Argumentative genre – Opening and closing paragraphs

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Business Finance

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Edit and improve the opening (Thesis) and closing (Reiteration of Thesis) paragraphs of your Writing Task 2 assessment.

In Writing Task 2, you wrote about 60 words each for your opening and closing paragraphs; in this task, please expand on your first draft by writing 100-150 words for each paragraph.

Use complete paragraph structures and arrange the parts of each paragraph in the order shown below:

1. Paragraph 1: Thesis (1. Background, 2. Thesis statement, 3. Outline, 4. Significance)

2. Paragraph 2: Argument 1 (1. Topic sentence 2. Elaboration 3. Example 4. Interpretation 5. Explanation [optional] & Link to next paragraph)

3. Paragraph 3: Argument 2 (1. Topic sentence 2. Elaboration 3. Example 4. Interpretation 5. Explanation [optional] & Link to next paragraph)

4. Paragraph 4: Reiteration of Thesis (1. Summary, 2. Significance, 3. Limitations, 4. Suggestions)

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The Australian businesses have the mandate of ensuring that the ethics and effective leadership reflects in the organizations. A significant challenge affecting most organizations is failing to protect the human rights by promoting slavery, poor working conditions, and child labor (Kelly, 2016). The Australian organizations should demonstrate the responsibility of handling human rights issues as is expected by the United Nations Guiding Principles on Business and Human Rights. The supplies chain is a significant area where the human rights are being violated. Many companies are choosing easy ways of maximizing their profits by risking the lives of their workers. Australian consumers have expressed their concerns about the violation of labor rights of organizations in the food supply and agriculture sector (AHRC et al., 2015). Many have cited the use of forced labor which has interfered with the production of quality goods. This is one of the impacts of the violation of human rights which also affects the reputation of the companies. The violation of human rights not only destroys the reputation of organizations but also reduces the profitability. Many workers tend to lose their morale due to working in poor conditions and also receiving unfair wages which affect their performance. For instance, in Bangladesh, Dhaka, the Rana Plaza collapsed leading to the demise of at most, 1100 employees due to poor working conditions (Nolan, 2016). The building had five garment factories posing a danger to the workers. Therefore, if the working environment were safe then, it would not have caused the firms’ profitability and reputation. Organizations should take the issue of protecting human rights by addressing significant concerns like poor working environments, discrimination, child labor, and human trafficking seriously. Other than following the principles set by the United Nations Guiding Principles on Business and Human Rights, organizations should implement their human rights policies to demonstrate corporate social responsibility (Nolan, 2016). References AHRC, ACCSR, and GCNA (2015). Human rights in the supply chains: prompting positive practice. Melbourne Kelly, A. (2016). Children as young as seven mining cobalt used in smartphones, says Amnesty Nolan, J. (2016). In Jena Martin & Karen E. Bravo (Eds.), The Business and Human Rights Landscape (pp.387-413). MGTS7610: MANAGEMENT COMMUNICATION Writing Task 3 Criteria Sheet ASSESSMENT ITEM DETAIL Before and after completing your assignment, carefully review these instructions and the criteria sheet to make sure you have not missed anything. Assessment: Writing Task 3 Type of assessment: Learning objective (as published in ECP): Due date and submission: Argumentative genre – Opening and closing paragraphs L2: Express your opinions clearly by using words and sentence structures efficiently. L3: Make a convincing argument by structuring your ideas coherently and persuasively. Beginning of Week 7 tutorial (03 September 2018 – 07 September 2018), in hard copy to your tutor AND online through Turnitin via Blackboard Note that similarity reports can take up to 24 hours to be ready. How to submit online: Go to the course site on Blackboard and click on ‘Assessment’ on the left-hand menu. Go to the folder for the assessment item. Inside this folder you will find a Turnitin submission link for which you need to click ‘View/Complete’. Follow the prompts to upload your assignment. Make sure you have successfully uploaded your assignment by reviewing the ‘View/Complete’ button to see your submission again. Your Turnitin Digital Receipt is not your similarity/originality report. Weighting: 5% (5 marks total) Length: Two paragraphs @ 100-150 words per paragraph Formatting 11pt Calibri or Times New Roman font, 1.5-line spacing, normal margins requirements: Referencing APA 6th Edition style style: Task This task is designed for you to practise what you have learned in weeks 5 and 6. Description: Edit and improve the opening (Thesis) and closing (Reiteration of Thesis) paragraphs of your Writing Task 2 assessment, based on the feedback you received and what you have learned in class. Use complete paragraph structures and arrange the parts of each paragraph in the order shown below: Argumentative genre: 1. Paragraph 1: Thesis (1. Background, 2. Thesis statement, 3. Outline, 4. Significance) 2. Paragraph 2: Argument 1 (1. Topic sentence 2. Elaboration 3. Example 4. Interpretation 5. Explanation [optional] & Link to next paragraph) 3. Paragraph 3: Argument 2 (1. Topic sentence 2. Elaboration 3. Example 4. Interpretation 5. Explanation [optional] & Link to next paragraph) 4. Paragraph 4: Reiteration of Thesis (1. Summary, 2. Significance, 3. Limitations, 4. Suggestions) MGTS7610: MANAGEMENT COMMUNICATION Writing Task 3 Criteria Sheet Note: • • • • • In Writing Task 2, you wrote about 60 words each for your opening and closing paragraphs; in this task, please expand on your first draft by writing 100-150 words for each paragraph. Please submit the body paragraphs you wrote for Writing Task 2, along with your revised opening and closing paragraphs. These will not be re-graded at this time, but they will help your tutor grade your revised opening and closing paragraphs. Three required sources are listed below for each topic. You may use only the references on these approved lists, and you must all of the sources on the list for your topic (these can be included within your body paragraphs or your opening and losing paragraph). Do not include references in your Thesis statement and Topic sentences. All references must be presented in the APA (6th edition) style, and your reference list should start on a separate page. Annotation: On your hard copy, highlight your Thesis statement and Topic sentences, and label all parts of your opening and closing paragraphs. Draw arrows connecting: • • • What to hand in: keywords in the Background to keywords in the Thesis statement and Outline keywords in your Outline to keywords in your Topic sentences the last part of each paragraph to the keywords in the Summary in the Reiteration of Thesis paragraph. 1. In class: your hard copy assignment (stapled together) containing the following in order: • Cover sheet filled in correctly (see p.3) • Your argumentative writing that has been labelled and highlighted appropriately • Your similarity report from Turnitin (see p.4) • Writing task 3 criteria sheet filled out correctly (see p.2) Without any of the above, your assignment is incomplete, and marks will be deducted per calendar day late (please see your ECP for full assessment policies) 2. Blackboard (via Turnitin): your soft copy assignment, containing • Your argumentative writing Don’t forget to highlight, label, and draw arrows on your assignment MGTS7610: MANAGEMENT COMMUNICATION Writing Task 3 Criteria Sheet How to fill out your criteria sheet: Make sure you fill in both yours and your tutor’s name. How to fill out your cover sheet your lecturer’s name MGTS7610: MANAGEMENT COMMUNICATION Writing Task 3 Criteria Sheet How to find your Similarity (or Originality) Report from Turnitin: NOTE: similarity reports can take up to 24 hours to be ready. Allow plenty of time so that your hardcopy submission is complete. 1. Once you have successfully submitted your assignment, you can review it on Turnitin by going back to the submission link and clicking ‘View/Complete’. Note that a Turnitin Digital Receipt is not a Similarity Report. 2. Follow the prompts to see your own submission. Your submission will appear something like the following: 3. To see your similarity score, you need to click on the number in red in the right column. If your score reads ‘0’, it is unlikely the similarity report has fully generated (it is highly unlikely that any assignment has 0%). 4. Once you have clicked on the red number you will see your assignment with your similarity presented. 5. Highlighting means that the expression has not been paraphrased. If you see any large amounts of highlighting, you should review your assignment to make sure you have adequately referenced and paraphrased. MGTS7610: MANAGEMENT COMMUNICATION Writing Task 3 Criteria Sheet 6. To download a copy of your similarity report, click on the grey download button appears towards the bottom of the menu items. 7. You will be presented with a few options here: that 8. Choose ‘Current View’ to download the similarity report. NOTE: You must have the similarity report open on the screen (by having clicked on the red number) to download the similarity report. 9. When you click to download you will receive a PDF document. This is your similarity report. This report will contain a cover page, your assignment submission highlighted and your summary percentages. This whole report is required for your assessment submission. Further help The UQ Library has developed videos and articles to help you in your assignment submission process. • • • • • Submit your assignment - https://web.library.uq.edu.au/node/1921/0#0 Upload your assignment - https://web.library.uq.edu.au/node/1921/1#1 Review and submit your assignment - https://web.library.uq.edu.au/node/1921/2#2 Confirm your submission - https://web.library.uq.edu.au/node/1921/3#3 View originality report and marks - https://web.library.uq.edu.au/libraryservices/it/learnuq-blackboard-help/learnuq-assessment/turnitin-assignments/vieworiginality-report-and-marks MGTS7610: MANAGEMENT COMMUNICATION Writing Task 3 Criteria Sheet Name:______________________________________ Marks:_______________ Tutor:______________________________________ Criteria Writing techniques 1 Genre Consists of 4 parts: Background in the opening paragraph is (purpose and 1.Background relevant and concise, providing some structure of the 2.Thesis statement understanding and justification for the topic. opening paragraph) 3.Outline of paper Thesis statement clearly signals the purpose 4.Significance of the paper, and the outline reflects the order of the topic sentences. Significance of the research is clearly stated. Genre Consists of 4 parts: Concluding paragraph summarizes the (purpose and 1.Summary findings in each paragraph. Significance of structure of the 2.Significance the findings is highlighted. Limitations and closing paragraph) 3.Limitations some suggestions are provided for further 4.Suggestions research or applications. Discourse semantics Lexical ties and Appropriate lexical ties are used to (cohesion) the known-new effectively link sentences and paragraphs. arrangement Paragraphs are developed using appropriate links between known and new information. Lexicogrammar Sentence structure Sentences start with important information, (grammar and and clear style and follow Standard English conventions vocabulary) with minimal errors. Word choices and sentence structures are clear and easy to understand. Graphology Formatting, spelling Documents are properly completed, follow (spelling and and reference list formatting guidelines and spellchecked. presentation) Reference list