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 72^nd 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.

Torture and capital punishment under international law, state of legality and reality?

The use of torture is prohibited by Article 5 of the Universal Declaration of Human Rights and by Article 7 of the International Covenant on Civil and Political Rights (ICCPR). The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, outlawing the practice of torture, has been ratified by 158 countries and most regional human rights treaties equally proscribe it. The prohibition of torture under international law is so established that it became a peremptory norm of international law, meaning that it is absolute and applies to all states, in all circumstances.

By contrast, the death penalty is not illegal under international law. Indeed, Article 6 of the ICCPR permits its use under certain circumstances. Capital punishment can be applied following a judgment rendered by a Court, for the most serious crimes and in accordance with the law. The provision nevertheless provides that –“nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment”–. The Second Optional Protocol to the ICCPR, binding on its 85 state parties, prohibits capital punishment. There is a global trend to abolish the death penalty, as was recognised by the adoption of several UN General Assembly resolutions demanding a moratorium on executions. The resolutions urged states to respect the UN Economic and Social Council’s Safeguards guaranteeing the protection of the rights of those facing the death penalty, as well as to restrict the use of offences punishable by death.

Despite the complete prohibition of torture and the partial prohibition of the death penalty, the reality is alarming. According to Amnesty International, torture is still used in 140 states, either in isolated cases or systematically. In a 2014 report, the NGO found that 79 state parties to the Convention against Torture were still practising it. The death penalty is still applied in 25 countries and an estimate of 20,292 people are awaiting execution worldwide. This figure does not include the application of capital punishment in China, as the country does not publish official data. Available information nevertheless indicates that thousands of people are executed in the country every year. There is therefore a clear discrepancy between the legal framework surrounding the use of torture and death penalty and the reality in practice.

Why? A macabre but booming business, barely regulated…

According to Amnesty International and the Omega Research Foundation the discrepancy can be explained by the international trade in torture goods which is currently out of control. The goods of torture extend from mechanical restrain devices, to direct contact electric shock weapons, body worn electric shock devices, riot control agents, kinetic impact devices as well as pharmaceutical drugs used in lethal injections. They can be separated in two categories: the inherently inhumane equipment and the tools which, if used in conformity with human rights obligations, can have a legitimate use (such as in law enforcement).

The lack of trade regulations on such goods fuels a depressing reality where torture and execution tools are freely traded, transited and marketed around the globe. A report by the Institute for Security Studies (ISS) found for example that Force Products, a South African company was manufacturing a range of prohibited electric shock equipment. The company was then trading it with companies in Africa, America, Asia and Europe, who were subsequently in charge of distributing the equipment locally. Other companies such as Imperial Armour have exhibited the abusive equipment at international trade exhibitions in the Middle East and North Africa region and Europe. In light of those findings, the ISS and the Omega Research Foundation call for a prohibition on law-enforcement equipment that has no other purpose than torture or degrading treatment.

At present, no global binding legal instrument regulates the torture trade. The UN General Assembly has called for a ban on the production and trade of torture tools in resolutions 67/161 and 70/146, in respectively 2013 and 2016. The UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has repeatedly pushed for the introduction of controls in that trade area.

On the regional level, however, more initiatives have already been taken. The African Union agreed in 2002 to prescribe, in the Robben Island Guidelines, the –“use, production and trade of equipment or substance designed to inflict torture and the abuse of any other equipment or substance to these ends”–. The Guidelines, however, are not binding on the member states and have only a supporting role in the interpretation of the African Charter on Human and People’s Rights. The EU, on the other hand, has established a unique binding system of multilateral trade controls to outlaw the international trade in torture and capital punishment equipment.

The only example in the world of a binding system: the EU Council Regulation 1236/2005 and following amendments

The EU Council Regulation No. 1236/2005,  -and its evolution through the 2011 and 2014 amendments culminating into Regulation No. 2016/2134, forms the most comprehensive trade control regime on tools used for capital punishment and torture. Under EU law, regulations are directly applicable in, and legally binding on, all the member states of the Union. As such, it constitutes a unique example of a binding system regulating the torture trade.

