human rights & business (and a few other things)

Launch of the Business and Human Rights Practitioners’ Network in London


The Business and Human Rights Practitioners’ Network aims to connect professionals from all sectors in the business and human rights field, particularly early to mid-career practitioners. It acts as a forum for those with expertise in business and human rights to share their knowledge. It aims to promote cross-stakeholder debate on business and human rights in a neutral environment. Its mission is to update practitioners on current issues and positively contribute to problem-solving in the field of business and human rights.

The Business and Human Rights Practitioners’ Network is an initiative founded by practitioners from legal practice, government, academia and civil society. Its founders are: Katherine Tyler (Kingsley Napley LLP), Sarah Macrory (Foreign & Commonwealth Office), Patrick Geary (Children’s Rights & Business Specialist), Francis West (SHIFT), Lise Smit (British Institute of International and Comparative Law), Lise Johnson (Columbia Center on Sustainable Investment), Tim Cooke-Hurle (Doughty Street Chambers), Rachel Chambers (SOAS/University of Connecticut), Lucy Graham (Amnesty International) and me (Dr Nadia Bernaz, Wageningen University).

In a few weeks the Network will be officially launched in London. Details below.


20 November 2018


17:30-18:00: Registration and refreshments

18:00-19.30: Panel discussion

19.30 onward: Drinks


Kingsley Napley LLP, Knights Quarter, 14 St John’s Lane, London EC1M 4AJ


The Board of the Business and Human Rights Practitioners’ Network is pleased to announce that for the inaugural event, Rae Lindsay (Clifford Chance LLP) will chair a distinguished cross-stakeholder panel, including Anna Triponel (Triponel Consulting) Dr Irene Pietropaoli (BIICL) and Tim Cooke-Hurle (Doughty Street Chambers), who will discuss business and human rights in conflict and post-conflict societies.

The panel discussion will be followed by drinks and networking.


There is no cost for attending but registration is required to attend and places are subject to availability.


Please click HERE to request a place. Places are subject to availability

A Commentary of the Draft Optional Protocol to the Business and Human Rights Treaty

imagesEarlier this month, the Permanent Mission of Ecuador, on behalf of the Chairmanship of the Open-Ended Intergovernmental Working Group (OEIGWG) in charge of the elaboration the business and human rights treaty, released a Zero Draft Optional Protocol to the Zero Draft “Legally binding instrument to regulate, in international Human Rights law, the activities of transnational corporations and other business enterprises”. The Business and Human Rights Resource Centre published my commentary of the Zero Draft treaty, as part of a series.

Here I present my thoughts on the Draft Optional Protocol only (hereafter “the Draft Protocol”). Under the Draft Protocol, states parties shall establish a National Implementation Mechanism (hereafter “the Mechanism”) to promote compliance with, monitor, and implement the future treaty (Articles 1-7). This is the key innovation of the text and the focus of this blog post. The Draft Protocol also purports to establish a system of individual communications, similar to those administered under the nine core UN human rights treaties and protocols. This is not covered here.

The proposed Mechanism has three main tasks: raising awareness of the business and human rights treaty at the domestic level; conducting due diligence reviews; and running a mediation process.

Raising Awareness

The Mechanism will be tasked with raising awareness of the business and human rights treaty, in cooperation with other national institutions, civil society organizations, and foreign Mechanisms; and making recommendations to the state (Article 3). Both functions are important and provide added value compared to what we have now. In many countries the Mechanism could be run within existing, domestic National Human Rights Institutions (NHRIs), thus pooling resources and expertise. The Draft even refers to the Paris Principles on NHRIs (Article 2).

Conducting Reviews

Articles 4 and 5 of the Draft Protocol are also interesting, albeit not entirely clear. Article 4 purports to entrust the Mechanism with a role in the prevention of human rights violations by corporations, covered by Article 9 of the Draft Treaty. Article 9 of the Draft Treaty is about due diligence. It requires states parties to “ensure in their domestic legislation that all persons with business activities of transnational character within such State Parties’ territory or otherwise under their jurisdiction or control shall undertake due diligence obligations throughout such business activities.” Presumably, though this is not explained, it is expected that when undertaking due diligence, corporations produce and publish reports on non-financial matters, “internal policies, outcomes and indicators of environmental and human rights impact assessments”.

