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.
Since the release of the first draft of the
BHR Treaty (from herein referred to as the ‘treaty’), a range of views have
been exchanged by commentators in the field in relation to the content of the
treaty (a number of them are available on a dedicated page
of the Business and Human Rights Resource Centre’s website). While many have
stated that the treaty is a step in the right direction to imposing liability
on businesses for human rights violations, there are a number of critiques of
the first draft, which commentators hope will be rectified in the next version.
This second blog of a series of articles
dedicated to the proposed BHR Treaty provides a review of the key critiques of
the treaty. It will be followed by a final blog outlining some recommendations
for the working group’s upcoming negotiations between 15 to 19 October 2018 in
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
on 26 June 2014 the UN Human Rights Council adopted Ecuador’s proposal to
establish an inter-governmental working group mandated ‘to elaborate an
international legally binding instrument to regulate, in international human
rights law, the activities of transnational corporations and other business
enterprises’. The proposal was adopted by 20 to 14 votes, with 13 abstentions,
and four years later, in July this year, the working group published the first
draft of the treaty (from herein referred to as the ‘treaty’). Shortly after, the draft
Optional Protocol to the draft treaty was released. The Optional Protocol
focuses on access to remedy for victims of human rights abuses by businesses.
This first blog of a series of articles
dedicated to the proposed BHR Treaty provides an overview of the main elements
of the draft. It will be followed by a review of the reactions to the Draft,
and a final piece outlining some recommendations for the upcoming negotiations. More...
Thompson is a PhD candidate in business and human rights at Tilburg Law School
in the Netherlands. His PhD research deals with the effects of the UN Guiding
Principles on Business and Human Rights' endorsement of operational level,
non-judicial grievance mechanisms and their role in improving access to remedy.
He recently published an article for Utrecht Law Review’s
Special Issue on Accountability of Multinational Corporations for Human
Rights Abuses which discussed the roles the new Dutch multistakeholder
initiative with the Dutch banking sector might play in improving banks’
performance with respect to human rights.
November of last year the Asser Institute offered me the opportunity to take
part in a roundtable
on the Dutch
Banking Sector Agreement (DBA), as part of their
Business Right Project. Signed in December 2017, the
DBA is a collaboration between the banking sector, the government, trade unions
and civil society organisations (CSOs), all based within the Netherlands: the
first of its kind. It focuses on banks’ responsibility to respect human rights,
as stipulated in the UN
Guiding Principles on Business and Human Rights
(UNGPs) and OECD Guidelines for
Multinational Enterprises (OECD Guidelines),
within their corporate lending and project finance activities. The DBA has been
something of a hot topic in business and human rights circles. However, it has
not yet published a public monitoring report, making any evaluation of its
performance at this stage difficult. During the roundtable, we discussed the
role of the DBA as a potential means
to improve the practices of Dutch banks with respect to human rights. A key
challenge identified from this discussion, as reported here,
was the various ‘interpretive ambiguities inherent in the UNGPs’. A key
conclusion was that ‘further dialogue is required... to ascertain what conduct
on the part of the banks is consistent with international obligations’.
is not a unique conclusion to arise from multistakeholder discussions on banks
and human rights; the discussion often focuses on what financial institutions
are required to do to meet their responsibility to respect human rights under
the UNGPs. So much so that questions concerning implementation or evaluation
are often left by the wayside. As a result, when presenting my research on the
DBA for the Utrecht Centre of Accountability and Liability Law’s Conference on
and International Business Operations’,
I decided to focus on how the DBA had responded to those key points of friction
where there is the greatest disagreement between how different stakeholders
conceive banks’ human rights responsibilities. This blog post seeks to build on
this previous entry, hopefully without too much repetition. More...
Editor’s note: Abdurrahman is currently working for Doing Business
Right project at the Asser Institute as an intern. He received his LL.M.
International and European Law from Tilburg University and currently he is
a Research Master student at the same university.
2011 update of the OECD Guidelines
for Multinational Enterprises (hereinafter
‘Guidelines’-for some introductory information, see here) introduced
various changes to the 2000 text of the Guidelines, including a whole new
chapter on human rights in line with the UN
Guiding Principles on Business and Human Rights.