The 2005 Regulation banned the import and export of two types of torture goods: the prohibited and the controlled goods. The first category of goods, subject to a complete ban, are those which can only be used for torture or applying the death penalty. The second category concerned goods that could be used for such purposes, but which have been designed for other reasons, such as law enforcement or medicinal use. Those goods were subject to trade control which required a specific authorisation by national authorities on a case-by-case basis. In 2011, the list of products covered by the Regulation was extended to include an export ban on drugs which could be used in lethal injections, such as the anaesthetic sodium thiopenthal. In 2014, the European Commission established the Commission Implementing Regulation No. 775/2014, which further expanded the list of goods falling within the scope of the regulation. Tools deemed unsuitable for use by law enforcement, for instance abusive restraint equipment, were also included in the trade ban.

Despite these changes, the 2005 regulation was highly criticised for the legal loopholes it contained and civil societies organisations highlighted several issues with the trade control system. First, even if the torture trade was forbidden in the EU, the equipment was nevertheless promoted in arms trade fairs and exhibitions in France, Germany or the UK. Second, companies in the Czech Republic, France, Germany, Poland and Slovenia were promoting new goods, completely unfit for use by law enforcement agencies, but which were not forbidden under the regulation. Third, there was a lack of control on brokering services regarding such goods and on the transit of goods within the Union. Indeed, the regulation did not expressly forbid the transit of goods coming from non-EU countries to a destination in a third country, leading to prohibited goods passing through EU ports and airports.

Consequently, in 2016 the EU Parliament adopted amendments to the 2005 regime in Regulation No. 2016/2134 in order to strengthen the existing system. The new legislation bans the transit of prohibited products within the EU, prohibits the display at EU fairs and forbids general promotion of torture and capital punishment equipment. It also outlaws the provision of brokering services, such as technical assistance for installation, repair and maintenance of the prohibited equipment. Finally, the 2016 amendments introduces a fast-track procedure to add new goods on the list, in order to face the technological evolution in the torture trade.

The current system with its established modifications has yielded positive results and has led to the decrease of the trade of goods used for torture and capital punishment within the EU. The EU ban on torture trade is part of its broader commitment to advocate the global end of torture and capital punishment in the framework of its Common Foreign and Security Policy. Given the success of the EU ban, the EU Trade Commissioner decided to take the initiative to the international fora.

The need for a global Alliance and the four step approach

The Alliance for Torture-Free Trade was initiated by Argentina, the EU and Mongolia. Argentina has ratified the ICCPR 2^nd Optional Protocol in 2008 and has, ever since, been very active internationally by mobilising support to abolish the death penalty worldwide. It has, among others, drafted the 6^th UN General Assembly resolution on a moratorium on the use of the death penalty with Mongolia. The latter abolished the death penalty in 2015 and is leading by example in a region where torture and executions are common practice. Together, they joined the EU around the idea that trade is positive but that it has to be based on values.

Drawing from the effectiveness of the EU ban, the three actors realised that such a global problem was calling for a global response. Indeed, those who produce and trade torture goods are constantly modifying their routes to circumvent domestic laws. The Alliance for Torture-Free Trade was thus created and opened to any state who has ratified the 2^nd Protocol to the ICCPR. On 18 September 2017, 58 states signed the political declaration and joined the Alliance.

By signing the declaration, states agree to follow a four-step approach in order to ban the torture trade. First, the states consent to taking measures to control and restrict the exports of these goods. Second, they commit themselves to provide the custom authorities with the appropriate tools to fight those perpetrating the trade. Third, the participating states agree to give assistance to countries in need of help to set up and implement the laws banning the trade. Finally, the states will exchange best practices for control and enforcement system. Additionally, a platform will be created in order to share information, monitor trade flows, and identify new objects appearing on the market.

The Alliance for Torture-Free Trade’s ambition is to first bring like-minded countries together by signing a political commitment to banning the trade in goods that can be used for torture or capital punishment. Then, it is aimed at fostering a global effort to help local customs identify and track the torture trade transit. Eventually, the ultimate goal of the Alliance is to see the creation of a legally binding treaty under the auspices of the UN. In the absence of such a legally binding commitment, however, one could wonder if the Alliance is currently more than merely a token exercise.

The Alliance on Torture-Free Trade: a token exercise or an ambitious promise?

The political character of the Alliance and of the declaration can cast doubts on its effective implementation and potential success. Indeed, its efficiency heavily relies on the goodwill of the participating states. Even though the commitments are not legally binding, several means have been identified to ensure that individuals, companies and governments align with the Alliance in the state concerned.

