea Carta, Senior legal strategist at Greenpeace, EU Unit
-
Enrico Partiti, Assistant professor in transnational regulation and governance, Tilburg University
-
Meriam Wortel, Netherlands Food and Consumer Product Safety Authority
The discussion will be moderated by Antoine Duval, Senior researcher at the Asser Institute and coordinator of the ‘Doing business right’ project.
Click here to register for this online discussion.
Editor's note: Enrico Partiti
is Assistant Professor of Transnational Regulation and Governance at Tilburg
University and Associate Fellow at the Asser Institute. His expertise centres
on European and international economic law, sustainability and supply chain
regulation. In particular, he studies how private standard-setters and
corporations regulate globally sustainability and human rights
Upcoming Event: Fighting global deforestation through due diligence: towards an EU regulation on forest and ecosystem risk commodities? - 4 November 2020 - 16:00 (CET) - Register Here!
The recent vote in the
Environment, Public Health and Food Safety (ENVI) Committee of the European
Parliament on binding legislation to stop EU-driven global deforestation is a
watershed moment in the global fight against deforestation, ecosystem
conversion and associated human rights violations. The ENVI Committee report, that will
soon be voted by the plenary, requests the Commission (as provided in Art. 225
TFEU) to table a legislative proposal for a measure disciplining the placing on
the EU market of products associated to forest and ecosystem conversion and
degradation, as well as violations of indigenous communities’ human rights. The
Parliament’s initiative takes place in a policy context increasingly concerned
with deforestation, in the framework of a Commission Communication on stepping up
EU action to protect and restore the world’s forests which left a door open for
legislative intervention.
The proposed
measure would aim to severe the economic link between demand of agricultural commodities, especially by
large consumers markets, and negative environmental impacts - including on
climate change. Beef, soy and palm oil alone are responsible for 80% of
tropical deforestation, and consequent CO2 emissions. In 2014, EU demand was
responsible for 41% of global imports of beef, 25% of palm oil and 15% of soy,
as well as large shares of other commodities at high risk for forests and
ecosystems such as such as maize (30%), cocoa (80%), coffee (60%), and rubber
(25%). Protecting just forests is not sufficient, as it risks to displace
conversion to other non-forests ecosystems such as the Brazilian cerrado. In
light of their negative impact on both forests and other natural
ecosystems, such commodities have been labeled as forest and ecosystem risks
commodities (FERCs). More...
Editor's note: Mercedes
is a recent graduate of the LL.B. dual-degree programme English and
German Law,
which is taught jointly by University College London (UCL) and the
University
of Cologne. She will sit the German state exam in early 2022. Alongside
her
studies, she is working as student research assistant at the Institute
for International
and Foreign Private Law in Cologne. Since September 2020, she joined the
Asser Institute as a research intern for the Doing Business Right project.
In
Part II of this blog series, I intend to outline the different proposals for a
Lieferkettengesetz. First, the Initiative Lieferkettengesetz’s model
law, secondly the proposal
submitted by the Ministry for Labour and Social Affairs and the Ministry for Economic
Cooperation and Development, and lastly, I will present the amendments pushed
by the business sector and the Ministry for Economic Affairs and Energy.More...
On Friday, 16 October, from 16.00-17.00, we will organise an online discussion about the Kiobel v. Shell case,
currently before Dutch courts in the Hague. The discussion will retrace
the trajectory followed by the case in reaching The Hague, explain the
arguments raised by both parties in the proceedings, and assess the
potential relevance of the future ruling for the wider debate on
corporate accountability/liability for human rights violations.
Background
In 1995, nine local activists from the Ogoniland region of
Nigeria (the Ogoni nine) were executed by the Nigerian authorities, then
under the military dictatorship of General Sani Abacha. They were
protesting against the widespread pollution stemming from the
exploitation of local oil resources by a Nigerian subsidiary of Royal
Dutch Shell when they were arrested and found guilty of murder in a sham
trial. Their deaths led first to a series of complaints against Royal
Dutch Shell in the United States on the basis of the alien tort statute
(ATS). One of them, lodged by Esther Kiobel, the wife of one of those
killed (Dr Barinem Kiobel), reached the US Supreme Court. Famously, the
Court decided to curtail the application of the ATS in situations that
do not sufficiently 'touch and concern' the territory of the United
States.
