Birsha Ohdedar, Lecturer in Law at the University of Essex, co-edited a new publication on Designing Law and Policy Towards Managing Plastics in a Circular Economy, a special issue of the Law, Environment and Development (LEAD) Journal.
In recent years, there has been a global focus on plastics and plastic waste as an object of concern. In a context where the world has produced as much plastic since the beginning of the twenty-first century as in the whole of the twentieth century, warning signs observed by scientists have increasingly led to demands being placed on politicians, enterprises, lawyers and policy makers to come up with initiatives that can address the crisis. It is now recognised that we have reached peak-plastic at a planetary scale.
The legal and regulatory challenges to achieve systemic transformation need to be identified, understood and reimagined to deliver outcomes that can lead to a world that minimises the use of plastics and ensures that no plastic waste ends up in the environment. The contributions in the Special Issue provide a unique global perspective to these discussions on the circular economy. They include contributions from both the Global North (UK, EU specifically) and the Global South (Morocco, Taiwan and Kenya), as well as scientific perspectives of the life-cycle assessment.
While there have been efforts to address the plastic surge in different parts of the world, there is a strong North-South dimension to plastics recently highlighted by the Chinese ban on plastic waste imports. In other parts of the Global South, the issue is not just an environmental one but also one linked to livelihoods. These perspectives remain underexplored in academic and policy literature. Accordingly, the articles in the Special Issue provide an important contribution to fill this critical gap.
The Special Issue arose from a workshop was jointly organised by SOAS, University of London, the University of Essex and the University of Surrey in June 2018.
Christmas is just around the corner. With all the hustle and bustle of the academic life, we all need a little time off to refresh, recover and reflect. So as of next week (23 December 2019), we’ll be on a short hiatus.
We hope that you can look back on a generally positive year with us. In 2019, we published 27 posts which attracted more than 3,200 views from 94 countries around the world.
The Essex Law Research blog will be back in early January with more research news from our School. However you celebrate at this time of the year, we hope you enjoy a wonderful holiday season!
Dr Johanna Hoekstra, Lecturer in Law at the University of Essex, published an article with Professor Olga Martin-Ortega, Director of the Business, Human Rights and Environment Research Group at the University of Greenwich, entitled Reporting as a Means to Protect and Promote Human Rights? The EU Non- Financial Reporting Directive. The article was published in November 2019 in Vol 44 of the European Law Review.
The paper analyses the adoption and content of the EU Non-Financial Reporting Directive 2014/95 (NFR Directive) in the context of current developments to protect and respect human rights through corporate human rights due diligence and transparency legislation and considers the potential role of the reporting obligations of the Directive in the wider debate regarding human rights reporting. The analysis presented in this article makes clear that the NFR Directive is not designed to protect and promote human rights.
The NFR-Directive entered into force in 2014 and was transposed by all Member States in December 2016. Non-financial reporting builds on corporate financial reporting and requires corporations that meet certain criteria with regards to income and size to publish a statement on policies and procedures regarding environmental protection, social responsibility and employee protection, anti-corruption and bribery, diversity on boards, and human rights protection. The Directive leaves it to the company to decide on the format of the report, the extent of the information that is disclosed, and the specific issues that are included in the report. The flexible criteria on what should be reported will make it more difficult to understand the company’s impact on society in an objective manner.
The Directive includes the possibility for Member States to require integrated reporting (the financial information is published alongside non-financial information) which creates a more holistic understanding of corporate activities and for Member States to require the information in the report to be independently verified by a designed institution. Most Member States choose not to transpose this second option because of worry that the additional costs would damage the competitiveness of their companies. The NFR Directive can be placed in the developing mandatory legal framework on corporate human rights responsibilities which include reporting laws such as the UK Modern Slavery Act and human rights due diligence laws such as the French Duty of Vigilance Law.
While reporting is advocated as a measure to further corporate accountability with regards to human rights, the NFR-Directive is primarily framed as an accounting measure that is intended to stimulate economic investment through furthering transparency. The requirements in the NFR-Directive are framed in a way that they reduce the potential effectiveness of the reporting because of the flexible and general criteria and the lack of verification by an overseeing body in most Member States. This is aggravated by the divergence between the requirements of the NFR-Directive and the UN Guiding Principles of Business and Human Rights (UNGP). The 2011 UNGP are the main reference in the definition of corporate responsibilities regarding human rights and propose a three-pillar framework to address the actual and potential impact of companies on human rights: (1) the state’s duty to protect; (2) the corporate responsibility to respect; and (3) the victims’ access to remedies. As the NFR Directive was published later than the UNGP it is regrettable it did not take the reporting requirements of the UNGP as a starting point to further develop the law.
The NFR Directive differentiates between who should report and who should not report, based on the type of company and the number of employees whilst the UNGP acknowledge that all companies have a reporting obligation, although this obligation can differ depending on the sector in which the company operates. It adds that this process should draw on human rights expertise and involve meaningful consultation with stakeholders which is not part of the NFR Directive. The NFR Directive contains specific requirements as to environmental and social factors that the company should report on but uses the word “could” in relation to human rights reporting and only suggests this could include: “information on the prevention of human rights abuses.” The limited requirements mean that it is up to the company to decide on how they approach the issue. There is therefore a risk that reporting will be a mere box ticking exercise that does not involve any meaningful reporting, which to have a significant effect needs to be closely linked to due diligence.
Reporting cannot be equated with a meaningful due diligence process that identifies, prevents, mitigates and accounts for corporate impact on human rights. Reporting as the main legislative tool leaves in the hands of civil society organisations, shareholders, and consumers the task of monitoring the veracity of the information. This does not sit well with the substantive, far reaching and right holder centred concept of due diligence proposed in the UNGPs. The Directive does not recognise the consolidated approach to human rights responsibilities of businesses and there is a concern that it may limit existing social expectations expressed in soft law, including the UNGPs. This has led to a call for European legislation on corporate human rights due diligence.