National Contact Points (NCPs) - non-binding, state-based, non-judicial
grievance mechanisms established by the adhering states - have since then
60 cases submitted under the newly-introduced human rights
NCP believes that the issues raised in a submission merit further
consideration, it accepts the complaint, prepares an initial assessment report
and offers its good offices to the parties of the complaint. Parties may reject the
offer, accept the offer but fail to reach an agreement in the mediation or, if
everything goes well, reach an agreement. In any of these scenarios, the NCP
concludes the specific instance with a final assessment report. Between the initial and
final assessment reports, however, NCPs are not required to communicate details
of the ongoing mediations to the public. Nor do they have to provide any
specific details about the agreement of the parties, if at all, along with or
after the final report.
to promote the effectiveness of the Guidelines, to handle enquiries and to use a
complaint procedure (so-called specific instance procedure) to facilitate
settlements of disputes that may arise in case of non-compliance with the
Guidelines by enterprises. Although to provide effective remedies to victims of
business-related human rights abuses is not explicitly included among their
aims, NCPs have the potential to serve as a forum to which victims can turn to
obtain effective remedies. They can receive
complaints alleging the violation of internationally recognized human rights
and offer mediation to the parties of the complaint to find a solution on which
both parties agree upon.
more than 20 out of these approximately 60 cases concluded, parties to the
dispute reached a settlement through a mediation procedure facilitated by the
NCP. These cases are considered ‘successful’ or ‘positive’ by the OECD. But can these really be
considered as such?
Do the NCPs function as an effective grievance mechanism which provides
access to remedies to victims of business-related human rights abuses in the
cases they have settled? Or were these cases found successful only because the
NCPs dealing with them claim so, regardless of the actual remedies provided? In
this blog, I will elaborate on the concept of ‘success’ as used by the OECD and
how the cloudy nature of the procedure raises questions about the successful
conclusion of the cases and of the role of NCPs in this regard.More...
We are looking for a new business and human rights intern starting early September 2018 for a period of at least three months, preferably full-time. The Internship will be based at the Asser Institute in The Hague.
- Contribute and develop research outputs within the Asser research project ‘Doing Business Right’, especially for the blog;
- Assistance in day-to-day maintenance of social media accounts linked to the ‘Doing Business Right’ project;
- Assistance in organizing upcoming events (workshops, lectures);
- Assist in legal research and analysis in the frame of academic publications.
Interested candidates should have:
- Demonstrated interest in legal issues lying at the intersection of
transnational business, human rights, private international law, and
global value chains regulation. An interest in transnational law and
private regulations are an advantage;
- Solid academic and non-academic writing skills, research and analytical skills;
- A master degree in EU law, private or public international law or international relations;
- Excellent command of written and spoken English, preferably at a native speaker level;
- Experience with managing websites and social media communication is of an advantage.
What we offer:
- A stipend, based on the level of education completed;
- Exposure to the academic activities of the research strand
‘Advancing public interests in international and European law’, and the
T.M.C Asser Instituut, a leading research centre in International and
- An inspiring, dynamic and multicultural working environment.
Interested candidates should apply by email, sending
a motivation letter and CV in English, a sample of academic writing
(master’s thesis or paper from a course relevant to the topics of the
research project ‘Doing Business Right’) to both A.Duval@asser.nl and E.Partiti@asser.nl.
Deadline for application is 10 August 2018, 12.00 PM CET.
Please note: We cannot offer assistance in obtaining residence and work permits for the duration of the internship.
Editor’s note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.
The 21st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played. More...
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 might have overlooked.
Due Diligence Guidance released
On 31 May, the OECD published “OECD
Due Diligence Guidance for Responsible Business Conduct”. Issued after a
multi-stakeholder process with OECD and non-OECD countries and representatives
from business, trade unions and civil society, the guidance provides practical
knowledge to businesses on due diligence recommendations and related provisions
of the Guidelines for Multinational Enterprises. The guidance also aims at
aligning different approaches of governments and stakeholders to due diligence
for responsible business conduct by promoting a common understanding.More...
Two members of the Doing Business Right team, Antoine Duval and Catherine Dunmore have just published a policy brief feeding into the current debates on the use (and usefulness) of arbitration in the business and human rights context. More precisely, the brief makes the case for the creation of a single Court of Arbitration for Business and Human Rights.
Here is the abstract:
This policy brief makes the case for a single Court of Arbitration for Business and Human Rights (CABHR). It first highlights the challenges faced by victims of human rights violations caused or directly linked to the activities of transnational corporations (TNCs) in accessing effective remedy. It then discusses the opportunities and challenges in using arbitration to provide a remedy in the business and human rights context. If arbitration is to be used, we argue that it should be in the framework of a single CABHR, which could draw some inspiration from the structure and operation of the Court of Arbitration for Sport (CAS). The policy brief concludes by highlighting four core issues which stakeholders should focus on in the process of setting up a CABHR.
