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...
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...
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...
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...
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...
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...
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...
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...
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.
The collapse of the Rana Plaza attracted public
attention from various parts of the world. As a result, the demand to ensure
that businesses do not contribute to or commit human rights violations,
particularly multinational enterprises (MNEs) which can easily engage in forum
shopping between states with lax regulations, started to make itself heard.
This increased public interest drove national governments to start addressing
this issue in an attempt to prevent MNEs from getting involved in human rights
abuses along their supply chains. In
this respect, to deal with the human rights abuses committed by MNEs in the
ready-made garment (RMG) sector and beyond, numerous transnational and national
initiatives have emerged in different forms since the Rana Plaza disaster.
These initiatives include agreements (e.g. the Bangladesh Accord on Fire and Building Safety) with binding
commitments, traditional voluntary CSR-based multi-stakeholder initiatives (e.g. the Alliance for Bangladesh Worker Safety), domestic legal (e.g. the UK Modern Slavery Act and the French law on the duty of vigilance), administrative measures (e.g. the reform of the Department of Inspections for
Factories and Establishments in Bangladesh for better factory and labour
inspections) or agreements
between governmental bodies, businesses and some other stakeholders (e.g. the German Partnership for Sustainable Textiles and the Dutch Agreement on Sustainable Garment and Textile).
These concerted efforts, to ensure responsible
business conduct show an extreme variety in terms of their scope, approaches
and parties involved. In particular, the
French law on the duty of vigilance and the Dutch agreement on sustainable
garment will be the focus on this blog since while the adoption of the former
was accelerated by the disaster, the latter was an indirect response to it. It
is crucial to scrutinise the implementation of these initiatives and whether or
not they positively transform the business-as-usual in the RMG sector. In this
blog, after brief explanations of the French and Dutch initiatives, some of the
concerns and problems, which may be encountered in their implementation
process, will be presented. More...
Editor's Note: Catherine Dunmore is an experienced international lawyer who practised international arbitration for multinational law firms in London and Paris. She recently received her LL.M. from the University of Toronto and her main fields of interest include international criminal law and human rights. Since October 2017, she is part of the team of the Doing Business Right project at the Asser Institute.
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. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.
We are looking for a new intern! More information here.
The Headlines
Landmark High Court case against UK mining company over alleged Sierra Leone worker abuse
On 29 January 2018, a landmark six week hearing began at the High Court in London in a case brought by 142 claimants from Sierra Leone against Tonkolili Iron Ore, a subsidiary of the UK based African Minerals. The case involves allegations of worker abuse in 2010 and 2012 at the Tonkolili Iron Ore Mine in Sierra Leone, including complicity in rape, assault, false imprisonment and the police murder of a protestor complaining over pay and conditions. Human Rights Watch previously reported how the government and African Minerals forcibly relocated hundreds of families from verdant slopes to a flat, arid area, thereby removing their ability to cultivate crops and engage in income generating activities. The claimants’ lawyers, Leigh Day, stated that the case “demonstrates that those companies headquartered in the UK that operate abroad in rural and isolated environments can be held to account when their operations face serious allegations of human rights abuses”. Tonkolili Iron Ore denies responsibility for the incidents against workers and villagers and claims full responsibility lies with the Sierra Leone police. Unusually, the trial will see the judge, Mr Justice Turner, travelling to Freetown for two weeks so that evidence can be taken from witnesses in person, after some witnesses were unable to obtain visas for the United Kingdom.
West Kalimantan villagers file complaint against the Roundtable on Sustainable Palm Oil
On 23 January 2018, a complaint was filed with the Organization for Economic Cooperation and Development’s national contact point in Switzerland by an Indonesian community rights group against the Roundtable on Sustainable Palm Oil for its failure to address complaints made by residents of two West Kalimantan villages. The indigenous Dayak community in Kerunang and Entapang villages had previously filed an urgent complaint with the RSPO accusing one of its members, Malaysian palm oil giant Sime Darby, of stealing their tribal land through its subsidiary Mitra Austral Sejahtera. They allege that Mitra Austral Sejahtera breached the RSPO Principles and Criteria for the Production of Sustainable Palm Oil relating to commitment to transparency, compliance with applicable laws and regulations and responsible consideration of employees, and of individuals and communities affected by growers and mills. It is alleged that the RSPO failed to respond to the request for the return of tribal lands and accordingly failed to meet its obligations under the OECD Guidelines for Multinational Enterprises. Sime Darby has stated that the land dispute has been discussed at the RSPO's annual meetings since 2012, and that it looks “forward to the cooperation of the communities towards ensuring that the eventual return of their land is socially, environmentally and economically viable”. More...