Editor’s note: Shamistha Selvaratnam is a LLM
Candidate of the Advanced Masters of European and International Human Rights
Law at Leiden University in the Netherlands and a contributor to the Doing Business Right project of the Asser Institute. Prior to commencing the LLM, she
worked as a business and human rights solicitor in Australia where she
specialised in promoting business respect for human rights through engagement
with policy, law and practice.
Over the past
couple of years, there has been an international trend towards greater
regulation and transparency with respect to modern slavery in corporate supply
chains as reports of gross human rights violations in corporate supply chains
have entered the public spotlight. For example, over the past couple of years
there has been extensive
media attention in relation to the use of slaves trafficked from Cambodia,
Laos, Bangladesh and Myanmar to work on Thai fishing boats to catch fish to be
sold around the globe, with the boats considered to be ‘floating labor camps’. As
a result of events such as this, there has been increased pressure on
businesses to take steps to address modern slavery in their supply chains
through processes such as through conducting risk assessments and due
diligence.
As the Ethical Trading Initiative notes, key risks facing companies in their
supply chains include the use of migrant workers; the use of child labour;
recruitment fees and debt bondage; the use of agency workers and temporary
labour; working hours and wages; and the use of subcontractors. In 2016 the Global Slavery Index reported that 40.3 million people are living in
modern slavery across 167 countries, and in 2014 the ILO estimated that forced labour in the private economy generates
US$150 billion in illegal profits per year.
In March 2015,
the UK Government passed the UK Modern
Slavery Act 2015 (the Act), game-changing legislation that targets, inter
alia, slavery and trafficking in corporate supply chains. The UK Government
also published guidance explaining how businesses should comply with the
Act.
This first blog
of a series of articles dedicated to the global modern slavery developments
provides an overview of the main elements of the Act and how businesses have
responded to it. It will be followed by a review of the proposed Australian
MSA, and a final piece on the developments in other jurisdictions that are considering
introducing legislation regulating modern slavery in the corporate context. More...
Editor’s note: Imke B.L.H. van Gardingen (LLM Int. and EU labour
law, MA Korean Studies) is a policy advisor on labour migration at the Dutch
Federation of Trade Unions (FNV) and a researcher on DPRK overseas labour.
On November 8, 2018 a North Korean
overseas worker who had worked in slave like conditions for a Polish shipyard,
a supplier of a Dutch shipbuilding company, has filed a criminal complaint
against the Dutch firm. The Dutch Penal Code, article 273f(6), includes a
provision criminalizing the act of ‘profiting’ from labour exploitation,
targeting not the direct perpetrators in the labour exploitation, but the ones
profiting from this exploitation. This is a unique case that aims to hold the
company at the top of the chain accountable for modern slavery in its supply
chain. A chain that in the case of shipbuilding is rather short; the buyer
subcontracts the core business of building the complete hull under detailed
instructions cheaply abroad. More...
Editor's note: Alexandru Rares Tofan recently graduated with an LLM in
Transnational Law from King’s College London where he focused on international
human rights law, transnational litigation and international law. He is
currently an intern with the Doing Business Right
project at the Asser Institute in The Hague. He previously worked as a research
assistant at the Transnational Law Institute in London on several projects
pertaining to human rights, labour law and transnational corporate conduct.
Introduction
In 2014, three Eritrean refugees commenced
a representative action in British Columbia against the transnational
mining company ‘Nevsun Resources’, pleading both private law torts and
violations of customary international law. They alleged that they were subjected
to forced labour, slavery, torture, and crimes against humanity while working
at an Eritrean gold mine jointly owned by Nevsun (60%) and by the Eritrean
State (40%). The representative action was brought on behalf of over a thousand
people who had been drafted into the Eritrean National Service Programme (NSP) and
subsequently forced to work at the Bisha Mine. The NSP
is a governmental apparatus of indefinite and mandatory conscription that is fraught
with allegations
of forced labour and other human rights abuses.
It was established under the authoritarian
regime of President Isaias Afwerki who has been ruling Eritrea ever since
the country gained independence from Ethiopia in 1993. As Nevsun is incorporated
under the laws of British Columbia, the plaintiffs sought relief in the courts
of the Canadian province. Notwithstanding the defendant’s attempts to have the
proceeding stayed or dismissed, the action was allowed to go through both by
the Supreme
Court of British Columbia (BCSC) and the Court of
Appeals (BCCA). On 14 June 2018, the Supreme Court of Canada granted
Nevsun leave to appeal with a tentative hearing date set on 23 January
2019.
This proceeding raises complex issues of transnational law. The
plaintiffs are seeking redress in a jurisdiction that is neither the locus delicti nor their country of
nationality. Rather, the claimants argue that peremptory norms of customary
international law create a private law cause of action and a right to recover
damages under Canadian law. In point of fact, the plaintiffs have called
attention to several delicate questions. Firstly, can claims of damages arising
out of the alleged breach of jus cogens
norms form the basis of a civil proceeding? And are corporations bound by these
international law norms for that matter? The case is further layered by the involvement
of the State of Eritrea. Since Nevsun is argued to be derivatively liable, a
finding of guilt on its part would mean that the Canadian courts would be judging
the acts of another state. This engages the act of state doctrine, which
demands judicial abstention from adjudication of matters touching upon the
conduct of foreign states.
Nevsun filed four interlocutory applications seeking to have the
claim stayed, dismissed or struck out. This article traces the development of
this case through the first three objections to jurisdiction raised by Nevsun
and dismissed by the provincial courts: forum non conveniens, the act
of state doctrine and the lack
of corporate liability under customary international law. A
fourth application argued that the plaintiffs’ claims are not appropriately
brought as a representative action (i.e. class action). This application was
granted by the Supreme Court of British Columbia and was not appealed by the
plaintiffs.[1]
More...
Editor’s
note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of
European and International Human Rights Law at Leiden University in the
Netherlands and an intern with the Doing Business Right project 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...
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...