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.

History of the Concept of HRDD

The concept of due diligence was around well before John Ruggie assumed the mandate of Special Representative on the issue of human rights and transnational corporations and other business enterprises back in 2005. Indeed the concept was initially a creature of American securities law under the auspices of ‘reasonable investigation’. The Securities Act 1933 imposes strict civil liability on certain people for untrue statements and omissions of material fact in a securities registration statement.[1] However, an exception is carved out where ‘reasonable investigations’ have been undertaken.[2] The relevant standard of reasonableness to be applied in this situation is that of a ‘prudent man in the management of his own property’.[3]

Following this, the concept of due diligence emerged in other corporate contexts, particularly with respect to financial transactions such as mergers and acquisitions.[4] While the due diligence carried out on such transactions in the 1980s was quite limited, the process has gradually become much more extensive. Over time, the concept has been transplanted into the international human rights law framework – a positive duty has been imposed on states to conduct due diligence to prevent human rights violations by non-state actors, including businesses.[5] Thus, in the international human rights law arena due diligence has been applied as a standard of conduct that states are required to meet in order to uphold human rights within their jurisdiction.

In the business and human rights sphere, the concept of due diligence was first introduced back in 2003 when the draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (draft Norms) were introduced. Article 1 of the draft Norms placed a primary responsibility on states to ensure that businesses respect human rights. It also placed a separate obligation on businesses ‘to promote, secure the fulfillment of, respect, ensure respect of and protect human rights recognized in international as well as national law’ within their sphere of influence. The commentary to article 1 notes that businesses have the responsibility to use ‘due diligence in ensuring that their activities do not contribute directly or indirectly to human rights abuses, and that they do not directly or indirectly benefit from abuses of which they were aware or ought to have been aware’. No further explanation was provided on the due diligence to be conducted and the draft Norms were not approved by the Human Rights Council in 2004.

The concept of due diligence was brought back into the business and human rights arena when Ruggie was appointed as Special Representative. Following the failure of the draft Norms, Ruggie introduced the concept of HRDD back into the international arena in 2008 and developed it over a period of about three years until the UNGPs were endorsed by the UN Human Rights Council. As he acknowledges, until then due diligence was considered a ‘business process’ used in ‘strictly transactional terms’.[6] However, Ruggie sought to broaden the concept into ‘a comprehensive, proactive attempt to uncover human rights risks, actual and potential, over the entire life cycle of a project or business activity, with the aim of avoiding and mitigating those risks.’[7] He did this by drawing on the key elements of due diligence and combining them with the distinctive elements of human rights. This is what is now referred to and articulated as the concept of HRDD in the UNGPs. Ruggie gave HRDD such a key role in Pillar 2 of the UNGPs because he recognised that companies cannot know or show that they are respecting human rights without conducting HRDD.[8] Indeed, he envisioned that HRDD would facilitate movement from ‘naming and shaming’ businesses by external stakeholders to ‘knowing and showing’ through internalising respect for human rights.[9]

Ruggie identified a number of benefits to business for undertaking HRDD, in particular he highlighted that it wouldn’t impose additional burdens on business.[10] He argued that HRDD assists business to ‘address their responsibilities to individuals and communities that they impact and their responsibilities to shareholders, thereby protecting both values and value’.[11] He further acknowledged that HRDD assists companies to lower their risks, particularly with respect to legal non-compliance.[12] He also noted that conducting HRDD has the ability to protect Boards against claims brought by shareholders regarding mismanagement.[13]

In setting out the scope of HRDD, Ruggie stated that it is to be ‘determined by the context in which a company is operating, its activities, and the relationships associated with those activities’[14] by reference to three factors, namely: (a) the country and local context in which the relevant business activities take place; (b) what human rights impacts the business’ own activities may have within that context; and (c) whether the business’ own activities might contribute to abuse through the relationships connected to their activities.[15] Importantly, he noted that the scope of HRDD is not fixed or based on influence, rather it ‘depends on the potential and actual human rights impacts resulting from a company’s business activities and the relationships connected to those activities’.[16]

