Since yesterday I have been attending an International Conference on Business and Human Rights at the University of Sevilla. The conference is co-organised by the Leuven Centre for Global Governance Studies, the University of Sevilla (Research Project DER2013-41956-P) and the BHRight Initiative. The BHRight Initiative, of which I am a member, is an interdisciplinary academic network of experts in human rights, sustainability and corporate social responsibility that represent a range of social science disciplines, including from law, management and organizational studies, economics, and business ethics. My presentation at the conference focuses on the French bill on corporate due diligence.
When he submitted the UN Guiding Principles on Business and Human Rights to the UN Human Rights Council for adoption, John Ruggie, then UN Secretary General Special Representative on Business and Human Rights, noted that their endorsement would mark “the end of the beginning: by establishing a common global platform for action, on which cumulative progress can be built, step-by-step.” (UN Doc. A/HRC/17/31, para. 13). In the absence of clear, practical guidance on how to comply with their duty to protect human rights from corporate abuse, States have reacted to the Guiding Principles in different ways. Some have adopted National Action Plans (see my post on the UK National Action Plan here), of various quality and ambition. Some have adopted laws to encourage corporate reporting, including on overseas operations (see for example the UK Anti-Slavery Act 2015.
In this context, one country – France – has seemingly adopted a more radical stance. In 2015, a group of Parliamentarians introduced an ambitious bill on corporate due diligence.
Against this background my presentation covers 4 main points: (1) why the bill is important; (2) the background of the bill; (3) the contents of the different versions of the bill; (4) the chances of the bill being adopted.
WHY THE BILL IS IMPORTANT
(a) France is the home state of major multinational corporations: Areva, Danone, L’Oréal, Michelin, Renault, Sanofi, Total, etc.
(b) The bill was introduced as allegations of complicity of torture against software companies Amesys (see my blog post on this here) and Qosmos are being investigated. In other words, after two decades during which the business and human rights community has focused its attention on Alien Tort Statute litigation in the United States, things are moving forward in Europe, a key development in the field of business and human rights.
(c) Although it is not part of a National Action Plan per se, the bill nevertheless fits squarely with the objectives outlined in Pillar 1 of the UN Guiding Principles on Business and Human Rights, on the state duty to protect against corporate human rights abuses. In particular, the Bill is “setting out clearly the expectation that all business enterprises domiciled in France respect human rights throughout their operations” as per Guiding Principle 2. In fact, the first version of the bill was going even further than GP2.
BACKGROUND OF THE BILL
The original preamble of the first bill, which was put forward in November 2013, mentions, as justifications for the bill, the Rana Plaza disaster; the UN Guiding Principles on Business and Human Rights; ISO26000; and a groundbreaking 2012 criminal case regarding the Erika oilspill, in which Total was held liable for the acts of its subsidiary on the basis that Total had accepted to control whether the boats of those subsidiaries were fit to be on water.
CONTENTS OF THE DIFFERENT VERSIONS OF THE BILL
The first version of the bill (Proposition de loi relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre, n° 1519), bill #1, was put forward by a group of Parliamentarians in November 2013. It was not presented to Parliament until January 2015.
This bill was extremely ambitious. Its main points were as follows:
Bill #1 arrived before the French Assemblée Nationale in January 2015. Rather controversially the Assembly decided to send the text back to one of the Assembly’s committees in order to be further debated and modified. Apparently the reason for this was that the then new minister of the economy Emmanuel Macron (who has now resigned) was against it.
In a nutshell, the work of the committee resulted in the death of bill #1. What emerged out of the work of this committee is bill #2, which was put forward on 11 February 2015.
These are what I believe to be the main aspects of bill #2
In March 2015, bill #2 was adopted during the first reading at the Assemblée Nationale, the lower chamber of Parliament . However, in November 2015, the Senate rejected this version of the bill. Following the normal legislative procedure, the bill was sent back to the Assemblée Nationale, where one committee worked on it again. No real change emerged from that process.
In March 2016, the Assemblée Nationale adopted bill #2 again during the second reading of the bill. Following French law making procedure, he bill was sent again to the Senate. On 13 October 2016, the Senate adopted a modified version of the bill, bill #3.