is complete and formatted according to APA style. Comments: Level of achievement 0.5 0 Background is irrelevant, the purpose of the Part of the opening paragraph is missing or paper is unclear, the outline does not reflect not in the correct sequence. the structure, or the positioning of the research is inappropriate. Some findings are left out of the summary, Part of the concluding paragraph is missing or they are irrelevant to the significance and or not in the correct sequence. suggestions in the concluding paragraph. Some evidence of an attempt to provide links General lack of lexical ties between between sentences and paragraphs, but sentences, and sentences seem lexical ties disconnected. are inappropriately used. Sentences follow Standard English Frequent misuse of words, and sentences are conventions with some systematic errors. badly phrased, making their meaning very Sentences and wordings are unnecessarily difficult to understand. (Student must see complicated and ambiguous. Student Services for additional support.) Documents and reference list generally follow formatting guidelines with some minor inconsistencies in the details. Documents are incomplete or ignores formatting guidelines. The reference list consistently fails to follow the APA style. Accessed: 26.01.2016 Children as young as seven mining cobalt used in smartphones, says Amnesty Amnesty International says it has traced cobalt used in batteries for household brands to mines in DRC, where children work in life-threatening conditions Annie Kelly Tuesday 19 January 2016 11.02 AEDT Last modified on Tuesday 19 January 201619.49 AEDT Children as young as seven are working in perilous conditions in the Democratic Republic of the Congo to mine cobalt that ends up in smartphones, cars and computers sold to millions across the world, by household brands including Apple, Microsoft and Vodafone, according to a new investigation by Amnesty International. The human rights group claims to have traced cobalt used in lithium batteries sold to 16 multinational brands to mines where young children and adults are being paid a dollar a day, working in life-threatening conditions and subjected to violence, extortion and intimidation. More than half the world’s supply of cobalt comes from the DRC, with 20% of cobalt exported coming from artisanal mines in the southern part of the country. In 2012, Unicef estimated that there were 40,000 children working in all the mines across the south, many involved in mining cobalt. In a joint-investigation with African Resources Watch (Afrewatch), an African NGO focusing on human rights in the minerals and extractive industries, Amnesty International says it interviewed 90 adults and children working in five artisanal cobalt mine sites. Workers spoke of labouring for 12 hours a day with no protective clothing, and with many experiencing significant health problems as a result. The report says that child miners as young as seven carried back-breaking loads and worked in intense heat for between one or two dollars a day without face masks or gloves. Several children said they had been beaten by security guards employed by mining companies and forced to pay “fines” by unauthorised mines police sent by state officials to extort money and intimidate workers. http://www.theguardian.com/global-development/2016/jan/19/children-as-young-as-seven-miningcobalt-for-use-in-smartphones-says-amnesty Accessed: 26.01.2016 The human rights groups say they traced the supply chain from these mining sites to Congo Dongfang Mining (CDM), one of the largest mineral processors in the DRC and a wholly owned subsidiary of Chinese mineral company Zhejiang Huayou Cobalt Ltd (Huayou Cobalt). The report says that Huayou Cobalt sources more than 40% of its cobalt from the DRC and processes the raw mineral before selling it to battery makers, who claim to supply companies including Apple, Microsoft and Vodafone. This supply chain has not been independently verified by the Guardian. Responding to the allegations, Huayou Cobalt told Amnesty International that “our company has not been aware that any of our legitimate suppliers has hired child labour in their mining sites or operated in unsafe working conditions … CDM has rigorously selected its ore suppliers to ensure the procurement of raw materials through legitimate channels”. Of the 16 companies listed in the report as sourcing from battery manufacturers using processed cobalt from Huayou Cobalt, two multinational companies denied sourcing any cobalt from the DRC and five said they had no links with Huayou Cobalt. The remaining companies either accepted Amnesty’s claims or were investigating the claims. In its response to Amnesty’s allegations, which Amnesty has published in full alongside responses from the other named companies, Apple said it was currently evaluating whether cobalt in the company’s products originated in the DRC. “Underage labour is not tolerated in our supply chain and we are proud to have led the industry in pioneering new safeguards,” it says. Vodafone, in its response to Amnesty, stated that the company “is unaware as to whether or not cobalt in our products originates in Katanga in the DRC … both the smelters and the mines from which the metals such as cobalt are originally sourced are several steps away from Vodafone in the supply chain”. http://www.theguardian.com/global-development/2016/jan/19/children-as-young-as-seven-miningcobalt-for-use-in-smartphones-says-amnesty Accessed: 26.01.2016 Amnesty International and Afrewatch claim that despite the denials by some of the named multinationals, none of those companies named could independently verify where the cobalt in their products come from. “What is very worrying is that none of the companies that we identified through our research and named in investor documents could trace the cobalt they use in their products back to the mines where it originated. Around half of all cobalt comes from the DRC, and no company can validly claim that they are unaware of the human rights and child labour abuses linked with mineral extraction in the region,” says Mark Dummett, business and human rights researcher at Amnesty International. Advertisement He said that some of the company responses to Amnesty’s assertions were “staggering”. For example, when asked by Amnesty International whether it sourced cobalt from CDM or Huayou Cobalt, Microsoft responded by saying: “We have not traced the cobalt used through our supply chain to the smelter level due to the complexity and the resources required.” “These are some of the biggest companies in the world, with combined profits of $125 billion and there is no excuse that companies aren’t investing some of that profit into ensuring that they can trace where the minerals they are using are coming from,” says Dummett. “Anyone with a smartphone would be appalled to think that children as young as seven carrying out back-breaking work for 12 hours a day could be involved at some point in the making of it.” The DRC has a long history of bloody conflict fuelled by the region’s mineral wealth and the region still has an estimated $24 trillion in untapped minerals. Global demand for cobalt is increasing, but the global cobalt market remains largely unregulated as it falls outside “conflict mineral” legislation regulating the extraction and sale of other mineral such as gold, coltan and tin from the DRC. Amnesty and Afrewatch are using the findings of the report to call on multinational companies to conduct investigations of their supply chains http://www.theguardian.com/global-development/2016/jan/19/children-as-young-as-seven-miningcobalt-for-use-in-smartphones-says-amnesty Accessed: 26.01.2016 for lithium-ion batteries, to check for child labour or labour abuses and to be more transparent about their suppliers. http://www.theguardian.com/global-development/2016/jan/19/children-as-young-as-seven-miningcobalt-for-use-in-smartphones-says-amnesty Cambridge Books Online http://ebooks.cambridge.org/ The Business and Human Rights Landscape Moving Forward, Looking Back Edited by Jena Martin, Karen E. Bravo Book DOI: http://dx.doi.org/10.1017/CBO9781316155219 Online ISBN: 9781316155219 Hardback ISBN: 9781107095526 Paperback ISBN: 9781107479371 Chapter 13 - From Principles to Practice: Implementing Corporate Responsibilit y for Human Rights pp. 387-413 Chapter DOI: http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge University Press 13 From Principles to Practice Implementing Corporate Responsibility for Human Rights Justine Nolan There is a convoluted and complex relationship between human rights and corporations. While it is uncontested that corporations should obey the law in the jurisdictions in which they operate, where the content of rights in such jurisdictions does not meet the standards of international law or the law is not enforced, there is a failure in the legal governance regime for protecting human rights. The steady evolution of a global social expectation that companies should respect international human rights standards, combined with the occasional foray by states in adopting an expansive extraterritorial approach to protecting rights, is changing the nature and possibility of developing a firmer basis for corporate legal accountability for human rights. The interplay between national and international law and soft law and state and non-state actors is crucial in establishing both a legal and/or quasi-legal basis for holding corporations accountable for human rights violations. The responsibility for protecting and advancing respect for human rights has long been assumed to be the duty of the state. It is only quite recently that discussion has shifted to focus on the human rights responsibilities of corporations and how such duties and/or responsibilities might be allocated between state and non-state actors. The adoption by the United Nations (UN) Human Rights Council in 2011 of the Guiding Principles on Business and Human Rights1 has entrenched the notion of 1 Human Rights Council, “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework: Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises,” A/HRC/17/31 (21 March 2011) (2011 Guiding Principles). The Guiding Principles operationalize the 2008 “Protect, Respect and Remedy Framework for Business and Human Rights” also developed by the Special Representative: Human Rights Council, “Protect, Respect and Remedy: A Framework for Business and Human Rights: Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises,” A/HRC/8/5 (7 April 2008) (2008 Report). 