With respect to the substantive content of HRDD, John Ruggie stated that the minimum requirements are set out in the International Bill of Human Rights and the ILO core conventions, as well as additional standards relevant to the context of a particular business such as international humanitarian law.[17]

As to the HRDD process itself, Ruggie set out four minimum requirements. Businesses should:[18]

• Adopt a human rights policy.
• Conduct human rights impact assessments to ‘understand how existing and proposed activities may affect human rights’.
• Integrate human rights policies through the business, which requires a top down approach in order to ‘embed respect for human rights throughout a company’ as well as training and the ‘capacity to respond appropriately when unforeseen situations arise’.
• Track their performance through monitoring and auditing processes with regular updates of human rights impact and performance.

Following these developments, the HRDD concept was finally articulated in the UNGPs, which were endorsed by the UN General Assembly in 2011.

Concept of HRDD as articulated in the UNGPs

Meaning of HRDD and its Scope

Despite being a key element of the UNGPs, HRDD is not defined in the UNGPs itself. Rather, as stated above, the UNGPs states that HRDD is a process – that is, a process that should ‘identify, prevent, mitigate and account for how [businesses] address their impacts on human rights’. However, in interpretative guidance provided by the Office of the High Commissioner of Human Rights, due diligence is defined as follows:[19]

 such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent [person] under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case”. In the context of the Guiding Principles, human rights due diligence comprises an ongoing management process that a reasonable and prudent enterprise needs to undertake, in the light of its circumstances (including sector, operating context, size and similar factors) to meet its responsibility to respect human rights. (Emphasis added)

It is clear from the definition above that HRDD is separate to the due diligence processes generally carried out by a business (for example, corporate due diligence). It is also clear that HRDD should be undertaken by all businesses in order to respect human rights. However, the extent of the HRDD to be carried out is dependent on various factors. As stated in Principle 17, the scope of HRDD is dependent on the ‘size of the business enterprise, the risk of severe human rights impacts, and the nature and context of its operations’. Accordingly, the scope of HRDD processes should be tailored to a specific business’ needs and should evolve as a business’ operations and operating context develop – therefore, the process that is applied by one business cannot necessarily be applied by another business. For example, larger businesses are required to carry out more extensive HRDD than smaller businesses.

Elements of HRDD

The four key interrelated elements of HRDD are set out in Principles 18 to 21 of the UNGPs, namely, assessing actual or potential adverse human rights impacts, integrating findings across the business and taking appropriate action, tracking the effectiveness of their response and communicating with stakeholders. This process will be explained in further detail below.

In order to conduct HRDD, businesses should start by conducting regular human rights impact assessment in order to by identify and assess ‘any actual or potential adverse human rights impacts which they may be involved’ in both their activities as well as their business relationships. Such an assessment is a critical aspect of HRDD as it is necessary for a business to evaluate its human rights risks before it can consider the steps to take to address those risks. The assessments should involve:[20]

assessing the human rights context prior to a proposed business activity, where possible; identifying who may be affected; cataloguing the relevant human rights standards and issues; and projecting how the proposed activity and associated business relationships could have adverse human rights impacts on those identified.

The findings of such assessments should then be integrated across a business’ relevant internal functions and processes to prevent and mitigate risks identified. Further, action should be taken where the business has had actual impacts so as to remediate those affected. Complexities may arise with respect to this element of HRDD, with situations existing where a business may not contribute to an adverse human rights impact, but nevertheless because of the business’ relationship with a third party the impact is directly linked to the business’ operations, products or services. Situations may also exist where a business has little or no leverage to address an impact. In such situations, businesses should seek independent expert advice.[21]

Businesses should then track the effectiveness of their response to adverse human rights impacts. Tracking allows a business to ensure that it is appropriately and adequately addressing the human rights impacts of its operations and to adapt its response if required. It should be ‘based on appropriate qualitative and quantitative indicators’ and ‘draw on feedback from both internal and external sources’.

