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27 November 2017

Commentary: OHCHR to discuss findings from Accountability & Remedy Project at UN Forum

Author: Elisabeth Andvig, OHCHR, Business and Human Rights Journal

"Finding a way through the A2R maze: OHCHR's Accountability and Remedy Project", 24 Nov 2017

...[I]naccessibility of remedies in business and human rights cases is a serious and, in some respects, worsening problem...OHCHR’s Accountability and Remedy Project has been developed to respond to these concerns...[L]aunched in November 2014, [the project] has one key aim - to help States strengthen their implementation of Pillar III of the UNGPs...

...[T]he first phase of work (“ARP I”) was devoted to issues related to the use of judicial mechanisms in business and human rights cases and prioritised six key themes: (i) clarifying domestic liability concepts under domestic regimes, (ii) cross-border challenges, (iii) overcoming financial obstacles, (iv) “effective” remedies in criminal cases, (v) “effective” remedies in civil cases and (vi) supporting domestic law enforcement agencies. The conclusions drawn from this research...were formally presented to the Human Rights Council by way of a written report in June 2016.

...OHCHR is now well into the second phase of its work (“ARP II”) which...is concerned with the role of State-based non-judicial mechanisms. Three papers have been published so far: a preliminary scoping paper, a sector study on issues arising in “high-risk” sectors and...a discussion paper...

...The research and conclusions from both phases of the OHCHR Accountability and Remedy Project will be discussed during two sessions at the [UN] Forum [on Business and Human Rights], both taking place on 28th November...

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27 November 2017

Commentary: Real-time, comprehensive approach is key to remedy for child labor & trafficking in global supply chains

Author: Nina Smith, GoodWeave International, Business and Human Rights Journal

"Remedy to Children Toiling in Global Supply Chains", 24 Nov 2017

...The key is to respond to child labor and trafficking cases in real-time, and to follow tested, legal guidelines to help the victim separate from exploitative circumstances without exposure to danger or risk. This intervention must be followed with services that help them to recover, and to remain protected from exploitation going forward...Yet most supply chain auditing programs never reach children...[I]f they do, then the protocol is usually to issue a “corrective action report” requiring the employer to resolve the issue...[E]fforts to audit production and account for worker legitimacy and welfare are limited to factories...[M]ost exploitation is in the sub-contracted tiers of labor down to homeworkers...

...The other half of the successful equation in delivering remedy, is for companies to adopt actionable remediation policies and strategies, partner with local NGOs, and train their compliance staff to deploy appropriate responses...[H]aving a proper mapping and verification process combined with remedy can be the difference between complying with the law and solving the root causes of child labor...A comprehensive program will be country-specific and sensitive to the local context...[and] must include: 1) Removal of children from the work place...2) Counselling and care; 3) Advocacy of child rights; 4) Education; 5) Rehabilitation into community/family; 6) Ongoing support; 7) Follow up and tracking; and 8) Prevention through awareness raising and community-based interventions...[refers to C&A and Monsoon]

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27 November 2017

Commentary: States should provide financial resources to local communities to strengthen access to remedy

Author: Irit Tamir, Oxfam America, Business and Human Rights Journal

"Empowering Communities as a Strategy for Holding Corporates Accountable", 25 Nov 2017

...[A]nother strategy for gaining access to remedy is to empower affected communities by providing more financial resources and requiring the participation in human rights due diligence laws. Local communities are at the forefront of investment projects but too often face a power imbalance with the key stakeholders: companies and government...At the same time, focus is often on companies with an expectation for them to engage in due diligence processes. But companies face several constraints, such as time and lack of cultural knowledge that limit their ability to conduct meaningful consultations with local communities and marginalized groups.

To overcome these challenges, it is crucial to empower communities to enable them to participate in decisions affecting their lives...[T]o talk about meaningful consultation, a key element must be in place: communities need capacity and resources to engage in such a consultation...A fund should be established to support community-based organizations working directly with local communities. This fund would be used to develop local capacities in terms of human rights and business...[and] allow the implementation of consultation processes that would be both inclusive and meaningful. Funds could be established nationally, by sectors and globally...