387 Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 388 Nolan the existence of a corporate responsibility to respect human rights,2 but interpreting and implementing that responsibility on the ground is a longer-term task. The Guiding Principles, developed by the UN Special Representative on the issue of human rights and transnational corporations and other business enterprises, John Ruggie (the Special Representative), set out a three-pronged framework for delineating between the roles of the state and of business with respect to human rights. First, states have a duty to protect people from human rights violations by corporations. Second, corporations have a responsibility to respect, uphold, and not interfere with human rights. And, third, both states and corporations have a responsibility to ensure that people who are victims of corporate violations have access to an effective remedy. This demarcation between a state’s duty and a corporation’s responsibility explicitly acknowledges the traditional primary role of states in protecting human rights but also recognises the urgent need for the private sector to take a prominent role in advancing respect for rights. While the Guiding Principles provide a useful foundation for future action, well before their adoption in 2011, many global companies were already involved in establishing or working within private compliance programs that were sometimes complementary to existing national laws and, at other times, superseded state efforts to protect workplace rights. The rise of and reliance on soft-law and private regulation to drive corporate compliance with human rights is symptomatic of the fact that governments in many of the countries where the goods are produced are unable or unwilling to implement improved working conditions. The growth and depth of soft-law mechanisms that have developed around the theme of corporate responsibility is in part an acknowledgement of the sluggish pace at which international (and often national) law develops and the political reality that there is likely to be limited appetite at present among states for the development of a new treaty focused specifically on business and human rights concerns.3 But 2 3 The Special Representative commented in 2010 that the corporate responsibility to respect rights is a notion that has been gradually emerging and is “acknowledged in virtually every voluntary and soft-law instrument related to corporate responsibility, and now affirmed by the Human Rights Council itself.” J. Ruggie, The UN “Protect, Respect and Remedy” Framework for Business and Human Rights (September 2010), http://198.170.85.29/Ruggie-protect-respect-remedy-framework.pdf (accessed 24 June 2013). This stands in contrast to earlier views by economist Milton Friedman, who argued that it was a “fundamental misconception of the character and nature of the free economy” for a corporation to have any concern other than maximisation of profit. Milton Friedman, Capitalism and Freedom (University of Chicago Press, 1962), 133; and, more recently, David Henderson, Misguided Virtue: False Notions of Corporate Social Responsibility (Institute of Public Affairs, 2001), 147. J. Ruggie, Treaty road not travelled (May 2008), www.hks.harvard.edu/m-rcbg/news/ruggie/Pages%20 from%20ECM%20May_FINAL_JohnRuggie_may%2010.pdf. However, recent developments and a call by Ecuador in August 2013 at the Regional Forum on Business and Human Rights for Latin America and the Caribbean, and later at UN Human Rights Council session in September 2013, for a legally binding international instrument on business and human rights to be concluded Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 From Principles to Practice 389 these soft-law initiatives have become important tools in attempting to prevent and remedy corporate rights violations. The logical involvement of the non-state sector (including companies, non-government organizations (NGOs), unions, industry bodies, and/or international organisations) has been a useful, if not sufficient, tool to temper this governance gap. Private intervention alone is unlikely to be sufficient to develop longevity and consistency around corporate compliance for human rights and, thus, for real change to occur, governments must get involved. Violations occurring in a far-flung factory in Bangladesh are not a problem that can simply be isolated or fixed by focusing on improvements at the factory level. Attention also needs to be directed to the corporate and state policies and practices that are being foisted on the factory from within their borders and beyond, both by states and by the global buyers who place the orders in those factories. A blend of private and public regulation is required to tackle these inherent labor problems. How this unfolds in a world of volatile consumer markets that require increased flexibility in production, rigid labor markets that do not allow flexibility, and rising costs that incentivise cost cutting is challenging. 1. Re-Regulating the Business and Human Rights Landscape As the global business and human rights agenda has evolved in the last three to four decades, we have witnessed the rise of and reliance on private regulation4 as a means of driving consensus on how corporations should or could advance respect for human rights. International human rights law and its state-centric framework for protecting rights are proving inadequate to stem (or redress) the rise of corporate human rights violations and are proving to be more the backdrop for the development 4 within the UN system has revived discussion on this point. The instrument envisioned “would clarify the obligations of transnational corporations in the field of human rights” and “provide for the establishment of effective remedies for victims in cases where domestic jurisdiction is clearly unable to” provide them. The declaration was supported by the African Group, the Arabic Group, Pakistan, Sri Lanka, Kyrgyzstan, Cuba, Nicaragua, Bolivia, Venezuela, and Peru. More than a hundred regional and international human rights organizations and social movements welcomed the petition. See: Statement on behalf of a Group of Countries at the 24th session of the Human Rights Council, General Debate – Item 3 Transnational Corporations and Human Rights, Geneva, September 2013, http://business-humanrights.org/media/documents/statement-unhrc-legally-binding .pdf. Also see a response by John Ruggie, A UN Business and Human Rights Treaty? An Issues Brief, 28 January 2014, http://business-humanrights.org/media/documents/ruggie-on-un-business-human-rightstreaty-jan-2014.pdf and an update of 1 May 2014, http://www.business-humanrights.org/media/un_ business_and_human_rights_treaty_update.pdf. Regulation as referred to in this chapter incorporates both formal and informal, legal and non-legal mechanisms or techniques designed to influence or at times coerce corporations to better respect and/ or protect human rights. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 390 Nolan of mechanisms to prevent and protect individuals from corporate human rights violations rather than the prism through which corporate accountability might be filtered. The unwillingness and/or inability of many governments to fulfil their human rights obligations have led to protection gaps. All around the global marketplace, non-state actors have stepped in to fill this gap. This transfer or sharing of regulatory authority from states to non-state actors is not so much ‘deregulation’ but rather what might be termed re-regulation5 or even a regulatory renaissance.6 The ongoing reliance on private regulatory mechanisms utilizes a combination of hard and soft laws to establish relevant standards that companies strive to achieve. The source of such hard law tends to be readily accessible international and national legislation focused on defining consistent standards for health and safety, wages, hours, and conditions of work. The source of soft-law standards is more diverse. While there is no entrenched definition of what constitutes soft law, in this context, it might commonly include instruments as diverse as those internationally formulated (other than a treaty) that contain ‘principles, norms, standards or other statements of expected behaviour’7 but also widely accepted codes of conduct that have been developed by a group of stakeholders as a mechanism to prevent corporate rights abuses. The Guiding Principles are the latest (and most authoritative) in a long line of soft regulatory techniques that rely in large part on private regulation that encourages but does not necessarily require a corporation to comply with human rights.8 5 6 7 8 Peter Utting, Rethinking Business Regulation, from Self-Control to Social Control, United Nations Research Institute for Social Development, Technology, Business and Society Programme Paper Number 15, September 2005, 1 at 14. Available at http://www.unrisd.org/unrisd/website/document.nsf /462fc27bd1fce00880256b4a0060d2af/f02ac3db0ed406e0c12570a10029bec8/$FILE/utting.pdf. Ibid., 1; Richard M. Locke, The Promise and Limits of Private Power (Cambridge University Press, 2013), 169. D. Shelton, “Normative Hierarchy in International Law,” American Journal of International Law 100 (2006): 291, at 319. Also see Jaye Ellis, “Shades of Grey: Soft Law and the Validity of Public International Law,” Leiden Journal of International Law 25.2 (June 2012), 313–334. Also see David Vogel, “Private Global Business Regulation,” Annual Review of Political Science 11 (2008): 261–282 at 262, who refers to civil regulation as soft law and defines it as “socially focused voluntary global business regulations.” Within the Guiding Principles, there is specific reference to legal compliance with national laws (Guiding Principle 23, for example; see n.1 2011 Guiding Principles), but the general principle establishing the corporate responsibility to respect human rights and conduct due diligence as a means of implementing this responsibility does not purport to stem from a legal requirement. For an overview of the challenges of utilizing private regulation and soft law in this field, see Richard M. Locke, The Promise and Limits of Private Power, supra note 6; Andre Sobczak, “Are Codes of Conduct in Global Supply Chains Really Voluntary: From Soft Law Regulation of Labour Relations to Consumer Law,” Business Ethics Quarterly 16.2 (2006): 167–184; E. Pariotti, “International Soft Law, Human Rights and Non-State Actors: Towards the Accountability of Transnational Corporations?” Human Rights Rights Review 10 (2009): 139–155; L. Baccaro and V. Mele, “For Lack of Anything Better? International Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 From Principles to Practice 391 What we are witnessing is a process of re-regulation whereby state and non-state actors are utilizing a combination of public and private regulation to improve the framework for corporate human rights compliance. The pivotal role played by non-state actors in this process is crucial in establishing a regulatory framework that encourages, cajoles, and sometimes threatens companies to comply with human rights standards. The role of the state and the possibilities for it to both complement and supplement private regulation so as to better protect human rights is also vital. Ultimately, this chapter proposes that the regulation of corporate activity with respect to human rights requires a multiplicity of stakeholders and a very nuanced mix of public and private regulation that may be difficult to replicate easily across different sectors, states, and cultural boundaries. While, in this field, the state may no longer play the primary protection role ascribed to it in either international human rights law or the Guiding Principles, it remains an essential piece of the human rights enforcement puzzle, and greater attention needs to be paid to analysing what mix of international/domestic, state/non-state, and hard/soft regulatory mechanisms will be most effective in protecting human rights in the workplace. 2. The Rise of and Reliance on Private Regulation For the last several decades, globalization has posed both challenges and opportunities for advancing the protection of human rights in the global marketplace. Significant developments have been taking place in factories, fields, and offices all over the world, where a variety of stakeholders have been pushing and prodding corporations to adopt operational changes that will lead to sustained compliance with international human rights standards. Sometimes business has been proactive in seeking such changes; at other times it has been reluctant or simply absent. In today’s global economy, large companies in most industries have come to rely on a series of contractors and suppliers in a range of countries to produce their products. Today’s global supply chains link individual workers with large and small companies across national, political, and cultural boundaries, and ‘in a world of 80,000 transnational corporations, ten times as many subsidiaries and countless national firms, many of which are small and medium-sized enterprises,’9 any attempt to regulate corporate 9 Organizations and Global Corporate Codes,” Public Administration 89.2 (2011): 451–470; Surya Deva, Regulating Corporate Human Rights Violations (Routledge USA, 2012), 64–118; and Wesley Cragg “Business and Human Rights: A Principle and Value-Based Analysis,” in Business and Human Rights, ed. Wesley Cragg (Edward Elgar, 2012), 3–46. Human Rights Council, Business and Human Rights: Further Steps toward the Operationalization of the “Protect, Respect and Remedy” Framework,” Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises (UN Doc A/HRC/14/27), 9 April 2010, para. 82, available at http://198.170.85.29/ Ruggie-report-2010.pdf [accessed 24 June 2013]. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 392 Nolan behaviour will always be a challenge. What is becoming increasingly apparent is that for sustained improvements to occur, a multiplicity of stakeholders must be involved, including but not necessarily relying only on the state. Some of the most powerful global actors today are companies, not governments.10 Logically, recourse to local laws and a system of enforcement and judicial relief in the host countries where global corporations operate should be the first option for ensuring greater respect for human rights. However, the reality is that in many countries, this simply is not happening. In developing countries (but not exclusively so), laws are sometimes weak but enforcement weaker still, and corruption can be endemic – reflecting chronic failures in developing a governmental order based on the rule of law.11 Thus, reliance on the state to ensure human rights are protected remains a long-term proposition. The development and implementation of private regulatory methods that do not rely on the role of the state as the ‘human rights protector’ include the incremental but now widespread adoption of codes, guidelines, principles – at the micro and macro levels – which are being used as mechanisms to drive corporate compliance with international human rights standards.12 Such developments have urged and continue to urge a change in corporate culture that recognises that workers, wherever they are located, must be treated with dignity and respect. Slowly but surely, a paradigm shift is taking place that affects the way companies and society are increasingly viewing this issue, with the state being viewed as (possibly) part of the solution but not the solution. Companies, in particular global transnational companies, are ‘required’ to play a significant role in developing a solution. ‘In the recent past, it was sufficient for vanguard companies to do their best to avoid causing environmental and social damage. Now they are being asked to become a force for 10 11 12 For example, in its 2013 World Report, Human Rights Watch noted that “In 2011 alone, oil and gas behemoth ExxonMobil generated revenues of US$467 billion – the size of Norway’s entire economy. Walmart, the world’s third-largest employer with more than 2 million workers, has a workforce that trails only the militaries of the United States and China in size.” Human Rights Watch, World Report 2013 (USA, 2013), at 29. Bangladesh provides a contemporary example of this. See Sarah Labowitz and Dorothée Baumann-Pauly, Business as Usual Is Not an Option: Supply Chains and Sourcing after Rana Plaza, April 2014, http://www.stern.nyu.edu/cons/groups/content/documents/webasset/con_047408.pdf. The rise of private voluntary initiatives aimed at regulating corporate adherence to human rights has a rich but relatively brief history, is well documented, and includes prominent examples such as the Sullivan Principles regulating business conduct in South Africa during the apartheid era to more recent initiatives such as the Fair Labor Association or the Forestry Stewardship Council. See, for example, D. O’Rourke, “Outsourcing Regulation: Analyzing Nongovernmental Systems of Labor Standards and Monitoring,” Policy Studies Journal 31.I (2003): 1–30; Elliott J. Schrage, Promoting International Worker Rights through Private Voluntary Initiatives: Public Relations or Public Policy, A Report to the U.S. Department of State on behalf of The University of Iowa Center for Human Rights (January 2004), available at www.cfr.org/content/. . ./Schrage-DOS.pdf; and D. Vogel, “Private Global Business Regulation,” Annual Review of Political Science 11 (2008): 261–282. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 From Principles to Practice 393 good, and discovering they cannot do it alone.’13 Thirty to forty years ago, very few companies acknowledged any affirmative obligation to address workplace conditions in the factories of their foreign suppliers – factories they generally neither owned nor operated – but this concept is no longer anathema to many companies.14 For many (but not all) companies, the question is no longer ‘Do we have an obligation to address workers’ rights in suppliers’ factories? It is ‘How do we do it, at what cost, and with whom do we collaborate in addressing the problems that exist?’15 Take, for example, the different corporate responses to two workplace disasters nearly thirty years apart. In December 1984, fourteen years after Milton Friedman’s acknowledgment of the limited scope of a corporation’s social responsibility,16 a corporate catastrophe occurred in the Indian city of Bhopal. On the night of 2 December 1984, a massive leakage of toxic gases from a storage tank at a chemical plant resulted in the deaths of more than 3,000 people in its immediate aftermath and injured and subsequently killed thousands of others.17 Some blame was attributed to the central and state Indian governments and their lax enforcement of safety laws and haphazard planning permissions,18 but public attention also focused on the plant operator, Union Carbide India Limited, and its U.S.–based parent company, Union Carbide (UCC). Although UCC exercised extensive control over its Indian subsidiary (evidenced not simply by share ownership or representation on the board of directors but also by involvement in ‘key decisions regarding issues such as, technology, plant design, safety . . . training of employees’19), UCC started shifting the blame for the accident to its subsidiary. The reaction of the principal companies involved was generally denial, obfuscation, and a lack of responsibility for the calamity that ensued, and liability was strictly defined in terms of legal accountability for the disaster. Litigation was pursued in both the American and 13 14 15 16 17 18 19 Ross Tieman, “Supply Chain: Groups Face Rising Concern on Safety,” Financial Times, June 11, 2013, http://www.ft.com/intl/cms/s/0/5bd48c1a-b7e2-11e2-9f1a-00144feabdc0.html#axzz2W3By2VWv. See, for example, the companies profiled in Richard M. Locke, The Promise and Limits of Private Power, supra note 6; and the vast number of companies who have (at least in theory) embraced the concept of human rights via their involvement with the UN Global Compact. Michael Posner, President, Human Rights First, Testimony before the United States Congressional Human Rights Caucus, “Human Rights and Brand Accountability: How Multinationals Can Promote Labor Rights,” 8 February, 2006, available at http://digitalcommons.ilr.cornell.edu/cgi/viewcontent .cgi?article=1012&context=codes (accessed 24 June 2013). See note 2 and discussion at note 30. According to official government figures, 3,000 people died in the immediate aftermath, but this figure was later revised upward: Bhopal Gas Tragedy Relief and Rehabilitation Department, Bhopal, State of Mahdya Pradesh, “Profile,” available at www.mp.nic.in/bptrrdmp/profile.htm. However, according to Amnesty International’s estimate, between 7,000 and 10,000 people died within the first three days of the gas leak. Amnesty International, Clouds of Injustice: Bhopal Disaster 20 Years On (UK, 2004), 12. Surya Deva, Regulating Corporate Human Rights Violations, supra note 8, at 30. Ibid., 28. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 394 Nolan Indian courts with mixed results.20 The action against the parent company, UCC, was ultimately dismissed and the Indian case settled. Bhopal remains one of the modern world’s worst industrial accidents, and, as a legal precedent, it is most noteworthy for highlighting the limitations of the law and the lack of justice ultimately delivered to those worst affected.21 So, in the nearly thirty years since, as corporate violations of human rights have continued to occur, what, if anything, has changed in terms of corporate and public perceptions of a company’s responsibility to act and provide redress in the face of such a tragedy? In April 2013, the Rana Plaza building in Dhaka, Bangladesh, collapsed. The building housed five garment factories, and more than 1,100 workers were killed. Interest from the world’s media immediately centred on the global companies outsourcing production to the garment workers in that building. Questions focused on the corporate responsibilities of these global buyers – legal or otherwise – in both preventing and redressing this workplace disaster. The ease with which modern technology distributed disturbing images of those killed and maimed in these factories no doubt played a key role in capturing corporate attention.22 In the aftermath of the tragedy, global press reports focused primarily on the role and involvement of the private sector in remedying this problem rather than on the Bangladeshi government and its clearly inadequate regulatory enforcement of human rights and labor standards.23 The fact that direct legal liability may be very difficult to prove in linking the global firms with the collapse of the factory was not portrayed in the media as a barrier to responsibility. In the six months following the Rana Plaza building collapse, three different initiatives formed, all with the stated aim of improving working conditions inside Bangladeshi factories. In May 2013, a group of predominantly European apparel 20 21 22 23 In re: Union Carbide Corporation Gas Plant Disaster at Bhopal, India, in December 1984. MDL Docket No. 626, U.S. District Court, Southern District of New York, Ordered November 8, 1985. Interlocutory Application No. 19, Filed in Court of District Judge, Bhopal, in Regular Suit No. 1113 of 1986, Date, February 4, 1986; Order 05-04-1989 in Civil Appeal Nos. 3187–89, Union Carbide Corporation v. Union of India, Supreme Court of India. Litigation is still ongoing in this matter, and in recent reports, Amnesty International has consistently highlighted that victims are still waiting for justice. See http://www.amnesty.org/en/news/28-ye ars-later-women-bhopal-still-waiting-justice-2012-12-03 and Amnesty International, Press Release, “India: Court Decision Requires Dow Chemical to Respond to Bhopal Gas Tragedy,” July 23, 2013, https://www.amnesty.org/en/for-media/press-releases/india-court-decision-requires-dow-chemic als-respond-bhopal-gas-tragedy-2013. See Julfikar Ali Manik, Steven Greenhouse, and Jim Yardley, “Western Firms Feel Pressure as Toll Rises in Bangladesh,” New York Times, April 25, 2013, http://www.nytimes.com/2013/04/26/world/asia/ bangladeshi-collapse-kills-many-garment-workers.html?pagewanted=all&_r=0; and Dan Viederman, “Supply Chains and Forced Labor after Rana Plaza: Lessons Learned,” The Guardian, May 30, 2013, http://www.guardian.co.uk/global-development-professionals-network/2013/may/30/rana-plaza -bangladesh-forced-labour-supply-chains and on Twitter: https://twitter.com/TheRanaPlaza. See Sarah Labowitz and Dorothée Baumann-Pauly, n.11. