Blog: Business and Human Rights
July 16, 2020
Clinic-incubated org documents systemic failure of business and human rights tool
Three decades ago, a grand experiment in human rights and global governance began to unfold. In the absence of rigorous government regulation of transnational corporations, civil society organizations began stepping into this regulatory void by collaborating with industry representatives to create voluntary codes of conduct and oversight mechanisms.
These multi-stakeholder initiatives (MSIs) now cover almost every major industry, from certifying food or consumer products as “sustainable,” “fair,” or “ethical,” to establishing good practices for internet companies in respect of privacy and freedom of expression online.
The new report from MSI Integrity, Not Fit-For-Purpose, is the culmination of a decade of research and analysis into international standard-setting MSIs. The report finds that, while MSIs can play important roles for engaging corporations, they are not effective tools to ensure that they respect human rights, to hold them accountable for abuse, or to provide rights holders with access to remedy for abuses.
“Over time, MSIs [multi-stakeholder initiatives] have become captured and dominated by corporations. So, while they may not have been designed to fail, I think they were destined to fail,” MSI Integrity Executive Director Amelia Evans LLM’11 said recently in a Guardian article about the report.
The report is a call to rethink the role of MSIs, and voluntary regulation more broadly, and for more effective regulation and enforcement of corporations at the local, national and international levels. The report also calls on the human rights community to challenge and change the corporate form itself, which excludes rights holders, workers, and communities from business decisions that impact them more than anyone else.
International Human Rights Clinic students and staff contributed research, writing, and editing, including: Alicia Brudney JD’19, Yanbing Chu JD’19, Sabrina Singh JD’20, Praggya Surana LLM’19, Rebecca Tweedie JD’21, and Vincent Yang JD’20, and Tyler Giannini, HRP and Clinic Co-Director and Clinical Professor of Law at Harvard Law School. Malene Alleyne LLM’17, MSI Integrity’s Research Coordinator and Clinic alum, was instrumental in the report’s production and dissemination.
MSI Integrity was incubated at the International Human Rights Clinic at Harvard Law School from 2010-2013 by Evans and Tyler Giannini, who is active on the board and still frequently collaborates with Evans on clinical projects. The organization began after NGOs and government officials — concerned with understanding whether MSIs were working — expressed the need for an independent organization to focus on measuring the effectiveness of MSIs.
Want to learn more about MSIs and the report? See below for commentary, events, and more.
Visit the report website: msi-integrity.org/not-fit-for-purpose/
Stay tuned for a joint blog series with MSI Integrity, “Rethinking Multi-Stakeholder Initiatives,” that will be launching soon.
May 20, 2020
Excluding marginalized workers from COVID-19 relief is bad policy—is it also a human rights violation?
Posted by Tara Boghosian JD ’20
The $2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act is the most expansive COVID-19 relief package in the world, so why does it still exclude many vulnerable workers and small business owners?
Mehrsa Baradaran begins to answer these questions in her April 9 article, “The U.S. Should Just Send Checks—But Won’t” in The Atlantic. Baradaran describes how the CARES Act excludes several vulnerable groups of individuals and businesses. Most expressly, the U.S. government’s Small Business Administration categorically refuses aid to all sex-related businesses (even legal ones, like strip clubs) and businesses run by anyone with a criminal record. In turn, these business’ employees are left out, too. Further, even though the CARES Act seems to provide for generous individual aid, lots of workers will struggle to meet the practical requirements for receiving the aid, including all undocumented immigrants. Baradaran argues that these policies are rooted in the longstanding American belief that the poor are inherently undeserving and must prove their moral uprightness in order to receive aid. And, as Baradaran notes, shaping economic policy around this belief is not only cruel but counterproductive. Being generous with aid during the crisis would do more to keep the economy afloat.
What is also clear, but not discussed by the article, is that in addition to being bad policy, these exclusions also raise human rights concerns. The international treaty on economic, social and cultural rights provides for the right to work in Articles 6 and 7, which can be fulfilled in part by governments putting in place social protection systems that prevent unemployment. This right is not contingent on the type of work that a person does. In addition, Article 9 of the treaty recognizes the right of everyone to social security, which the treaty’s monitoring body has interpreted to include non-contributory unemployment insurance. That body, the Committee on Economic, Social and Cultural Rights, has also specified that these benefits must be both accessible to all workers—including part-time, casual, seasonal, self-employed, undocumented, and informal economy workers—and adequate to cover their basic needs. Finally, the treaty states that individuals’ enjoyment of economic and social rights should improve progressively, so governments are also expected to increase rather than decrease access to social security over time.Continue Reading…
May 20, 2020
Posted by Sienna Liu JD'20
While there may be a middle-class bias in policies such as “social distancing” in the U.S., countries around the world that rely on cash-based commerce and thriving informal economies are facing a different kind of hardship.