Bill #3 has little to do with previous versions. The Senate has transformed a bill that was supposed to enhance corporate legal liability into a bill which main aim is to transpose the EU directive on non-financial reporting. The bill is now about producing a report, and it includes the possibility to force companies to do it but crucially there is nothing about damages and victims of human rights violations. The report, or poor report, or absence of report, will not be taken into consideration to establish responsibility in case a damage occurs. In short, the core aspect of the bill, corporate liability for human rights violations, is gone.
We’re now in a situation where the Senate and the Assemblée Nationale are in disagreement since they each adopted a different version of the bill (bill #2 in the Assemblée Nationale, bill #3 in the Senate). As per Article 45 of the French Constitution, a Commission Mixte Paritaire has now to be set up. This is a special parliamentary committee made of members of both chambers to try to find a compromise. If a compromise text is adopted, the government can present it to both chambers for adoption. If no agreement is reached (which is likely considering the current position of the Senate) or if, following its presentation to both chambers, the compromise bill is rejected, the Government may send the bill to the Assemblée Nationale whose vote then prevails over the Senate’s. This is normal procedure to avoid legislation being indefinitely bounced back and forth between the two chambers. If this route was to be followed the Assemblée Nationale would vote on either the compromise bill, or bill #2, i.e. the latest text the Assemblée Nationale adopted.
The problem is that there are only a few months left for the bill to be adopted as it is likely that the current socialist government will lose the general election of June 2017. The French MP who has taken the lead with this bill gave an interview last month in which he discussed the likelihood of a meaningful bill being adopted. Apparently, he has received assurances from the government that their plan is to see this bill adopted by the end of 2016.
Watch this space for updates.
I am delighted to announce that my book, titled Business and Human Rights. History, Law and Policy – Bridging the Accountability Gap, and published by Routledge is finally out. It is available both in hardback and paperback. A book launch will take place on 7 December 2016 at 6:00pm at Middlesex University in London and I will soon post more information about the event.
About the book
Business corporations can and do violate human rights all over the world, and they are often not held to account. Emblematic cases and situations such as the state of the Niger Delta and the collapse of the Rana Plaza factory are examples of corporate human rights abuses which are not adequately prevented and remedied. Business and human rights as a field seeks to enhance the accountability of business – companies and businesspeople – in the human rights area, or, to phrase it differently, to bridge the accountability gap. Bridging the accountability gap is to be understood as both setting standards and holding corporations and businesspeople to account if violations occur.
Adopting a legal perspective, this book presents the ways in which this dual undertaking has been and could be further carried out in the future, and evaluates the extent to which the various initiatives in the field bridge the corporate accountability gap. It looks at the historical background of the field of business and human rights, and examines salient periods, events and cases. The book then goes on to explore the relevance of international human rights law and international criminal law for global business. International soft law and policy initiatives which have blossomed in recent years are evaluated along with private modes of regulation. The book also examines how domestic law, especially the domestic law of multinational companies’ home countries, can be used to prevent and redress corporate related human rights violations.
Table of contents
Part 1: Historical Highlights: Limited Corporate Accountability 2. The Atlantic Slave Trade: a “Business and Human Rights” Reading 3. International Labour Law: Early Development and Contemporary Significance for the Field of Business and Human Rights 4. Doing Business with the Nazis: the Criminal Prosecution of German Industrialists after the Second World War
Part 2: International Law and Policy: Limitations and Progress 5. Business, International Human Rights Law and International Criminal Law: Shifting Boundaries 6. Human Rights and International Economic Law: Connecting the Dots 7. Expanding International Regulation in Business and Human Rights 8. Private Regulation in Business and Human Rights
Part 3: Domestic Law and Policy: Embedding Human Rights in Business Practice 9. Shaping Law and Public Policies 10. Business and Human Rights Litigation before Domestic Courts: Remaining Obstacles
11. Conclusion: The Future of Business and Human Rights
On 15 September, the Office of the Prosecutor of the International Criminal Court issued a policy paper on case selection and prioritization which might result in business and human rights violations being prosecuted at the International Criminal Court in the near future. When it comes to assessing the gravity of crimes (which has always been one of the case selection criteria) the document highlights that:
The impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. In this context, the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land. [para. 41]
Formally, there is no change in the subject-matter jurisdiction of the Court, which remains genocide, crimes against humanity, war crimes and the crime of aggression. However, the policy paper is important from a business and human rights perspective because it may result in acts the Court previously considered irrelevant now being considered relevant either as contextual elements or as material elements of crimes against humanity.