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 From Principles to Practice 395 companies developed the Accord on Fire and Building Safety,24 quickly followed in June by the establishment of the Alliance for Bangladesh Worker Safety, made up of North American retailers including Walmart and Gap.25 These two initiatives demonstrate ‘regulatory renaissance’ at work by both recognizing the limited governmental capacity to provide a short-term remedy to prevent further disasters and accepting that corporate social responsibilities extend beyond those that can be defined in stark legal terms. These initiatives adopt a collective workplace safety standard and auditing plan that essentially privatizes aspects of workplace safety in respect of the remediation of safety threats. Together, the plans ‘encompass financial commitments of almost $250 million, plus up to an additional $100 million in low-cost loans to help pay for building upgrades.’26 This utilization of non-state actors to protect human rights builds on state efforts in promulgating human rights standards but also explicitly acknowledges the state’s limited enforcement capacity and outsources the implementation of the proposed protection regime to the non-state sector.27 Several months later, in October 2013, the International Labour Organization (ILO) announced a three-year initiative to improve Bangladesh’s garment factories.28 The ILO initiative, co-sponsored by the Bangladesh government, will conduct a fire and building safety assessment on 1,000 to 1,500 factories and run safety and health awareness training. The $24.1 million project – funded mainly by the British and Dutch governments – also aims to provide skills training to survivors of the Rana Plaza building collapse. This initiative uses government funds to enforce national and international regulations and aims to build the capacity of the Bangladesh government to enforce safety standards across a broad spectrum of local factories. In the interim, the private funds of European and American brands are at work, improving a narrower range of factories that are linked to the companies via their supply chain.29 While the competing nature of these three initiatives potentially 24 25 26 27 28 29 See the Accord at http://www.bangladeshaccord.org/. See the Alliance at http://www.bangladeshworkersafety.org/. Sarah Labowitz, “The $250 Million Commitment to Bangladesh’s Factories Misses the Point,” July 19, 2013, Quartz. Available at http://qz.com/105852/the-250-million-commitment -to-bangladeshs-factories-misses-the-point/. While schemes such as these predominantly operate in developing countries where governments are more commonly unable or unwilling to regulate corporate compliance with human rights, multistakeholder initiatives operate in a variety of countries largely driven by the location of the manufacturing or resource base of the goods being produced. The Fair Labor Association, for example, monitors factories in Bangladesh along with those in more developed economies such as China and Turkey. See ILO, “Improving Working Conditions in the Ready-Made Garment Sector,” at http://www.ilo.org/ dhaka/Informationresources/Publicinformation/Pressreleases/WCMS_226720/lang–en/index.htm. For a discussion on the benefits and shortcomings of these developments in Bangladesh, see Sarah Labowitz and Dorothée Baumann-Pauly, supra note 11. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 396 Nolan makes implementation all the more challenging, it also recognizes that potential solutions must be multi-pronged and may need to co-exist, offering workplaces a mix of public and private regulation that has the potential to fill gaps that another program may overlook. A sub-contracting factory that does not have direct relationships with Western brands may not garner the attention of either the Accord or the Alliance but may fall within the parameters of the ILO project. This is the essence of re-regulation, utilizing public and private regulation that sources standards from international and national legislation to create real reform of workplace safety that encompasses, in this case, a large proportion of Bangladesh’s garment industry. While it is limited to one country and one sector, one can see the promise of this regulatory renaissance, but it is also not without its challenges. 3. From Principles to Practice Writing in 1970, economist Milton Friedman argued that a company possesses the social responsibility only ‘to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud.’30 Writing more than four decades ago, Friedman narrowly defined corporate social responsibility in legal terms, but developments since then have seen the emergence of a substantial body of soft law which exemplifies a broader and less legalistic approach toward the incorporation of and responsibility for human rights by the corporate sector. As was exemplified by the non-state sector’s response to the Bangladeshi tragedy, the practical protection of human rights is being pursued at the ground level by civil society and international institutions acting in concert with business. The reasons that the various codes, guidelines, and principles have proliferated in the last three to four decades are multifaceted (including an increase in pressure on companies from NGOs and a willingness on the part of some companies to adapt corporate strategies to incorporate such codes), but it is also clear that the development of these initiatives is in part a response to an inadequate legal framework. There remain very few legal obligations dealing with human rights that bind corporations operating transnationally.31 This lack of clear legal liability has been central to the creation of the permissive international ‘human rights–free’ environment32 in which some 30 31 32 Milton Friedman, New York Times Magazine, September 13, 1970 122. David Kinley and Junko Tadaki, “From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law,” Virginia Journal of International Law 44 (2003–2004): 931, 944–947. Olivier De Schutter, Extraterritorial Jurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations, November 2006. Available at http://www.reports-and-materials.org/ Olivier-de-Schutter-report-for-SRSG-re-extraterritorial-jurisdiction-Dec-2006.pdf. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 From Principles to Practice 397 corporations now operate and the parallel increase in the development of soft-law mechanisms to regulate corporate behaviour. In spite of this, or more accurately because of this, a plethora of codes and guidelines have been established that, with varying levels of success, seek to take on the role of the state in encouraging adherence to human rights standards.33 For example, in 2011, after persistent criticism about the working conditions at Foxconn, (one of Apple’s principal suppliers),34 Apple agreed to allow the non-profit Fair Labor Association (FLA) access to some Foxconn factories to assess compliance with Chinese legal requirements and the FLA’s Workplace Code.35 Multi-stakeholder initiatives such as the FLA, which is a collaborative effort of companies, universities and colleges, and civil society organizations, epitomize the private regulatory mechanisms that have developed with the lofty goal of establishing a practical framework for human rights protection. FLA’s subsequent audits of Foxconn revealed multiple labor and human rights violations that violated both Chinese laws and FLA code standards, including infractions relating to hours of work, health and safety, compensation, and industrial relations.36 The FLA, along with the principal companies involved, then started to develop a plan to remedy these violations. The FLA is only one of a series of multi-stakeholder initiatives that emerged in the 1990s focused on the apparel sector,37 in which companies work in partnership with civil society to attempt to regulate unregulated jurisdictions. In this form of re-regulation, private actors are delivering public goods such as labor inspections, traditionally a state function; but the assessable standards are a mix of public and private regulations. This acceptance (albeit often reluctantly) by (some) businesses of their human rights responsibilities is indicative of the transformation of the rules of the game and an acknowledgement that the rules can no longer be framed in narrow and legalistic terms. 33 34 35 36 37 See Utting, supra note 5, 14–15. For a summation of some of these criticisms, see Aditya Chakrabortty, “The Woman Who Nearly Died Making Your iPad,” The Guardian, 5 August 2013, available at http://www.theguardian.com/ commentisfree/2013/aug/05/woman-nearly-died-making-ipad; and China Labor Watch, Beyond Foxconn: Deplorable Working Conditions Characterize Apple’s Entire Supply Chain, June 27, 2012. Available at http://www.chinalaborwatch.org/pdf/2012627-5.pdf. FLA Workplace Code of Conduct, http://www.fairlabor.org/labor-standards. Fair Labor Association, Independent Investigation of Apple Supplier, Foxconn, Report Highlights (March 2012). Available at http://www.fairlabor.org/sites/default/files/documents/reports/foxconn_ investigation_report.pdf. Other multi-stakeholder initiatives include Social Accountability International, the Ethical Trading Initiative, and the Fair Wear Foundation. Worldwide Responsible Apparel Production (WRAP) is an industry grouping. Such voluntary initiatives set up to regulate supply chains or hold companies accountable vary widely, and some have failed to agree on the need for external audits with transparent results. This shortcoming has arguably made them less effective and credible; http://www.wrapapparel.org/. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 398 Nolan The Guiding Principles on Business and Human Rights, the latest and most authoritative to date of a long line of soft-law standards designed to curb corporate rights violations, unabashedly assert a corporation’s responsibility to respect human rights.38 This corporate responsibility, the UN Special Representative reasoned, emerged not from law but from the basic expectation society has of business: an expectation that companies will do no harm.39 The Guiding Principles stipulate that the corporate responsibility to respect human rights ‘means that they [companies] should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’40 The explanatory Commentary accompanying the Principles states that ‘the responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate [and that] [i]t exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations.’41 What does this mean in practice, and how do such top-down announcements from the UN filter down to impact workers’ rights on the floor of a sub-contracting factory in Bangladesh? To some, the loose language of corporate responsibility rather than obligation implies an acceptance of a ‘world where companies are encouraged, but not obliged, to respect human rights’42 and requires few real changes in the way business operates. ‘The soothing promise of responsibility can deflect public attention from the need for stricter laws and regulations.’43 Responsibility is distinguished from accountability, and corporations interpreting these principles in practice may choose to take their cue (or not) from a mix of international standards selectively embodied in a soft-law format. Following this line of reasoning, some argue that it is illegitimate for private companies to be conducting labor inspections and that resources should rather be devoted to strengthening public labor administration systems.44 The combination of utilizing soft-law standards and enforcement by private actors while filling a governance gap left open by the state attracts reasonable criticism around the selective nature of the standards monitored and the perennial problems of leaving 38 39 40 41 42 43 44 Human Rights Council, 2011 Guiding Principle, supra note 1 Principle 11 [II.A.11]. Human Rights Council, 2008 report, supra note 1 [9] and [24]. Human Rights Council, 2011 Guiding Principles, supra note 1, Guiding Principle 11 [II.A.11]. Ibid. A. Ganesan, Human Rights Watch, “UN Human Rights Council: Weak Stance on Business Standards,” 16 June 2011. Available at www.hrw.org/news/2011/06/16/un-human-rights-councilweak-stance-business-standards. See also AFL-CIO, “Responsibility Outsourced: Social Audits, Workplace Certification and Twenty Years of Failure to Protect Worker Rights,” April 23, 2013. Available at http://www.aflcio.org/Learn-About-Unions/International-Labor-Movement/ Responsibility-Outsourced-Report. R. B. Reich, Supercapitalism: The Transformation of Business, Democracy and Everyday Life (Knopf, 2007), 170, quoted in Locke, n.6, 157. AFL-CIO, supra note 42, 17. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 From Principles to Practice 399 the ‘fox guarding the henhouse.’45 In some cases, the standards monitored by some multi-stakeholder initiatives set a lower bar than that required by local law,46 and some initiatives lack independent auditing and transparency.47 Many of the soft-law codes and guidelines that have multiplied in this sector in the last three to four decades exhibit these types of problems. While some credence can be given to the argument that these codes, guidelines, and principles have emerged simply because there is a lack of anything better and/ or as a tactic for avoiding government regulation, the use of soft law can also be a deliberate strategic choice because it is attractive to the participation of a broad group of stakeholders (particularly business and sometimes government). The attraction of such soft law (to some participants) can be easily understood if the standards are viewed as containing aspirational goals that aim for the best possible scenario with limited constraints if such goals are not met. But soft law is not necessarily commensurate with soft results. Any clear demarcation between hard and soft law is challenging48 and, while some may argue that ‘the essence of any soft law rule is that it is not binding’49 in this particular field, differentiation between soft and so-called hard (or legally binding) law is not binary but one that should be viewed as developing on a continuum. What is legally sanctioned is distinguishable from activities that are not, but reputational sanctions can be crucial to business.50 The reality is that, not unlike the global framework for enforcing international human rights law, such initiatives are only as strong as their members choose to make them, and they do not apply to those that do not want to join them. The potentially flexible language of the Guiding Principles’ corporate responsibility to respect principle (that is, it is a principle not ‘law’) was deliberately adopted in contrast to the legal protection duties it ascribes to states that are grounded in international human rights 45 46 47 48 49 50 Commission on Human Rights, “Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises,” E/CN.4/2006/97 (22 February 2006), [53]. For example, in the Apple-Foxconn case, the FLA Workplace Code required a maximum of 60 hours worked per week (regular and overtime), while Chinese law limits work to 40 hours per week and a maximum of 36 hours overtime per month, potentially meaning a maximum of 49 hours per week. FLA’s audit found both standards had been exceeded. The reality is that the Chinese legal limits are not enforced: Fair Labor Association, n.36, 8. See, for example, the Worldwide Responsible Apparel Production (WRAP): http://www.wrapapparel .org/, supra note 37. A.E. Boyle, “Some Reflections on the Relationship of Treaties and Soft Law,” International and Comparative Law Quarterly 48 (1999): 901, at 901–902. A. D’Amato, “Softness in International Law: A Self-Serving Quest for New Legal Materials: A Reply to Jean d’Aspremont,” European Journal of International Law 20 (2009): 897 at 899. Chikako Oka, “Accounting for the Gaps in Labour Standard Compliance: The Role of Reputation-Conscious Buyers in the Cambodian Garment Industry,” European Journal of Development Research 22.I (2010): 59–78. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 400 Nolan law. What distinguishes the Guiding Principles from earlier UN efforts to regulate corporations with respect to human rights51 is the deliberate decision to move away from pursuing an explicit legal connection between international human rights law and corporations and rely on a more amorphous but broader societal expectation that attaches to companies. Such looseness in language can affect how consistently the Principles are interpreted, who they attach to, and how compliance is coerced, but it may also allow for participation of a broader set of stakeholders that may be willing to adopt and operationalize the Principles than might otherwise be involved. One of the many challenges associated with the Guiding Principles is their practical implementation. While, theoretically, emphasis is placed on the primary protective duty of the state to safeguard human rights, it is increasingly obvious, from a practical perspective, that in many markets, this needs to be supplemented by private actors.52 The Guiding Principles’ recognition of the corporate responsibility to respect as the second (and complementary) pillar of the UN framework is acknowledgement of this. The capacity of many national governments, along with venerable institutions like the ILO, to stem rights violations is limited, and the decline of state-backed labor inspections and the ferocious appetite of the global marketplace have quite simply overwhelmed most national systems of labor market regulation.53 Even developed market economies have trouble maintaining adequate levels of inspection.54 The need for private actors to take responsibility for labor inspection remains and will probably grow. Foxconn is China’s largest 51 52 53 54 For example, see United Nations Sub-Commission on the Promotion and Protection of Human Rights, “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights,” E/CN.4/Sub.2/2003/12/Rev.2 (2003). And more generally on earlier UN efforts, see P. Utting, UN-Business Partnerships: Whose Agenda Counts? Paper presented at a seminar on Partnerships for Development or Privatization of the Multilateral System, Oslo, 8 December 2000, 2. Available at www.unrisd.org/unrisd/website/document.nsf/d2a23ad2d50cb2a280256eb300385855/ a687857bd5e36114c1256c3600434b5f/$FILE/utting.pdf. Locke, n.6, 157. One positive example of how the synergy between the public and private sectors can work to improve labor conditions is the ILO’s Better Work program, which is a collaboration between the ILO and the International Finance Corporation (IFC) focused on the application of labor standards in private sector development. The Better Factories Cambodia project, launched in 2001, has often been held up as providing a concrete example of how international standards, together with strong monitoring and trade incentives, can usefully be combined to form a strong and sustainable basis for improving working conditions (see discussion at n.93). However, for a contrary view, see International Human Rights and Conflict Resolution Clinic Stanford Law School & Worker Rights Consortium, Monitoring in the Dark: An Evaluation of the International Labour Organization’s Better Factories Cambodia monitoring and reporting program (2013): http://www.workersrights.org/linkeddocs/Monitoring-InThe-Dark-Stanford-WRC.pdf. Lance A. Compa, Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards (Cornell University Press, 2004). Also Human Rights Watch, Blood, Sweat, and Fear: Workers’ Rights in U.S. Meat and Poultry Plants, 25 January 2005, available at http://www.hrw.org/en/reports/2005/01/24/blood-sweat-and-fear. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 From Principles to Practice 401 private employer,55 and, in spite of this, or perhaps because of this, state-regulated labor inspections were inadequate to address the ongoing rights violations in the factories. No socially responsible company wants to be publicly associated with child labor, forced labor, or unsafe working conditions in the production of their goods, so the need to perform due diligence to ensure that labor and human rights standards are respected, even in jurisdictions where labor inspectors are active, is often a necessity. The ideal situation would be one in which non-state actors complement the work of the state by mobilising resources to protect human rights that are comprehensively defined by reference to international standards. The work of the non-state actors is not to relieve states of their duties or selectively determine what workplace standards are relevant to their operations but to assist in building the capacity of governments to assume or resume their obligations to improve working conditions. That synergy has been hard to capture, and in many states where violations are rampant, their public agencies are either in denial or in bad faith about the lamentable state of labor law enforcement in their jurisdictions.56 Reducing corporate violations of workers’ rights is a process of progressive realisation. While a diverse range of initiatives aimed at curbing violations of workers’ rights has proliferated in recent decades, it is also clear that such initiatives ‘have been unable to stem the flow of human rights violations by TNCs.’57 This should not be taken as an indication that such measures are altogether devoid of merit. Initiatives that have relied on the development of soft law via such tools as codes of conduct can play a vital role in internalising human rights norms within corporations and solidifying the notion that corporations have duties with respect to shareholders and stakeholders (including workers in their supply chain) alike – a process that in time ‘can shape the standards of care that are legally expected of business.’58 55 56 57 58 Fair Labor Association, supra note 36, 1. Bangladesh is a prime example of this, and the decision by the U.S. government in June 2013 to suspend Bangladesh’s trade privileges with the United States was an attempt by the U.S. administration to increase the pressure on the Bangladeshi government to act more quickly to improve workers’ rights. The involvement of the Bangladesh government in the 2013 ILO factory initiative might be interpreted as a sign that such pressure was effective. See Steven Greenhouse, “Obama to Suspend Trade Privileges with Bangladesh,” The New York Times, June 27, 2013; http://www.nytimes.com/2013/06/28/business/ us-to-suspend-trade-privileges-with-bangladesh-officials-say.html?emc=edit_na_20130627&_r=0. David Kinley and Rachel Chambers, “The UN Human Rights Norms for Corporations: The Private Implications of Public International Law,” Human Rights Law Review 6.3 (2006): 491. Halina Ward, Legal Issues in Corporate Citizenship, International Institute for Environment and Development, February 2003, iii, available at http://pubs.iied.org/pdfs/16000IIED.pdf. The much larger issue that cannot be fully explored in this chapter deals with the diversity and variance in codes of conduct and other soft-law standards in this field. It is almost impossible to even compare some of the different multi-stakeholder initiatives, as they operate according to individualistic structures peculiar to their particular sectors. For example, the Voluntary Principles on Security and Human Rights (http://www.voluntaryprinciples.org/) has a high level of state and corporate involvement but has been persistently criticized for its lack of implementation and enforcement mechanisms. Meanwhile, an initiative like the FLA, which operates primarily in the apparel and footwear sector, Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 402 Nolan But relying purely on either the blind faith of market forces or the state to curb corporate violations has its challenges and, ultimately, is likely to have limited longevity in bringing about sustained workplace improvements.59 To move from the development of these soft-law principles to their practical implementation requires articulated regulation by a multiplicity of stakeholders. In essence, re-regulation relies on a form of ‘networked governance’60 that places corporate behaviour under the scrutiny of not only states but also NGOs, unions, industry bodies, and international organizations. Private regulatory mechanisms that borrow standards from both hard- and soft-law instruments may transcend but also complement the traditional and formal regulatory role played by states in protecting human rights. This form of regulatory renaissance is not so much ‘governance without government’61 but rather governance that recognizes the limitations of government and seeks to supplement those regulatory gaps by directly involving other crucial stakeholders. 