Friday, 9 June 2017

Modern slavery: consumers, regulators, companies

"... Debate continues over whether 21 or 40-plus million people live and work in slavery-like conditions. Either number is unacceptably high in the 21st century.

Yet addressing modern slavery is not only a job for government or bigger businesses: a critical mass of informed proactive consumers will surely be as significant as law-making..." 

So I argue in a blog-post on another forum, on Australia's moves towards a Modern Slavery Act, incorporating corporate transparency requirements of one form or another.

Here is a link to that blog-post.

https://www.policyforum.net/consumers-must-join-business-government-addressing-modern-slavery/

JF

ps -- see previous blog-post on this issue on this blog, that 'business and human rights' is about more than corporate supply-chains, modern slavery, and transparency legislation ... even tho these are big enough in themselves: here.

Thursday, 30 March 2017

Business and human rights: 'the field'

Does focusing on a singular high-profile issue advance or distort efforts to promote responsible business more generally?

Those who write and work on 'business and human rights' (BHR) tend to describe this as an 'emerging' field, although it is not self-evident what the field comprises or ought to comprise.

The question of the proper or ideal parameters of a field seems highly academic. I have argued elsewhere* that there are some downsides to the attempt to frame many wider challenges of sustainable and responsible business in the language and logic of 'human rights'. In an earlier post, for example, I questioned whether the BHR paradigm was an appropriate or useful one for addressing income inequality.**

The question of wide or narrow framing also has some very practical aspects.

In Australia, much of whatever BHR-related momentum exists in government and some business circles is increasingly coming to focus on human trafficking and 'modern slavery' issues (which are not the same thing), mainly relating to larger Australian-listed firms' overseas supply chains. For instance, a parliamentary sub-committee enquiry is afoot to assess the suitability for Australia of a legislative model based on the UK Modern Slavery Act, which includes some basic supply-chain disclosure obligations on bigger businesses.

This trafficking/forced labour focus is not the totality of the BHR conversation in Australia, but it seems to represent an increasingly and, one could argue, disproportionately big chunk of it.

To some extent, this may be true of the BHR phenomenon well beyond Australia, or at least in some circles in the United Kingdom (where many BHR conversations quickly become conversations about the Modern Slavery Act, which while an important development is merely one intervention in one set of problems in one jurisdiction.)

On one hand this elision between 'BHR' and 'trafficking/modern slavery' is to be welcomed:
  • trafficking and forced labour issues are objectively important in their own right;
  • 'focus' on them is not necessarily something narrow since even seen in isolation this is a big complex problem to face;
  • focus on these issues aligns with Australia's reputation for innovation and commitment in addressing human trafficking through criminal law provisions and policy work;
  • and a focus on this set of issues can conceivably act as a proxy for BHR issues more generally, including in sensitising business to wider BHR-related issues, increasing the scope for business to be receptive in future to initiatives that go well beyond supply chains and trafficking + forced labour issues.
This last factor is not unimportant: unless you subscribe to the overly-enthusiastic idea that the BHR paradigm has had a 'magic' effect in galvanising business engagement***, one can recognise the value of any initiative (such as one on corporate supply chains and trafficking / forced labour) that reassures yet challenges business to action even if this is action only on one aspect of BHR problems.

[In any event it may be inevitable that any Australian BHR attention focus on such overseas issues: without trivialising BHR issues arising here at home, objectively those prevalent in settings abroad are of far greater scale and seriousness. Trafficking and modern slavery issues abroad also happen to have an influential business leader, so again the special focus relative to other BHR issues may be inevitable. It may also be natural for advocacy, policy-making and business to be content to ride with one (objectively important and complex enough) set of issues: it gives advocates a sense of something happening; it gives policymakers an example of Australia's commitment to human rights; it gives big business a readily understandable and identifiable issue, target or problem-set (whereas acting on 'human rights' generally covers a very wide area of possible activity).]

Yet on the other hand, BHR is about a great deal more than human trafficking and forced or slavery-like labour. Even the sphere where 'labour rights' and internationally protected 'human rights' overlap comprises many more issues than is suggested by a focus just on corporate supply chain human rights dynamics, and then within that on human labour trafficking (etc) within supply chains.

If there is anything to this observation, it may create something of a dilemma for those interested in an overarching BHR advocacy strategy, as well as those (for example, within government agencies) interested in or required to give content to Australia's implementation of the UN Guiding Principles on BHR more generally: does one direct energies to an issue that is attracting at least some attention and interest, hoping that it will not displace other important BHR issues and themes?