In this context, Article 4 of the Draft Protocol indicates that the Mechanism “shall, as a minimum, have competence to request all necessary information from the State Party in whose territory” that Mechanism operates. Such information may include the said corporate reports on non-financial matters, “internal policies, outcomes and indicators of environmental and human rights impact assessments”. This assumes that states actually gather and somehow store or keep track of such information, which I am not sure is necessarily the case. More generally, under Article 4, the mechanism will be able to gather information but the article does not contain any indication about how gathering information is supposed to prevent human rights abuse.

Likely, Article 4 is to be read in conjunction with Article 5, which aims to give the Mechanism the power to undertake due diligence implementation reviews, but this is not explicit in the text. Article 5 seemingly aims to address an important gap in the current legal framework on business and human rights. In many countries corporations are required to report on their human rights performance but there is no consequence for poor reporting, and no systematic process to check whether corporations have done enough, or even the veracity of those reports. Instead, states rely on civil society scrutiny. Article 5 attempts to change this, by giving the Mechanism the power to review corporate performance of their due diligence obligations when prompted by “victims” or other stakeholders or even “ex-officio”.

The power granted to the Mechanism is extensive and includes visits, inspections (those terms are not defined) “to monitor the implementation and follow up of due diligence plans or policies”. In case they identify non-compliance they will provide recommendations. If those are not followed, the Mechanism will “inform the competent authorities”. In this process, the Mechanism is required to “comply with the minimum requirements of due process of law.”.

My first reaction upon reading this is that it is going to be difficult to implement. I foresee many ways in which this could go wrong. For a start, it is likely corporations will view this review process with suspicion, at the very least. This is not a deal-breaker in my opinion, but still an important point to make. Also, how detailed will this review be? How long will it take? How to ensure that the Mechanism is staffed with people with a good understanding of how corporations function? What will happen if the Mechanism has (allegedly) not complied with the minimum requirements of due process of law? I am sure other commentators will have many other questions.

Running a mediation process

Article 6 sets up a non-judicial complaint mechanism relying on mediation, similar to those run by OECD National Contact Points (NCPs). This is an interesting idea. I can see how this could really add value, in the same way as I am rather enthusiastic about some of the NCPs. One important point: in practice the potential for overlap between the work of the Mechanism in this area and the work of NCPs seems high. If States go forward with the idea, it would perhaps make sense to explore ways to merge the two institutions.

Evaluating the Likelihood of an ICC Prosecution for Crimes Committed by Chiquita Banana Employees in Colombia


It is a pleasure to welcome Dr Caleb Wheeler on Rights as Usual (@CalebHWheeler). Caleb is a lecturer in law at Middlesex University in London whose work focuses on international criminal law and international human rights law. This post is his.


In May 2017, three non-governmental organisations submitted an Article 15 Communication to the International Criminal Court seeking the expansion of the Office of the Prosecutor’s on-going preliminary investigation in Colombia to include corporate officials of Chiquita Brands International, Inc. (‘Chiquita’). I scrutinised the claims made in the Communication in a recent article published in the Melbourne Journal of International Law in an effort to determine whether this case could serve as an opportunity for the International Criminal Court to pursue corporate officials for their complicity in the commission of atrocity crimes. This could allow the Court to expand the scope of its work beyond the military and political leaders it has pursued thus far, and to provide an international forum in which to try the employees of corporations involved in the commission of atrocity crimes. Unfortunately, the International Criminal Court’s Statute, as written, will make it very difficult for such prosecutions to succeed.


The Article 15 Communication alleges that corporate officials employed by Chiquita made recurring payments to affiliates of the paramilitary group Autodefensas Unidas de Colombia (‘AUC’), despite the fact that those officials were aware that the AUC was committing crimes against humanity. That the AUC was committing human rights abuses is largely beyond dispute. At least six members of the AUC have been convicted of crimes committed within the temporal jurisdiction of the Court, including murder, attempted murder, abduction, forced displacement and child recruitment. Additionally, the Prosecutor of the International Criminal Court has concluded that a reasonable basis exists to believe that guerilla and paramilitary groups, including the AUC, committed crimes against humanity and war crimes during the relevant time periods.

