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

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.

 

The tragic collapse of Rana Plaza in Bangladesh in 2013, which killed over one thousand workers and injured more than two thousand, brought global attention to the potential human rights risks and impacts that are inherent to the garment and footwear sector.[1] This sector employs millions of workers within its supply chain in order to enable large-scale production of goods as quickly as possible at the lowest cost as market trends and consumer preferences change.[2] These workers are often present in countries where the respect for human rights and labour rights is weak. This creates an environment that is conducive to human rights abuses. Key risks in this sector include child labour, sexual harassment and gender-based violence, forced labour, non-compliance with minimum wage laws and excessive work hours.[3] Accordingly, brands such as Adidas face the challenge of conducting effective human rights due diligence (HRDD), particularly in their supply chains. 

This third blog of a series of articles dedicated to HRDD is a case study looking at how HRDD has materialised in practice within Adidas’ supply chains. It will be followed by another case study examining the steps taken by Unilever in order to operationalise the concept of HRDD. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect of human rights by businesses. More...

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

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.

 

The UNGPs second pillar, the corporate respect for human rights, is built around the concept of human rights due diligence (HRDD). Since 2011, following the resounding endorsement of the UNGPs by the Human Rights Council, it has become clear that HRDD constitutes a complex ecology of diverse practices tailored to the specific context of a particular business. The UNGPs are not legally binding and there is no institutional mechanism in place to control how they are to be translated into practice by the companies that purport to endorse them. Nonetheless, numerous companies and regulatory schemes have embraced the idea of HRDD (such as the OECD Guidelines, the French law on the devoir de vigilance, the UK and Australian modern slavery laws and the Dutch Agreement on Sustainable Garment and Textile). 

The operationalisation of HRDD has been shaped over the past 8.5 years by a variety of actors, including international organisations, consultancies and audit firms, as well as non-governmental organisations. These actors have conducted research and developed various methodologies, instruments and tools to define what HRDD is and what it entails in order to assist or influence businesses in its operationalisation. The interpretation of the requirements imposed by HRDD process outlined in the UNGPs is open to a variety of potentially contradictory interpretations. This pluralism is well illustrated by the diversity of actors involved in an ongoing struggle to define its scope and implications.

This second blog of a series of articles dedicated to HRDD looks at it through the lens of the most influential players shaping HRDD in practice by examining their various perspectives and contributions to the concept. Case studies will then be undertaken to look at how HRDD has materialised in practice in specific companies. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect for human rights by businesses. More...

The Rise of Human Rights Due Diligence (Part I): A Short Genealogy - By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands and a contributor to the Doing Business Right project of the Asser Institute. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

 

Human right due diligence (HRDD) is a key concept of Pillar 2 of the UN Guiding Principles on Business and Human Rights (UNGPs), the corporate responsibility to respect human rights. Principle 15 of the UNGPs, one of the foundational principles of Pillar 2, states that in order to meet the responsibility to respect human rights, businesses should have in place a HRDD process to ‘identify, prevent, mitigate and account for how they address their impacts on human rights’. However, how was the concept of HRDD developed? What does it mean? What are its key elements?

This first blog of a series of articles dedicated to HRDD answers these questions by providing an overview of the concept of HRDD and its main elements (as set out in the UNGPs) as well as how the concept was developed. It will be followed by a general article looking at HRDD through the lens of a variety of actors including international organisations, non-state actors and consultancy organisations. Case studies will then be undertaken to look at how HRDD has materialised in practice. To wrap up the series, a final piece will reflect on the effectiveness of the turn to HRDD to strengthen respect of human rights by businesses. More...

Doing Business Right – Monthly Report – February 2018 - By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

 

Introduction

This report compiles all relevant news, events and materials on Doing Business Right based on the coverage provided on our twitter feed @DoinBizRight and on various websites. You are invited to contribute to this compilation via the comments section below, feel free to add links to important cases, documents and articles we may have overlooked.

 

The Headlines

German Development Ministry drafts mandatory human rights due diligence

It was reported on 10 February 2019 that the German Federal Ministry of Economic Cooperation and Development has drafted legislation (unpublished) on mandatory human rights due diligence for German companies. It is reported that the law will apply to companies with over 250 employees and more than €40 million in annual sales. The draft legislation targets, inter alia, the agriculture, energy, mining, textile, leather and electronics production sectors. Companies that fall within the scope of the legislation will be required to undertake internal risk assessments to identify where human rights risks lie in their supply chains. Companies would also be required to have a Compliance Officer to ensure compliance with due diligence requirements. The Labor Inspectorate, the Federal Institute for Occupational Safety and Health and the Human Rights Commissioner of the Federal Government would be responsible for enforcing the legislation, with penalties for non-compliance of up to €5 million (as well as imprisonment and exclusion from public procurement in Germany).