Dr Huang hitting the iconic gong, a practice in China to celebrate a successful IPO
Dr Flora Huang, Senior Lecturer in Law at the University of Essex, visited the Shanghai Stock Exchange (SSE) in China between 21-25 October 2019.
This research visit, which is funded by the British Academy Mid-Career Fellowship, aims to promote research on the development of Chinese capital markets and simultaneously engage with the regulatory authorities to facilitate knowledge exchange.
The SSE, established in November 1990 in China, is the fourth largest Exchange in the world by market capitalisation at USD 4.77 trillion as of October 2019, following the New York Stock Exchange, Nasdaq and Tokyo Stock Exchange.
The Shanghai-London Stock Connect, namely an exchange tie-up, which was launched in June 2019, has drawn wide attention for giving mutual market access to the two stock exchanges for the first time.
During her visit, Dr Huang met the staff and experts from SSE’s Investor Service Department, Listed Company Supervision Department, Global Business Development Department and Capital Market Institute.
Visiting the SSE’s Investor Service Department
They discussed issues regarding the stock connect, the Chinese and UK capital markets, supervision of listed companies, regulatory cooperation and cross-border enforcement.
This visit has laid down a strong foundation for further research collaboration and engagement between academia and market regulators in the two countries.
Dr. Tara Van Ho, Lecturer in Law at the University of Essex, spoke on the responsibility of corporations under international law at the 40th anniversary celebrations of the Urban Morgan Institute for Human Rights at the University of Cincinnati School of Law in the US.
Dr. Van Ho, a co-President of the Global Business and Human Rights Scholars Association, was asked to discuss the international legal standards relevant to addressing business impacts on human rights.
After outlining the expectations in the UN Guiding Principles on Business and Human Rights, currently the most authoritative statement on the issue, Dr. Van Ho focused on the difficulty victims face in securing remedies. These include, but are not exclusive to, states that are unwilling and unable to ensure victims can hold corporations accountable and complex corporate structures that limit the ability of victims to pursue people abroad.
When states like the US take administrative action to sanction businesses, the fines paid rarely go to support the victims but instead benefit the treasury of the enforcing state. There is room for hope, however. As Dr. Van Ho explained, businesses can embed respect by human rights by ensuring they speak about human rights responsibilities, empower employees and others to raise concerns through independent grievance and complaint mechanisms, and ensuring their incentive structures encourage managers and employees to take human rights seriously. This has been done successfully by some businesses.
The Urban Morgan Institute is the oldest endowed human rights centre at a law school in the world. There is a rich history of collaboration between Essex and Cincinnati.
The Urban Morgan Institute houses the Human Rights Quarterly, the world’s leading interdisciplinary journal on human rights, which has provided a venue for research works from several Essex faculty members.
The Essex Human Rights Centre‘s first director, Kevin Boyle, and the Urban Morgan Institute’s Director for its full 40-year history, Bert Lockwood, were long-term friends and colleagues. Professor Lockwood served as a visiting lecturer at Essex for a year when Professor Boyle was asked to serve at the UN.
A few years later, the late Sir Nigel Rodley, the long-term Chair of the Essex Centre, visiting Cincinnati to receive the Butler prize for his work on human rights and to deliver a speech on the prohibition of torture.
Dr. Van Ho is a graduate of the educational programmes at both centres.
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).
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.
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.
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.
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.
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.
Cristina Blanco, PhD researcher in international human rights law, presented at a workshop organised by the Office of the High Commissioner for Human Rights.
The workshop aimed to develop proposals for enhancing cooperation between international and regional human rights mechanisms in combating racism, racial discrimination, xenophobia and related intolerance.
Cristina’s presentation focused on the relationship between the Inter-American Human Rights System and other international human rights systems, in regards to discrimination against indigenous peoples in the American region, with a particular emphasis on their economic and social rights.
Christina Blanco presenting at the international workshop on enhancing cooperation between United Nations and regional human rights mechanisms (Geneva, Palais des Nations)
Although human rights systems have made valuable contributions to this regard, there are also some areas that can be strengthened. This includes the greater reference and cross-fertilisation among systems, especially in matters of collective property; more standards and recommendations – both in numbers and specificity – on discrimination against indigenous peoples in the economic and social spheres; greater harmonisation in key standards such as the right to prior consultation and consent in contexts of extractive activities; and a broad look at the different forms of racism including a preventive approach to institutional discrimination based on an intercultural approach and attention to discrimination in interpersonal relationships.
Noam Lubell, Professor of International Law at the University of Essex and Swiss Chair of International Humanitarian Law (IHL) at the Geneva Academy, has co-authored new Guidelines for States on how to investigate allegations in armed conflict.
The new Guidelines are set to become the international benchmark for effective investigations into violations of international humanitarian law in all conflicts around the world. Being sensitive to the differences that characterise domestic legal and investigative systems, they identify several practical and legal issues that may arise in such investigations or should be considered beforehand. Their overarching aim is “to provide practical assistance by setting out a general framework for investigations in armed conflict and, where relevant, the corresponding international principles and standards”.
Professor Lubell addressing the New York Diplomatic Community. Image: Geneva Academy
Professor Lubell’s co-authors were Jelena Pejic, Senior Legal Adviser at the ICRC, and Claire Simmons, a Researcher at Essex Human Rights Centre and PhD candidate in the School of Law. Their findings were presented in October 2019 in New York before delegates from the UN General Assembly First and Sixth Commissions, UN agencies and other experts in an event co-organized with the Permanent Mission of Switzerland to the UN.
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