Corporate Responsibility for the Prevention of Child Labour
Obligations to Prevent Child Labour in Supply Chains across Developing Countries
By Andreea-Catalina Grecu
12602299
catalina.grecu@yahoo.com
University of Amsterdam
L.L.M. International and European Law: Public International Law
Thesis Supervisor: Dr. Tim Staal
Table of Contents
1 INTRODUCTION ... 3
2 CHILD LABOUR UNDER THE INTERNATIONAL LEGAL FRAMEWORK ... 7
2.1 The International Legal Personality of Corporations ... 8
2.2 Legal Instruments ... 9
2.3 Non-legal Instruments ... 11
2.4 The interplay between legal and non-legal instruments ... 14
2.5 Interim Conclusion ... 14
3 CHILD LABOUR UNDER THE NATIONAL LEGAL FRAMEWORK ... 15
3.1 Legal Instruments and Judicial Remedies ... 16
3.2 Non-Judicial Remedies ... 21
3.3 The role of NGOs and corporations in making national laws function ... 22
3.4 Interim Conclusion ... 23
4 CHILD LABOUR ON COCOA PLANTATIONS, IN THE GARMENT INDUSTRY AND IN MINING OF MINERALS ... 24
4.1 The relevance of international and national legal frameworks for the three industries ... 24
4.2 Shaping corporate behaviour through legislation, case law and initiatives ... 26
4.3 Interim Conclusion ... 27 5 CONCLUSION ... 28 6 BIBLIOGRAPHY ... 30
Abstract
The present thesis analyses the corporate responsibility to prevent child labour and it examines the existing legal obligations and voluntary-based responsibilities that corporations have in order to prevent child labour from occurring in their supply chains across developing countries. For this purposes, the conducted research is desk-based, making use of the relevant international and national legal and non-legal instruments that link the business sector to the child labour problem. The aim of the thesis is to use both the international and national (non)legal frameworks to emphasize the obligations or responsibilities that corporations currently possess, while also examining the steps that have been taken to strengthen the responsibilities into obligations. More than that, the main purpose of the thesis is to highlight that despite all the international and national efforts performed by the concerned stakeholders, some legal gaps still remain in enhancing corporations with proper binding obligations to eliminate child labour from their supply chains, and the mere societal expectation that corporations should not infringe children's rights is not sufficient in itself. To concretely highlight the child labour problem, the thesis focuses on three economic sectors, namely the harvesting of cocoa, the textile industry and the minerals mining, that are still on the radar with on-going child labour cases, despite all the attention that has been pondering on these sectors along the years. Focusing on these three examples, the aim is to point out that child labour still exists, that it is found in many economic sectors throughout developing states and that the need for corporations to be bound by legal obligations is more and more persistent.
1 INTRODUCTION
On 1 February 1999, Secretary General Kofi Annan issued a press release during the World Economic Forum, in which he addressed the issue of, amongst others, business activity alongside human rights. His famous closing remarks still hold a sound impact even in the present-day circumstances: 'We have to
choose between a global market driven only by calculations of short-term profit, and one which has a human face'1. The present thesis is centered on the existing social responsibility and, arguably, legal obligations of Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) for the
prevention of human rights abuses, with a focus on child labour. More specifically, the research assesses the child labour situation in TNCs' supply chains in developing countries, emphasizing the need of a more stringent framework to combat the negative impact that large corporations have while operating in
developing states. From an international law perspective, corporations belong to the category of non-state actors and, as Philip Alston described them using the 'not-a-cat syndrome'2, they are mostly defined as what they are not, namely states. Although the general perception in international law has been that states
1
Press Release SG/SM/6881 (1 February 1991) <https://www.un.org/press/en/1999/19990201.sgsm6881.html> accessed 25 March 2020.
are the only subjects of international law that bear rights and obligations, the reality holds that other non-state actors have gained a certain legitimacy under the current international law framework. For this reason, the research addresses the shaky steps from societal expectations to legal obligations of
corporations that operate abroad and it offers a glimpse into what has been undertaken so far and what are still the legal gaps in enhancing stronger binding obligations for corporations when child labour is found in their supply chains. The thesis contributes to the debate on the topic of corporate responsibility, as well as on the child labour issue and its aim is to combine the various views in order to highlight that
corporations still have a long way to go in recognizing that they are bearers of obligations just as much as they are beneficiaries of rights and they must actively engage in better practices to offer decent conditions to children working in their supply chains.
