Blog: Business and Human Rights
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December 18, 2020
In July 2020, MSI Integrity and the International Human Rights Clinic launched the blog series, “Rethinking Multi-Stakeholder Initiatives.” Accompanying the publication of MSI Integrity’s major report, Not Fit-For-Purpose, the blog series sought to share several critical perspectives on the MSI field. The contributions largely honed in on two of the key questions posed by the report: are MSIs working for rights holders, and do we need to rethink the role of MSIs as human rights tools?
Beginning with Christie Miedema in her piece, “Binding Brands to Create Change,” and ending with Fola Adeleke’s “Rethinking Corporate Accountability,” the series amounted to nine thoughtful contributions. To close the series, Amelia Evans and Teddy Ostrow of MSI Integrity shared their thoughts on some of those perspectives, as well as what’s next for the organization.Continue Reading…
December 16, 2020
Posted by Dana Walters
For the Human Rights Program, fall 2020 was different — but no less busy. After a brief stint with remote schooling last spring, faculty, students, and staff committed to shifting their methods of advocacy and learning fully online this fall. Despite challenges, we all found ways of maintaining community and building connection virtually.
The International Human Rights Clinic held two introductory classes and an advanced seminar for third-year JDs. With almost 40 students this fall, projects examined the right to water in South Africa and the United States; killer robots; accountability for human rights violations by corporations and the United Nations; the arms trade treaty and gender-based violence; climate change and human rights; and more.Continue Reading…
December 14, 2020
Posted by Fola Adeleke
A version of this contribution was originally published by Afronomics Law on December 11, 2020.
Earlier this month, investigative journalists disclosed that Indian garment factories responsible for the supply to global supermarket chains such as Marks & Spencer, Tesco, and Ralph Lauren were exploiting their workers. Some of the allegations include poor wages, 22-hour work shifts with no toilet or water breaks. These conditions exist despite the existence of a local law, the Indian Factories Act, which sets out working conditions for workers in this industry. More importantly, the brands that use these suppliers in India are all part of the Ethical Trading Initiative (ETI) that was set up in 1998 shortly after the sweatshop conditions that engulfed major brands such as Nike and Gap in the 1990s.
The ETI is part of a trend known as multi-stakeholder initiatives (MSIs). MSI involve a “collaboration among various public and private actors—such as corporations, governments, CSOs, and rights holders—that have a stake in an issue.” These MSIs set global voluntary industry standards for its members to follow and are often punted as addressing issues of public concern such as human rights violations in specific industries. These MSIs are geared towards establishing a governance model to tackle a gap “where a state either cannot, or will not, fulfill its duty to protect its citizens against human rights violations by companies.” The stated aim of the ETI is to improve working conditions in global supply chains by developing effective approaches to implementing the Base Code of labour practice developed by the initiative.
Despite the increasing popularity of MSIs, it is clear that self-regulation through this governance model is not the answer to driving corporate accountability for matters of public concern such as human rights protection. In a report released in July 2020 by MSI Integrity, a non-profit originally dedicated to understanding the human rights impact and value of MSIs, it was found that MSIs are not effective tools for holding corporations accountable for abuses, protecting rights holders against human rights violations, or providing survivors and victims’ with access to remedy. The report showed that we need to rethink the role of MSIs and the presence of an MSI in an industry should not be a substitute for public regulation.Continue Reading…
December 1, 2020
Clinic Submits Amicus Curiae Brief on Behalf of Legal Historians
Today, Dec. 1, the Supreme Court of the United States hears oral arguments in a pair of corporate human rights cases against U.S. based chocolate companies Nestlé and Cargill for their role in aiding and abetting child slavery in West Africa. The plaintiffs, six survivors of kidnapping, trafficking, and forced labor, make use of the Alien Tort Statute (ATS), a provision of the First Judiciary Act of 1789 that allows foreign nationals to pursue accountability for law of nations violations in U.S. Courts. In examining the cases, the Supreme Court will consider the question of corporate liability under the ATS for the third time – this time focusing on whether or not the ATS permits cases against U.S. domestic corporations at all.