Chiquita made the payments as part of a corporate policy implemented for the purpose of protecting Chiquita holdings in Colombia from harm threatened by the AUC. Chiquita has admitted that it knew no later than 2000 that the AUC was committing atrocity crimes.  Chiquita continued to make payments to the AUC even after it was declared a ‘Foreign Terrorist Organization’ by the government of the United States and despite the fact that Chiquita had been advised that it was acting illegally by continuing to pay the AUC. Chiquita only stopped making payments to the AUC several months before entirely divesting itself of its Colombian operations. It is asserted in the Communication that the money paid by Chiquita represented a significant contribution to the human rights abuses committed by the AUC.

The Meaning of Significant Contribution

The likelihood of an International Criminal Court prosecution being successful in this matter will turn on whether sufficient evidence exists to show that the implicated Chiquita employees made a significant contribution to the crimes committed by the AUC. Whether the accuseds’ actions constitute a significant contribution to the commission of the alleged crimes is determined by considering the accused person’s relevant conduct and the context in which his or her conduct is performed. In this case, it is debatable whether the amount of money paid to the AUC by Chiquita, estimated to be approximately 1.7 million USD over a period of seven years, constituted a significant contribution to the crimes committed by the AUC. Without knowing the full extent of the AUC’s assets during the relevant period, it is believed that by 2002 the AUC controlled 40% of Colombian cocaine trafficking and had an annual income of approximately 100 million USD. The Chiquita payments made up less than one quarter of 1 per cent of the AUC’s annual income suggesting that the money paid by Chiquita did not significantly contribute to the scope of the group’s activities.

Questions about the significance of the contribution are further reinforced by a lack of evidence linking the money Chiquita paid directly to the AUC’s criminal acts. At present, there is no evidence to support a reasonable suspicion that Chiquita’s employees made payments to the AUC for the purpose of furthering the AUC’s criminal activities. The mere supposition that because Chiquita paid money to the AUC, and the AUC in turn committed atrocity crimes means that Chiquita’s money was used to fund the commission of those crimes, is likely insufficient to lead to the conviction of Chiquita employees. In fact, Chiquita insists that the payments were made as a result of duress, although it is dubious whether that claim will hold up under scrutiny. Further, while Chiquita and its employees knew the AUC was committing atrocity crimes, there is no direct link between the money paid by Chiquita and any specific crimes committed by the AUC. Without this evidence it would be very difficult for the International Criminal Court to impose liability.

This analysis leads to the conclusion that the International Criminal Court is likely not the best forum for pursuing corporate actors for human rights violations. Here, we have a situation in which multiple members of the AUC have been convicted of atrocity crimes, Chiquita has admitted that it was aware that those crimes were being carried out and it still continued making payments to the AUC. Despite this undisputed evidence, an International Criminal Court prosecution will almost certainly fail because there is no direct link between the money paid and the crimes committed. If a case with such clear evidence stands little chance of success it is difficult to imagine that the Court will have much enthusiasm for pursuing other cases involving human rights violations committed by business entities.

Recent Developments

There is, however, some cause for hope. On 31 August 2018, the Colombian Attorney General charged 13 former Chiquita executives with crimes against humanity in relation to their funding of the AUC. By charging these 13 former Chiquita executives Colombia has indicated both its willingness and ability to investigate and prosecute the crimes alleged. While these cases are in the very early stages, it is encouraging that they have been brought at all. It further demonstrates that, as it stands, domestic courts are probably the best option for litigating human rights violations committed in the context of corporate operations.

FIFA and the IOC’s Human Rights Reporting Tools – a Flower in the Remedy Bouquet

It is a pleasure to welcome Daniela Heerdt on Rights as Usual (@DanielaHeerdt). Daniela is a PhD candidate at Tilburg Law School. She also coordinates the Netherlands Network for Business and Human Rights (@NLNBHR). This post is hers.


As awareness of the adverse human rights impact of mega-sporting events began to spread, international sports organizations stepped up their efforts to protect human rights. In 2017, the Fédération Internationale de Football Association (FIFA) adopted new bidding regulations for the 2026 World Cup, which explicitly refer to the UN Guiding Principles on Business and Human Rights (hereafter the UNGPs). The Host City Contract for the 2024 Olympic Games is the first ever to mention human rights standards, including the UNGPs. This blog post focuses on efforts by FIFA and the International Olympic Committee (IOC) with regard to the UNGPs’ third pillar, access to remedy. It compares FIFA and the IOC’s recently launched reporting tools, and questions whether they constitute effective remedies.