The approach taken by businesses to address their human rights impacts should be communicated externally, including to those affected. Where severe human rights impacts exist within a business, how the business responds to impacts should be reported in a formal manner. In order to ensure that useful information is provided to external stakeholders, all communications should be accessible to its intended audience and provide sufficient information to ensure that business’ can evaluate the adequacy of their response to a particular human rights impact involved. Such communication ensures accountability and transparency on the part of the business.

The image below developed by Shift illustrates the cyclical nature of the HRDD process and shows that it is an ongoing process that must be undertaken in regular intervals in order to truly assist businesses to identify, prevent, mitigate and account for how they address their impacts on human rights.

Conclusion

As discussed above, HRDD lies at the heart of the corporate responsibility to respect human rights in the UNGPs. While the UNGPs were released in 2011, the concept of due diligence was around almost two decades before that – however, it was applied purely in the context of commercial transactions. The draft Norms imported the idea of due diligence into the business and human rights sphere. After the draft Norms failed, Ruggie revived the concept when he was appointed as Special Representative. He saw HRDD as key to businesses being able to know and show that they respect human rights to their stakeholders. Ruggie developed the concept from 2005 onwards, emphasising its benefits for businesses. Leading to the final articulation of HRDD as a central mechanism of the UNGPs in 2011.

From the discussion in this blog post, it is clear that the UNGPs as well as Ruggie’s reports and statements in the lead up to their inception do not (and probably could not) explicitly address how HRDD is to be applied and operationalised by businesses in practice. This will be explored in greater detail in the upcoming blog posts in this series.

[1] Securities Act 1933, section 11(a).

[2] Ibid, section 11(b).

[3] Ibid, section 11(c).

[4] See Michael Harvey and Robert Lusch, Expanding the Nature and Scope of Due Diligence, 10(1) Journal of Business Venturing 5 (1995); Michael Harvey and Robert Lusch, Beyond Traditional Due Diligence for Mergers and Acquisitions in the 21st Century, 19(3) Review of Business 17 (1998); Olga Martin-Ortega, Human Rights Due Diligence for Corporations: From Voluntary Standards to Hard Law at Last, 32 Neth. Q. Hum. Rts. 44 (2014), p 49.

[5] See for example Velasquez Rodriguez v. Honduras (1989) 28 ILM 294, [172] and the Council of Europe’s Convention on preventing and combating violence against women and domestic violence (2010), article 5(2).

[6] John Ruggie and John Sherman, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale, 28(3) The European Journal of International Law 921 (2017), p 924; Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie: Business and human rights: towards operationalizing of the “protect, respect and remedy” framework (22 April 2009), UN Doc. A/HRC/11/13 (2009 Report), [25].

[7] 2009 Report, [25].

[8] John Ruggie and John Sherman, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale, 28(3) The European Journal of International Law 921 (2017), p 924.

[9] Keynote Address by SRSG John Ruggie “Engaging Business: Addressing Respect for Human Rights” (2010).

[10] Ibid.

[11] Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie: Business and human rights: further steps toward the operationalization of the “protect, respect and remedy” framework (9 April 2010), UN Doc. A/HRC/14/27 (2010 Report), [79].

[12] Keynote Address by SRSG John Ruggie “Engaging Business: Addressing Respect for Human Rights” (2010).

[13] 2010 Report, [86].

[14] Ibid, [25].

[15] Ibid, [57]; 2009 Report, [50].

[16] Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie: Protect, Respect and Remedy: a Framework for Business and Human Rights (7 April 2008), UN Doc. A/HRC/8/5, [72].

[17] Ibid, [58]; 2009 Report, [53]-[54].

[18] Ibid, [60]-[63].

[19] UN Human Rights Office of the High Commissioner, The Corporate Responsibility to Protect Human Rights: An Interpretative Guide, UN Doc. HR/PUB/12/02, p 6.

[20] UNGPs, p 19.

[21] UNGPs, pp 21-22.

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.”