Hierarchy of Legislated Corporate Social Responsibility, Supply Chains and Assumptions in Mandatory Modern Slavery Disclosure

Dr Onyeka Osuji, Reader in Law at the University of Essex, recently presented his research on mandatory modern slavery disclosure at two international conferences.

Disclosure is an emergent regulatory strategy for corporate social responsibility (CSR) in certain jurisdictions despite its original conception as a voluntary management tool. As exemplified by recent anti-modern slavery legislations in some jurisdiction, disclosure is growing in significance and reach. In extending social responsibility to global supply chains, disclosure regulation implicitly references ideas of gatekeeper responsibility and glocalisation and overcomes the extraterritorial limitations of substantive regulation.

Anti-modern slavery legislations by California in 2010, the UK in 2015 and Australia in 2018 reflect the regulation by information approach based on a universal revenue threshold. The goal of the regulatory strategy appears to be two-fold. On the one hand, disclosure requirements may promote the awareness of modern slavery and encourage businesses to eliminate or reduce its existence in their operations, supply and purchasing chains. On the other hand, information generated through reporting requirements will be used by stakeholders like consumers and investors factor in purchasing and investment decisions. This market-based approach indirectly relies on stakeholder pressure to compel businesses to address modern slavery.

This research examines the underlying assumptions for disclosure-oriented modern slavery legislations. These assumptions include leverage and political CSR, adequacy of a revenue threshold test for the capacity to confront modern slavery in operations, supply and purchasing chains, business case justifications for CSR, and an activist and vibrant stakeholder group of investors, consumers and civil society.

The paper demonstrates the various limitations of the disclosure regulatory strategy of the modern slavery legislations and argues that it is at the lowest end of a hierarchy of effective legislated CSR. Alternative thresholds, including sector-based and regional approaches, may reflect the degree of risk and need for awareness and therefore approximate to the contextual understanding of CSR and its priorities. The reliance on the market-based reputation and stakeholder information regulation excludes direct positive and negative incentives for compliance. It may encourage symbolic statements of corporate policies and processes rather than substantive compliance and quality reporting of steps undertaken to reduce risks. The lack of provisions for monitoring, verification and enforcement and for responsibility, liability and accountability creates the potential for a “promise-performance gap” exemplified by deceptive and misleading statements.

This research was presented at the 18th International Conference on Corporate Social Responsibility (CSR) and 9th Organisational Governance Conference ‘CSR: Public and Private Perspectives’, Barcelos, Portugal (10-13 September 2019) and at the one-day conference ‘Critical Perspectives on “Modern Slavery”: Law, Policy and Society’, organised by the Wilberforce Institute for the Study of Slavery and Emancipation, University of Hull (30 October 2019).

International Co-operation on Platform Governance

Lorna Woods, Professor of Internet Law at the University of Essex and co-author of the Carnegie UK Trust’s proposals for Harm Reduction on Social Media, gave evidence on 7 November 2019 at the International Grand Committee on Disinformation and Fake News in Dublin. The Committee, formed of Parliamentarians from eleven countries, met for the third time, having previously convened in London and Ottawa.

The focus of the Dublin session was on “advancing international collaboration in the regulation of harmful content, hate speech and electoral interference online”. The session took place a day after a workshop on the theme of “international co-operation on platform governance”, facilitated by the Centre for International Governance Innovation (CIGI) and at which both Lorna Woods and Will Perrin participated in panel discussions.

In her written statement to the Grand Committee, Professor Woods set out the following perspective on the theme of international collaboration:

To work effectively together, Parliamentarians should develop a common language not just about the problems that exist but also possible mechanisms for moving towards a solution.

Two of the main difficulties when considering action in relation to online disinformation and fake news are scale and context of the content involved. Some platforms have an almost unimaginable amount of content uploaded and shared per second in different languages and with meanings that may have specific relevance for particular groups. Dealing with this situation on the basis of individual items of content is difficult.