You can download the paper for free on SSRN.
This report compiles all relevant news,
events and materials on Doing Business Right based on the daily coverage
provided on our twitter feed @DoinBizRight and on various websites. You are
invited to complete this compilation via the comments section below. Feel free
to add links to important cases, documents and articles we might have
Shell-Eni Bribery Case: On 5 March, the corporate bribery trial against oil companies Shell
and Eni was postponed to 14 May by a court in Milan, Italy. The charges against the companies are bribery
and corruption in the 2011 purchase of a Nigerian offshore oilfield, one of the
most valuable oilfields in Africa. Although both firms denied
the charges, the corruption watchdog Global Witness claimed
that hundreds of millions of dollars had been paid to Nigeria’s former
president and his former oil minister as pocket bribes. Global Witness calls
the case one of the biggest corruption scandals in the history of the oil
sector. The trial in the Milan court is expected to last 12-18 months.
Jesner v. Arab Bank: On 24 April, in a 5-4 vote, the US Supreme Court ruled in
v. Arab Bank case that foreign corporations cannot be brought before US
courts under the Alien Tort Statute (ATS). Between 2004 and 2010, thousands of
foreign nationals sued Arab Bank under the ATS, claiming that the Bank’s
officials allowed money transfers through the New York branch of the Bank to
Hamas who committed violent acts in Israel and Occupied Palestinian Territories.
The Supreme Court held that foreign corporations cannot be sued under the ATS.
Furthermore, the Court claimed that international law today does not recognize
“a specific, universal, and obligatory norm of corporate [tort] liability”,
which is a prerequisite to bringing a lawsuit under the ATS. In the Court’s
lead opinion, Justice Kennedy stated that "Courts are not well suited to
make the required policy judgments that are implicated by corporate liability
in cases like this one.” In her dissenting opinion joined by three other
justices, Justice Sotomayor claimed that the decision "absolves
corporations from responsibility under the ATS for conscience-shocking
Fifth Anniversary of Rana Plaza:
April 24th also marked the fifth anniversary of the deadly collapse of Rana
Plaza in Dhaka, Bangladesh. Rana Plaza was a five-story commercial building
which housed several garment factories employing around 5000 people. The global
outcry after the disaster which claimed at least 1134 lives led to numerous
initiatives to change business-as-usual in the garment and textile supply
chains in Bangladesh and beyond. Despite these initiatives which employed
various approaches to the issue of worker safety in the supply chains, it is widely
that there is still a long way to go to create a safe working environment for
workers in the garment and textile supply chains. On 12 April, the Asser
Institute hosted a one-day conference on Rana Plaza to take stock of the
regulatory and policy initiatives aimed at improving workers’ safety in the
garment supply chain (You will find our background paper here).
Okpabi v. Royal Dutch Shell - Episode. 3?
On 27 April, more than 40 UK and international human rights, development and
environment NGOs, later supported by
academics from different states, urged the UK Supreme Court to allow two
Nigerian fishing communities to appeal against the Okpabi v Royal Dutch Shell
ruling of the Court of Appeal in February which denied responsibility for
UK-based Royal Dutch Shell for the pipeline spills, dating back as far as 1989,
which affected approximately 40000 Nigerian farmers and fishermen. The NGOs claimed
that the Court of Appeal’s decision erred in many ways as it seriously restricts
parent company liability and limits the options available to victims of
corporate human rights violations seeking remedy in the UK.More...
The headline of the New York Times on 24 April summed it up: ‘Supreme Court Bars Human Rights Suits Against Foreign Corporations’. The Jesner decision,
released earlier that day by the U.S. Supreme Court, triggered a tremor
of indignation in the human rights movement given the immunity it
conferred to foreign corporations violating human rights against suits
under the Alien Tort Statute, and led to a flood of legal and academic
commentaries online. This panel discussion, organised with the support
of the Netherlands Network of Human Rights Research, will
address various aspects of the judgment. Its aim is to better
understand the road travelled by American courts leading up to the
decision with regard to the application of the Alien Tort Statute to
corporations, to compare the decision with the position taken in other
jurisdictions, and to discuss the ruling's potential broader impact on
the direction taken by the business and human rights movement.
Where: T.M.C. Asser Instituut in The Hague
When: Thursday 24 May at 2:30 pm
- Phillip Paiement (Tilburg University) - The Jesner case and the ATS: An American perspective
- Lucas Roorda (Utrecht University) - A comparative perspective on Jesner and corporate liability for human rights violations
- Nadia Bernaz (Wageningen University) - Lessons for the business and human rights movement after Jesner