The Meaning of Effective Remedies in the Sports Context

The UNGPs clarify that in order for a mechanism to qualify as a remedy mechanism, its outcome must be able to restore a situation to how it was before the harm occurred, or compensate the harm if restoration is not an option (see commentary to Principle 25). A mechanism is considered effective if it is legitimate, accessible, predictable, equitable, transparent, rights-compatible, a source of continuous learning, and in the case of operational-level mechanisms, based on engagement and dialogue (Principle 31). The question is: to what extent does this set of criteria also apply to assessing remedy mechanisms in the sports context? On the one hand, the commitment of major international sports bodies to the UNGPs hints at a general acceptance of this set of criteria. On the other hand, the particularities of the sports world might require additional, or a more nuanced set of criteria. Often, more than one actor is responsible for a sport-related human rights abuse. This means that ideally multiple parallel procedures should be made available. In addition, due to the temporary nature of mega-sporting events, mechanisms should be capable of addressing and solving cases in a speedy and timely manner.

IOC’s Reporting Tool for Press Freedom Violations

Before the Summer Olympic Games in Rio in 2016, the IOC introduced a reporting tool for journalists and media representatives to file a complaint concerning violations of press freedom. The mechanism is intended for those working on Olympic Games-related coverage. In an online form, complainants can fill in their details and information on what happened and upload evidence if applicable. The IOC conducts a first assessment of whether there are “strong grounds for accepting that a press violation may have occurred in the context of the Games”. If that is the case, relevant stakeholders, such as internal IOC departments or the respective Local Organizing Committee of the Olympic Games, will be consulted as the next step. . No further information is provided on the exact content or outcome of such consultation.

FIFA’s Complaints Mechanism for Human Rights Defenders and Media Representatives

FIFA launched a similar tool in May 2018. Under FIFA’s complaint mechanism for human rights defenders and media representatives, those who consider their rights have been violated while performing work related to FIFA’s activities can file a complaint. Just like with the IOC reporting tool, complaints can be submitted through the online form. The complainant first has to categorize, then describe the incident as much as possible. This may include evidence if applicable, and an explanation of how what happened relates to FIFA and its activities. Furthermore, the complainant can indicate whether he or she is in immediate danger and suggest measures FIFA can take to address the situation. After receiving a complaint, FIFA ensures it is being redirected so that appropriate follow-up processes can be applied (para. 14). Such processes can entail direct engagement with third parties involved, such as public authorities. Moreover, FIFA promises to use its leverage, and seek help from relevant organisations and institutions with the mandate to promote and protect human rights defenders during these processes.

Reporting Tools as Effective Remedies?

It is remarkable that both tools appear easily accessible. The online forms are available in multiple languages (English, French, German and Spanish for the FIFA mechanism; English and French for the IOC tool). In addition to the online form, FIFA allows for complaints to be communicated through generic FIFA email addresses, bilateral exchanges with FIFA, or via the media. Other important features are that both provide an option for confidentiality. The IOC claims that the complainant’s identity will not be shared with persons beyond those dealing with the complaint without explicit consent. With regard to the FIFA mechanism, it is even possible to submit complaints anonymously.

However, the scope of these mechanisms is limited, in particular that of the IOC, as it only addresses Olympic Games-related issues. For all non-Games related complaints, the IOC recommends to contact the Committee to Protect Journalists. Moreover, whether any of these mechanisms can lead to an outcome that can be perceived as a remedy is questionable. Both mechanisms merely provide for redirection of the complaint to adequate follow-up processes, but it is not specified what these follow-up processes could be. Therefore, they arguably fail to provide for remedies as understood in the UNGPs. The closest thing to a remedy might be FIFA’s promise to issue a public statement in support of human rights defenders and media representatives and their work (para. 15), which can be a form of satisfaction for the victim. However, actual remedies depend on the steps FIFA takes and the follow-up processes that apply after FIFA redirected the complaint.