The ICC statute defines crimes against humanity as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Those acts include “deportation or forcible transfer of population” and “persecution against any identifiable group or collectivity on (…) racial, national, ethnic, cultural, [and] religious (…) grounds (….).”
It is well documented that land grabs, the exploitation of natural resources and environmental damage tend to primarily victimize already marginalized communities such as indigenous communities and other minorities. The exploitation of natural resources, for example, can result in forcible transfers of population in order to free up the space for corporations. Moreover, the International Criminal Court’s definition of crimes against humanity does not require those crimes to be committed in the context of an armed conflict. It only requires a “widespread and systematic attack directed against a civilian population”, which may or may not include acts of physical violence. A mass eviction, for example, could be considered an attack for the purposes of the Statute even if no blood is shed. Hence the law is already in place to allow prosecutions for crimes against humanity on those grounds.
However, until now, the International Criminal Court, as indeed other international criminal tribunals, had considered that those crimes were not serious enough. Instead they had focused their attention on crimes falling more neatly within the traditional remit of international criminal law. Those crimes tend to be committed in times of armed conflict, although this is not a formal requirement for the commission of genocide and crimes against humanity.
This new policy document, therefore, is of paramount importance for the field of business and human rights. It means that governmental officials and, if relevant, corporate officials engaging in activities such as land grabs and the exploitation of natural resources are now fair game in The Hague.
A special thank you to Irene Pietropaoli for letting me know about this.
On 24 June 2016, the Committee on Economic Social and Cultural Rights published its latest Concluding Observations on the United Kingdom in the context of the review of that country’s 6th periodic report. The Committee strongly criticized the human rights impacts austerity measures have had on “disadvantaged and marginalized individuals and groups” (para. 18) and a whole section (para 11-13) is devoted to business and human rights.
The Committee “welcomes the adoption of the National Action Plan on Business and Human Rights”. However it expressed concerns “about the lack of a regulatory framework to ensure that (…) companies domiciled under its jurisdiction acting abroad fully respect economic, social and cultural rights.” Specifically the Committee recommends that the United Kingdom
adopt appropriate legislative and administrative measures to ensure legal liability of companies domiciled under the State party’s jurisdiction, regarding violations of economic, social and cultural rights in their projects abroad, committed directly by these companies or resulting from the activities of their subsidiaries. [para. 12(b)]
I have written before about the trend among treaty bodies to recommend that states monitor the overseas activities of their corporate nationals (see here and here. See also my chapter in forthcoming book: Carla Buckley, Alice Donald, Philip Leach (eds.), Towards Coherence in International Human Rights Law: Approaches of Regional and International Systems, Leiden: Brill, 2016).
As far as I know, however, this is the first time that a UN treaty body goes that far. First, the Committee is calling for “legal liability” of companies domiciled in the UK. It is not simply asking the country to loosely monitor what these companies are doing when operating abroad. Second, the Committee mentions the liability of parent companies for the activities of their subsidiaries. This is in line with the most recent case law from the English Court of Appeal, and recent decision by the English High Court (please see information on this here). However, as it seemingly bypasses the principle of separate legal personality of separate companies, this remains a controversial area of the law.
A Palestinian family, with the support of the ACAT and represented by the Paris-based law firm Ancile-avocats, have filed a criminal complaint against the French company Exxelia Technologies. They claim that the company is at least guilty of manslaughter and possibly also complicit in a war crime. In July 2014, a missile, probably dropped from a drone, landed on the Shuheibar’s family house’s roof where several children were feeding birds. A little girl – Afnan (8) – and two boys – Wassim (9) and Jihad (10) – were killed in the attack. Two other children – Udai (15) and Bassil (9) – were severely injured. As the house does not appear to have been a legitimate military target, the attack may constitute a war crime. In the debris, a component was found on which one could read “Eurofarad France”. Experts have since determined that the component is a Hall effect sensor made by Exxelia Technologies.