Kiobel case heard in the Netherlands

On 12 February 2019, the Dutch courts heard a lawsuit involving Esther Kiobel and three other women against Shell. The plaintiffs allege that Shell was complicity in the 1995 killings of their husbands by Nigeria’s military. The husbands were Ogoni activists that were part of the mass protests against oil pollution in Nigeria’s Ogoniland. The judgment is expected to be handed down in May 2019. Read more here. More...

Global Modern Slavery Developments (Part II): A Review of the New Australian Modern Slavery Act – By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands and a contributor to the Doing Business Right project of the Asser Institute. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

 

Soon after the introduction of the UK Modern Slavery Act (UK Act) in 2015, discussions about establishing similar legislation in Australia commenced. In February 2017, the Attorney-General asked the Joint Standing Committee on Foreign Affairs, Defence and Trade (Committee) to commence an inquiry into establishing a Modern Slavery Act in Australia. The terms of reference of the inquiry included, inter alia, considering the ‘prevalence of modern slavery in the domestic and global supply chains of companies, businesses and organisations operating in Australia’ and whether a Modern Slavery Act comparable to the UK Act should be introduced in Australia. The Committee released an interim report in August 2017 and then a final report in December 2017 – both reports supported the idea of developing a Modern Slavery Act in Australia and set out the Committee’s recommendations with respect to the parameters of a corporate reporting requirement. In the meantime, the Australian Government also published a consultation paper and regulation impact statement outlining its proposed reporting requirement for an Australian Modern Slavery Act.

In June this year, the first draft of the Modern Slavery Bill 2018 (Cth) (the Federal Bill) was introduced into the Australian Parliament. It set out a reporting requirement for large Australian entities to submit a statement on risks of modern slavery in their operations and supply chains. The Explanatory Memorandum to the Federal Bill stated that it supports ‘large businesses to identify and address modern slavery risks and to develop and maintain responsible and transparent supply chains. It will drive a ‘race to the top’ as reporting entities compete for market funding and investor and consumer support.’ On 29 November 2018 the Federal Bill passed both houses of the Australian Parliament incorporating amendments made by the Upper House of Parliament. The amendments resulted in the inclusion of a provision giving the Minister power to request explanations from entities that fail to comply with the reporting requirement (discussed in further detail below) and gives the Minister the power to cause an annual report to be prepared providing an overview of compliance by entities and identifying best practice modern slavery reporting. 

This second blog of a series of articles dedicated to the global modern slavery developments provides an overview of the main elements of the Federal Bill and how it compares to the UK Act. It also discusses the Modern Slavery Act 2018 (NSW) (NSW Act), which was introduced by New South Wales (NSW), a State in Australia. The introduction of NSW Act was relatively unexpected given the movement at the Federal level to introduce national legislation addressing modern slavery in the corporate context. Therefore, this blog will discuss the NSW Act’s interplay with the Federal Bill. It will be followed by a final piece on the modern slavery developments in other jurisdictions in the corporate context. More...

Doing Business Right – Monthly Report – October 2018 - By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands and an intern with the Doing Business Right project at the Asser Institute. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice. 

Introduction

This report compiles all relevant news, events and materials on Doing Business Right based on the coverage provided on our twitter feed @DoinBizRight and on various websites. You are invited to contribute to this compilation via the comments section below, feel free to add links to important cases, documents and articles we may have overlooked. More...

The Proposed Binding Business and Human Rights Treaty: Reactions to the Draft - By Shamistha Selvaratnam

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.

 

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 Geneva. More...

The Proposed Binding Business and Human Rights Treaty: Introducing the Draft - By Shamistha Selvaratnam

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.

By resolution, 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...

Doing Business Right – Monthly Report – May 2018 - By Abdurrahman Erol

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 might have overlooked.

Highlights

OECD 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...

Doing Business Right – Monthly Report – March & April 2018 - By Abdurrahman Erol

Introduction

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 overlooked.


The Headlines

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 the Jesner 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 behavior."

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 acknowledged 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...