4. Blending Public and Private Regulation: The Changing Role of the State In its 2013 World Report, Human Rights Watch stridently makes the case for a more prominent – practical not just theoretical – role to be played by states in regulating corporate compliance with human rights: ‘[w]e have nearly reached the paltry limits of what can be achieved with the current enforcement-free approach to the human rights problems of global companies. It is time for governments to pull their heads out of the sand, look the problem they face in the eye, and accept their responsibility to oversee and regulate company human rights practices.’62 Human Rights Watch’s argument is fortified by the many examples of corporate irresponsibility it has tabulated over the years,63 including several in which companies have professed to be operating according to a human rights code of conduct. Reasserting the role of the state in improving workplace conditions does not necessarily mean, as one commentator puts it, ‘a return to traditional command control regulation [as] [t]he limits of that approach are well known.’64 What is needed is some level 59 60 61 62 63 64 has no governmental involvement (but was formed partly at the behest of government) and is stronger on compliance but has been criticized for its lack of union and broad civil society participation. Locke, supra note 6, 157. Baccaro and Mele, supra note 7, 453. Vogel, n.12, 263. Human Rights Watch, supra note 10, 30. See Human Rights Watch reports at https://www.hrw.org/topic/business. Locke, supra note 6, 2. Command and control regulation might be loosely defined as direct regulation of a company, industry, or activity by legislation that states what is permitted and what is not. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 From Principles to Practice 403 of involvement by the state to harden the ‘societal expectations’ foisted on some companies and more readily assumed by others:65 a blending of public and private regulation or re-regulation. It is reasonable to argue that compliance by companies with soft-law human rights standards is more likely if some aspects of those initiatives encouraging certain behaviours are mandated in the form of a ‘hard’ law requirement.66 Such requirements can take various forms, and one obvious area where this might be effective in the current climate is government-imposed human rights due diligence or specific reporting requirements on companies.67 These obligations could be mandated via domestic legislation (operating extraterritorially) to ‘harden’ principles that are currently cast in a soft format. The Guiding Principles, for example, encourage companies to conduct due diligence as a means by which companies might discharge their responsibility to respect rights.68 Such due diligence involves companies conducting a human rights risk assessment as part of their business operations, but the parameters of such due diligence are not clearly defined.69 There is no legal obligation in the Guiding Principles either to conduct such an assessment or to publish its results. However, the hope or expectation that some companies might willingly adopt such responsibilities stems from experience over the last few decades of some companies who have been involved in multi-stakeholder initiatives that require companies to integrate human rights responsibilities into their modus operandus. The Guiding 65 66 67 68 69 The fact that states have a duty to protect from third-party violations is non-controversial. How far that obligation extends and whether it should be applied extra-territorially is far less settled; see Human Rights Council, 2008 report, supra note 1 [18]. For example, a recent briefing paper by a European NGO (The Center for Research on Multinational Corporations (SOMO) at http://www.somo.nl/) examined the due diligence efforts of 186 companies that are listed in Europe and make use of the minerals covered by s. 1502 of the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111– 203, H.R. 4173) (see discussion at n.82). The results indicated that only a small percentage of European Union (EU)– listed companies are directly affected by Dodd Frank 1502 and are therefore required to publicly disclose their use of conflict minerals, and the large majority of companies that are not required to comply with Dodd Frank 1502 simply do not conduct human rights due diligence on conflict minerals. SOMO, “Conflict Due Diligence by European Companies,” November 2013. Available at http://www.somo.nl/publications-en/Publication_4003?utm_source=SOMO+Alert&utm_campaign =e3922a78cd-SOMO_Alert_Conflict_Minerals10_23_2013&utm_medium=email&utm_term =0_20c962ad76-e3922a78cd-318982993. For a discussion of (now) failed legislative attempts in the United States, Canada, and Australia to impose national human rights standards on companies regardless of where they operate, see Adam McBeth, “A Look at Corporate Code of Conduct Legislation,” Common Law World Review 33 (2004): 222, 251. Human Rights Council, 2011Guiding Principles, supra note 1, 17 [II.A.17] and 18 [II.A.18]. For more on this, see J. Nolan, “The Corporate Responsibility to Respect Human Rights: Soft Law or Not Law?” in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, eds. S. Deva and D. Bilchitz (Cambridge University Press, 2013), 138–161. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 404 Nolan Principles leave a significant amount of ‘wiggle room’ for companies in setting the parameters of due diligence and note that: Human rights due diligence: (a) Should cover adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships . . .70 The text of this provision is nebulous and open to interpretation. Whether the operations of a sub-contracting factory in Bangladesh can be ‘directly linked’ to its U.S.– based buyer is debatable, and with no legal requirement to conduct due diligence, compliance is likely to be patchy and inconsistent. Selective implementation of this principle is also likely to be furthered by the Commentary attached to the Guiding Principles, which states that ‘[w]here business enterprises have large numbers of entities in their value chains it may be unreasonably difficult to conduct due diligence for adverse human rights impacts across them all.’71 States, however, could supplement and strengthen this process by legislating to require companies they regulate to carry out such due diligence and set the parameters for what it should incorporate. Articulating the reach of a state to impose such obligations (and therefore defining which companies a state might regulate) opens the proverbial bag of worms. Should (or could) such regulations extend beyond a parent company to its subsidiary operating in India or down its supply chain to its contracted supplier factories? Although, in most jurisdictions, national law regulates corporate activities that affect human rights, including labor rights, anti-discrimination law, environmental protection, and criminal law, domestic legislation typically does not apply extraterritorially. However, several UN bodies have, in the last few decades, taken an expansive approach on who and what a state might regulate in the pursuit of protecting human rights. For example, the UN Committee on Economic, Social and Cultural Rights, when considering how states might protect the right to health, noted that state actions might need to cross national boundaries. To comply with their international obligations . . . States parties have to respect the enjoyment of the right of health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means . . .72 Postulating two years later in respect to protecting an individual’s right to water, the same UN Committee called upon states ‘to prevent their own citizens and 70 71 72 Human Rights Council, 2011 Guiding Principles, supra note 1, 17 [II.A.17]. Human Rights Council, 2011 Guiding Principles, supra note 1, 17 [II.A.17] (Commentary). Committee on Economic, Social and Cultural Rights (CESCR), “General Comment 14, The right to the highest attainable standard of health (art. 12),” UN Doc E/C.12/2000/4, 11 August 2000 [39]. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 From Principles to Practice 405 companies from violating the right to water of individuals and communities in other countries [w]here States parties can take steps to influence other third parties to respect the right, through legal or political means. . . .’73 Despite this expansive and pragmatic approach taken by the UN Committee on Economic, Social and Cultural Rights that encourages states to protect individuals from corporate harms wherever they occur, the Guiding Principles adopted a more conservative view as to whether a state might regulate corporate activities that extend beyond its borders and jurisdiction. The Guiding Principles note that ‘States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises.’74 The Commentary attached to Guiding Principle 2 further elaborates on these territorial and jurisdictional limits by noting the possibilities open to states to broaden and deepen the scope of the duty to protect but does not go so far as to suggest states are obliged to act in this regard.75 The Guiding Principles’ rather limp stance in recognising but not requiring states to regulate companies extraterritorially turns its back on a window of opportunity offered by the UN Committee on Economic, Social and Cultural Rights in recommending an assertive extraterritorial approach to protection. The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights76 developed by a group of experts in September 2011 takes up the challenge of more solidly integrating international human rights law with the realities of the global economy and the transnational operations of business by declaring that “[a]ll States must take necessary measures to ensure that non-State actors which they are in a position to regulate . . . such as transnational corporations and other business enterprises, do not nullify or impair the enjoyment of economic, 73 74 75 76 Committee on Economic, Social and Cultural Rights (CESCR), “General Comment 15: The right to water,” UN Doc. E/C.12/2002/11 (20 February 2003), [31]. Human Rights Council, 2011 Guiding Principles, supra note 1, Guiding Principle 1 (I.A.1). The Commentary attached to the Guiding Principles states: At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis. Within these parameters some human rights treaty bodies recommend that home States take steps to prevent abuse abroad by business enterprises within their jurisdiction. There are strong policy reasons for home States to set out clearly the expectation that businesses respect human rights abroad, especially where the State itself is involved in or supports those businesses. The reasons include ensuring predictability for business enterprises by providing coherent and consistent messages, and preserving the State’s own reputation.” Human Rights Council, 2011 Guiding Principles, supra note 1 (I.A.2). Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (29 February 2012) (Maastricht Principles); http://www.lse.ac.uk/humanRights/ articlesAndTranscripts/2011/MaastrichtEcoSoc.pdf; Olivier De Schutter, Asbjørn Eide, Ashfaq Khalfan, Marcos Orellana, Margot Salomon, and Ian Seiderman, “Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights,” Human Rights Quarterly 34 (2012): 1084–1169 at 1135. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 406 Nolan social and cultural rights.”77 Maastricht Principle 25 then goes on to clarify that states will be in a position to regulate such corporations if the corporation, or its parent or controlling company, has its centre of activity, is registered or domiciled, or has its main place of business or substantial business activities, in the State concerned.”78 When looking for examples of how a state might reasonably regulate corporate activities beyond its borders, one model of extraterritorial legislation that has had a widespread impact on the private sector is the U.S. Foreign Corrupt Practices Act.79 Adopted in 1977, it has influenced the way in which U.S. businesses operate abroad and has changed the global business environment more generally with respect to corruption. Setting a precedent for how a legislative model can reverberate globally, the U.S. act was followed into operation by the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 77 78 79 Maastricht Principles, supra note 76, Principle 24 at 5. Ibid., Principle 25 at 5 and on a related issue with respect to determining the nationality of a TNC for the purpose of determining the judicial fora in which claims against a TNC may be heard; see the Barcelona Traction Case (New Application: 1962) (Belgium v. Spain) [1970] ICJ Rep 3, where the International Court of Justice held that the nationality of a corporation is to be determined by reference to the state in which the TNC is incorporated. This does not, of course, surmount the problems posed by the separation of legal personality recognised throughout the common law world; nor does it dispense of the procedural issues that arise in transnational claims. It does, however, mean that a corporation incorporated, for example, in Australia can in theory be sued in the courts of Australia based on actions committed in another jurisdiction. However, the expansive approach taken in the Maastricht Principles stands in contrast to the approach of the U.S. Supreme Court in a 2013 decision examining the extraterritorial liability of corporations for human rights violations. The decision in Kiobel v. Royal Dutch Petroleum (133 S.Ct. 1659), while focused exclusively on the jurisdictional limits of piece of legislation – the Alien Torts Claims Act (ATCA) – complicates the territorial question a little further. In Kiobel, a majority of the court further restricted – though did not close the door to – future litigation involving the actions taken by global companies outside the United States, especially for non–U.S.–based companies. The justices split five to four in their reasoning, with the majority relying on the presumption against extraterritoriality arguing that nothing in the wording, logic, or history of the ATCA showed that Congress necessarily meant to sweep into U.S. courts wholly non–U.S. claims involving non–U.S. parties. Justice Breyer, however, in a concurrence joined by three others, rejected that the presumption against extraterritoriality applied to the statute and instead advocated an analysis “guided in part by principles and practices of foreign relations law” (at 1) to determine whether an ATCA plaintiff’s allegations involved “sufficient ties” to the United States to trigger jurisdiction. In Kiobel, with non–U.S. plaintiffs, defendants and conduct surrounding the claims, it was deemed insufficient to trigger such potential jurisdiction. Recently the United Kingdom (U.K.) Supreme Court took a more expansive view toward extraterritoriality (albeit not in relation to corporate responsibility) when it considered the extraterritorial application of the European Convention on Human Rights in Smith (and Others) v. MOD [2013] UKSC 41. The Court considered whether the U.K. government had jurisdiction over British soldiers killed while serving in Iraq. The Supreme Court held unanimously that the U.K. exercised extraterritorial jurisdiction based on the authority and control which the U.K., through the chain of military command, had over the individuals despite the U.K. no longer exercising “public powers” in the region. (1977)15 U.S.C. § 78dd-1. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 From Principles to Practice 407 UN Convention Against Corruption,80 which established international standards for combating corruption. Companies have responded to these global anti-corruption laws by developing due diligence programs to proactively identify potential risks. The global implementation of laws to combat corruption is a useful model for assessing how more rigor could be brought to bear in applying international human rights standards to business, and the mandated due diligence requirements showcase how the Guiding Principles could be hardened into a national legislative model with extraterritorial reach. States might also supplement private regulatory mechanisms by mandating increased transparency in global business operations with a view to increasing respect for human rights. For example, the UN Global Compact (a very soft version of soft law in this field) asks companies to commit to issuing an annual ‘Communication on Progress’81 as a means of advancing corporate responsibility for human rights. While the Compact can cajole companies (and, as a last resort, threaten companies with expulsion) into complying, states can require companies they regulate to report on their global activities and the steps they are taking to ensure the protection of human rights. For example, Section 1502 of the U.S. Dodd-Frank law requires all listed companies to report on the sources of minerals used in their products that originate from the Democratic Republic of Congo or adjoining countries.82 The purpose of this provision is to provide greater transparency about how the trade in minerals is potentially fuelling and funding the armed struggle in the Democratic Republic of Congo and relies on the adverse reputational impact of such disclosure rather than mandating penalties for actually sourcing minerals from conflict-afflicted regions. In addition, as part of the decision to lift certain economic sanctions applicable to Burma/Myanmar, the Obama administration has established new reporting requirements for U.S. companies that are investing more than $500,000 in business in Burma. The reporting requirements include a provision that compels companies to outline the steps they are taking to ensure that their commercial engagements do not contribute to human rights abuses.83 80 81 82 83 OECD. Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (adopted by the Negotiating Conference on 21 November 1997), and the UN, Convention against Corruption, adopted 31 October 2003, A/58/422, entry into force 14 December 2005. The UN Global Compact offers businesses a strategic framework aligning their operations with ten universally accepted principles in the areas of human rights, labor, environment, and anti-corruption. See http://www.unglobalcompact.org/COP/index.html. In addition, s.1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111–203, H.R. 4173) addresses financial transparency. This section requires all listed oil and mining companies to disclose the revenues they pay to governments worldwide. See Burma Responsible Investment Reporting Requirements, http://www.humanrights.gov/wp-content/ uploads/2013/05/Responsible-Investment-Reporting-Requirements-Final.pdf. Downloaded from Cambridge Books Online by IP 130.102.42.98 on Tue Jan 26 00:30:24 GMT 2016. http://dx.doi.org/10.1017/CBO9781316155219.014 Cambridge Books Online © Cambridge University Press, 2016 408 Nolan The European Parliament has recently approved a Directive on the disclosure of non-financial information by EU companies. The Directive will require EU public-interest entities with more than 500 employees to provide an annual written report on human rights, environmental issues, and social issues to give an understanding of their impact in each of these areas.84 The Directive is expected to impact about 6,000 companies and is significant because it ‘is the first time that EU companies will be legally required to report publicly on the human rights, environmental and social impacts of their global operations, as well as their due diligence procedures for identifying, preventing, mitigating, and addressing those impacts.’85 These transparency initiatives feed off the earlier efforts of multi-stakeholder initiatives such as the Extractive Industries Transparency Initiative and Publish What You Pay, which have long championed the need to increase transparency as well as the due diligence guidelines set out in the UN Guiding Principles.86 Such reporting requirements – both state and non-state sanctioned – indelibly link transparency with accountability, and in a field where accountability is arguably pursued by civil society with often greater vigor than states, the more information that is made available on global business operations, the more doable the work of these non-state actors becomes to privately regulate corporate activities.87 As these examples illustrate, interactions between public and private regulation can take many different forms, and mandating certain aspects of human rights due diligence and reporting is one way in which state regulation can supplement private regulatory efforts to improve corporate compliance with human rights standards.88 Private regulatory mechanisms might sometimes impose more in-depth transparency requirements that exceed state reporting requirements, but public regulation could 84 85 86 87 88 Public-interest entities are listed companies, credit institutions, insurance undertakings, and any other entity designated by an EU member state as a public-interest entity (for example, because they are of significant public relevance due to the nature of their business, size, or number of employees). See Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013, Article 2(1). Amnesty International Public Statement, April 29 2014, http://www.amnesty.org/en/library/asset/ IOR61/005/2014/en/b09652a3-b4b3-47db-9949-1bd8ddaa731e/ior610052014en.pdf. Extractive Industries Transparency Initiative, http://eiti.org/; http://www.publishwhatyoupay.org/; Publish What You Pay, http://www.publishwhatyoupay.org/; and 2011 Guiding Principles,” supra, note 1, Guiding Principle [15]. There are those that argue that the costs of such transparency initiatives (including funding the reporting and due diligence requirements and potentially directing trade away from developing countries in need of foreign investment) outweigh any potential benefits. For a summary of the pros and cons of such arguments, see a transcript of a discussion held on December 13, 2011, hosted by Brookings and Global Witness, “The Transparency, Conflict Minerals and Natural Resources: What You Don’t Know About Dodd-Frank,” an event examining Sections 1502 and 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, http://www.brookings.edu/research/opinions/2011/ 12/20-debating-dodd-frank-kaufmann....
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Answer Outline
1) Expand paragraph One
a) Made the thesis more specific
b) Word it as a call to action to further enlist reader engagement.
c) Removed the word ‘should’ from the thesis and reworded it a more confident fashion.
2) Long View/Short View
a) Corrected the phrase supplies chain – believe it’s Supply Chains as in there is more
than one chain but each chain carries the supplies for one company.
b) Created a narrative within the paragraph – Companies do this believing it will do this,
in actuality it has this effect, this is why their original thinking is a bad idea.
3) In this paragraph you discussed morale but gave an example referring to safety. These two
ideas aren’t adequately connected. I have to turn it around so that you say the accident caused
low morale. The conditions didn’t actually change after this accident:
https://www.theguardian.com/business/2016/may/31/rana-plaza-bangladesh-collapsefashion-working-conditions -- 233 Words
a) Created a narrative (told a story) – This happened in a Bangladesh, they responded
this way… it means this.
b) Added a source.
c) Tied it back to the previous paragraph so it goes full circle
4) Summarized ideas in each paragraph – repeated thesis – 162 words
d) Long term loss versus short term gain
e) Social responsibility and practicality


Australian businesses have the mandate of ensuring that ethics and effective leadership is reflected in
their organizational policies, hiring practices, and labor conditions. Although it’s sometimes difficult for
businesses to strike the balance between business needs and labor practices which honor the humanity of
employees, it’s nonetheless imperative for leaders to seek to understand the cost and benefits of their
labor policies. These costs and benefits are subtler than the estimated cost of producing one widget.
They’re also global in scope rather than localized and are best demonstrated over time. They’re global in
that they impact the company’s reputation and consumer willingness to engage with the organization.
They’re subtler because they steadily cause a deterioration in a willing workforce. Failing to protect
human rights by promoting slavery, poor working conditions, and child labor (Kelly, 2016) is
unacceptable from a fiscal, social,...


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