A recent news article published by Quartz Africa depicts the current situation for informal workers in African countries under lockdown: informal workers, particularly street vendors, small-scale business owners, and traders, are attempting to do business despite the dual threats posed to their health and physical safety. In addition to the health risks that accompany continued contact with customers, these workers are also facing incidents of police brutality as patrolling officers harshly enforce lockdowns and curfews in various countries.Continue Reading…
May 20, 2020
Posted by Jessica Sawadogo JD ’21
As researchers learn more about coronavirus and the way it impacts us all, they’ve revealed a few key differences along gendered lines. Slightly more women than men may be getting COVID-19, but more men are dying from the virus. Women, on the other hand, are more economically vulnerable from the financial fallout of the novel coronavirus. This difference takes on a new meaning as the world braces itself for an impending recession.
The New York Times’ bi-weekly newsletter on gender and society recently reported a sobering fact: that the economic fallout from the coronavirus will have a “disproportionate negative effect on women.” The newsletter examines the results of a study from researchers at Northwestern University, the University of Mannheim in Germany and the University of California, San Diego, which found that the economic downturn will result in worse economic outcomes for women than for men and that the disparity from this crisis will be even worse than in previous recessions. The differences are attributed to women’s disproportionate representation in jobs that have been most affected by the global shutdown, like those in the restaurant and travel sector, for example. In addition, because women are often responsible for childcare, those who are able to work from home will see an increase in their overall workload with reduced availability for remunerated work.Continue Reading…
December 4, 2017
Tuesday, December 5, 2017
“Realizing Access to Effective Remedy”
A report-back from the 6th UN Forum on Business and Human Rights
Please join Tyler Giannini, Co-Director of the Human Rights Program and its International Human Rights Clinic, and Malcom Rogge, SJD Candidate and Teaching Fellow at HLS and Harvard Kennedy School, for a report-back from the 6th UN Forum on Business and Human Rights. The Forum is the global platform for yearly stock-taking and lesson-sharing on efforts to move the U.N. Guiding Principles on Business and Human Rights from paper to practice. The central theme of the 2017 Forum was “Realizing Access to Effective Remedy.”
November 16, 2017
MSI Integrity, a non-profit organization that the International Human Rights Clinic helped to incubate, has released a comprehensive tool to evaluate multi-stakeholder initiatives (MSIs), which are voluntary efforts that bring together industry, civil society, and governments to fill governance gaps.
The MSI Evaluation Tool was developed collaboratively by MSI Integrity and the Clinic through a five-year process of extensive research, practical pilot-testing, and global consultation with the public and experts on MSIs. It provides a framework to evaluate multi-stakeholder initiatives and the effectiveness of their institutional design, structure, and operational procedures. The tool began as a clinical project, and was carried forward by Amelia Evans, LLM ’11, who went on to found the Institute for Multi-Stakeholder Initiative Integrity, or MSI Integrity.
May 23, 2017
Posted by Tyler Giannini
A few years ago, I wrote about the many small moments that carry so much significance for us in this Clinic and in our work. Graduation time always brings me back to that place of appreciation for those moments, and last week in Colombia, my work was full of them.
At a press conference in Bogotá last Thursday, the Clinic and its partners, the International Federation for Human Rights (FIDH) and the Corporación Colectivo de Abogados José Alvear Restrepo (CAJAR), called on the Prosecutor of the International Criminal Court (ICC) to investigate the complicity of executives of Chiquita Brand International in crimes against humanity. It took years to get to that moment: Juan Pablo Calderon Meza, a former clinical advocacy fellow and Colombian himself, had come up with the vision and driven it forward inside the Clinic for almost two years. More than two dozen students worked on the communication submitted to the ICC this week, as well as myself and Susan and Anna.
Sometimes, on a project with so much vision and such a broad scope—a project that requires this amount of mental energy and grunt work, poring over endless sources, lining up the facts just right—it is difficult to imagine the moment when it will come alive in the wider world. But arriving in Colombia, it did.
I watched two of my long-time students, Kenna Graziano and Kelsey Jost-Creegan, hammering out the final details with our partners and communities who live with the effects of the paramilitaries’ destruction to this day. I listened to attorneys from CAJAR as we sat together over meals and spoke about decades of struggle alongside communities to end violence. Despite the sacrifices, it was clear that they would all do it again in an instant.