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27 November 2017

Commentary: UK: Court ruling expands scope of parent company liability for human rights impacts of foreign subsidiaries

Author: Peter Hood & Julianne Hughes-Jennett, Business and Human Rights Journal

"How Should English Domiciled Multinationals Manage their Human Rights Risk in Light of the Judgment in Lungowe v Vedanta?", 26 Nov 2017

...[T]he doctrines of separate corporate personality and forum non conveniens insulated English domiciled parent companies from liability for the actions of their foreign subsidiaries.  However, developments in English and European law have progressively undermined the foundations of these doctrines...Last week, the Court of Appeal handed down its judgment in Lungowe and Ors. v Vedanta Resources Plc and Konkola Copper Mines Plc. This will come to be seen as a landmark case in relation to parent company liability and jurisdiction and has deep significance for how English domiciled multinationals manage their human rights risk.

...The Court confirmed that a parent company does not automatically owe a duty of care to someone affected by the actions of its subsidiary. The Claimant must do more to prove that a duty of care arises... The Court expressly confirmed that the law has developed so that a parent company’s duty of care can extend to non-employees affected by the operations of the subsidiary. Together, this expands the scope of parent company liability and will likely encourage more claims of this kind. 

...In order to fulfil their responsibilities under [...] the UN Guiding Principles, they [English domiciled multinationals] are required to take responsibility for human rights risks throughout their group and supply chain... [Pushing] responsibility for human rights due diligence down to the operating subsidiary level [...] will likely be more effective in reducing the risk of an adverse human rights impact in the first place.

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27 November 2017

UN Forum on Business & Human Rights - Day One Recap

Author: Michael Quayle, Thomas Voland & Emily Holland, Freshfields Bruckhaus Deringer

[Note: This piece was also published as part of the UN Forum blog series here.]

The focus of this year’s forum is the so-called “forgotten pillar,” or Pillar III of the UNGP, which addresses the need for states and business to ensure access to effective remedy for human rights abuses...

Select takeaways from today’s sessions are as follows:

Increasing interaction between Legal and CSR teams [...]

Transparency is critical [...]

Responsible advertising [...]

Focus on complaints procedures [...]

Access to remedy in the digital age [...]

Proposed “Geneva digital convention”

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24 November 2017

Commentary: Mental health must be considered in remedial processes for cases of corporate-related harm

Author: Jo Reyes, GBI, Business and Human Rights Journal

Adopting a mental health lens in assessing the appropriacy and effectiveness of remedy for victims of business-related human rights abuse is crucial... [and] little explored in many areas... Effective OLGMs can be critical in catching grievances before they constitute an abuse, so their potential value is high when viewing a rights holder-centred approach through a mental health lens in a business context... 

In adopting a rights holder-based approach to remedy, there is an implicit need to understand how an individual experiences a negative human rights impact; the nature and effect of that impact; and its implications in both the short and long-term... To adopt a rights holder-centred approach to remedy, there is a need to meet the victim ‘where they are at.’ The impact of the remedial process and outcome can then have a further positive or – equally significant – negative impact on the victim. 

When assessing appropriate remedy, we should also remain mindful of the potential for negative impacts –elongated victim narratives or chronic stress caused by prolonged litigation; large financial pay-outs to communities with pre-existing high levels of substance abuse (risking exacerbation); and of cultural sensitivity where traditional methods may be undermined by clinical forms of intervention...

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24 November 2017

Commentary: States should ensure UNGPs reflected in international investment laws & contracts

Author: Tara Van Ho, INTRAlaw Centre, Aarhus University Department of Law, Business and Human Right Journal

International investment law (IIL) provides great protection to corporations through over 3000 treaties, national laws, and state-investor contracts. Corporations often do not need to exhaust domestic remedies, and the decisions of arbitrators may not be reviewed when the company seeks to enforce the decision... International human rights law and IIL can be complementarity, but conflicts have arisen, [such as where] a state adopts measures that negatively impact on investment law protections in order to secure human rights [or]... when businesses negatively impact on human rights and the state seeks to hold the business accountable through IIL.

A lack of policy coherence and inter-agency cooperation within domestic systems has long prevented the inclusion and protection of IHRL through IIL. But, there is... a great model for doing this. Last December, Morocco and Nigeria signed a bilateral investment treaty... that will oblige both states to ensure their “laws, policies, and regulations are consistent with the international human rights agreements to which they are a Party,”... [and] requires foreign corporations (and other investors) who are beneficiaries of the IIL treaty to “uphold human rights in the host state.”