This ruling put an end to Esther Kiobel's US lawsuit, but
it did not stop her, together with three other widows (Victoria Bera,
Blessing Eawo and Charity Levula), from seeking to hold the
multinational company accountable for its alleged involvement in the
deaths of their husbands. Instead, in 2017, they decided to continue
their quest for justice on Royal Dutch Shell’s home turf, before Dutch
courts in The Hague. 25 years after the death of the Ogoni nine, the
court in The Hague just finished hearing the pleas of the parties and
will render its much-awaited decision in the coming months.
Confirmed speakers
- Tom de Boer (Human rights lawyer representing the claimants, Prakken d'Oliveira)
- Lucas Roorda (Utrecht University)
- Tara van Ho (Essex University)
- Antoine Duval, Senior researcher at the T.M.C Asser Instituut, will moderate the discussion
Register here to join the discussion on Friday.
Editor's note: Mercedes
is a recent graduate of the LL.B. dual-degree programme English and
German Law,
which is taught jointly by University College London (UCL) and the
University
of Cologne. She will sit the German state exam in early 2022. Alongside
her
studies, she is working as student research assistant at the Institute
for International
and Foreign Private Law in Cologne. Since September 2020, she joined the
Asser Institute as a research intern for the Doing Business Right project.
On the
international stage, Germany presents itself as a champion for human rights and
the environment. However, as this blog will show, when it comes to holding its
own corporations accountable for human rights violations and environmental
damage occurring within their global supply chains, it shows quite a different
face.
In
recent years, German companies were linked to various human rights scandals.
The German public debate on corporate accountability kickstarted in earnest in September
2012, when a factory in Karachi, Pakistan, burned down killing almost 300
people. The factory had supplied KiK,
Germany’s largest discount textile retailer with cheap garments. Then, over a
year and a half ago, a dam broke in Brazil, killing 257 people. The dam had
previously been certified to be safe by TÜV
Süd Brazil, a subsidiary of TÜV Süd, a German company offering
auditing and certification services. There are many more examples of incidents
in which German companies were involved in human rights violations occurring
within their supply chains, yet eight years after the factory in Pakistan
burned down, and nine years after the unanimous endorsement of the UN Guiding
Principles on Business and Human Rights by the UN Human Rights Council, there
is still no binding German legislation imposing some type of liability onto
companies that knowingly, or at least negligently, fail to uphold human and
labor rights in their supply chain.
This
is despite the fact that Germany, the third-largest
importer worldwide, with its economic power and negotiation strength on
the international stage, could have a dramatic impact on business practices if
it were to embrace a stronger approach to business and human rights.
In the
coming two blogs I am to take a critical look at Germany’s recent policies
related to corporate accountability and discuss the current developments (and
roadblocks) linked to the potential adoption of a Lieferkettengesetz
(Supply Chain Law). In this first post, I focus on the effects of the National
Action Plan 2016-2020, building on recently released interim reports. In my
second blog, I will then turn to the various proposals and political
discussions for mandatory due diligence regulation (Lieferkettengesetz).More...
Editor’s
note: Katharine Booth holds a LLM, Advanced Programme in European and
International Human Rights Law from Leiden University, Netherlands and a LLB
and BA from the University of New South Wales, Australia. She is currently
working at the Asser Institute in The Hague. She previously worked as a lawyer and
for a Supreme Court Justice in Australia.
This series
of blog posts focuses on the regulation of so-called ‘gangmasters’ in the UK
and Australia. A ‘gangmaster’ is an old English term for a person (an
individual or business) who organises or supplies a worker to do work for another
person.[1]
Gangmasters have been described as ‘middlemen’ or ‘brokers’ between
a worker and a business that needs temporary, and often seasonal, labour. In
other countries, including Australia, gangmasters are commonly referred to as labour
hire providers or labour market intermediaries.
