Artificial Intelligence and Human Rights Due Diligence – Part 1. Integrating AI into the HRDD process - By Samuel Brobby

Editor's note: Samuel Brobby graduated from Maastricht University's Globalisation and Law LLM specialising in Human Rights in September 2020. A special interest in HRDD carries his research through various topics such as: the intersection between AI and HRDD, the French Devoir de Vigilance or mHRDD at the EU level. Since April 2021 he has joined the Asser Institute as a research intern for the Doing Business Right project.


The recent surge in developments and debate surrounding Artificial Intelligence (AI) have been business centric, naturally so. The conversation has long been centred on the possible gains “digitally conscious” companies can recoup from their sizeable investments in the various forms this technology can take. The ink continues to flow as numerous articles are released daily; debating between the ultimate power of artificial intelligence (and topical subsets like machine learning) on the one hand, versus the comparatively more philistinish views regarding what these technologies can offer on the other. Our objective here is not to pick a side on the AI debate. Rather, we would like to explore the Business & Human Rights implications of the development of AI and, in particular its intersection with the human rights due diligence (HRDD) processes enshrined in the UN Guiding Principles on Business and Human Rights and subsequent declinations. How compatible is AI with HRDD obligations? Where does AI fit into the HRDD process? Can AI be used as a tool to further HRDD obligations? Can the HRDD process, in return, have an effect on the elaboration and progress of AI and its use in transnational business? And, to which extent will the roll out of AI be affected by HRDD obligations? These are all questions we hope to tackle in this blog.

In short, it seems two distinct shifts are occurring, rather opportunely, in close time frames. The impending mass adoption of AI in transnational business will have strong consequences for the state of Human Rights. This adoption is not only substantiated by an uptick of AI in business, but also in policy documents produced or endorsed by leading institutions such as the ILO or the OECD for instance. Inversely, we must consider that HRDD obligations elaborated by the BHR community will also have strong implications for the development and roll out of AI. These two transformations will interact increasingly as their positions are consolidated. It is these interactions that we wish to analyse in the two parts of this article. Namely, the emergence of Artificial intelligence as a tool to shape and further HRDD obligations (1) and the emergence of HRDD as a process to shape the development of AI (2). More...


New Event! Human Rights and the Immunity of International Financial Institutions - Reflections on Jam v. IFC - 24 April - Asser Institute

On 27 February 2019, in a 7-1 decision, the US Supreme Court made an end to the absolute immunity from suit that international organisations (IOs) had consistently enjoyed in US courts. The decision realigns the immunity regime for IOs with that for foreign states, which leaves the opportunity to sue organisations such as the International Finance Corporation (IFC) when they engage in commercial activities. In a flare of enthusiasm among academics and (human rights) activists, the decision was immediately granted a landmark​ status and marked as a turning point in the long history of impunity for social, ecological and human harm caused by the activities of IOs. This Doing Business Right Talk ​will summarise the reasoning in the decision and explore the foreseeable effects on the legal accountability of IOs, and international financial institutions in particular. The most immediate effect, in that sense, might not be located on the avenue of adjudication, but in the various accountability mechanisms that have been created within IOs themselves.


Dimitri van den Meerssche is a researcher in the Dispute Settlement and Adjudication strand at the T.M.C. Asser Instituut. His research reflects on the law of international organisations, international legal practices and technologies of global governance. This work is inspired by insights from science and technology studies, performativity theory and actor-network theory. Dimitri is currently finalising his doctoral dissertation at the European University Institute, which he expects to defend in winter 2019. His dissertation is entitled “The World Bank’s Lawyers – An Inquiry into the Life of Law as Institutional Practice”. In the context of this dissertation, Dimitri has worked for three months at the World Bank Legal Vice-Presidency and spent one semester as visiting doctoral researcher at the London School of Economics.


When: Wednesday 24 April 2019 at 16:00

Where: Asser Institute in The Hague

Register Here

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...

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...

Human Rights Protection and the FIFA World Cup: A Never-Ending Match? - By Daniela Heerdt

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...



New Event! The Jesner ruling of the U.S. Supreme Court: The ‘end of the beginning’ for corporate liability under the Alien Tort Statute - 24 May at the Asser Institute in The Hague

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


Speakers:

  • 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


Register here!

Ending torture and the death penalty through trade policy? The ambitious promise of the Global Alliance for Torture-Free Trade - By Marie Wilmet

Editor's Note: Marie Wilmet is a research intern in Public International Law at the Asser Institute. She recently graduated from Leiden University’s LL.M. in Public International Law. Her main fields of interest include international criminal law, humanitarian law and human rights law as well as counterterrorism.


