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.
From 15 to 19 October 2018, the fourth session of the open-ended
intergovernmental working group on transnational corporations and other
business enterprises with respect to human rights took place in Geneva. 92 UN States
participated in the session along with a range of stakeholders, including
intergovernmental organisations, business organisations, special procedures of
the Human Rights Council and national human rights institutions. The focus of
the session was on the zero draft of the proposed binding business and human
rights treaty (from herein referred to as the
‘treaty’).
This blog sets out the key views and
suggestions made by those in attendance with respect to the treaty during the
session.[1]
Issues and areas of concern raised at the session generally aligned with the critiques
raised by commentators on the first draft of the treaty (which are set out in a
previous
blog). More...
Editor’s
note: Shamistha Selvaratnam is a LLM Candidate of
the Advanced Masters of European and International Human Rights Law at Leiden
University in the Netherlands. 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
Chevron
Corporation and Texaco Petroleum Company v The Republic of Ecuador
On 30 August 2018 an international tribunal
administered by the Permanent Court of Arbitration in The Hague issued an award
in favour of Chevron Corporation and Texaco Petroleum Company, holding that the
Republic of Ecuador had violated its obligations under international treaties,
investment agreements and international law. The tribunal found that a $9.5
billion judgment handed down by Ecuador’s Supreme Court in the Lago Agrio case was
procured through fraud, bribery and corruption. It also found that the Republic
of Ecuador had already released the claims that formed the basis of the
judgment years before. The tribunal concluded that the fraudulent Ecuadorian
judgment is “not final, enforceable, or conclusive under Ecuadorian and
international law” and therefore cannot be enforced within or outside of
Ecuador and that it “violates international public policy and natural justice”.
Draft
Optional Protocol to Business and Human Rights Treaty
On 4 September 2018 the Permanent Mission
of Ecuador to the UN and other International Organizations in Geneva presented
the ‘Draft
Optional Protocol To The Legally Binding Instrument To Regulate, In International
Human Rights Law, The Activities Of Transnational Corporations And Other
Business Enterprises’ (Optional Protocol). The Optional Protocol focuses on
ensuring State Parties to the Optional Protocol establish mechanisms that
provide access to remedy for victims of human rights violations in the context
of business activities of a transnational character. It also provides
individuals and group with the ability to make communications to the Committee
of experts. More...
Editor's note: Before joining the Asser
Institute as an intern, Alexandru Tofan pursued an LLM in Transnational Law at King’s College London where he focused on international human rights law, transnational litigation and
international law. He also worked simultaneously as a research
assistant at the Transnational Law Institute in London on several projects
pertaining to human rights, labour law and transnational corporate conduct.
The recent
indictment of the French multinational company ‘Lafarge’ for complicity in
crimes against humanity marks a historic
step in the fight against the impunity of corporations. It represents the first time that a company
has been indicted on this ground and, importantly, the first time that a French
parent company has been charged for the acts undertaken by one of its
subsidiaries abroad. Notably, the
Lafarge case fuels an important debate on corporate criminal liability for
human rights violations and may
be a game changer in this respect.
This article analyses this case and seeks to provide a comprehensive
account of its background and current procedural stage. More...
Editor’s
note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of
European and International Human Rights Law at Leiden University in the
Netherlands. 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.
Since the release of the first draft of the
BHR Treaty (from herein referred to as the ‘treaty’), a range of views have
been exchanged by commentators in the field in relation to the content of the
treaty (a number of them are available on a dedicated page
of the Business and Human Rights Resource Centre’s website). While many have
stated that the treaty is a step in the right direction to imposing liability
on businesses for human rights violations, there are a number of critiques of
the first draft, which commentators hope will be rectified in the next version.
This second blog of a series of articles
dedicated to the proposed BHR Treaty provides a review of the key critiques of
the treaty. It will be followed by a final blog outlining some recommendations
for the working group’s upcoming negotiations between 15 to 19 October 2018 in
Geneva. More...
