Human Rights & Business (and a few other things)

Corporate Accountability for Human Rights Violations in Countries in Transition

© Photograph by Brittany Kaiser

 

Yesterday I had the pleasure to give a talk at the 9 Bedford Row International Conference on “Human Rights in Post-Revolution States” on board HMS President, the beautiful World War I warship docked on the Thames. My talk was on “Corporate Accountability for Human Rights Violations in Countries in Transition”.

The area of corporate accountability and transitional justice is relatively under explored. As far as I know there is only one book tackling it head on, “Corporate Accountability in the Context of Transitional Justice” edited by my colleague Professor Sabine Michalowski from Essex.

To make my talk more lively, I chose to present a selection of cases, or situations, so as to highlight the type of issues that are likely to arise when trying to hold corporations, or business people, accountable for human rights violations in countries that have transitioned from conflict to peace, or from authoritarian rule to democracy. I focused on the following cases:

1. Post World War II trials against industrialists and bankers in US zone of occupation in Germany;  2. The South African Truth and Reconciliation Commission’s findings on business (see previous post here); 3. The Apartheid cases before US federal courts (see previous post here); 4. The Van Anraat case in the Netherlands; and 5. The ongoing Amesys and Qosmos cases in France.

All of these cases bring to the fore the following question, which is fundamental to the business and human rights field: where to draw the line between making profit by doing business with a criminal regime, and being criminally or civilly liable?  There is much uncertainty around this and unfortunately these cases provide no definite answers. In this context, I am expecting a lot from the Amesys and Qosmos cases which I hope to be able to review on this blog if/when trials are held in the future.

 

 

 


Short Human Rights Course at Middlesex – including half a day on “Business and Human Rights”

 

The intensive course “Confidence Crisis in Human Rights: Implications for the UK” will be held from 30 June to 4 July 2014 at Middlesex University School of Law, London. Human rights research is going strong at Middlesex. It is the home of world-renowned experts in the field, such as Professor William Schabas, who will be teaching various parts of the course.

The course will cover issues such as: the UK attitude towards to the European human rights system; hate speech; freedom of religion; the impact of austerity measures on human rights; migration; human rights in times of war and the actions of the Security Council; the environment; and business & human rights. I will be covering “business & human rights” for a whole morning on 4 July.

The course is for everyone with an interest in human rights issues such as journalists, policy makers, and students.

For the application form and for further information, please visit the webpage. You can also check the course brochure.

Tuition fee: £400 (£200 for Middlesex alumni). Accommodation, travel costs and other expenses are not included.


Will “business and human rights” become part of legal training in England and Wales?

© Photograph by Sarah Lee for the Guardian

Many thanks to my colleague Dr Susan Pascoe for the info.

On 26 March 2014 the Law Society (of England and Wales) Gazette reported that the Society’s Business and Human Rights Advisory Group recommended that business and human rights become part of legal training requirements and continued professional development.

This seems to be at a very early stage still, and just a recommendation for now.  It is nevertheless encouraging to see that the issue is taken seriously by at least some practitioners. While I do think it is a positive development I can see how this is not going to be unanimously welcomed, especially given the myriad of pressing issues the profession is currently facing, ranging from the tight economic situation to the dreaded legal aid reform. Some in the profession may legitimately consider that this is not immediately relevant to them and it will be down to the business and human rights community to do our best to convince them otherwise.

Documents such as the Equality and Human Rights Commission’s Guide to Business and Human Rights addressed directly to businesses – especially SMEs -  and drawing on research conducted by Dr Jérémie Gilbert and myself may prove helpful in this regard. Human rights are relevant for all businesses and therefore it is not unrealistic to expect solicitors to be able to advise clients on these issues.


Lecture on “Corporate Crimes and the ICC” at Summer School in Galway 16-20 June 2014

 

 

The annual International Criminal Court Summer School at the National University of Ireland (Galway) will take place on 16-20 June 2014.