In October, the International Human Rights Clinic filed an amicus brief on behalf of legal historians in the case against the chocolate companies. The brief includes newly uncovered historical documents from George Washington’s first administration which clearly demonstrate how the founders intended the ATS to apply to violations committed by U.S. subjects. The documents include an opinion by Thomas Jefferson and affirm that the ATS was intended for the very purpose at issue in the current cases: to provide options for redress to foreign nationals whose rights have been violated by U.S. subjects.
A clinical team – Emily Ray JD’21, Jasmine Shin JD’21, Allison Beeman JD’22, and Zarka Shabir JD’22 – under the supervision of Tyler Giannini, Clinic Co-Director worked with the amici on the brief. Amici on the brief were Professors Barbara Aronstein Black, Nikolas Bowie, William R. Casto, Martin S. Flaherty, David Golove, Eliga H. Gould, Stanley N. Katz, Samuel Moyn, and Anne-Marie Slaughter.
The International Human Rights Clinic staff have played a major role in ATS litigation for decades, including in landmark corporate cases such as Doe v. Unocal and Wiwa v. Royal Dutch Petroleum Co. Since 1980, the law has been a critical means of holding perpetrators accountable for abuses such as extrajudicial killing, torture, war crimes, and crimes against humanity when redress might otherwise be unavailable elsewhere. Still, in recent years, the law has been curtailed and challenged.
Learn more about the case in the Nestlé & Cargill v. Doe symposium on Just Security and the case preview on SCOTUSblog. Read about all eighteen amicus briefs filed in support of the survivors of child trafficking on the Corporate Accountability Lab’s blog, and dive into Daniel Golove’s article exploring the significance of the new evidence the Clinic relied on in its brief supporting plaintiffs.
October 9, 2020
Posted by Zobaida Khan
After the devastating and avoidable collapse of the Rana Plaza in 2013 in Bangladesh, two innovative multi-stakeholder initiatives (MSIs) emerged: the Alliance for Bangladesh Worker Safety (“Alliance”) and the Bangladesh Accord on Building and Fire Safety (“Accord”).
They engaged a diverse group of regulatory actors (local suppliers/producers, foreign buyers, the International Labor Organization, the national government, and activist networks), regulatory mechanisms (for operating, financing and monitoring safety inspections), and detailed standards or rules in order to ensure factory safety for garment workers. Moving beyond voluntary codes of conduct and “Do No Harm” policies, these MSIs introduced significant institutional changes in corporate responsibility. They included stronger sourcing policy, improved safety of factory premises, and public reporting of corporate compliance. Indeed, unlike traditional international standard-setting MSIs, the Accord’s terms were legally binding between brands and trade unions. This is the first time an MSI allowed legal enforcement of its provisions and obligations in a transnational labor regulatory setting. Although the terms of both programs have ended, these MSIs attempted to address the regulatory deficiencies created or overlooked by the national government and the supplier factories.
Yet, with continued evidence of a race to the bottom for wages and working conditions in supplier factories, brands offering cut-rate sourcing prices, and recent reports on the costs to the jobs, health and work entitlements of millions of laborers due to COVID-19-related supply contract cancellations, academic and policy debates are focusing on MSIs’ structural and functional effectiveness and the possibility of restructuring these to deliver social justice oriented results:
How could MSIs be more inclusive in their formation?
How could MSIs lead to long-lasting influence on corporate sourcing policies and improvement of work conditions and entitlements?
Although these issues appear separate, I argue that to properly address diverse compliance challenges in supply chains, there needs to be a coherent and connected restructuring of MSIs that both strengthens their participatory mechanisms and influences the transformation of our liberal market system’s dominant business model.Continue Reading…
October 1, 2020
Posted by Bennett Freeman
MSI Integrity’s Not Fit-For-Purpose report is the culmination of a decade of examination of 40 standard-setting multi-stakeholder initiatives (MSIs) focused on corporate accountability and human rights. Its release in July 2020, coincidentally but significantly, comes amid the epic disruption of a global pandemic and a historic movement for racial equality. Both COVID-19 and Black Lives Matter have separately and together exposed (literally) fatal weaknesses of national and global governance; both have challenged governments and businesses to confront inequality and injustice. At a time when corporate accountability and government responsibility are under critical scrutiny, it is useful to revisit what Not-Fit-for Purpose calls “the grand experiment of multi-stakeholder initiatives.”