Editor’s note: Shamistha Selvaratnam is a
LLM Candidate of the Advanced Masters of European and International Human
Rights Law at Leiden University in the Netherlands. 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.
By resolution,
on 26 June 2014 the UN Human Rights Council adopted Ecuador’s proposal to
establish an inter-governmental working group mandated ‘to elaborate an
international legally binding instrument to regulate, in international human
rights law, the activities of transnational corporations and other business
enterprises’. The proposal was adopted by 20 to 14 votes, with 13 abstentions,
and four years later, in July this year, the working group published the first
draft of the treaty (from herein referred to as the ‘treaty’). Shortly after, the draft
Optional Protocol to the draft treaty was released. The Optional Protocol
focuses on access to remedy for victims of human rights abuses by businesses.
This first blog of a series of articles
dedicated to the proposed BHR Treaty provides an overview of the main elements
of the draft. It will be followed by a review of the reactions to the Draft,
and a final piece outlining some recommendations for the upcoming negotiations. More...
Editor’s
note: Benjamin
Thompson is a PhD candidate in business and human rights at Tilburg Law School
in the Netherlands. His PhD research deals with the effects of the UN Guiding
Principles on Business and Human Rights' endorsement of operational level,
non-judicial grievance mechanisms and their role in improving access to remedy.
He recently published an article for Utrecht Law Review’s
Special Issue on Accountability of Multinational Corporations for Human
Rights Abuses which discussed the roles the new Dutch multistakeholder
initiative with the Dutch banking sector might play in improving banks’
performance with respect to human rights.
In
November of last year the Asser Institute offered me the opportunity to take
part in a roundtable
on the Dutch
Banking Sector Agreement (DBA), as part of their
Doing
Business Right Project. Signed in December 2017, the
DBA is a collaboration between the banking sector, the government, trade unions
and civil society organisations (CSOs), all based within the Netherlands: the
first of its kind. It focuses on banks’ responsibility to respect human rights,
as stipulated in the UN
Guiding Principles on Business and Human Rights
(UNGPs) and OECD Guidelines for
Multinational Enterprises (OECD Guidelines),
within their corporate lending and project finance activities. The DBA has been
something of a hot topic in business and human rights circles. However, it has
not yet published a public monitoring report, making any evaluation of its
performance at this stage difficult. During the roundtable, we discussed the
role of the DBA as a potential means
to improve the practices of Dutch banks with respect to human rights. A key
challenge identified from this discussion, as reported here,
was the various ‘interpretive ambiguities inherent in the UNGPs’. A key
conclusion was that ‘further dialogue is required... to ascertain what conduct
on the part of the banks is consistent with international obligations’.
This
is not a unique conclusion to arise from multistakeholder discussions on banks
and human rights; the discussion often focuses on what financial institutions
are required to do to meet their responsibility to respect human rights under
the UNGPs. So much so that questions concerning implementation or evaluation
are often left by the wayside. As a result, when presenting my research on the
DBA for the Utrecht Centre of Accountability and Liability Law’s Conference on
‘Accountability
and International Business Operations’,
published here,
I decided to focus on how the DBA had responded to those key points of friction
where there is the greatest disagreement between how different stakeholders
conceive banks’ human rights responsibilities. This blog post seeks to build on
this previous entry, hopefully without too much repetition. More...
Editor’s note: Abdurrahman is currently working for Doing Business
Right project at the Asser Institute as an intern. He received his LL.M.
International and European Law from Tilburg University and currently he is
a Research Master student at the same university.
- Introduction
The
2011 update of the OECD Guidelines
for Multinational Enterprises (hereinafter
‘Guidelines’-for some introductory information, see here) introduced
various changes to the 2000 text of the Guidelines, including a whole new
chapter on human rights in line with the UN
Guiding Principles on Business and Human Rights.
National Contact Points (NCPs) - non-binding, state-based, non-judicial
grievance mechanisms established by the adhering states - have since then
concluded approximately
60 cases submitted under the newly-introduced human rights
chapter.