'BHR' on one had comprises more than the 'modern slavery' agenda. Yet at the same time BHR (at least understood as a distinct set of claims grounded ultimately in international legal standards with, in that sense, relatively narrow application) is not necessarily equipped or suitable as the framework for tackling and resolving complex issues such as forced labour and associated human movement. 

Jo

* On the idea that some contributors sketch the field of BHR too broadly, see here, pp 6-7.
** On the income inequality question, see here.
*** On this supposed 'magic' transformation see the 'Alchemy of BHR' blogs.

Wednesday, 1 March 2017

Private Law, Public Goal: contracting human rights

Might a 'private law' instrument (a commercial contract) in some cases hold more regulatory potential, in human rights terms, than a 'public law' instrument such as a treaty or related legislation?

We know a lot about the compliance gap in the mainly treaty-based international human rights system, which does not apply directly to business actors.

In this context, one way to innovate on promoting compliance with these standards, at least where business actors or commercial relationships are involved, is to find ways to frame human rights obligations as contractual promises.

If the pitfall of human rights compliance is the existence of sanctions or some enforcement mechanism, the attractiveness of using private law mechanisms is the potentially more tangible commercial consequences of a material breach of contract.

There's a whole literature on this sort of thing (eg Hugh Collins' Regulating Contracts, 1999), and some practice evident in (for example) incorporating reference to the Voluntary Principles into extractive industry contracts.

Here now is another practical manifestation of it.

This week my attention was drawn* to the fact that the International Olympic Committee (IOC) has recently amended its standard 'Host City' agreement to incorporate reference to the 2011 UN Guiding Principles on Business and Human Rights.

The procuring power and commercial influence that a body such as the IOC might bring to bear in this way would seem to offer one important way to influence human rights compliance by those supplying, sponsoring and indeed hosting mega sporting events.

More broadly, one has a glimpse of the potential to steer or influence commercial behaviour by finding private law means to public law ends.

Already there is some work being done on the scope for building human rights compliance mechanisms (or at least reporting / disclosure ones) into government procurement from private suppliers and contractors: see here (Danish Institute for Human Rights).

Advocates can move beyond repeated claims of 'human rights violation' to something that might resonate more effectively or in different ways, with specific consequences, now framed as 'contractual breach'.

On one view, the human rights law student or lawyer of the future might be someone who specialises in contract negotiation or studies International Commercial Arbitration, rather than the very public-law focused discipline of human rights as it exists today.

Jo
@fordthought

See news stories on the IOC move from Human Rights Watch, and the International Trade Union Confederation.

See here this previous blog of mine on mega-sporting events, business, and human rights (Rio Olympics 2016), and these resources on that topic:


* Thanks to Justine Nolan

Wednesday, 8 February 2017

Responsible business in a Trump era (II)

How might the Trump era affect trends in responsible business (and its regulation)?

I am hesitant to give Trump more social media air-time than he already gets*, but the question is of broad relevance if indeed we're entering an era in which the state-business nexus has some particular features.

One of the things us regulation scholars navel-gaze about is the relative significance of public versus private forms of governance, and the scope for innovative hybrids of these in pursuit of both societal and commercial goals.

Last November, around his inauguration, I blogged on what Trump & co might mean for the responsible business agenda, in particular in relation to my own interest in policy and regulatory initiatives around that: here.

(At around the time, at least one other blogger also wrote on this topic: see here.)

In that post I speculated whether business might lead, and civil society be reinvigorated, where a new administration distances itself from promoting responsible and sustainable business practices:

"... a reluctant or recalcitrant or reclusive government [on this agenda] might indeed stimulate all sorts of unexpected enlightened activity ... often led by business and investors. This may include a greater convergence of the BHR agenda with core commercial ideas about value-creation, productivity, competitiveness and so on..."

I wrote that because I saw a possible silver lining on what otherwise was a rather gloomy outlook for this agenda at least within the US.

I still think it holds merit.

This is a long lead-up to saying that my attention was drawn to this blog-post on how corporate responsibility may in fact be mainstreamed in a Trump era, without necessarily waiting on government to lead (or the US government to lead, in a global context).

I do accept rejoinders such as those of Mark Taylor @lawsofrule that see the many possible downsides here.