Despite what the report argues, however, I believe that it is premature to declare MSIs no longer “fit-for-purpose.” We must be clear that the “grand experiment” was indeed bold but not quite so grand. The aim was to supplement, and not supplant, the role of governments where governments could not, or would not, act to protect human rights connected to corporate misconduct. It was an essential start, a beginning but not an end that would be complemented and reinforced by law and regulation when possible. We must not only revisit but revitalize MSIs at a time when, ironically, multi-stakeholder governance models are setting standards across the policy arena beyond the human rights field where they first gained significant influence.
The number and type of MSIs across issues, industries and regions—and their different forms and missions—make it difficult to make broad generalizations that address them all. But I offer a perspective based on my work over the last two decades with four flagship MSIs: as the leader of the process that produced the Voluntary Principles on Security and Human Rights (VPSHR); as a co-founder and longtime board member of the Global Network Initiative (GNI); and as an early board member of the Fair Labor Association (FLA) and the Extractive Industries Transparency Initiative (EITI).Continue Reading…
September 17, 2020
Posted by Judy Gearhart
The phenomenon of multi-stakeholder initiatives (MSIs) has spread rapidly across the globe since the 1990s, with governments and multinational corporations (MNCs) alike promoting them as the new solution to the global governance gap even before they were fully road-tested. Civil society organizations (CSOs) saw them as a way to engage MNCs on the environmental and social problems exacerbated by global trade. MNCs saw a means to inoculate their global reputations from the risks of doing business in places where human rights scandals were greater than at home. Just as MNC staff required vaccines against tropical diseases before departing, the corporation needed to guard against the risk of coming into contact with the plagues of corrupt governments and abusive employers.
Yet MSIs, at least those focused on the impact of global supply chains, were only set up to address the symptoms, not the cause of these plagues. Most failed to recognize how MNCs were actually fueling corruption and employer abuse by constantly demanding lower prices and faster production times. Thus, the global governance gap grew wider as MNCs diversified their supply chains and effectively played one producer country against the other. When the scandals multiplied and children were found making clothing for Wal-Mart in Honduras or soccer balls for adidas and Nike in Pakistan, global brands sought help from MSIs.
The majority of MSIs are set up as public charities and their goals express the intent to protect a public good. This includes MSIs working with public sector institutions to improve accountability such as the Extractive Industry Transparency Initiative (EITI), those covering workers’ rights such as Social Accountability International or the Fair Labor Association, and environmentally focused groups such as Rainforest Alliance and Marine Stewardship Council. What nearly all of them have in common is a mission to address a lack of regulation or the weak legal protections of national resources, the environment, or workers. Yet MSIs focused on supply-chain monitoring—as distinct from MSIs engaging the public sector—have been largely silent or disengaged on advocacy for legal reforms and rule of law, often turning a blind eye as member MNCs’ suppliers pursue multi-year legal battles against whistle-blowers or worker organizers.
The recently released MSI Integrity report, Not Fit for Purpose, tracks the uptake of MSIs as a reference point for addressing gaps in global governance. MSI Integrity cites how the UN Guiding Principles (UNGPs) on Business and Human Rights extended legitimacy to MSIs by directly referencing them, and the 23 countries that have referred to MSIs in their National Action Plans for implementing the UNGPs. Yet most MSIs are a weak stopgap for failing legal protections. They are also poor exemplars of good governance given the extent to which they have eschewed the key elements of transparency, accountability, and participation.
Not Fit for Purpose could have distinguished more among distinct MSI approaches, e.g. supply-chain versus public governance-focused MSIs, and those treating symptoms through risk mitigation among suppliers versus Fairtrade’s work to gain market access for small farmers. The report is very helpful though, especially in identifying patterns and quantifying how the majority of MSIs fall short on models of good governance:Continue Reading…
September 3, 2020
Posted by Rebecca Tweedie JD'21 and Tyler Giannini
The opening blog in this series laid out two different paths MSIs could have taken:
The allure [of MSIs] was (and still is) obvious. If we bring the right players together, they can learn from each other and solve the given problem by setting up a democratic institution that can prevent future abuses and sanction violators, and governments will not have to pass hard laws and unnecessary regulations. The potential flaws were (and remain) just as obvious—the power imbalances amongst the players are acute and asking industry to voluntarily give up power and self-regulate is a fool’s errand that puts the fox in charge of the chicken coop.