According to Member of the European Parliament Marietje Schaake, one of the crucial steps to ensure the success of the Alliance is to establish individual accountability mechanisms for breaches of the ban. Article 17 of the 2005 Regulation required member states to put in place –“effective, proportionate and dissuasive penalties”– for violations of its provisions. Similarly, states who have joined the Alliance should introduce such provisions in their domestic legal system in order to deter possible infringement and ensure the decrease of the torture trade within their borders. By adopting a legal deterrent for those who engage in the torture trade, individuals and companies are more likely to increase their cooperation with the Alliance.

These legal deterrents can, in turn, affect states which have not accepted the declaration by reducing their material capacity to use torture or capital punishment. There are signs, for example, that the EU 2011 export ban on sodium thiopenthal has been effective in diminishing the number of US executions. In the US, lethal injection is the prevailing method for the death penalty and requires the use of sodium thiopenthal. The EU ban on the drug has created a shortage in the US, leading to a clear decrease in the number of executions.

The UN Assistant Secretary General also believes that the financial and reputational risks can encourage states and corporations to comply with restrictions promoted by the Alliance. This claim seems to be corroborated by the actions of the pharmaceutical industry worldwide. Since the EU ban on sodium thiopenthal, the US main pharmaceutical companies have decided to stop producing the drug, because of the tarnished image it engendered. The Indian company Kayem Pharmaceuticals also refrained from selling the drug to the US because of its misuse in lethal injections, inconsistent with the firm’s Hinduist values.

Moreover, foreign ministries promoting national companies that do not respect the ban on torture and death penalty goods would also see their reputation damaged. If this reputational incentive holds, Members of the Alliance will be likely to apply the four guidelines, establish the relevant laws domestically and share information with other members. By expanding the geographical reach of the ban on torture and capital punishment tools, the Alliance could therefore reduce their trade on the global level. It is too early to say whether this soft implementation of the Alliance’s goals and proposals will lead to encouraging results. In light of the European success story, one can nevertheless be hopeful about the possibilities of reducing this despicable trade.

Concluding remarks: 

The Alliance for Torture-Free Trade offers a softer perspective on the fulfillment of  -international human rights law obligations, by directly- addressing the trade which enables abuses to be perpetrated. The creation of a global comprehensive trade control regime on tools used for capital punishment and torture, such as the currently effective EU one, could lead to the decrease of such abusive practices worldwide. The ultimate solution seems to be the creation of a binding treaty prohibiting the torture trade under the auspices of the UN, which would compel states and private actors to respect human rights while engaging in business relations. Until then, only time will reveal the success of the political Alliance and whether, as Cecilia Malmström put forward, political commitments can indeed “be a way to strengthen human rights around the globe.”

Editor's note: Mercedes is a recent graduate of the LL.B. dual-degree programme English and German Law, which is taught jointly by University College London (UCL) and the University of Cologne. She will sit the German state exam in early 2022. Alongside her studies, she is working as student research assistant at the Institute for International and Foreign Private Law in Cologne. Since September 2020, she joined the Asser Institute as a research intern for the Doing Business Right project.

In Part II of this blog series, I intend to outline the different proposals for a Lieferkettengesetz. First, the Initiative Lieferkettengesetz’s model law, secondly the proposal submitted by the Ministry for Labour and Social Affairs and the Ministry for Economic Cooperation and Development, and lastly, I will present the amendments pushed by the business sector and the Ministry for Economic Affairs and Energy.

Initiative Lieferkettengesetz model law

The Initiative Lieferkettengesetz, a consortium of over 110 NGOs, presented their model law in early 2020. It draws inspiration from the ECCJ’s position paper “Key Features of Mandatory Human Rights Due Diligence.”

The scope of application of the model law covers companies with over 250 employees. However, if a business operates in a high-risk sector, it would have to implement human rights due diligence into its global supply chain even if it employs fewer than 250 people. Examples of high-risk sectors include the manufacturing of arms, the chemical and automotive industry, financial services and many others. Initiative Lieferkettengesetz also advocates for certification and auditing services to be included in the list of sectors that pose great risk for human rights and the environment; this is because this sector lacks adequate regulation, is prone to corruption and errors – with often devastating consequences.

The Initiative Lieferkettengesetz demands that not only companies that have their seat in Germany be covered by Supply Chain Regulation. Instead, all companies that show a ‘genuine link’ to Germany should be included in the scope of application. They argue for the clause to be drafted similarly to sec 54(12) Modern Slavery Act 2015, adding the following clarification: The company must either have an administrative seat, permanent establishments (i.e. branches, factories, storage facilities etc.), permanent representatives on German territory or provide German companies with some form of service at least twice a year. Foreign companies, the shares of which are sold on the German stock market, should also be covered by the model law. Initiative Lieferkettengesetz explicitly excludes mere investments in Germany.