In recent
years, legislation has been implemented in the UK and three Australian States (Queensland, Victoria and South Australia) requiring gangmasters to be
licensed. According to Judy Fudge and Kendra Strauss, central to these licensing schemes
is the protection of vulnerable workers from forced and unfree labour and
exploitation:
“[E]vidence suggests that ‘sweating’ at the
bottom end of the labour market (increasingly populated by migrant workers,
both documented and undocumented, in many countries) often involves labour
intermediaries who exploit the ways in which processes of racialization and the
construction of new categories of social difference, instigated by immigration
regimes, render some workers extremely vulnerable—including to forced and
unfree labour.”
As noted by
Kendra Strauss, migrant workers are especially
vulnerable to exploitation as they often migrate from less developed economies,
have a precarious migrant status, and are employed in poorly-paid positions. They
often lack English language skills and have little knowledge of their legal
entitlements and pathways for accessing remedies which, according to an Oxfam
GB report, makes it unlikely that they will
report abuse or exploitation, for fear of losing their jobs. Moreover, as Sayomi Ariyawansa explains, the three-tiered or
tripartite arrangement between the worker, gangmaster and host business means
that there is no direct contractual relationship between the worker and host
business and little oversight of the legal arrangements between the worker and
gangmaster. This makes it easy for unscrupulous gangmasters to slip through
legal cracks, but also for businesses to unknowingly enter into arrangements
with gangmasters that do not comply with the law.
This series
of blog posts explores the connection between the regulation of gangmasters and
the enactment of modern slavery legislation, namely legislation calling on
companies to report on modern slavery and other labour and human rights abuses
in their corporate supply chains. It is divided into four main parts. Part 1 of
this series explores two main issues. (1) The circumstances that led to the
enactment of gangmaster licensing schemes in the UK and Australia, and the
laws’ provisions relating to the licensing of workers. (2) The limitations of
these laws, particularly the inability of licensing schemes to hold liable
companies that enter into business arrangements with gangmasters, as well as
companies higher in the supply chain. Part 2 explores reform of these laws in the
UK and Australia in view of the relatively recent modern slavery legislation
implemented in both countries.More...
Editor’s
note: Katharine Booth holds a LLM, Advanced Programme in European and
International Human Rights Law from Leiden University, Netherlands and a LLB
and BA from the University of New South Wales, Australia. She is currently
working at the Asser Institute in The Hague. She previously worked as a lawyer and
for a Supreme Court Justice in Australia.
Both the UK
and Australia have enacted legislation regulating the activities of
‘gangmasters’ or labour hire providers. Part 1 of this series of blog posts examines
the circumstances that led to the enactment of labour hire licensing schemes in
both the UK and Australia, and some key limitations of these laws. Part 2 explores two issues closely connected
to the business and human rights context. (1) Reform (in the UK) and potential
reform (in Australia) of these laws in light of the increasing national and international
recognition of modern slavery, human trafficking, labour exploitation and other
human rights violations in corporate supply chains. Both the UK and Australia
have enacted ‘modern slavery laws’ requiring certain companies to publish
annual statements addressing human rights violations in their operations and
supply chains. At the same time as the introduction of the UK Modern Slavery
Act, the relevant gangmasters licensing authority (the Gangmasters Licensing
Authority (GLA)) was empowered with broad ‘police-like’ powers to investigate
offences under that Act. These powers have shifted the authority’s focus from
the passive regulation of the gangmasters licensing scheme to the active
enforcement of compliance with the Modern Slavery Act. (2) However, as
currently enacted, modern slavery laws are not perfect. A key criticism of
these laws is that they do not impose strong enforcement mechanisms
(particularly financial penalties) on companies that fail to comply with their
provisions. The imposition of penalties is central to ensuring that companies
take note of the importance of eliminating slavery from their supply chains. More...