The provisions of the Convention on the Rights of the Child (CRC) enshrine the primary obligations on states parties to afford a thorough protection to children, by assuring that children do not perform work that may interfere with their education, moral and physical health, social and general welfare3. Child labour is a complex problem and, thus far, there has been significant effort to ameliorate it and address its root causes. However, child labour has not been eradicated, as numerous reports by the International Labour Organization (ILO)4 statistically prove that the issue is still persisting in various sectors. The present paper will focus on the cocoa harvesting, textile industry and mining sector. The ILO Declaration on Fundamental Principles and Rights at Work, which the ILO member states are obliged to abide by, endorsed the abolition of child labour as one of the ILO's main missions5. An overview of the numerous international conferences and world reports shows that child labour has been on the international agenda for several years. The first target set by the Hague Global Child Labour Conference in 2010 was the 'Roadmap to 2016'6, target that has not been met by 2016. As a consequence, the 2017 Buenos Aires Declaration on Child Labour, Forced Labour and Youth Employment has set 2025 as the new target, thus being in accordance with the Sustainable Development Goal No. 8.77.
The various policy frameworks that aimed at tackling child labour have stressed out the importance of firstly assessing the root cause of the problem and afterwards find solutions to ameliorate the negative
3
OHCHR, Convention on the Rights of the Child, Adopted by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990, Article 32(1) and Article 36.
4 ILO International Programme on the Elimination of Child Labour, World Report on Child Labour 2015: Paving the way to
decent work for young people (2015) <https://www.ilo.org/ipec/Informationresources/WCMS_358969/lang--en/index.htm> accessed 27 April 2020. Also ILO Ending child labour, forced labour and human trafficking in global supply chains (2019) <https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---ipec/documents/publication/wcms_716930.pdf> accessed 27 April 2020.
5 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up, adopted by the International Labour Conference at its Eighty-sixth Session (1998) para 2(c).
6 IPEC, Ministry of Social Affairs and Employment of the Netherlands, The Hague Global Child Labour Conference
2010-Towards a World without Child Labour, Mapping the Road to 2016 (2010).
7 Global Conference on the Sustained Eradication of Child Labour, Buenos Aires Declaration on Child Labour, Forced Labour
impacts in the supply chains. The numbers show that 152 millions of children are still working under conditions that affect their general welfare, while the numbers in rural areas have increased even more8. Poverty is the major factor that determines children to start working9, often under deplorable conditions, as the examples in this thesis show, as a need to provide for their families, sometimes at the expense of their education. Nonetheless, child labour's causes (poverty, poor social-economic conditions, lack of proper educational means) that determine children to accept any type of work10 are not the sole reason. Businesses also play a significant role in putting pressure on supply chain workers. As an example, governments in developing countries attract foreign investors with the promise of cheap and docile workforce11, as well as a fast delivery time of their high demands. The consequence is that the local
authorities are driven by the fear of losing their foreign investors12 and they turn a blind eye most of the
times, either because they are not fully aware or because they are bribed to do so. The research focuses on TNCs' and OBEs' conduct, in conjunction with other inevitable root causes.
Throughout the subsequent chapters, the thesis answers the following main research question: What legal gaps remain in the obligations of transnational corporations to stop child labour in their supply chains across developing countries? In order to answer this question, the thesis is divided into three chapters, each with a short interim conclusion, and the final concluding chapter.
The first chapter answers the following sub-question: Which are the international obligations of corporations in relation to child labour and what steps have been taken to strengthen these obligations? After firstly emphasizing the international legal personality of corporations, the chapter focuses on the legal obligations and on the voluntary-based responsibilities, and it also emphasizes the current problems in adopting a binding international instrument on corporate legal obligations.
