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...
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...
Editor's Note: Raam is currently an intern with the Doing Business Right team at the Asser Institute. He recently received his LL.M. Advanced Studies in Public International Law (cum laude) from Leiden University and has worked at an international law firm in London on a range of debt capital markets transactions
The collapse of the Rana Plaza building on 24 April 2013 in Bangladesh left at least 1,134 people dead and over 2,500 others wounded, while survivors and the families of the dead continue to suffer trauma in the aftermath of the disaster. This first blog of our special series assesses the extent to which litigation and particular "soft" mechanisms have secured justice and compensation for victims and brought the relevant actors – whether global brands or individuals – to account for their alleged culpability for the collapse. To do this, it firstly examines the avenues that have been taken to hold corporations legally accountable in their home jurisdictions for their putative contributions to the collapse on the one hand, and individuals (particularly local actors) legally accountable before the courts in Bangladesh on the other. It then considers the effects of softer mechanisms aimed at compensating victims and their dependants. 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.
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.
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...
Editor’s Note: Elisa Chiaro is a legal consultant focussing on Business and Human Rights and International Criminal Law. In 2016 she completed an LL.M. at SOAS, University of London. Before that she worked for five years as international corporate lawyer both in Italy and UK. She is admitted to the Bar in Italy.
According to the Intergovernmental Panel on Climate Change (“IPCC”) climate change is real: “[h]uman influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history.”
From a scientific point of view, it is well established that the concentration of greenhouse gases (“GHGs”), which are present in nature and essential for the survival of human beings and plants, is linked to the Earth’s temperature, which has been rising steadily since the Industrial Revolution. From the perspective of public health, according to the WHO, an effect of climate change will be an increase of approximately 250,000 deaths per year between 2030 and 2050 due to malnutrition, disease (such as malaria and diarrhoea) and heat stress.
As will be explained in the following section many international agreements and initiatives have emerged to tackle the problem. However the main goal of this post is to analyse some examples of civil judicial and quasi-judicial means that have been used to hold companies accountable for the effects of climate change. The first category under scrutiny will be litigation brought against private companies, such as in the case Lliuya v. RWE AG brought before the German Court and in American cases brought by public institutions (cities or counties) against oil companies. The second category encompasses other grievance mechanisms, such as the notification to the OECD National Contact Points of violation of the OECD Guidelines for Multinational Enterprises (“OECD Guidelines”) by corporations (Dutch NGOs v. ING Bank). More...