A Flower in the ‘Remedy Bouquet’

Apart from the actual website on which these mechanisms are made available, and short statements by FIFA and the IOC on the occasion of their launch, not much information is available on these mechanisms, let alone how they work in practice. Even though FIFA promised to communicate summaries of specific cases, up to this point, little is known about how often and for what kind of cases they have been used, or what the outcome was. Some information can be retrieved from the Update Statement of FIFA’s Human Rights Advisory Board, which summarised FIFA’s efforts in relation to the situation of Mr Simonov, who has been detained following his research on World Cup construction sites. The summary reveals that FIFA raised his situation with the Local Organizing Committee at the highest levels and showed interest in his personal safety by attending his court hearings. However, the general lack of information makes it difficult to assess for what kind of cases they can be effective. For instance, whether or not they could have been used to challenge the recent detention of members of the activist group ‘Pussy Riots’ following their pitch invasion at the 2018 World Cup final, is not clear.

Nevertheless, reporting tools in general can form an essential part of the “bouquet of remedies” promoted by the UN Working Group on the issue of human rights and transnational corporations and other business enterprises. They can help to flag issues in the first place and to provide and uncover valuable information on a certain instance, before adequate and effective remedy mechanisms are activated. For this function to be fulfilled, links need to be created between the various existing mechanisms. Overall, providing avenues for human rights defenders and media representatives to file complaints is a positive development. However, this does not change the fact that these sports organizations choose to allow countries with questionable human rights records and publicly known violations of press freedom to host their events, thus knowingly creating even greater human rights risks.

The Colombian National Action Plan on Business and Human Rights: from Regional Milestone to Effective Local Implementation


It is a pleasure to welcome Germán Zarama on Rights as Usual. Germán is a Senior Researcher at the Regional Representation of the Institute for Human Rights and Business (CREER-IHRB). He is a lawyer and holds an M.A in International Relations (University of Bologna), specialized in Public Management for Development (IADB)). He can be contacted on or on Twitter @germanzarama. This post is his.


On December 9, 2015, Colombia adopted a National Action Plan on Human Rights and Business (NAP), as a three-year public policy instrument that focuses on harmonizing protection and guarantee of human rights with economic development. It was the first South American, and indeed the first non-European, State to do so.

This was a milestone in a region where human rights defenders, many of whom work on business and human rights issues, are under serious threat. The adoption of Colombia’s NAP is also remarkable because it occurred at the same time as the historic Peace Agreement between the government and the Revolutionary Armed Forces of Colombia (FARC) was being negotiated. The peace process used conflict resolution and peacebuilding strategies where private actors were meant to play an important role. Reconciling this process with a plan on business and human rights thus represented an important challenge.

As we are approaching the end of the three-year period and the Government recently released a Follow up to the NAP - Second Report 2017-2018 (available in Spanish), this blog post reviews progress and remaining challenges.


In 2011, the Colombian Government set up the National System of Human Rights and International Humanitarian Law in order to “coordinate rules, policies, entities and institutions at the national and territorial levels and thus promote the respect and guarantee of human rights and the application of international humanitarian law”. They also established an inter-governmental Working Group whose function was to provide an inter-agency space to address issues that link businesses to human rights. The aim was to build a public policy on the subject, and coordinate effective actions among the competent entities.

The National System led to the adoption of a Comprehensive Public Policy for Human Rights in 2013, followed in 2014 by the Human Rights National Strategy for 2014-2034. The NAP was adopted within this framework.

NAP’s Achievements

  • An Inter-Institutional Working Group on Human Rights and Business and an Advisory Commission were set up and have held several meetings (5 in the last year alone). They are important forums for discussion and can provide advice.
  • Face-to-face training was offered, and freely accessible virtual training platforms in business and human rights were developed, thanks to joint work between international stakeholders, the government, and civil society.
  • To encourage the corporate due diligence process, different context documents were developed and made available to businesses that operate, or are going to start operations, in the country, so that they have enough information about the human rights situation, with emphasis on local risks.
  • Finally, the Government is promoting a human rights and peace agenda within the business sector (as part of the Peace Agreement implementation) where the goals of the NAP are aligned with the objectives and contents of post-conflict strategies such as the Development Programs with Territorial Approach (PDETs) and intervention in Areas Most Affected by the Conflict (ZOMAC), both fundamental for the development of vulnerable territories. This involves the promotion of responsible business activity in post-conflict zones.