IIL tribunals have made it clear that if states want to ensure businesses are bound by IHRL, they need to say so within their IIL treaties, domestic laws, and contracts. The Morocco-Nigeria BIT gives a great example of how this can happen. As new IIL treaties are being negotiated, states should ensure the UNGP are reflected. 

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24 November 2017

Commentary: Why the business & human rights community needs to engage with the SDGs

Author: Uwe Gneiting, Cathrine Bloch Veiberg & Amol Mehra, Business and Human Rights Journal

[B]usiness’ elevated position within the 2030 Agenda represents both a potential opportunity and a challenge: an opportunity as it brings into the spotlight the actions and impact of business and creates openings for a renewed push of making the human rights responsibilities of business core to the SDGs. A challenge because, if not understood correctly, business’s engagement in the SDGs will risk sidelining human rights, including processes like human rights due diligence.

Seeing the SDGs as an avenue to make advances on human rights represents a key opportunity for the business and human rights community... We offer international standards for accountability,;... create visibility for instances of negative human rights impacts of business... and elevate voices and grievances of rights holders; ... bring into focus the role of governments as duty bearers of human rights and thus as drivers of the SDGs; ... [and] help ensure that the SDGs’ ambition of leaving no one behind applies to marginalized and discriminated groups.

By engaging with key actors to the Agenda 2030 (e.g. aid agencies, financial institutions and development NGOs), [the Business and Human Rights community] can foster and expand the recognition and understanding for our cause and thus ensure that Business and Human Rights becomes a cornerstone of sustainable development.

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23 November 2017

Commentary: A practical step to remedying the cobalt child-labour problem

Author: Dr Raj Aseervatham, Business and Human Rights Journal

For child labour in the cobalt supply chain... the most effective remedy landscape begins with proactive and strategic socio-economic marginalisation of the problem, and how businesses can play a major role... Nearly 60% of the world’s known cobalt resources are in the Democratic Republic of Congo... and the cobalt supply chain from this region is riddled with child labour.

In 2017, Apple made public commitments to improving its supply chain scrutiny and reducing the risk of child labour in their products.  How they, and other companies like them (Samsung, Tesla etc) will do this is unclear... With cobalt, we smelt ore that might have been mined by a child together with ore that might not have been, resulting in a batch of cobalt that is tainted with child labour. We cannot separate those molecules, therefore it is harder to separate accountability... 

The cause of this problem is threefold. ... In the DRC, artisanal mining is illegal, [which] sets artisanal cobalt mining up to be a black market industry; unregulated, shadowy and therefore prone to child labour practices... Two is that artisanal mining for cobalt is a commercially attractive enterprise compared to other livelihoods, despite the pittance paid by buyers at the very start of the supply chain... Three: consumers of Apple, Samsung and Tesla products are somewhat apathetic and will probably buy the product irrespective of the percentage of child-labour procured cobalt in it, because “getting to zero” seems impossible.

A comprehensive solution [would include]:... the legalisation of artisanal mining in the DRC;... [an increased] focus [on] alternative economies so that artisanal mining is not the first, most attractive solution for income generation at the household level'... [greater consumer demand].

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22 November 2017

Commentary: Companies' ineffective grievance mechanisms can amplify consequences of human rights abuses

Author: Jeff Conant, Friends of the Earth U.S., Business and Human Rights Journal

"Failures of redress, or when is a grievance mechanism not a grievance mechanism?", 22 Nov 2017

For people harmed by corporate practices, grievance mechanisms can provide a level of recourse and visibility that was, until recently, largely unavailable, but they are far from a panacea. They can be inaccessible for reasons of language, literacy and digital access; they can lead to targeting of complainants by companies and corrupt authorities; and they can provide the illusion of redress without actually providing redress. As Earthrights points out, grievance mechanisms designed and implemented by the very companies that are the targets of the complaints suffer from a significant power imbalance between the parties. 

For companies at risk of exposure to human rights abuses, developing a credible grievance mechanism can…be a fraught exercise…Given the nature of company-community relations and the dangers faced by impacted rights-holders in complex operating environments, the implementation of operational-level redress mechanisms faces serious structural challenges. Poorly designed or implemented grievance mechanisms can risk compounding a sense of grievance amongst affected stakeholders by heightening their sense of disempowerment and disrespect by the process.” 

[mentions Cargill, Wilmar International, Musim Mas & REPSA. See here RESPSA's response to allegations related to a toxic spill, the murder of human rights defender Rigoberto Lima Choc, and the kidnapping of three other human rights defenders.]

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