August 27, 2020
Posted by Jaff Bamenjo, Coordinator of RELUFA/Cameroon
Multi-stakeholder Initiatives (MSIs) emerged in the 1990s as frameworks for engagement between governments, the private sector and civil society organizations (CSOs) to address human rights issues in business. There are currently several sector-specific MSIs around the world originally conceived to address problems, ranging from labor abuse to corruption, in agriculture, extractive industries, forests, the environment and beyond. After more than two decades, however, local communities are now questioning whether MSIs have proved relevant and effective in addressing these problems.
As a civil society actor who works closely with communities affected by resource extraction in Cameroon, I have closely followed the implementation of two MSIs: the Kimberley Process Certification Scheme (KPCS) and the Extractive Industries Transparency Initiative (EITI) for close to a decade. The KPCS and EITI were both created in the early 2000s and received with a lot of enthusiasm by some CSOs as tools to promote transparency and accountability in the extractive sector and prevent diamond-fueled conflicts, respectively. Though almost twenty years later, it is quite telling how these MSIs are oblivious to the concerns of the local communities that were the intended beneficiaries of their creation.
The Kimberley Process Certification Scheme: Sidelining civil society and not addressing key issues
Formed in 2003 by the United Nations (UN) General Assembly, the KPCS is a joint government, industry and civil society initiative aimed at eliminating the trade in conflict diamonds. The KPCS was created in response to public outcry at the end of the 1990s over diamond-fueled conflicts in certain African countries. Today, the KPCS takes credit for eliminating about 98.8% of conflict diamonds in the world.
The commonly used definition of conflict diamonds, however, is incredibly narrow: “rough diamonds used by rebel groups or their allies fighting to overthrow a legitimate government.” While it can be argued that, apart from in the Central African Republic, there are no rebel movements currently using diamonds to fund wars to overthrow legitimate governments, human rights violations and massacres have reportedly continued in diamond mines around the world. And in turn, they disproportionately impact local communities near the mines.
Per the narrow definition of conflict diamonds, KPCS pays little attention to such human rights violations. Instead, they classify them as outside their scope. But such neglect by the KPCS to include other forms of abuse committed by the military or private security agents is incomprehensible to those most affected. In the Marange diamond fields of Zimbabwe, some CSOs have reported security agents for private mining companies unleashing dogs on and shooting defenseless local artisanal miners. Yet diamonds sourced from these fields are certified and allowed to enter the international market.Continue Reading…
August 27, 2020
Q&A with Rebecca Tweedie JD’21
Last month, the Institute for Multi-Stakeholder Initiative Integrity (MSI Integrity) reflected on 10 years of trying to make the world better for workers and rights-holders in the business world in a new report, “Not Fit-for-Purpose.” MSI Integrity, an organization Amelia Evans LLM’12 and Human Rights Program and International Human Rights Clinic Co-Director Tyler Giannini co-founded in 2013, has spent the last decade dedicated to understanding the human rights impact and value of voluntary multi-stakeholder initiatives (MSIs). MSIs are collaborations between businesses, civil society, and other stakeholders that were originally piloted to give rights-holders a seat at the table with corporations. The new report explains in detail how, after years of trial and error, MSIs have failed to deliver on their promise and ensure best practices in the business and human rights landscape. The organization has promised a new way forward for their organization: exploring a world beyond corporations.
Over the years, International Human Rights Clinic students and staff have contributed dozens of hours of research and writing to projects with MSI Integrity. Rebecca Tweedie JD’21 worked closely with Giannini and Evans this year on the report and spent January Term 2020 interning with MSI Integrity. We recently spoke with her to learn more about what she learned on the project and her interest in human rights.
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