The Summer School consists of five days of intensive lectures given by leading specialists on the subject. The summer school is attended by legal professionals, academics, postgraduate students and NGOs. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, universal jurisdiction, immunities, and the role of victims. This year they also have a lecture specifically on Africa and the ICC.

I will be teaching a class on Thursday 19 June on “Corporate Crimes and the International Criminal Court”.

Full details can be found on the Summer School’s dedicated website.


Caribbean Slavery Reparations Plan: What about the Private Sector?

 

Fort George, Port of Spain (Trinidad and Tobago)

 

On Monday 10 March 2014, Caribbean leaders gathered in Saint Vincent and the Grenadines for a CARICOM meeting adopted a 10-point plan “to achieve reparatory justice for the victims of genocide, slavery, slave trading, and racial apartheid.”

The plan consists in: (1) demanding a full formal apology from European governments for the colonization of the region and the slave trade; (2) seeking help in setting up a repatriation plan for those Caribbean people of African descent who wish to “return” to Africa; (3) setting up an indigenous peoples development programme, as they remain “the most marginalized social group within the region”; (4) developing cultural institutions such as museums and research centres to help educate Caribbean people (and visitors) about their past; seeking European participation to address (5) public health issues deriving from poverty, itself deriving from past enslavement; and (6) illiteracy; (7) developing an African knowledge programme in order to build “bridges of belonging” between Caribbean people of African descent and the African continent; (8) initiating a process of psychological rehabilitation to overcome the collective trauma of slavery, for example through the development of stronger inter-Caribbean political institutions; (9) actively calling for technology transfers as the Caribbean were deliberately excluded from industrialization by colonizing nations; and last but not least (10) demanding debt cancellation.

Martyn Day from the London-based law firm Leigh Day provided legal advice to the Reparations Commission who drafted the plan. The firm is well-known to the business and human rights community for having acted on behalf of several thousand Nigerian claimants in a claim against Royal Dutch Shell, and on behalf on the claimants in the Trafigura case regarding the dumping of toxic waste in Côte d’Ivoire. Perhaps more immediately relevant to the slavery reparations issue, in 2013 Martyn Day acted on behalf of Kenyan people tortured by British forces in the 1950s and managed to secure compensation as well as a ground-breaking expression of regret from the Foreign and Commonwealth Office. Although the 10-point plan does not include litigation, the firm is therefore no stranger to historical claims.

The slave trade and the use of slave labour in the Americas and the Caribbean is a widely-known historical human rights violation, and it is one in which businesses, along with governments, played a major role. While a number of the companies engaged in the slave trade itself, such as the Royal African Company (see the recently published book by my colleague, historian Dr William Pettigrew), were chartered (i.e. partly public by modern standards), slave trading and the sugar plantation economy hugely benefitted the private sector, in particular businessmen of 16th , 17th, 18th and 19th century Europe. With that in mind, and if the “travail de mémoire” is to be properly done, then the private sector should not be forgotten in the implementation of this plan.

Realistically, it is hard to see why modern companies should be formally called to account in any way since, unlike European nations, the companies involved are likely to have disappeared long ago. Nevertheless, I can think of different ways in which the private sector’s more than marginal implication in the crimes committed could be acknowledged. Businesses could be mentioned in (forthcoming?) apology statements by European governments. Furthermore, a virtuous “coalition of the willing” from the private sector could participate, as an act of philanthropy, to the funding of a state-of-the-art history museum in the Caribbean, which would tell the stories of the various communities of the region.


Annual Conference – 9 Bedford Row and Middlesex University

On 3 April 2014, 9 Bedford Row Chambers, in partnership with Middlesex University School of Law will hold their annual conference on international law. This year they have chosen 2 themes: “Human Rights in Post-Revolution States” and “Human Rights at Sea.”  I will speak in the morning on “Corporate Accountability in Transitional States” and will look at how business and human rights issues are dealt with by transitional justice mechanisms, when they exist.

The conference will take place on board the HMS President on the Thames in the heart of London, a really great historical venue.

Tickets can be purchased here (6 hours CPD).