Remaining Challenges

  • Business and human rights matter require a solid articulation between national and local policies. Although there has been progress on this point, there are few policies at the level of small or intermediate cities. The NAP is still not known in many cases and it is necessary to generate awareness about it.
  • Strengthening the conditions of security for social leaders working on issues of business and human rights is probably the greatest and most serious challenge. Since the Peace Agreement was signed, more than 330 human rights defenders were assassinated.
  • There is still a lot of work to be done to guarantee effective judicial and non-judicial remedy mechanisms. Despite having a mapping and an initial proposal (prepared by the Regional Centre for Responsible Business – CREER, regional representation of the Institute for Human Rights and Business) the judicial sector has not yet activated the routes necessary to deal with business and human rights cases. To make this happen, the Ministry of Justice needs to strengthen national policies on both judicial and non-judicial mechanisms.


The Colombian NAP was adopted at a particularly delicate time for the country. Colombia has been experimenting with different transition mechanisms that seek to establish peace conditions in the regions that historically have been affected by the armed conflict. In this context, it is worth highlighting the progress that the human rights and business policy has made possible, and the large number of actors that have joined the discussions and started to work on implementation actions.

However, especially in conflict regions, more concrete actions are needed, as there are still conflicts directly or indirectly associated with business activity. Many community-based organizations have indicated it is time for change. They call for the NAP to be strengthened, which probably means moving from a voluntary to a binding approach regarding business commitments, especially in matters such as the protection of human rights defenders.

Conference – Spain’s First National Action Plan on Business and Human Rights


It is a pleasure to welcome Carmen Márquez Carrasco and Laura Íñigo Álvarez on Rights as Usual. Carmen Márquez Carrasco is Professor of Public International Law and International Relations at the University of Seville. Her research focuses on business and human rights, the interactions between IHL and human rights, and the EU and human rights. Laura Íñigo Álvarez is a PhD candidate in International Law at the University of Seville and Utrecht University. Her research focuses on IHL, accountability, and non-state actors. This post is theirs.


On 14-15 June 2018, the University of Seville, under the direction of Professor Márquez Carrasco, will hold a conference on the first Spanish Action Plan on Business and Human Rights . The Spanish Action Plan on Business and Human Rights was adopted on 28 July 2017 by the Council of Ministers of the Government of Spain three years after the plan was first drafted. Spain becomes the 14th country approving a National Action Plan (NAP) on this issue.

Potential of the National Action Plan

 The NAP represents the Spanish model of implementation of the UN Guiding Principles on business and human rights, which has been also promoted within the framework of the European Union. This first plan has limitations but also potentialities that can be strengthened through its effective implementation. We can highlight three positive effects of the NAP. First, it can help to overcome the differences in access and power that often prevent those who are negatively affected by the activity of corporations from demanding a place at the negotiating table. Secondly, this instrument can contribute to creating a dialogue between all areas of government and could give impetus to new ideas within different government sectors that consider the issue of business and human rights to be of little relevance. Third, the NAP can assist in the creation of a progressive agenda for the protection and promotion of human rights. By generating public accountability incorporating benchmarks in the processes, and ultimately pointing to specific measures, the Spanish NAP establishes a framework of reference to assess progress in the implementation of the obligation to protect human rights against business operations.

What is the conference about?

At the conference, experts in the field will analyse and discuss the challenges and opportunities that the NAP poses to Spain, its public administrations, businesses, civil society and citizens. The aim of this conference is to assess the implementation of the plan and formulate proposals for its improvement. The keynote speech will be given by Mr. Juan Ignacio Morro Villacián, General Director of the UN and Human Rights at the Ministry of Foreign Affairs of Spain. The first day will be dedicated to the follow-up of the NAP; its relationship with the SDGs; environmental issues; business operations in conflict situations; judicial and non-judicial remedies; and gender issues. The second day will deal with the NAP and public procurement; lessons learned at the European level; and some experiences presented by corporations themselves. The event will conclude with the closing speech of Mr. Mikel Mancisidor de la Fuente, member of the UN Committee on Economic, Social and Cultural Rights and Rapporteur for the General Observation on Science and Human Rights.

More information about the event (only in Spanish) can be found here.

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