The second chapter regards the national legal framework and it answers the following sub-question: Which are the national obligations of corporations in relation to child labour and what steps have been taken to strengthen these obligations? Given that corporate compliance with international laws is best improved within national legislation, this chapter tackles the 'corporate veil' barrier and it highlights how national laws establish various forms of corporate liability in connection to child labour and a thorough regulation for the goods produced with child labour. Lastly, the chapter uses relevant case law involving allegations of forced child labour in different sectors, against corporations.
8 ILO Ending child labour, forced labour and human trafficking in global supply chains (n 4) 1. 9 ILO, Child labour: a textbook for university students (January 2004).
10 ILO Ending child labour, forced labour and human trafficking in global supply chains (n 4) 20.
11A Clapham, Human Rights Obligations of Non-State Actors (OUP 2006) 206.
The third chapter answers the following sub-question: What are the remaining legal gaps, despite the steps described in Chapters 1 and 2? This chapter focuses on the relevance in practice of the
international and national legal frameworks for the industries of cocoa, textiles and minerals, by emphasizing whether or not these frameworks have brought positive change in corporate activity and what legal gaps remain despite the rising efforts of the stakeholders.
The thesis ends with concluding remarks and a general overview of the steps that have been taken so far to consolidate legal obligations of TNCs and OBEs and to surpass the obstacles that remain in holding corporations liable for cases of child labour, aiming at emphasizing the answers to the questions asked throughout this paper.
Before engaging in the analysis, some terminology has to be clarified up front. First of all, the term TNCs is used for 'business activities...that take place or involve actions, persons or impact in two or more
national jurisdictions'13. Due to initial criticism of the narrow scope of TNCs, which only referred to corporations operating abroad, the reference to 'business activities' was introduced to encompass both corporations operating abroad, as well as corporations with domestic activity14. Those with domestic activities will be further referred to as OBEs. By widening the modus operandi of companies, a stronger protection is sought for victims of corporate human rights abuses. Secondly, the definition of child labour entails the work performed by children, which is inadequate in the sense that it 'deprives them from their childhood, their potential and their dignity'15, which is likely to harm the health, safety or morals of children16, while also being a form of modern-day slavery17. Child labour, often times
associated with forced labour, must be distinguished from the work performed by children under decent and fair conditions, which is not the focus of the thesis. In addition, the terms 'responsibility' and 'obligations' tend to collide and, because the thesis addresses both aspects, there has to be a demarcation between their meanings. First of all, the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)18 entail, as a general provision for international responsibility, that a state becomes responsible when it breaches its international obligations. Second of all, the UN Guiding Principles on Business and Human Rights (UNGPs) speak of a corporate responsibility towards
13
OHCHR, Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational
Corporations and Other Business Enterprises, Zero Draft (2018) Article 4(2).
14 OHCHR, OEIGWG Chairmanship, Legally Binding Instrument to Regulate, in International Human Rights Law, the
Activities of Transnational Corporations and Other Business Enterprises, Revised Draft (2019) Article 3(1).
15 ILO, 'What is child labour?' (undated) <https://www.ilo.org/ipec/facts/lang--en/index.htm> accessed 25 March 2020. 16 ILO Worst Forms of Child Labour Convention C182 (1999) Article 3(d).
17 Anti-Slavery Organization, 'What is modern slavery?' (undated) < https://www.antislavery.org/slavery-today/modern-slavery/> accessed 10 April 2020.
18International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001) Article
respecting human rights19, different from the 'responsibility' enshrined in ARSIWA, which illustrates that corporations do not possess yet, under the current international human rights law framework, direct binding obligations. Therefore, for the present purposes, the term obligation is used, when necessary, to encompass any binding obligation, while the term responsibility refers to the societal expectation of corporations to respect human rights, thus a non-binding 'obligation'20. TNCs' supply chains enhance the reach beyond the immediate suppliers (or the 'downstream suppliers closer to the final production') and goes all the way to the 'upstream suppliers', the ones involving agricultural activities or extraction of raw materials21.
