Patrick Stickney
Patrick Stickney is a Resident Forum Blogger covering recent developments in domestic and international human rights issues.
Many efforts have been made to hold private actors, especially business enterprises, accountable for human rights abuses. However, often the only real accountability occurs in the realm of public opinion. Before 2011, international standards of accountability were “fragmented” and logically incoherent, a patchwork of different standards that did not provide clear guidance to stakeholders. At the national level, States have often chosen not to enforce existing laws that “regulate business respect for human rights.” This problem only grew worse with the rapid increase of transnational economic activity during the 1990s that hollowed out the regulatory regimes of many States. This changed, at least in part, when the Guiding Principles on Business and Human Rights were adopted. The Guiding Principles adopted a conceptual standard similar to those found in many human rights regimes: “Protect, Respect, and Remedy.” These “pillars” of the Guiding Principles are defined as follows:
The first is the State duty to protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation, and adjudication. The second is the corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved. The third is the need for greater access by victims to effective remedy, both judicial and non-judicial.
While the Guiding Principles were adopted in 2011, it wasn’t until June 2014 that the UN Human Rights Council called on all of its member states to adopt a national action plan to utilize domestic law to effectively implement the Guiding Principles. Seven States have already adopted national actions plans: Denmark, Finland, Lithuania, the Netherlands, Norway, Sweden, and the United Kingdom. These States adopted a variety of policies in their action plans, including requiring mandatory reporting by businesses on human rights, increasing the promotion of nondiscrimination and equal opportunity, and incorporating the Guiding Principles in trade and investment agreements to promote international coherence of rules. Twenty-four other States, including the United States, are currently in the process of developing their own national action plans.
The United States, in September of 2014, announced the development of its national action plan in order to “be transparent about how the United States government encourages companies to achieve high standards of responsible business conduct- and champions those that achieve such best business practices.” The United States has already conducted a round of consultation with businesses and civil societies, and accepted until January 15, 2015, the first round of submissions pertaining to what stakeholders wanted to see in the national action plan. The State Department indicated that it may possibly include recommendations for changes that must be made through legislation and potential ways to increase remedy mechanisms when businesses do engage in “irresponsible conduct,” but it is unclear as to what extent the action plan will actually recommend changes to domestic law. Furthermore, considering the current political climate, any change which increases regulation that requires federal legislation is unlikely to get through Congress.
Although it is unclear whether the national process will move forward, California has independently shown potential routes of action at the subnational level. In 2010, the state legislature passed, and Governor Schwarzenegger signed, a bill titled the Supply Chain Transparency Act of 2010. This act requires any retailer or manufacturer operating in California that does more than $100 million worth of business worldwide to disclose the steps it is taking to combat human trafficking and forced labor in its supply chain. To help companies comply with the law, the California Attorney General published a resource guide earlier this year. Companies do not have to ensure their supply chains are free of human rights abuses; in fact, the guide makes it clear that under the law, companies only need to make a disclosure, even if minimal.
The noteworthy part, however, does not come from the law itself, but from how it works in conjunction with other portions of state law. In August and September, six class-action suits were filed alleging violations of California’s unfair competition and misleading advertising laws. Although under the terms of the Act only the Attorney General is able to bring an action to enforce disclosure, under California law, an unfair competition suit can be brought on the basis of unlawful conduct, conduct which these plaintiffs allege occurred when the companies involved made false disclosures about their supply chain practices. These suits seem to create a cause of action unintended by the Act, and as these suits progress it will be interesting to see how they are handled by the courts. While this cause of action may be unintended, the Act has been praised by entities such as the International Labor Organization and could find itself being replicated in other subnational jurisdictions.
As nations and States move towards requiring stronger respect for human rights by regulating private entities, national and subnational responses will take many forms. Despite progress and continued deliberation on these issues, the relatively recent nature of these events makes it unclear whether these efforts will increase respect for human rights or fizzle out without having much of an impact.
Published on December 28, 2015