The Alliance for Torture-Free Trade was launched on 18 September 2017, at the 72nd Session of the United Nations (UN) General Assembly, by a common initiative of Argentina, the European Union (EU) and Mongolia. It aims at ending the trade in goods used to carry out the death penalty and torture. Indeed, even though torture is unlawful under public international law, these goods are currently available on the open market across the globe. By banning such tools from global trade, the Alliance hopes to reduce the possible human rights violations by complicating the perpetrators’ acquisition of the means to execute and torture people.

This initiative is part of a broader agenda both at the UN and EU level. It falls under the broader umbrella of UN projects such as the UN Guiding Principles for Business and Human Rights or the UN Global Compact. Moreover, the EU has tried in the recent years to strengthen the rule of law by conducting policies where trade and values are more interrelated. As the EU Trade Commissioner Cecilia Malmström stated, “human rights cannot be treated as an afterthought when it comes to trade”.

This blog will first retrace the origins of the Alliance by outlining the current factual and legal framework surrounding torture, the death penalty and related trade. Then, the Alliance and its ambitions will be analysed, along with the chances of its effective implementation. More...




FIFA's Human Rights Agenda: Is the Game Beautiful Again? – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

 

Concerns about adverse human rights impacts related to FIFA's activities have intensified ever since its late 2010 decision to award the 2018 and 2022 World Cup to Russia and Qatar respectively. However, until recently, the world's governing body of football had done little to eliminate these concerns, thereby encouraging human rights advocates to exercise their critical eye on FIFA. 

In response to growing criticism, the Extraordinary FIFA Congress, held in February 2016, decided to include an explicit human rights commitment in the revised FIFA Statutes which came into force in April 2016. This commitment is encapsulated in Article 3 which reads as follows: ''FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights''. At around the same time, Professor John Ruggie, the author of the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles') presented in his report 25 specific recommendations for FIFA on how to further embed respect for human rights across its global operations. While praising the decision to make a human rights commitment part of the organization's constituent document, Ruggie concluded that ''FIFA does not have yet adequate systems in place enabling it to know and show that it respects human rights in practice''.[1]

With the 2018 World Cup in Russia less than a year away, the time is ripe to look at whether Ruggie's statement about FIFA's inability to respect human rights still holds true today. This blog outlines the most salient human rights risks related to FIFA's activities and offers a general overview of what the world's governing body of football did over the past twelve months to mitigate these risks. Information about FIFA's human rights activities is collected primarily from its Activity Update on Human Rights published alongside FIFA's Human Rights Policy in June 2017. More...

Who is afraid of a binding treaty? Stumbling Blocks on the Accountability of Transnational Corporations by Sara Martinetto

Editor's note: Sara Martinetto is an intern at 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.

 

Since the adoption by the UN Human Rights Council of Resolution 26/9 in 2014, an Open-ended Intergovernmental Working Group (WG) is working on a binding Treaty capable of holding transnational corporations accountable for human rights abuses. Elaborating on the proposal presented by Ecuador and South Africa, the WG has been holding periodical sessions. In much trepidation for what is supposed to be the start of substantive negotiations – scheduled for October 23-27, 2017 – it is worth summarising and highlighting the struggles this new instrument is likely to encounter, and investigating whether (and how) such an agreement could foster transnational corporations’ (TNCs) human rights compliance. More...

Why Doing Business Right?

Doing Business has been a (if not the) core concern for the post-WWII world order, leading up to contemporary economic globalisation and the ‘free’ movement of goods, capital and ideas across the globe. With our research project, and the launch of this companion blog, we aim to shift the focus towards Doing Business Right. Thanks to the financial crisis in 2008, there is growing awareness of the fact that Doing Business can lead to extremely adverse social and economic consequences. The trust in Doing Business as a cure-all to modernize, democratize, or civilize the world is fading. Moreover, the damaging externalities prompted by the operation of transnational economic activity are more and more visible. It has become harder, nowadays, to ignore the environmental and social consequences triggered elsewhere by our consumption patterns or by our reliance on certain energy industries. What does Doing Business Right mean? How does the law respond to the urge to do business right? What are the legal mechanisms used, or that could be used, to ensure that business is done in the right way? Can transnational business activity even be subjected to law in a globalized world?