In outlining the due diligence requirement, Initiative Lieferkettengesetz builds on the individual aspects set out in the UNGPs: (1) policy statement; (2) risk analysis; (3) countermeasures; (4) reporting; (5) grievance mechanism.

The risk analysis should be carried out once a year at the minimum. Ideally, it ought to be carried out before every strategic decision. It encompasses factual and potential risks to human rights and the environment. Risks need to be assessed according to how likely they are to occur, the extent of potential damage caused, the importance of the legal interest that needs to be protected, and the scope for restitution. On the basis of this risk analysis, businesses should implement countermeasures to prevent or mitigate any harm to human rights and the environment caused by their business activity.

The scope of the duty covers human and labor rights as well as environmental standards. The model law explicitly refers to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, nine ILO Conventions, and four UN Conventions. Where company’s business activity is linked to production of arms or surveillance technologies, the scope of duty should also cover the Geneva Conventions with their additional protocols. The necessary standard of care to be adopted in the due diligence analysis hinges upon the term ‘appropriateness’. The ‘appropriateness’ of a measure depends on size, business activity, nexus between business activity and risk, and the severity of the threat to human rights and the environment. There is not one ready-made solution for every risk occurring in supply chains; that is why the model law provides some flexibility to companies in order to determine the most efficient measure that needs to be implemented. Initiative Lieferkettengesetz emphasizes that it is not enough to take part in multi-stakeholder sectorial initiatives or outsource their obligation to auditing or certification services in order to discharge the duty to implement countermeasures. Moreover, companies should internally document their risk analysis and countermeasures and should also regularly submit reports to the Government.

Initiative Lieferkettengesetz proposes an array of sanctions in case of breach of duty: fines, exclusion from public procurement and foreign trade promotion, and crucially, civil liability.

Civil liability in German law is based on § 823(1) of the Civil Code (BGB), which protects narrowly interpreted legal interests –bodily integrity, health, liberty, property and ‘others’, i.e. privacy.  The Initiative Lieferkettengesetz proposes to add a clause in the model law which states that human and labor rights, found in the treaties ratified by Germany, ought to be integrated to the legal interests protected by § 823(1) BGB. Where necessary, they should fall under ‘other’.

German scholars often criticize that human rights do not have any legal ‘contours’; that they are too vague to justify civil liability. The Initiative Lieferkettengesetz counterargues by comparing them to other ‘vague’ legal interests such as privacy. In order to determine if someone’s right to privacy was breached, courts engage in an analysis of proportionality: the finding that a breach of privacy occurred depends on how likely, severe, foreseeable and avoidable any harm caused was.

Considering how difficult it is for the claimant to gather evidence in the case of human rights atrocities occurring in global supply chains, Initiative Lieferkettengesetz suggests that the claimant should benefit from a reversed burden of proof: It ought to be upon the company to prove that the harm to human rights or the environment was neither foreseeable nor avoidable by implementing appropriate measures.

Crucially, the supply chain law should be characterized as overriding mandatory provision in line with Article 16 Rome II. As a result, even if rules of private international led to the application of foreign tort law, the provisions of the Lieferkettengesetz would still be given effect to.

Government’s position paper (Eckpunkte)

During their party conferences in November and December 2019, both the CDU (Christian Democratic Union) and the SPD (Social Democratic Party) came out in support for the Lieferkettengesetz. Ministers Hubertus Heil (Minister of Labour and Social Affairs, SPD) and Gerd Müller (Minister for Economic Cooperation and Development, CSU [Christian Social Union, the CDU’s Bavarian affiliate]) took it upon them to draft the government’s position paper (Eckpunkteplan) which would eventually serve as basis for any further draft.

They intended to present their paper to the public on 10 March 2020 and had already scheduled a press conference. After pressure from the Chancellery (Ministry that supports Chancellor Merkel in the execution of her duties), which in turn appeared to have been pressured by the business sector, they cancelled the press conference.

Their internal position paper, however, leaked in February 2019, causing outrage among German business representatives. It was portrayed as ‘harmful’ and based on ‘arbitrary monitoring’. The president of the Federal Employers’ Association (Bundesvereinigung der Deutschen Arbeitgeber) even exclaimed that with such a law, he would already have ‘one foot in prison’.

