Editors’ note: Maisie Biggs graduated
with a MSc in Global Crime, Justice and Security from the University of
Edinburgh and holds a LLB from University College London. She is currently
working with the Asser Institute in The Hague.
She has worked for International Justice Mission in South Asia and the
Centre for Research on Multinational Corporations (SOMO) in Amsterdam.
The
Nuremberg Trials were a defining and foundational moment for international
criminal law, and the first instance in which the question of international
legal responsibility of corporate actors, including natural persons and
corporations, was first broached. The Tribunals elected to only prosecute
natural persons, however a brief analysis of the reasoning indicates it was
political rather than legal considerations that led to this distinction. International
law and corporate actors have a storied history that merits drawing the
timeline back earlier than Nuremberg. This is the first in a series of blog posts
exploring the intersection between corporations and international criminal law
(ICL).
As is well known, corporations are not
subjected to the Rome Statute and do not fall under the jurisdiction of the
International Criminal Court (ICC). Yet, as we will show there have been
interesting recent developments at the intersection between ICL and the
activities of corporations. In 2014, the Special Tribunal for Lebanon (Al Jadeed S.A.L. & Ms Khayat (STL-14-05)) acknowledged the development of domestic corporate
accountability, and determined that ICL has likewise progressed. Meanwhile,
cases against individuals (such as the ongoing Lundin case in Sweden) or
corporations (such as the Lafarge case in France) involving the activities of
corporations abroad have been initiated by national prosecutors on the basis of
ICL.
These
cases and potential implications will be discussed in more depth in later
posts, however it is interesting that while some academics and judges are
tracking the ostensibly ‘new’ legal movements to subject corporate activities
to greater regulation,[1]
the history of international law itself shows that harmful transnational
commerce has been an issue for a long time, and this is not the first time
international law has been used as a tool against jurisdiction-hopping
corporate crime.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.
The introduction
of the UK, Australian and NSW Modern Slavery Acts are part of the international
trend towards greater regulation and transparency of modern slavery in
corporate supply chains and operations. For example, Canada has recently introduced
a modern slavery bill and Brazil introduced a ‘dirty
list’ to name and shame companies that engage in slave labour back in 2004.
This last blog of a series of articles dedicated to the global modern slavery
developments focuses on the modern slavery developments in jurisdictions other
than the UK and Australia. 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. 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
CHRB
On 12 November 2018, the Corporate Human
Rights Benchmark released the results of its 2018 ranking of 101 companies
operating in the apparel, agricultural products and extractives industries. The
results show that implementation of the UN Guiding Principles on Business and
Human Rights in these sectors is still weak (following the 2017 results) with
the average overall score for 2018 being 27% (an increase of 9 percentage
points from last year), demonstrating a lack of respect for human rights. The
Report identifies that due diligence is a key weakness of the companies that
were reviewed, with 40% of companies scoring no points with respect to the due
diligence indicator. Other issues identified were the lack of a strong
commitment to ensuring that there are ‘living wages’ paid to those working in
company operations and supply chains and the failure to meet expectations with
respect to preventing child labour in supply chains. Read the 2018 Key Findings
Report here.
Australian
MSA passes both houses of Parliament
On 29 November 2018, the Modern Slavery Bill 2018 (Cth) passed
both houses of the Australian Parliament. Once enacted, the Act will require
Australian entities and entities carrying on a business in Australia that have
a consolidated revenue of at least $100 million to prepare a Modern Slavery
Statement covering mandatory criteria. Criteria that such entities will have to
report on include the risks of modern slavery practices in their operations and
supply chains and the actions they take to assess and address those risks,
including due diligence and remediation processes. It is likely that the Act
will come into effect on 1 January 2019 and accordingly the first Modern
Slavery Statements will be due by 1 January 2021. 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.
Over the past
couple of years, there has been an international trend towards greater
regulation and transparency with respect to modern slavery in corporate supply
chains as reports of gross human rights violations in corporate supply chains
have entered the public spotlight. For example, over the past couple of years
there has been extensive
media attention in relation to the use of slaves trafficked from Cambodia,
Laos, Bangladesh and Myanmar to work on Thai fishing boats to catch fish to be
sold around the globe, with the boats considered to be ‘floating labor camps’. As
a result of events such as this, there has been increased pressure on
businesses to take steps to address modern slavery in their supply chains
through processes such as through conducting risk assessments and due
diligence.
As the Ethical Trading Initiative notes, key risks facing companies in their
supply chains include the use of migrant workers; the use of child labour;
recruitment fees and debt bondage; the use of agency workers and temporary
labour; working hours and wages; and the use of subcontractors. In 2016 the Global Slavery Index reported that 40.3 million people are living in
modern slavery across 167 countries, and in 2014 the ILO estimated that forced labour in the private economy generates
US$150 billion in illegal profits per year.
In March 2015,
the UK Government passed the UK Modern
Slavery Act 2015 (the Act), game-changing legislation that targets, inter
alia, slavery and trafficking in corporate supply chains. The UK Government
also published guidance explaining how businesses should comply with the
Act.
This first blog
of a series of articles dedicated to the global modern slavery developments
provides an overview of the main elements of the Act and how businesses have
responded to it. It will be followed by a review of the proposed Australian
MSA, and a final piece on the developments in other jurisdictions that are considering
introducing legislation regulating modern slavery in the corporate context. More...
Editor’s note: Imke B.L.H. van Gardingen (LLM Int. and EU labour
law, MA Korean Studies) is a policy advisor on labour migration at the Dutch
Federation of Trade Unions (FNV) and a researcher on DPRK overseas labour.
On November 8, 2018 a North Korean
overseas worker who had worked in slave like conditions for a Polish shipyard,
a supplier of a Dutch shipbuilding company, has filed a criminal complaint
against the Dutch firm. The Dutch Penal Code, article 273f(6), includes a
provision criminalizing the act of ‘profiting’ from labour exploitation,
targeting not the direct perpetrators in the labour exploitation, but the ones
profiting from this exploitation. This is a unique case that aims to hold the
company at the top of the chain accountable for modern slavery in its supply
chain. A chain that in the case of shipbuilding is rather short; the buyer
subcontracts the core business of building the complete hull under detailed
instructions cheaply abroad. More...
Editor's note: Sara Martinetto is a research intern at the T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.
In my previous
blog, I
explained how the negotiations on a prospective Treaty on Business and Human
Rights are going hand-in-hand with the implementation of the United
Nations Guiding Principles on Business and Human Rights
(UNGPs). The Principles – developed by Professor John Ruggie, and approved by
the UN Human Rights Council in 2011 – have attracted widespread consensus among
both States and corporations.[1] Nowadays, the UNGPs are regarded as crucial to
hold corporations accountable for human rights abuses connected to their
activities. However, the UNGPs are not binding, and they need to be operationalized
in national law, as reaffirmed in Human Right Council Resolution
26/22. To date, National Action Plans[2]
appear as the preferred tool to transpose the Principles into national law. Nevertheless,
their provisions are often of a descriptive nature, resembling more a
declaration of intent rather than an effective implementation of the UNGPs.[3]
Only recently, some States have actually adopted hard law instruments on Business
and Human Rights, and the UK
Modern Slavery Act (2015) is one of them. The Act, aimed at
tackling modern slavery and human trafficking, was sponsored by Theresa May and
Lord Bates in 2014 and came into force on 29 October 2015.
Almost
two years from the entry into force of the Act, this post aims at giving a
brief account of what the Modern Slavery Act is and how it has been applied so
far. The main focus will be on Section
54 of the Act (‘Transparency
in the supply chain’), which prescribes a reporting obligation for
corporations. More...