If an
NCP believes that the issues raised in a submission merit further
consideration, it accepts the complaint, prepares an initial assessment report
and offers its good offices to the parties of the complaint.[1] Parties may reject the
offer, accept the offer but fail to reach an agreement in the mediation or, if
everything goes well, reach an agreement. In any of these scenarios, the NCP
concludes the specific instance with a final assessment report.[2] Between the initial and
final assessment reports, however, NCPs are not required to communicate details
of the ongoing mediations to the public. Nor do they have to provide any
specific details about the agreement of the parties, if at all, along with or
after the final report.[3]
NCPs aim
to promote the effectiveness of the Guidelines, to handle enquiries and to use a
complaint procedure (so-called specific instance procedure) to facilitate
settlements of disputes that may arise in case of non-compliance with the
Guidelines by enterprises. Although to provide effective remedies to victims of
business-related human rights abuses is not explicitly included among their
aims, NCPs have the potential to serve as a forum to which victims can turn to
obtain effective remedies.[4] They can receive
complaints alleging the violation of internationally recognized human rights
and offer mediation to the parties of the complaint to find a solution on which
both parties agree upon.
In
more than 20 out of these approximately 60 cases concluded, parties to the
dispute reached a settlement through a mediation procedure facilitated by the
NCP. These cases are considered ‘successful’ or ‘positive’ by the OECD.[5] But can these really be
considered as such?
Do the NCPs function as an effective grievance mechanism which provides
access to remedies to victims of business-related human rights abuses in the
cases they have settled? Or were these cases found successful only because the
NCPs dealing with them claim so, regardless of the actual remedies provided? In
this blog, I will elaborate on the concept of ‘success’ as used by the OECD and
how the cloudy nature of the procedure raises questions about the successful
conclusion of the cases and of the role of NCPs in this regard.More...
We are looking for a new business and human rights intern starting early September 2018 for a period of at least three months, preferably full-time. The Internship will be based at the Asser Institute in The Hague.
Main tasks:
- Contribute and develop research outputs within the Asser research project ‘Doing Business Right’, especially for the blog;
- Assistance in day-to-day maintenance of social media accounts linked to the ‘Doing Business Right’ project;
- Assistance in organizing upcoming events (workshops, lectures);
- Assist in legal research and analysis in the frame of academic publications.
Interested candidates should have:
- Demonstrated interest in legal issues lying at the intersection of
transnational business, human rights, private international law, and
global value chains regulation. An interest in transnational law and
private regulations are an advantage;
- Solid academic and non-academic writing skills, research and analytical skills;
- A master degree in EU law, private or public international law or international relations;
- Excellent command of written and spoken English, preferably at a native speaker level;
- Experience with managing websites and social media communication is of an advantage.
What we offer:
- A stipend, based on the level of education completed;
- Exposure to the academic activities of the research strand
‘Advancing public interests in international and European law’, and the
T.M.C Asser Instituut, a leading research centre in International and
European law;
- An inspiring, dynamic and multicultural working environment.
Interested candidates should apply by email, sending
a motivation letter and CV in English, a sample of academic writing
(master’s thesis or paper from a course relevant to the topics of the
research project ‘Doing Business Right’) to both A.Duval@asser.nl and E.Partiti@asser.nl.
Deadline for application is 10 August 2018, 12.00 PM CET.
Please note: We cannot offer assistance in obtaining residence and work permits for the duration of the internship.
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...
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 might have overlooked.
Highlights
OECD
Due Diligence Guidance released
On 31 May, the OECD published “OECD
Due Diligence Guidance for Responsible Business Conduct”. Issued after a
multi-stakeholder process with OECD and non-OECD countries and representatives
from business, trade unions and civil society, the guidance provides practical
knowledge to businesses on due diligence recommendations and related provisions
of the Guidelines for Multinational Enterprises. The guidance also aims at
aligning different approaches of governments and stakeholders to due diligence
for responsible business conduct by promoting a common understanding.More...