In June 2020, the two Ministries published a new version of the position paper. If one compares the position paper to the model law presented by Initiative Lieferkettengesetz, it becomes clear that Heil and Müller opted for a watered-down version of the law. The scope of application is limited to companies with over 500 employees. It does not account for smaller businesses, which operate in particularly high-risk industries. The Lieferkettengesetz will only be applicable to companies that either have their seat in Germany or which can show a ‘strong link’ to Germany. The position paper further clarifies that the requirement of a ‘strong link’ is fulfilled if businesses make strategic decisions in Germany; mere business activity does not suffice.

Due diligence comprises four aspects: (1) risk analysis; (2) effective countermeasures; (3) grievance mechanism; (4) reporting. Just like with the model law, companies will have to analyze how their business activity affects human rights internationally. However, the Eckpunkteplan does not refer to human rights treaties. Instead, it points to human rights risks: forced labor, child labor, discrimination, freedom of association, workers’ rights, violation of property rights. Protection is limited to the particular legal interests enshrined in § 823(1) BGB (bodily integrity, health, liberty, property and privacy). Crucially, environmental damage and corruption are in themselves not part of the risk analysis; they merely constitute factors to consider. Furthermore, the companies’ human rights due diligence does not include any obligation to engage with relevant stakeholders. 

Claimants do not benefit of a reversed burden of proof. Commentators further criticize that the position paper includes a possibility for companies to limit their liability to cases of gross negligence or intent by participating in state-accredited sectoral initiatives. This is considered regrettable because sectoral initiatives such as the ‘Green Button’ have proven to be of limited impact. Such a provision opens a way for businesses to relatively easily escape liability altogether. Lastly, the position paper provides for the law to come into force three years after it had been passed. 

The position paper should have been presented to the Cabinet in March 2020, but the Cabinet’s meeting was postponed due to Covid. Peter Altmaier, Minister of Economic Affairs and Energy (CDU), does not seem to be in a rush to discuss the Eckpunkteplan. He blocked another meeting in August. This is particularly problematic because proper procedure demands that the position paper is discussed before drafting begins. If Cabinet does not discuss the position paper this autumn, there will be no possibility to adopt the Lieferkettengesetz before the general election in autumn of 2021.

Even if Altmaier cannot postpone its passing, he at least tries to ensure the law is further watered down beyond recognition. Altmaier forcefully demands that the scope of application is limited to companies with over 5,000 employees – of which only 250 exist in Germany. While one can argue that the number of employees is open to compromise, there are aspect of the law that are non-negotiable. Altmaier strongly opposes any imposition of civil liability and exclusion from public procurement. NGOs fear that by giving in to these demands, the Lieferkettengesetz will become toothless.

The current political situation shows how much power the Ministry of Economic Affairs and Energy holds. Altmaier comes close to having a veto right – even though officially, all ministries carry equal weight in the negotiations. This is particularly dangerous because, as official documents show, the Ministry of Economic Affairs and Energy has close personal ties to industry representatives and business lobby groups.

Nevertheless, there are reasons to remain hopeful. Looking at the political and societal context prevailing in France before the loi de vigilance was passed, one can draw many parallels to the situation in Germany: Even though Altmaier seems to believe that global markets can self-regulate and that voluntary commitments are enough, many other Ministries and, crucially, Chancellor Merkel, do not. Furthermore, there is a strong NGO alliance mobilizing the German public in favor of binding legislation – and it is currently supported by 76% of the public. Public campaigns, protests and conferences put pressure on politicians. Thanks to the French campaigners in the early 2010s, it is now clear that binding legislation is achievable. Despite the lack of cooperation from the Ministry of Economic Affairs and Energy, a Lieferkettengesetz is as close as it has ever been.

Conclusion

There are reasons to believe that the Lieferkettengesetz is not only feasible, but also in sight. While NGOs provided a very ambitious and thorough model law, the government’s position paper would also constitute a step into the right direction – at least if Altmaier and the Ministry of Economic Affairs and Energy fail in bending the text further towards businesses’ needs.

In order for the Lieferkettengesetz to be passed this term, Cabinet will need to discuss the position paper this autumn. Timing is of particular importance: While Chancellor Merkel has come out in support of binding legislation, it is unclear whether her successor will do so, too.

The German debate has also important repercussions at the European level, as Germany is currently occupying the Presidency of the Council of the EU. In this context, the German government has publicly committed to pushing for substantive, cross-sectoral and mandatory human rights due diligence regulation. If the German public keeps the pressure on and the political stars align, 2020 could even be remembered as the birth year of a new brand of corporate responsibility made in Germany.