2 CHILD LABOUR UNDER THE INTERNATIONAL LEGAL FRAMEWORK
The first chapter aims at answering the sub-question 'Which are the international obligations of corporations in relation to child labour and what steps have been taken to strengthen these
obligations?' For that purpose, the first sub-section of this chapter briefly touches upon the international legal personality of corporations, as a starting point in observing the rights and obligations of TNCs and OBEs regarding child labour. Thus, the sub-section zooms in on the relative legal personality of
corporations.
The second sub-section addresses the international legal instruments that could be used to hold companies liable for violations of children's rights, which occur in their supply chains in developing countries. It is quite risky to assert that corporations share the same obligations as states do, but it has been argued that corporations possess at least 'indirect human rights responsibilities'22, via the state. In addition, General Comment (GC) No. 16 of the Committee on the Rights of the Child (CRC), which is further elaborated in this chapter, endorses an important overview of the impact of businesses on children's rights as an
obligation for states to monitor their activity and hold them liable when necessary23.
The third sub-section of this chapter regards the non-legal instruments that are voluntary-based, such as recommendations or declarations of principles, international voluntary initiatives and the work displayed by several NGOs. Although these mechanisms do not have a legally binding character, they are
19 OHCHR, Guiding Principles on Business and Human Rights: Implementing the UN 'Protect, Respect, Remedy' Framework', HR/PUB/11/04, endorsed by the Human Rights Council in its Resolution 17/4 of 16 June 2011, Guiding Principle 11 and its Commentary.
20 OHCHR, Frequently Asked Questions about the Guiding Principles on Business and Human Rights, HR/PUB/14/3 (2014) Question 7, 9.
21 ILO Ending child labour, forced labour and human trafficking in global supply chains (n 4) 9.
22 D Weissbrodt, 'Roles and Responsibilities of Non-State Actors', in D Shelton (ed) The Oxford Handbook of International
Human Rights Law (OUP 2013) 728.
23 OHCHR, Committee on the Rights of the Child, General Comment No. 16 on State obligations regarding the impact of the
nonetheless important in strengthening the legal instruments24 and they might come around to have a positive impact on the later development of a binding legal framework25.
The fourth sub-section of this chapter regards the interplay between the legal and non-legal instruments and it offers an insight upon how the two categories interact with each other at the international level. The main purpose of this sub-section is to emphasize the current international framework on both corporate obligations and responsibilities, by way of cooperation on closing the legal gaps. The interim-conclusion briefly summarizes the analysis and findings of this chapter.
2.1 The International Legal Personality of Corporations
In order to address the role of TNCs and OBEs under international human rights law, and more specifically, their implications for violating children's rights, the analysis begins with the international legal personality of corporations under general international law. There are various debates on this issue, some claiming that non-state actors are non-bearers of obligations or that they possess a minimum level of obligations under international human rights law. In the struggle to find a law that explicitly refers to international legal personality, the emergent role of corporations on the international fora has made it clear that such powerful actors can no longer be disregarded as not having any form of legal personality. That states nevertheless remain reluctant in recognizing the legal personality of non-state actors as such, is due to a number of reasons26; briefly, it can be argued that while avoiding express language for recognizing the international legal personality, states make an implicit statement that non-state actors, corporations included, do have certain rights and obligations by virtue of their legal personality. There is no doubt that under the national legal framework corporations are entitled to legal personality, but regarding international law, corporations developed a so-called 'limited' or 'relative' personality, namely that they cannot have the full personality of states because they are not legislators and they cannot give their consent for drafting treaties27. The relative personality can be seen in various international law
branches such as trade and investment law and even international human rights law; as such, the
European Court of Human Rights (ECtHR) has developed a case law where corporations can bring claims before it28. For the present purposes of this thesis, it is sufficient to conclude that indeed, corporations cannot possess the full personality of states, but to completely deny them such personality would run
24N Justine & T Luke, 'Corporate Responsibility for Economic, Social and Cultural Rights: Rights in Search of a Remedy?'