This blog will offer an academic platform for scholars and practitioners interested in these questions. With your help we aim to investigate the multiple legal and regulatory constructs affecting transnational business conduct - ranging from public international law to internal corporate practices. We will do so by hosting in-depth case studies, but also more theoretical takes on the normative underpinnings of the idea of Doing Business Right. We aim to be inclusive in methodological terms, and believe that private and public, as well as national and international, legal (and...) scholars should come together to tackle a genuinely transnational phenomenon. Future posts will cover issues as diverse as national, EU, international, transnational regulations - including self-regulation, voluntary codes, and market-based regulatory instruments  - applying to transnational business conduct. Case law from the CJEU, international tribunals (ICJ, arbitral tribunals) and national courts, as well as decisions from international organisations, national agencies (such as competition authorities) will be recurring objects of discussion and analysis. Yet, our perspective is not solely focused on the (traditional) law: management practices of  companies and their effects will also be scrutinized.

This blog is thought as an open discursive space to engage and debate with a wide variety of actors and perspectives. We hope to get the attention of those who care about Doing Business Right, and to provide useful intellectual and legal weapons for their endeavours.

The Editors:

Antoine Duval is a Senior researcher at the Asser Institute since 2014. He holds a PhD from the European University Institute in Florence in which he scrutinized the interaction between EU law and the transnational private regulation of world sport, the lex sportiva. His research is mainly focused on transnational legal theory, international arbitration, and private regulation.  

Enrico Partiti is researcher at the Asser Institute since 2017. He holds a PhD from the University of Amsterdam on private standards for sustainability. His research interest lies at the intersection of EU and international economic law on the one hand, and private regulation for sustainability on the other. He studies the interactions and reciprocal influence between transnational public and private norms, and how they determine and impact on social and environmental sustainability in global value chains.

 

 

Doing Business Right Blog | Background Information to the Lundin Case - By Maisie Biggs

Background Information to the Lundin Case - By Maisie Biggs

The Asser Institute today is hosting the event Towards Criminal Liability of Corporations for Human Rights Violations: The Lundin Case in Sweden. Below is some relevant background to the case.


The Case:

Following its initiation in June 2010, the Swedish Prosecution Authority (SPA) recently concluded its investigation into the Swedish oil company Lundin Petroleum SA for aiding and abetting war crimes and crimes against humanity. 

Alex Schneiter (Lundin’s current CEO and head of exploration at the time of the harms) and Ian Lundin (Chairman and son of its founder) have received the final notice of the case from the SPA. The Swedish government approved the request to indict by prosecutors (as is necessary under Swedish law when investigating extraterritorial offences). The trial is projected to start in the summer of 2019, and the two men face life sentences if convicted.

While the two businessmen face personal charges, the company itself, Lundin Petroleum, also received a notification from the Swedish Prosecution Authority on 1 November 2018 that the company may be liable to a corporate fine and forfeiture of economic benefits. According to Miriam Ingeson and Alexandra Lily Kather, in the Swedish context “a corporate fine is not considered a penalty for a crime but is an extraordinary legal remedy serving as a repressive sanction supplanting corporate criminal liability.”[1]

In 2019, the Supreme Administrative Court denied Lundin’s appeal to override the Swedish Government’s decision to allow the prosecution, and Swedish police have opened a criminal investigation into harassment of witnesses in the case.

The 'Unpaid Debt' Report:

The case arose from a report by European Coalition on Oil in Sudan (ECOS) entitled Unpaid Debt. According to the Unpaid Debt report, a group of Sudanese civil society organisations called upon European Coalition on Oil in Sudan to assist with their pursuit of compensation and reparation for the harms perpetrated during Sudan’s oil wars.

The Accusations:

The Unpaid Debt report links Lundin Consortium’s commencement of oil exploitation with sparking war in Block 5A, and the company's construction of infrastructure with aiding in crimes against local communities and their consequent displacement. 

In February 1997, the Lundin Group signed an agreement for exploration and production rights in Block 5A in Southern Sudan. This oil concession area was located south of Bentiu on the West Bank of the White Nile in Western Upper Nile/Unity State. A Lundin subsidiary, IPC, was head of the consortium set up to explore the 5A oil field (40.4% stake). Malaysia’s Petronas Carigali Overseas (26.1%), Austria’s OMV (Sudan) Exploration (26.1%) and Sudan’s Sudapet (5%) composed up the remainder of the consortium.[2] 

“They signed a contract with the Government for the exploitation of oil in the concession area called Block 5A that was not at that time under full Government control. The start of oil exploitation set off a vicious war in the area. Between 1997 and 2003, international crimes were committed on a large scale in what was essentially a military campaign by the Government of Sudan to secure and take control of the oil fields in Block 5A.” [p 5 Unpaid Debt]

The Consortium worked on a road and an airstrip in collaboration with the Sudanese military, which allowed “systematic attacks” on villages that have been described as “an orgy of raiding and looting”.[3] The damages listed include forced displacement (changes in farming activity 1994-2003 evidence displacement from Block 5A); deaths; destruction of dwellings; destruction of livelihood; and looting and destruction of cattle. Lundin sold out of the area in question (what was then Sudan) in 2003.

