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Corporate Human Rights Abuses Committed by European Transnational Companies in Third Countries Within the Textile, Oil and Defence Sector

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Corporate Human Rights Abuses Committed by European Transnational Companies in Third Countries Within the Textile, Oil and Defence Sector Corporate Human Rights Abuses committed by European Transnational Companies in Third Countries within the Textile, Oil and Defence Sector. Theory-Practice Inconsistencies in the UNGPs Implementation Process at EU level EMA MASTER THESIS 2019/20 Global campus of Human Rights Université Libre de Bruxelles Author: Julia García Álvarez Thesis Supervisor: Arnaud van Waeyenberge Abstract The economic globalisation has facilitated opportunities for businesses such as the expansion of their business structure, exports of goods and services and operational outsourcing worldwide. Nevertheless, this phenomenon has also brought challenges for human rights protection. In Europe, human rights treaties attribute human rights obligations to the EU and EU Member States, hence they are accountable for protecting human rights from corporate harm. In addition, the EU committed to comply with UNGPs since they were elaborated. However, these obligations become diffuse when European Transnational businesses operate in third countries. These countries present low human rights standards, serious episodes of corruption and non-independent judicial systems. Several European multinationals, whose codes of conduct have non-legally binding nature, take advantage of such issues and neither do comply with their obligation to respect human rights, nor assume responsibility when abuses have been committed. And jurisdictional challenges at national and international level impede the achievement of effective remediation. Three sectors are especially vulnerable towards corporate abuses committed by European businesses: textile, oil and defence sectors. In this research work, three real cases of human rights abuses committed within these sectors are analysed, taking into account the legal and procedural barriers, the breaches of UNGPs, and the lack of effective actions provided by the EU Member States in question to tackle the challenges. 1 Table of Contents ❖ Introduction & Methodology ............................................................................................... 4 ❖ CHAPTER ONE: Business and Human Rights within the EU in Theory. EU International Human Rights obligations and UN Guiding Principles Implementation Process ............... 6 1. Applicability of the UN Guiding Principles in the European Union ........................ 6 1.1 United Nations Guiding Principles: State duty to protect, Corporate Social Responsibility and Access to Remedy................................................................................ 6 1.2 EU duty to protect and Human Rights Obligations ................................................. 8 1.3 Corporate Social Responsibility of European Transnational Companies ............. 11 1.4 Access to Remedy for victims of Corporate Human Rights Abuses committed by European Transnational Companies. ................................................................................ 13 2. Working on a future UN Treaty on Business and Human Rights .......................... 15 3. Conclusions .................................................................................................................. 17 ❖ CHAPTER TWO: Business and Human Rights within the EU in practice. Three Case Studies of European Transnational Companies that committed human rights violations in third countries: KiK, RINA, Ali Enterprise vs Jabir and Others, Shell vs Nigerian communities and European Defence Industry vs ECCHR and other organisations .......... 18 1. Case Mapping: General overview of the three case studies .................................... 19 2. KiK RINA Ali Enterprise vs Jabir and Others ........................................................ 20 2.1 Factual Background ............................................................................................... 20 2.2 Proceedings before National Courts ...................................................................... 21 3. Shell vs Nigerian communities ................................................................................... 25 3.1 Factual Background ............................................................................................... 25 3.2 Proceedings before National Courts ...................................................................... 26 4. European Defence Industry vs ECCHR and other partner organisations ............ 30 4.1 Factual Background ............................................................................................... 30 4.2 Proceeding before the International Criminal Court ............................................. 31 ❖ CHAPTER THREE: Analysis of Inconsistencies between Theory and Practice based on EU theoretical and normative framework and the three case studies. ............................... 34 1. Case Mapping: Overview of the main compliance challenges & NAPs contributions and limitations ............................................................................................ 35 2. Textile Sector: KiK, RINA Ali Enterprise vs Jabir and Others ............................. 36 2.1 Legal and Procedural Barriers ............................................................................... 36 2.2 Breaches of UNGPs ............................................................................................... 37 2.3 Analysis of NAPs effectiveness: Actions embedded in NAPs to tackle the challenges ......................................................................................................................... 41 2 3. Oil and Petroleum Sector: Shell vs Nigerian Communities .................................... 44 3.1 Legal and Procedural Barriers ............................................................................... 45 3.2 Breaches of UNGPs ............................................................................................... 46 3.3 Analysis of NAPs effectiveness: Actions embedded in NAPs to tackle the challenges ......................................................................................................................... 48 4. Defence Sector: European Defence Industry vs ECCHR and other partner organisations ....................................................................................................................... 51 4.1 Legal and Procedural Barriers ............................................................................... 51 4.2 Breaches of UNGPs ............................................................................................... 53 4.3 Analysis of NAPs effectiveness: Actions embedded in NAPs to tackle the challenges ......................................................................................................................... 57 5. Conclusions .................................................................................................................. 59 ❖ Reference List .................................................................................................................... 61 3 Introduction & Methodology The globalisation phenomenon enables business enterprises to expand their activities and operate transnationally, with no territorial boundaries. Companies may locate their corporate headquarters within the territory of a EU Member State (EU MS) while performing its business activities in other EU MS. It is also feasible, and in many occasions profitable, to dislocate their supply chain outside EU borders. Business-related matters are thereby a global issue in nature. The global scope of business operations requires that human rights standards are equally fulfilled in this field. The EU has progressively reinforced human rights protection in the context of the workplace, to protect workers from slavery and exploitation, to guarantee safety and health conditions, and eventual measures have also been adopted to protect the environment from corporate harm. However, human rights standards that are legally binding for European companies when developing business activities within the EU, seem to weaken when these companies operate abroad, since jurisdictional and other legal barriers arise in these circumstances. Certain economic sectors are especially vulnerable to suffer human rights violations due to the lack of preventive measures, recognition of legal corporate liability and effective remediation. Business enterprises adopt their corporate social responsibility (CSR) on a voluntary basis, and commit to respect non-legally binding codes of conduct that will be hardly accepted by a Court as an evidence of assumption of responsibility made by the company. The absence of an international legally binding treaty, mandatory due diligence regulation and international legal responsibility of corporations are only some of the shortcomings given in the field of business and human rights that contribute to perpetuate an environment of corporate human rights abuses that remain unpunished. The UN Guiding Principles (UNGPs) were elaborate in 2011 to provide a comprehensive guideline whereby States and businesses could address this issue. The European Institutions have claimed their conformity with these principles and committed to implement them at EU level. Since 2011, the EU has adopted different strategies and plans in this regards, and enacted directives and other regulations in certain business sectors that benefit the implementation of these principles. The EU is also part of the UN intergovernmental working group negotiations for the elaboration of a legally binding instrument on Business and human rights. The implementation
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