An alternative way of considering solutions, and one proposed by the Carnegie UK Trust work in this area, is to look not at the content itself, but at the underlying systems which allow content to be shared and specifically how design and business choices affect our information environment. Social media platforms (as well as other service providers in the internet distribution chain) are not content-neutral. Whether or not they were intended so to do, they encourage and reward some content over other items of content. Some platforms – because of their design features – seem to have a greater problem with fake news than others. Some of this may be about size but it may also be about design choices: for example, the ease with which stories are forwarded on, or embedded from another source in the process decontextualising the material; the prioritisation of ‘click bait’ and stories stoking outrage. Looking at the information system behind the content focusses attention of the mechanisms by which disinformation spread, which to a large extent remain constant from jurisdiction to jurisdiction and over time, rather than questions of individual content which change frequently and also raises the question of what particular content means and whether it is true or not.

The proposal put forward by the Carnegie UK Trust is for a statutory duty of care. The duty of care is a process-based obligation orientated towards the reduction of harm on the Internet. The obligation is to consider the effect of the services/tools that are being offered and how they are being used, especially bearing in mind their design features. Where harm is or becomes likely as a result of the service, the obligation on the service provider is to take steps to mitigate. The existence of ‘problem content’ is an indicator of a process problem, but ultimately success is measured by reference to care in design, development and maintenance of the service not by the existence of particular items of content. The use of the duty of care model is not a ‘silver bullet’ and there may well be instances when additional, targetted action is needed.

A process-focussed duty at systems level has advantages in the international context of disinformation on the internet:

  • it mitigates against concerns about scale
  • it minimises risks and difficulties arising from understanding meaning and context in different environments; and
  • it thus allows a single, common approach to be taken internationally.

The International Grand Committee will hold a press conference on its conclusions at the end of its Dublin session.

This piece originally appeared on the CarnegieUK Trust website and is reproduced here with permission and thanks. Read the original post here.

International Organizations Accountability Symposium: Reparations for Mass Torts Involving the United Nations–Misguided Exceptionalism in Peacekeeping Operations

Dr. Carla Ferstman, Senior Lecturer in Law, University of Essex

Where do individuals who suffer harm as a result of the negligence or malfeasance of the UN go to seek redress? Sadly, there is nowhere for them to go. Maybe I shock easily, or maybe I hold the UN up on a pedestal and expect it to react in a way in which it is clearly not capable of reacting. Regardless, the UN’s handling of mass torts claims, arising largely in the context of peacekeeping, is shocking.

The victims can’t go to a domestic court where they live or work, or where the harm happened, because the UN is largely immune. They can’t go to a regional or international Court because the UN will also be immune from such proceedings. The UN’s internal complaints processes are not independent, equipped or given jurisdiction to handle mass claims. At the same time, victims have not usually been able to rely on their own countries to pursue claims on their behalf. These are countries emerging from conflict, with weak legal systems and infrastructure. The last thing on their minds or within their capacity is to bring an international dispute against a country or organization that has come to help them keep the peace.

The UN has sometimes seen fit to set up trust funds or similar frameworks to rehabilitate victims, but this approach has only been taken after widescale media attention, and then, purely on a humanitarian basis – so without accepting any liability. This is simply about charity. So, victims have no ability to demand restitution or compensation that corresponds to the harms they suffered – they just have to wait and see what’s on offer and be thankful for what they’re given.

This is what happened with cholera victims in Haiti. In 2016 the UN issued a qualified apology and outlined a two-track strategy: Track 1 focuses on intensified efforts to treat, control and eradicate cholera, and Track 2 promises to deliver “a package of material assistance and support to those Haitians most directly affected by cholera” to be developed in a victim-centered manner, including through consultations with victims. A Trust Fund was established to generate and manage its resources. As of July 2019, it was reported that only 4% of the funding target had been met.