Enquiries

julian.bradley@9bedfordrow.co.uk | +44(0)20 7489 2727


Multilateral Agreement on Investment: Time to Awaken the Beast? – A contribution to the “Business and Human Rights Treaty” Debate

I. Difficulties around the contents of a business and human rights treaty

In September 2013 Ecuador together with a group of states asked the UN Human Rights Council to consider drafting a binding business and human rights treaty, building on the UN Guiding Principles on Business and Human Rights. They have received support from a number of  NGOs (see also this). They have also received advice to only go that route with great caution from the former UN Secretary-General Special Representative on Business and Human Rights, Prof. John Ruggie, the father of the Guiding Principles for all practical purposes.

It is unclear what Ecuador has in mind in terms of contents. If they want to simply list state obligations with regards to business activities on their territories, then arguably no further treaty is required as all existing human rights treaties encompass obligations to prevent violations by third parties, in this case businesses. The only added value of such a treaty would perhaps be the creation of a treaty body to monitor its implementation, following a well-established UN model. All things considered, this would not be very onerous.

But Ecuador and its allies on this may want to go further and include in the treaty a list of state obligations with regards to the extraterritorial activities of companies domiciled on their territories, hence clearly targeting western states which remain the leading capital-exporting countries. While a number of UN treaty bodies have suggested that states do indeed have obligations in this regard under existing human rights treaties (I presented on this at the Norwegian Centre for Human Rights in November 2013) the contours of such obligations are still unclear. For example, does that mean, as suggested in the Guiding Principles, that states “should set out clearly the expectation” that companies operating abroad should respect human rights? Or does that mean, going further, that states actually have an obligation to provide victims of violations with a remedy? A treaty would have to clarify this point, which is currently highly disputed.

Perhaps Ecuador wants to go even further and enter the minefield that is the recognition that companies have human rights obligations under international law. This route was essentially abandoned in 2004 after the failure of the UN Draft Norms, and it is an understatement to say that it is a vast area of academic debate. The most uncontroversial aspect of it, as John Ruggie highlighted it in his contribution, is the idea that corporations should not commit human rights violations amounting to international crimes. But for the vast majority of violations that fall short of international crimes, there is little agreement.

II. A proposed way out: focus on investment law

Given the complexity of the subject and the lack of consensus around many of its aspects, perhaps the way forward is not to shut the door to the very idea of a treaty, but to pursue a less ambitious goal. With this in mind, I suggest we focus our efforts on the international investment legal framework. International investment law is a solid branch of international law, with established rules and principles. Today there are over 3,000 bilateral investment treaties (BITs) in force, which clearly shows that states crave legal certainty in the area. Reviving the idea of a Multilateral Agreement on Investment (MAI) will undoubtedly sound rather scary to some, who may not be willing to awaken the beast. Negotiations for the MAI at the Organization for Economic Cooperation and Development (OECD) failed at the end of the 1990s, partly because of strong disagreements over the inclusion of human rights considerations in the text. Some have blamed “NGOs” for the failure of the treaty. Re-opening negotiations, therefore, may seem like a very bad idea.

However, I would argue that the context has significantly changed since then. The very idea of including human rights considerations in BITs is now more widely accepted. The US model BIT of 2012 contains labour clauses. The UK Action plan for the implementation of the UN Guiding Principles on Business and Human Rights lists among the new actions planned by the government that they will “ensure that agreements facilitating investment overseas by UK or EU companies incorporate the business responsibility to respect human rights, and do not undermine the host country’s ability to either meet its international human rights obligations or to impose the same environmental and social regulation on foreign investors as it does on domestic firms.”

Beyond these anecdotal changes, the formidable convergence around the UN Guiding Principles (reflected in official discourse of the OECD, the European Union and the International Finance Corporation to name but a few) is perhaps the stronger sign that things have changed and the thought that human rights now form part of the global discourse on business in general, and investments in particular, is not so incongruous. In this new context, it may be time to awaken the beast indeed and to re-open negotiations for a Multilateral Agreement on Investment, which would include both home and host state duties to protect human rights, the corporate duty to respect human rights and the principle that victims should have access to remedies in host or home states. In short, it would set the discussions on a “binding business and human rights treaty” within a clear, relatively self-contained framework.