Sub-question

Of course there's a sub-set of questions here: Trump will matter to the US context in terms of responsible business conduct, but the sub-question is 'Does the US context matter globally?' The world's largest and most diverse economy does not necessarily lead on innovation in responsible business or regulation or policy innovation around this.

Still, the premise of this post is that what happens in the US, and in US corporate life and cultures, matters for its own sake and will continue to matter globally.

At the global governance level, there is an argument to be made that any Trump-related leadership gap on issues affecting the responsible business agenda globally (including climate change) might be taken up by Beijing. (See here for a related comment on the potential for Trump isolationism to create leadership opportunities for Beijing).

On this blog's themes, it is so facile still to persist in assuming on responsible business issues that 'Western company or regulatory state = good', and 'Chinese state or firm = bad'. One still sees a lot of this lazy assumption, eg in the China-in-Africa debate. This ignores some interesting practice and policy-making from China, some of which may support a thesis that despite the weak underlying domestic media / civil society context, it is not inconceivable that leadership on some of these issues will come from a non-OECD country and its corporates.

Jo

Twitter: @fordthought

* Of course Trump alleges a media conspiracy to distort or not report certain issues or views...

Tuesday, 29 November 2016

Studying Business & Human Rights: 10 topics

Year-end brings its 'top-ten' lists in many areas. The 'business and human rights' field is no different. This was the IHRB's top 10 list of issues for 2016, published in December 2015. The institute has been soliciting inputs for this December (for 2017).

What are 10 important and/or interesting topics for student research projects on BHR?

I've recently completed delivering a new online Masters course in BHR. I produced a nominal longer list of essay topics for students, relating to the course content.

As with the IHRB list, those interested in this field will no doubt debate what should or should not be on a list of 'top 10 topics'. Some caveats: (a) a list of ten doctoral projects would look different -- this list relates to shorter student essays of about 5-8 thousand words; (b) BHR needs more country-, sector-, scheme- and supply chain-specific research, in particular directed towards business awareness and responses to the BHR agenda -- this list is more about conceptual issues and debates than topics for that sort of primary fieldwork; (c) listing good essay topics is not the same as suggesting that these are the ten most important things for a BHR course to cover; since it is about academic insight or study, nor is the list the same as saying 'these are the 10 most important, 10 most unclear or disputed, 10 most neglected, etc'; (d) the list, like the course, has a law and regulation focus: the self-consciously and inevitably inter-disciplinary BHR field still needs good intra-disciplinary work; (e) this is not held out as the top-ten just a top-ten... 

Here then is one list of 10 essay-length questions for students of BHR within a law school context:

1.  'Do mandatory schemes hold more regulatory promise in the BHR field than voluntary ones, or is this a false dichotomy?'

2. 'What, if anything, is the difference between an 'adverse impact' on human rights and a human rights violation? What are the implications of the UNGPs' use of the term 'adverse impact' for one's ability to offer businesses clear advice about the content and limits of their responsibilities?'

3. 'How, if at all, do you think the 2008/2011 UNGPs framework offers clear principles that deal with a situation where a business operation complies with its Pillar II responsibilities in all its operations but is invested in a country with a poor human rights record?'

4. 'What is the nature and extent of, and evidence for, any duty of the state to regulate the human rights impact of corporate actors abroad? Discuss, differentiating any duties in international human rights law from any duties relating to the law governing state responsibility.'

5. 'If the Talisman scenario were to arise today, how would Pillar I of the UNGPs affect what you think would be an appropriate governmental response?'

6. 'How do you define 'modern slavery'? How would you advise a corporate client on where the threshold lies between 'slavery and slavery-like practices' and employment practices that, while problematic, do not raise international human rights standards?'

7. 'What do you see as some of the wider implications for the concept of 'human rights compliance' of the trend towards corporate / financial due diligence processes?'

8. 'How would a BHR treaty / treaties most effectively and viably deal with Pillar III (access to remedy) issues? What are some models or approaches based on existing human rights (and other) treaty regimes?'

9. 'Which of these two statements do you agree with, and why? (i) "The treaty process an unhelpful distraction from national-level BHR actions by states" and (ii) "The treaty process is a necessary aspect of addressing the governance gap."'

10. 'How credibly and effectively, and with what strategic consequences, can the BHR narrative (and UNGPs standards applicable to states and businesses) be linked to other major contemporary social issues such as climate change or corporate taxpaying?'