Then there was the actual press conference, when Kelsey, who speaks Spanish, represented the Clinic in a way that fits into the best tradition of what we were trying to do: she knew the issues inside and out, but she showed a humility and poise that hid the fact it was her first press conference. (It certainly was not her last.) I sat admiring in the audience with Kenna, who herself had put in an uncountable number of hours as we made last-minute adjustments against the swirl of the ever-changing backdrop surrounding Colombia’s evolving peace process.
And while I do not speak Spanish myself, I didn’t need to when Gildardo Tuberquia from the “community of peace” spoke. You could feel the emotion as he described the killings through the years – including one just a few weeks ago.
Juan, the visionary behind the communication, was unable to come; he is now working at the ICC in The Hague. But in a moving turn of events, his father, Ernesto, was able to attend the press conference on behalf of his son. And later that day, in another moment that will stay with me, we Skyped Juan in Geneva and raised a glass to his dedication and his vision, on behalf of the affected communities and all of us in Colombia.
As instructors in this Clinic, we all have stories like this—not just this semester, or this year, but in all the years of our teaching. It’s so much of why we do what we do. Thanks to all who support that work, and make those moments that add up to change.
May 18, 2017
Clinic and partners call on ICC to investigate role of Chiquita executives in contributing to crimes against humanity
Human Rights Coalition Calls on ICC to Investigate Role of Chiquita Executives in Contributing to Crimes against Humanity
Communities in Colombia Seek Accountability after two decades of impunity
Bogota, Colombia, May 18, 2017 – Today, on behalf of affected Colombian communities, a coalition of human rights groups called on the Prosecutor of the International Criminal Court (ICC) to investigate the complicity of executives at Chiquita Brands International in crimes against humanity. To date, no executive has been held to account despite the company’s admission that it funneled millions of dollars to Colombian paramilitaries that killed, raped, and disappeared civilians. If the ICC takes up the case, it would be the first time it moved against corporate executives for assisting such crimes.
In their submission to the court, the coalition of local and international human rights groups traces the executives’ involvement with payments made to the paramilitaries between 1997 and 2004. Even after outside counsel and the U.S. Department of Justice said such payments were illegal under U.S. law, the payments continued. The submission includes a confidential, sealed appendix that identifies by name fourteen senior executives, officers, and board members of Chiquita who the coalition argues should be the focus of the Prosecutor’s investigation.
The coalition, which consists of the International Human Rights Clinic at Harvard Law School, the International Federation for Human Rights (FIDH), and the Corporación Colectivo de Abogados José Alvear Restrepo (CAJAR), relied on internal Chiquita documents and assistance from the National Security Archive at George Washington University to identify the Chiquita officials and show how they were involved with the crimes.
“The executives who oversaw the funding of paramilitaries should not be able to sit comfortably in their houses in the United States as if they did nothing wrong,” said a member of the Peace Community of San José de Apartado, which submitted a letter to the ICC about how the paramilitary violence personally affected them. “Families across Colombia have been waiting for accountability for too long.”
Chiquita could have acted differently, or could have left the country years before it did, but instead decided to continue its lucrative business while paying paramilitaries for so-called ‘security’ in the banana-growing regions. By 2003, Chiquita’s subsidiary in Colombia was its most profitable banana operation in the world.
“At the time, Colombian paramilitaries were notorious for targeting civilians, among them banana workers and community leaders,” said CAJAR, “but Chiquita’s executives decided to continue giving money to paramilitaries anyway.”
The Chiquita corporation already pled guilty in a U.S. federal court in 2007 to illegally funding Colombian paramilitaries. But accountability for the executives who oversaw and authorized the payment scheme has been elusive: while civil litigation is pending in U.S. courts against Chiquita executives, no criminal prosecution is on the horizon. Colombia has not been able to get jurisdiction over them, and there is no indication that the United States would extradite the executives.
“We request that the ICC expands its current inquiry in Colombia to specifically include Chiquita’s executives and officials,” said Dimitris Christopoulos, the President of FIDH. “The weight of the evidence should lead the Office of the Prosecutor to act if Colombian authorities are not able to.”
If Colombian authorities do not move ahead with this case, the submission asks the Prosecutor to request formal authorization from its Pre-Trial Chamber to open an investigation into Chiquita’s corporate executives.