Reverend Jesse Jackson at Middlesex University

Although this blog is about business and human rights I have decided to make an exception. Yesterday Reverend Jesse Jackson, legendary civil rights activist and runner for Presidential nomination in the United States in 1984 and 1988, came to my home institution, Middlesex University, and addressed our students and my fellow staff members. In his 1-hour talk, he covered some of the historical moments of the civil rights movement in the United States including the assassination of Martin Luther King, which he witnessed. Those times were about freedom, he said, but now it is about equality.

On his UK tour which marks the 50th anniversary of King’s “I have a Dream” speech (this gives me goose bumps every single time!) he visited Oxford, Cambridge and Middlesex Universities. He praised Middlesex for being a diverse university, as opposed to its more prestigious counterparts.

His speech was powerful, witty and truly inspiring. He even had the audience recite parts of the “I am. Somebody” poem, just like he did with the children in the famous Sesame Street episode of 1971. I admit this is something I didn’t think I would ever get the chance to do!

Over my 12+ years as a human rights scholar I have attended many events with great speakers talking about worthwhile causes, but I must say that Jesse Jackson’s performance, and the standing ovation he received, will be hard to match. You can watch an extract on YouTube.

Business and Human Rights in the Cleaning Sector – Call for Evidence

The British Equality and Human Rights Commission, which is the National Human Rights Institution for Britain, has launched a project on recruitment and employment practices in the cleaning sector, building on their enlightening report on the meat and poultry processing sectors, published in 2010. They are calling for evidence from cleaners, employers and trade unions, and will conduct interviews in the coming months.

This is a sector where the human rights risks are important as the workforce is 60% female, 37% migrant workers, 59% part time and 22% aged over 54. It is also a sector most of us working in an office environment are users of, even though we may only rarely see cleaners as they work after or before office hours.

I really look forward to seeing the results of this and hope that it will bring about positive developments in the cleaning sector, as has happened in the meat and poultry processing sectors thanks to the Commission’s previous project.


Extraterritorial Obligations of States in Business and Human Rights – A talk at the Norwegian Centre for Human Rights

 

After the University of the Witwatersrand (South Africa) and Harvard University, my research leave has now brought me to the Norwegian Centre for Human Rights in Oslo, where I am spending a few days as a visiting researcher.

On Tuesday I gave a presentation on the extraterritorial obligations of states in the area of business and human rights as part of the Centre’s “Human Rights and Development” research group  lunch series. I reviewed the evolving positions of the UN treaty bodies on this question and commented on the latest developments. These are:

1. The concluding observations of the Human Rights Committee on Germany, issued in November 2012, in which the Committee, using the language of UN Guiding Principle 2, stated  that,

The State party is encouraged to set out clearly the expectation that all business enterprises domiciled in its territory and/or its jurisdiction respect human rights standards in accordance with the Covenant throughout their operations. It is also encouraged to take appropriate measures to strengthen the remedies provided to protect people who have been victims of activities of such business enterprises operating abroad. [para. 16]

2. General Comment No 16 of the Committee on the Rights of the Child on State obligations regarding the impact of the business sector on children’s rights, which I reviewed in a previous post, and were issued in March 2013.

3. The Human Rights Committee’s recently published list of issues in relation to the upcoming examination of Ireland in 2014, which contains the following paragraph:

Please provide information on how the Government addresses concerns regarding the activities of private businesses based in the State party that may lead to violations of the Covenant outside the territory of the State party.

My colleague Dr Shane Darcy from the Irish Centre for Human Rights wrote an interesting post on this on his blog on Business and Human Rights in Ireland.

This is a fast growing area within the business and human rights field and one with numerous opportunities for developments, which I will try to keep track of on this blog.

 


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