PAX has stated:

“The crimes alleged in the Lundin case include the intentional targeting of civilians, violent displacement, deliberate destruction of livelihoods, rape, torture, arson, pillage, and the use of child soldiers. An estimated 12,000 people died and 160,000 were displaced in the area were the Lundin Consortium, which included Petronas from Malaysia and OMV from Austria, was active between 1997 and 2003.”

Lundin’s response:

Lundin has a SKr95.6bn ($10.6bn) market capitalisation, and 27.7 per cent of the company is owned by the Lundin family trust.[4]  

Concerning the ‘Unpaid Debt’ report: “This report makes false and baseless allegations against the Company when its subsidiary was the operator of Block 5A in Sudan between the period 1997 to 2003. The Prosecution Authority has evidently decided to largely take this report, as well as other reports written by different NGOs, at face value. These reports contain many inaccuracies and deficiencies with multiple layers of hearsay and information taken from propaganda materials and sources, which was a common theme of the conflict in the wider country”

Concerning the case: “The suspicions are based on a biased and wrongful perception of criminal liability for conducting legitimate business activities and, as far as we are aware, this has never been previously tried in any national or international court. The Prosecution Authority is looking to establish a test case by applying a standard which extends beyond international law for responsibility of individuals and companies for alleged actions of a sovereign state. Far from being indifferent to the conflict, which erupted in the region during the period, the Company did everything in its power to promote peace through peaceful means.”

The Country:

Swedish prosecutors have universal jurisdiction for particular international crimes – it was used in past to prosecute three individuals involved in the Rwandan genocide, and The Stockholm District Court has tried several cases of war crimes and crimes against humanity committed during the Balkan Wars. The first case in Sweden convicting an individual for violations of international criminal or humanitarian law was that of Jackie Arklöv by the Stockholm district court on 18 December 2006 for crimes perpetrated against prisoners of war in the Balkan conflict.

Government authorisation is necessary in these cases for prosecution due to extraterritorial elements:

“The requirement of authorization is due to the structure of the rules on extraterritorial jurisdiction enshrined in the second chapter of the Penal Code. Chapter 2, Section 3 provides for extraterritorial jurisdiction for war crimes based on the universality principle, as well as for any grave crime carrying a minimum penalty of four years in prison. The latter category enables Sweden to fulfill obligations in international cooperation and proactively pursue violations of national interest based on the passive nationality and protective principle.” [5]


In this case, Lundin appealed the government’s decision, however this appeal was unsuccessful. 

Wider interest:

Prosecutions for the involvement of corporate actors in international crimes are rare, so this case is being observed closely. Though the Swedish system does not allow for criminal liability for the corporation itself, the closest punitive equivalent is being levelled at Lundin, and company directors are facing criminal prosecution. Between this and the French Lafarge case concerning corporate criminal liability for international crimes in Syria,[6] it appears that some European courts are becoming more willing to draw the line between far-off international crimes and their own European-headquartered companies.

For more context concerning the historical liability of corporate actors under international criminal law, see the parts one and two of this blog’s International Criminal Law and Corporate Actors series. 


[1] Miriam Ingeson and Alexandra Lily Kather, ‘The Road Less Traveled: How Corporate Directors Could be Held Individually Liable in Sweden for Corporate Atrocity Crimes Abroad’.

[2] See https://www.newframe.com/lundins-south-sudan-ties-hit-south-african-shores/

[3] Unpaid Debt report, p 31.

[4] See https://www.ft.com/content/c7295ae6-d2cf-11e8-a9f2-7574db66bcd5

[5] Miriam Ingeson and Alexandra Lily Kather, ‘The Road Less Traveled: How Corporate Directors Could be Held Individually Liable in Sweden for Corporate Atrocity Crimes Abroad’.

[6] For more background on this case, see the previous Doing Business Right post by Alexandru Tofan.

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