The communication comes at a critical time in Colombia, as the country begins to implement an historic peace agreement after nearly half a century of conflict. The coalition’s submission urges the Office of the Prosecutor to monitor local Colombian proceedings to ensure its meets ICC standards, particularly with regards to the private sector support for the paramilitaries and business’ accountability.
“In times of transition to peace, corporate actors too often escape accountability for their egregious behavior in the past,” said Professor Tyler Giannini, a Director of the International Human Rights Clinic at Harvard Law School. “The prosecution of Chiquita officials for their payments to the paramilitaries would send a powerful message that impunity is no longer business as usual.”
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For media inquiries:
Tyler Giannini (English), Director of the International Human Rights Clinic at Harvard Law School +1 617 669 2340
Dimitris Christopoulos (English, French Greek), FIDH President : + 33 6 75 76 69 32
Jimena Reyes (Spanish, French, English) – FIDH Americas Desk director : +32 493 61 72 64 ([email protected])
Sebastián Escobar, CAJAR: +57 3143776026
October 24, 2016
October 25, 2016
The Importance of Institutional Design in Governing Transnational Corporations
A Talk by Deval Desai, Human Rights Program Research Fellow
Please join us for a brown bag lunch discussion with Human Rights Program Research Fellow and S.J.D. candidate Deval Desai, on regulating transnational corporations. Drawing on his research in northern Uganda and Sierra Leone, Deval will examine the pitfalls of evidence-based approaches to the governance of transnational corporations, recast this governance challenge in terms of institutional design, and consider the lessons that human rights law might offer. Deval is also Fellow-in-Residence at the Institute of Global Law and Policy, and previously worked at the World Bank and UN as a rule of law reform expert in Nigera, Cameroon, Sierra Leone and Uganda.
This event is co-sponsored by the Human Rights Program and the Institute of Global Law and Policy.
October 12, 2016
For Immediate Release
South Africa: Protect Residents’ Rights from Effects of Mining
Government Response to Environmental and Health Threats Falls Short
(Cambridge, MA, October 12, 2016)—South Africa has failed to meet its human rights obligations to address the environmental and health effects of gold mining in and around Johannesburg, the Harvard Law School International Human Rights Clinic (IHRC) said in a new report released today.
The 113-page report, The Cost of Gold, documents the threats posed by water, air, and soil pollution from mining in the West and Central Rand. Acid mine drainage has contaminated water bodies that residents use to irrigate crops, water livestock, wash clothes, and swim. Dust from mine waste dumps has blanketed communities. The government has allowed homes to be built near and sometimes on those toxic and radioactive dumps.
Examining the situation through a human rights lens, the report finds that South Africa has not fully complied with constitutional or international law. The government has not only inadequately mitigated the harm from abandoned and active mines, but it has also offered scant warnings of the risks, performed few scientific studies about the health effects, and rarely engaged with residents on mining matters.
“Gold mining has both endangered and disempowered the people of the West and Central Rand,” said Bonnie Docherty, senior clinical instructor at IHRC and the report’s lead author. “Despite some signs of progress, the government’s response to the crisis has been insufficient and unacceptably slow.”
The report is based on three research trips to the region and more than 200 interviews with community members, government officials, industry representatives, civil society advocates, and scientific and legal experts. It provides an in-depth look at gold mining’s adverse impacts and examines the shortcomings of the government’s reaction.
For example, although acid mine drainage reached the surface of the West Rand in 2002, the government waited 10 years before establishing a plant that could stem its flow. In addition, the government has not ensured the implementation of dust control measures and has left industry to determine how to remove the waste dumps dominating the landscape.
The Cost of Gold calls on South Africa to develop a coordinated and comprehensive program that deals with the range of problems associated with gold mining in the region. While industry and communities have a significant role to play, the report focuses on the responsibility of the government, which is legally obliged to promote human rights.
The government has taken some positive steps to deal the situation in the West and Central Rand. This year, it pledged to improve levels of water treatment by 2020. In 2011, it relocated residents of the Tudor Shaft informal settlement living directly on top of a tailings dam. The government along with industry has also made efforts to increase engagement with communities.
Nevertheless, The Cost of Gold finds that the government’s delayed response and piecemeal approach falls short of South Africa’s duties under human rights law. As a result, the impacts of mining continue to infringe on residents’ rights to health, water, and a healthy environment, as well as rights to receive information and participate in decision making.
“The government should act immediately to address the ongoing threats from gold mining, and it should develop a more complete solution to prevent future harm,” Docherty said. “Only then will South Africa live up to the human rights commitments it made when apartheid ended.”
For more information, please contact:
In Cambridge MA, Bonnie Docherty: [email protected]