The core of the complaint is that the company sold the component to Israel with knowledge that it would be part of a missile and with knowledge that it was susceptible to be used to commit a war crime. Although it is directed against a company and not an individual businessperson, the complaint bears similarities with the case against Dutch businessman Frans Van Anraat. In 2005 the District Court of The Hague found him guilty of complicity of war crimes for having sold chemicals used in the fabrication of mustard gas, with knowledge of what the chemicals would be used for, to the Iraqi government under Saddam Hussein’s rule. The gas, made with the chemicals that Van Anraat sold, was later used against Kurdish villages as well as Iranian villages in the context of the Iran-Iraq war, killing thousands of civilians. Van Anraat was sentenced to 15 years in prison, a sentence that was increased to 17 years by the Appeals Court in 2007.
The complaint against Exxelia Technologies is the third of its kind in France where two separate complaints against French software companies Amesys and Qosmos for complicity of torture are currently being investigated. It is claimed that they sold surveillance equipment to Gaddafi’s Libya and Assad’s Syria respectively and trained local police forces on how to use it, leading to a number of individuals being identified, arrested and tortured. Neither company has formally been charged yet.
As the notion of corporate criminal liability for international crimes is still at its infancy in international law (see my post on this here), these domestic cases are of paramount importance for the field of business and human rights.
On Friday 20 May I had the pleasure to participate to a workshop on business and human rights, convened by Professor Karin Buhmann at Copenhagen Business School. I presented on the developing notion of corporate criminal liability under international law.
I started by setting the scene with 3 basic points:
(1) Under international human rights law, there is currently no route to hold corporations liable for human rights violations as this branch of law is state-centred.
(2) The UN Guiding Principles on Business and Human Rights talk about corporate responsibility to respect human rights but, beyond compliance with domestic law, this is a social expectation not grounded in law.
(3) The International Criminal Court doesn’t have jurisdiction over corporations, but only over individuals.
In this context, which shows an accountability gap, I believe that corporate criminal liability for international crimes is a concept worth exploring and pushing for and that the field of business and human rights would benefit from its clear recognition. This is so for two main reasons.
(1) It would be a symbolic move
Corporate criminal liability would not cover the majority of corporate human rights violations but it would be an important, symbolic move. The truth is that at the moment, when corporations become complicit with international crimes under the jurisdiction of the International Criminal Court (genocide, crimes against humanity and war crimes), international law has no response. Or, rather, it has an imperfect response: it focuses only on individual perpetrators. While this is of course an important step, it doesn’t fully address issues related to corporate culture and corporate governance which are key in the commission of crimes. Individual business executives within companies who have allegedly been involved in violations of international law (e.g. Unocal in Burma) would likely not have been in a situation of doing this had they not worked for a company placing them in that situation. Focusing on individuals only does not give a full picture and therefore may only partially provide the deterrent effect that human rights advocates hope for. Put simply: can business and human rights as a field of international law and policy be taken seriously if even the worst human rights violations are not covered?
At the end of day, litigation in business and human rights is about individual victims but it is also, and one may say mostly, about shedding light on corporate misconduct and using the attention to foster change in other companies. This should not be underestimated. To take one example, dozens of cases were filed against companies under the Alien Tort Statute (ATS) in the United States. Only a handful led to tangible results for individual victims. However ATS litigation resulted in a lot of media attention, and arguably, a renewed interest in the field.
(2) It would be easier than focusing on liability under international human rights law
It is difficult for anyone to argue that it is right for companies who become complicit in genocide, crimes against humanity and war crimes to be left off the hook. Conceptually it is much easier to argue that individual criminal liability should be extended to companies than to argue than liability under international human rights law, which currently arises only when states have violated their human rights obligations, should be extended to companies. The latter is being considered in ongoing discussions on the business and human rights treaty, but it is not likely to be resolved soon.
Corporate criminal liability under international law could be officially recognised in three main ways:
(a) It could be included in the future business and human rights treaty. However, no one knows at this stage whether the discussions will lead to any tangible result and states disagree a great deal about the process.
(b) A separate treaty criminalising certain corporate conduct, but leaving it to states to prosecute, could be adopted. Such a treaty would follow the model of the Convention against Torture for example. This would be an important step, but would require to start yet another process from scratch.
(c) It could be included in the Statute of the International Criminal Court, through an amendment procedure. The Statute was amended in the past, so we know it is possible. The field of business and human rights has changed a great deal since 1998, so it might be possible to gather enough state interest to amend the statute. I think that’s the most coherent, less time-consuming option.