ESIL Interest Group on Business and Human Rights – Selected Issues: OECD Guidelines and State Implementation of UN Guiding Principles
Yesterday I had the pleasure to go to Amsterdam to talk at the workshop of the European Society of International Law Interest Group on Business and Human Rights. It was a lively event, with 9 speakers and 2 panels. One focused on implementation and compliance, and the other on accountability and enforcement. I talked about the California Transparency and Supply Chain Act 2012 and discussed the effectiveness of reporting as a way to enhance companies’ human rights records. For the purposes of this post I will focus on two other papers presented during the workshop. Watch this space for more information about my paper and what I plan to do with it.
Karen Weidmann gave a presentation on the role of the OECD National Contact Points (NCP) in the area of business and human rights. Karen served on the German NCP and therefore brought her experience as a practitioner to the discussion. She made 3 main points.
First, she highlighted the fact that the OECD Guidelines for Multinational Enterprises are of increasing relevance in the business and human rights debates, not least because the language of the UN Guiding Principles is reflected in the Guidelines.
Second, she recognised that the complaint mechanism created by the Guidelines, through the setting up of National Contact Points, has an inherently limited impact. However, she argued that it has the potential to play an important role in the business and human rights sphere. This is because there is little formalism with regards to how to relate the “case” to the state of the National Contact Point. In other words, the daunting issues of jurisdiction that constantly arise in relation to the Alien Tort Statute litigation in the United States, for example, have considerably less impact when it comes to NCP cases. Also, the NCPs have a forward looking approach, which, she argued, is particularly well adapted to business and human rights where violations often come from companies having adopted wrong processes, that need to be changed for the violations to end.
Third, she defended the idea that NCPs ought to be part of state administration, and not be overtly independent, in contrast to the Dutch NCP for example. Indeed, she sees great potential in having NCPs formally linked to governments so that their decisions can in turn be considered as indications of state practice and opinio juris in business and human rights. Also, in her opinion, there is great value in having governments “stamping” the NCP decisions because it makes companies take the process more seriously than if it was run by a non-state, independent body. I had never really thought about this in this way and I think these are interesting points.
Carmen Marquez Carrasco and Luis Rodriguez Piñero gave a presentation on the implementation of the UN Guiding Principles in Spain. Laura Iñígo Alvarez had also contributed to the research. I knew nothing of the situation there on this question so it was particularly interesting for me. They highlighted the quasi absence of so called “CSR culture” among Spanish companies and the difficulties in engaging Spanish NGOs in the debates, as they generally consider the UN Guiding Principles to be a negative development and refuse to participate to discussions on this. Finally, they mentioned the fact that three cases are currently pending before the Spanish NCP, with no final decision yet.
In the end, they raised a more fundamental question about the variety of implementation strategies for the UN Guiding Principles that EU countries seem to be working on at the moment and raised the following question: what will happen when the EU Commission realises that the 27 Member States have adopted different legislation or at least policies on this? I guess that’s the 1,000,000 million euro question!
I foresee we will hear more about this in the next months as countries hopefully start publicizing their strategies.
Bianca Jagger Speaking about Business and Human Rights at Middlesex Fairness Conference
Prof. William Schabas and Bianca Jagger
On 21, 22 and 23 May, Middlesex University is hosting a Fairness Conference, as part of our newly created Institute of Ideas.
The guest speaker on the human rights panel this morning was human rights defender Bianca Jagger, Founder and Chair of the Bianca Jagger Human Rights Foundation. She gave an inspiring talk focusing on issues of corporate human rights responsibilities and corporate crimes, calling for stricter laws to hold companies, but also CEOs and senior management, criminally liable for the human rights consequences of their actions.
She developed an interesting legal concept, that of “crimes against present and future generations”, which she campaigns to get recognised as international crimes susceptible to attract the jurisdiction of the International Criminal Court, and possibly other institutions as well. The concept is yet to be fully studied but the idea is that the offense would be phrased in a way that would catch conduct leading to gross environmental degradations, which impacts on future generations, as well as present victims. She gave several examples of the kind of conduct she thinks could fall in that category, such as the conduct of former CEO of Union Carbide Warren Anderson in relation to the Bhopal disaster.
Movie on the Bhopal Disaster Starring Martin Sheen
The one and only Martin Sheen stars in a new movie on Union Carbide’s operations in Bhopal and the Bhopal disaster called Bhopal: A Prayer for Rain. Hopefully, since Martin Sheen plays the lead role, the film will reach an even wider audience than the award-winning documentary Bhopali, which we screened at Middlesex last year. The Bhopal disaster provides a painful example of corporate human rights violations and absence of redress.