It is also what happened to Roma, Ashkali and Egyptian displaced persons in Kosovo who were forced to live in camps where they were subjected to lead poisoning resulting in serious illnesses and deaths. A UN Human Rights Advisory Panel determined that the UN was responsible for an array of violations and recommended reparations including public acknowledgment, payment of adequate compensation to the victims for material and moral damages suffered, reimbursement of fees and expenses and a series of measures to guarantee non-repetition. However, in May 2017 it was announced that the UN would establish (only) a trust fund for projects to help the affected communities. In February 2019, it was reported that the trust fund had received no contributions. 

It is also what happened to victims of peacekeeper sexual exploitation and abuse. A trust fund was set up to support victims. However, it had little to do with reparation or recognition of victims’ rights.

This bit of charity has become like a business expense, without any real sense of accountability or recognition of victim’s rights. This is shocking for an institution that has been a key promoter of standards on victims’ rights. And, because there is no one to hold the institution to account (because victims have no access to an independent court to adjudicate the claims), there is no incentive to strengthen the system to avoid recurrence – there is no learning from mistakes despite all the lip-service about victim-centred processes.

How has this happened?  One of the reasons is the (mis)use of the principle of lex specialis by the UN to exempt it from the general obligation to account for and address fully the harms it causes. The UN Secretariat has expressed its view that ‘the obligation to make reparation, as well as the scope of such reparation, must be subject, in the case of the UN, to the rules of the organization, and more particularly, to the lex specialis rule’ [Art 30, para 8].

This use of the lex specialis principle is misguided for three reasons.

First, the principle is only capable of displacing general law when there are more precise or ‘special’ rules that apply in a given situation. The UN hasn’t put in place special rules; it has simply exempted itself from dealing with parts of the situation – which is not the same thing.

Second, the UN cannot change the law that applies to individuals unconnected to the organization who were not involved or consulted about the change and have not agreed to be bound: ‘[i]n regard to conflicts between human rights norms, for instance, the one that is more favourable to the protected interest is usually held overriding.At least derogation to the detriment of the beneficiaries would seem precluded’ [para. 108].

Third, applying the UN’s lex specialis would frustrate the purpose of the general law, which is to ensure that victims receive adequate reparations. The special regime has ‘no reasonable prospect of appropriately addressing the objectives for which [it was] enacted’ [para. 251 (8)-(16)].

In peacekeeping, this lex specialis principle has been used (like a get out of jail free card) to limit the types of scenarios which may give rise to a claim; restrict the categories of eligible beneficiaries; limit the timeframe during which claims may be filed; justify abridged administrative procedures for the handling of claims as well as limit the scale of recoverable damages.

The principle has also been used unofficially, when the UN simply decides not to submit itself to any form of internal claims process. Given the absence of an alternative forum, the de facto restriction is an additional, virtually absolute, barrier to the resolution of claims. For example, the UN’s practice of distinguishing between claims of a ‘private’ and ‘public’ nature, and deeming the latter category of claims to be ‘non-receivable’, part of an approach Philip Alston, UN Special Rapporteur on Extreme Poverty has called ‘morally unconscionable, legally indefensible and politically self-defeating.’

Mass claims are often resolved in expedited or abridged fashions. But when this happens there is usually some independent adjudicative body which is capable of addressing the claims which fall outside the mold or where the claimants prefer or the circumstances require a more judicial process because of the particularity of the claim. Victims should have the possibility to opt out of a limited administrative process that does not take into account the full spectrum of their needs or rights. Some transitional justice or administrative claims commissions as well as mass claim settlement procedures afford this two-tiered possibility. The General Assembly resolution on third-party claims provides no scope for a more individualized and independent adjudication process, even if it were to allow for a wider understanding of ‘private’ claims. 

The cynics among the readers will be wondering why I am shocked; why I expect more from this global multilateral institution in an era when multilateral approaches have fallen out of favour with the most powerful states. But some things are just worth fighting for.   

This piece originally appeared on Opinio Juris as a part of the recent symposium on International Organizations Accountability and is reproduced here with permission and thanks. Read the original piece here.