For those who want to help, I have had a long standing relationship with the Bhopal Medical Appeal, a charity that helps alleviate the suffering of the tens of thousands of people maimed by exposure to toxins released from the former pesticides factory which exploded in 1984. If you fancy, you can run the British London 10K and raise money for them. If you are not a sports enthusiast, you can at least sponsor my run.
Thank you in advance.
Report on Free Prior and Informed Consent of Indigenous Peoples & the Mining Industry Launched at Middlesex
This post is adapted from Indigenous Peoples Links’ press release. For more information please contact Andy Whitmore from PIPLinks, who is also a PhD student at Middlesex University School of Law.
Email: comms@piplinks.org
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Professor James Anaya, United Nations Special Rapporteur on the Rights of Indigenous Peoples at the launch in Barnet Town Hall
There is now a growing acceptance of the requirement for indigenous peoples’ Free Prior Informed Consent (FPIC) in many industries, including the extractive industries. This has been reflected by its incorporation into policies of an increasing number of mining companies, although admittedly sometimes in a more diluted form.
As the need for FPIC is introduced into state law, and made a requirement of financing, companies are increasingly struggling with how to implement FPIC. Yet, for indigenous peoples it is clear that their right to give or withhold FPIC should be seen in a context of them as rights-holders, rather than just yet another stake-holder. Therefore, there seemed to be a need for research to act as a basis for constructing a common ground with regard to the requirement for indigenous peoples’ FPIC.
The report, Making Free Prior & Informed Consent a Reality: Indigenous Peoples and the Extractive Sector seeks to do just that. Authored by Cathal Doyle, PhD graduate from Middlesex and Jill Carino from the Philippine Task Force for Indigenous Peoples Rights, it advocates for multinational mining companies, the investor community, and state actors to understand the importance of the FPIC principle from ethical, sustainability and economic perspectives. Fundamentally it argues that it is essential to understand FPIC from an indigenous peoples’ rights-based perspective in order to effectively implement it in a manner which is in accordance with indigenous peoples’ exercising their right to self-determination.
The report was launched at Middlesex University on 2nd May, involving a round-table discussion of the report’s contents by indigenous peoples, representatives of the mining industry and invited experts. This was followed by a public launch, at which a number of the indigenous peoples spoke about what FPIC meant to them, following on from a keynote address by the UN Special Rapporteur on Indigenous Peoples, Professor James Anaya. Professor Anaya stressed the importance of FPIC as part of a bundle of rights, and yet how, so far, its implementation was often far from adequate. He noted how both the round-table, and the report itself, were an excellent push forward in the implementation of FPIC.
Anne Marie Sam of the Nak’azdli First Nation in Canada stressed what the concept meant to her. Her elders had noted that the “souls of our ancestors are on the land. You take care of the land and the land takes care of you. Our identity comes from the land”. She joined other speakers in passionately advocating for their right to decide their own fate. They stressed the growing importance of indigenous peoples organising, so that they could assert these rights. They also spoke to the emerging theme of indigenous communities defining their own culturally appropriate guidelines for implementing FPIC, which is reviewed – with the aid of case studies – in the report.
The research was conducted on behalf of a consortium of organisations, including Indigenous Peoples Links (PIPLinks), Ecumenical Council for Corporate Responsibility (ECCR), and Middlesex University School of Law, but backed by a larger number of indigenous advisors and organisations.
London’s ‘Secret Slavery Shame’ Walking Tour
Memorial to the abolition of slavery - Fen Court
Yesterday we held the now traditional PhD seminar at Middlesex University School of Law. It was an exciting day with a mix of staff and student presentations about their research. On a personal level it was heartening to see so much knowledge and excitement in the room. As our heads were still buzzing from this full day of work and exchange, we all headed to central London to participate in a Slavery Walking Tour of London by Historian Dr William Pettigrew of the University of Kent.
It was a truly unforgettable experience, covering the theme of slavery from the Roman times of London until the present day. A significant part of the tour focused on the great abolitionist movement, in many ways the first successful large-scale business and human rights campaign. Among a variety of other interesting facts, he mentioned that the former headquarter of the now defunct Royal African Company, which shipped more African slaves to America than any other single organisation in the history of the transatlantic slave trade (about 150,000), is now an LA Fitness branch. He currently is in discussions with them to get a plaque on the wall so that this important historical fact does not get forgotten. Apparently LA Fitness is not so keen on the idea…
Dr Pettigrew also highlighted that the fight against the traffic in human beings is far from over, as slaves still live in London and are typically found in houses of diplomats, where they work as domestic workers.
I highly recommend the tour, as being able to put historical events in context is priceless. It was great fun, despite the extremely serious subject.
Nadia Bernaz is programme leader for Middlesex University's pioneering MA Human Rights and Business.
Email me at: n.bernaz@mdx.ac.uk