(2009) 87 JBE Dordrecht 433, 437 <https://www.jstor.org/stable/27749696?seq=2 - metadata_info_tab_contents> accessed 26 May 2020.
25 See E Benvenisti, GW Downs, 'The Empire's New Clothes: Political Economy and the Fragmentation of International Law' (2007) 60 Stanford Law Review 595, 620
<https://poseidon01.ssrn.com/delivery.php?ID=668089000120106031094005013081097106020020059065037078000113081 00610510200609609907102211803700101400504007000407400312112107905202109300908510407609211610609709002 7014003070087100113108025065082029114083064074> accessed 3 April 2020.
26 A Clapham, 'Non-State Actors', in D Moeckli, S Shah and S Sivakumaran (eds), International Human Rights Law (3rd edn, OUP 2018) 558.
27 A Clapham, Human Rights Obligations of Non-State Actors (n 11) 78.
28
contrary to the current reality. Looking at the trade law regime, for instance, if corporations are allowed to enjoy certain rights, they must also be capable to possess obligations. By analogy, if corporations are allowed to exercise their rights before the ECtHR, then it is logical to also possess some human rights obligations. The extensive debate on the international legal personality of corporations will not in fact solve the bigger issue of corporate human rights obligations29, or the child labour problem. It is not enough to merely admit that corporations have the capacity to bear rights and arguably obligations, but rather a binding framework of legal obligations with detailed requirements for corporations is needed. The next sub-section addresses the existence of such framework and the struggle for the adoption of a binding treaty.
2.2 Legal Instruments
International human rights treaties have been deemed by their corresponding courts and treaty bodies to be 'living instruments' that need to be interpreted in accordance with the present-day conditions, meaning that they can be subjected to an evolutive interpretation. Bearing in mind those present-day conditions, why should there not be established a rigorous protection against corporate human rights abuses30 that would complement31 the protection against state human rights abuses? Under international human rights law, corporations do not have direct legal obligations to protect children's rights, but rather states have, under the CRC, an obligation to protect children from third parties, including the business sector32. This creates for corporations the so-called indirect responsibilities, while their direct binding obligations are found within national legal systems, displayed in the next chapter. Therefore, there are two sides of the same coin: the state has to protect individuals against corporate abuse, while corporations have to cooperate with the state to meet these ends.
Indirect responsibilities
Child labour is connected to trade and investmentand it goes without saying that corporations have certain rights under these two international law regimes33, which allow them to conduct activities abroad, while protecting their businesses. Human rights of individuals clash with rights of foreign investors, especially because host states have the obligation to protect individuals' rights against such investors, while investors have rights under foreign investment regulations34. In other words, states face a conflict between their obligations under human rights treaties and foreign investment treaties, so the latter treaties
29
V Engstrom, Who is Responsible for Corporate Human Rights Violations? (Abo Akademi University, Institute for Human Rights January 2002) 24.
30 Campbell v MGN Limited [2004] UKHL 22, para 50 (Lord Hoffman talked about 'private persons' in this case, in the media context, but corporations fall as well within the notion of 'private persons').
31 A Clapham, 'Non-State Actors' (n 26) 559. 32 CRC GC 16, para 28.
33 Amnesty International, 'Corporations', on Accountability Gap < https://www.amnesty.org/en/what-we-do/corporate-accountability/> accessed 4 June 2020.
34 E de Brabandere, 'Human Rights and International Investment Law' in M Krajewski and R Hoffmann (eds), Research
could be more inclusive of human rights clauses, by engaging a conscious business responsibility on conducting the investment35, and highlighting the human rights obligations that businesses have under the host state laws. Regarding trade, the World Trade Organization (WTO) has often been linked with the ILO and, because the ILO does not have a proper system of implementation apart from sanctioning its member states for non-compliance with its Constitution36, discussions have pointed out that victims of corporate human rights abuses should be able to complain to the WTO system. Nevertheless, the WTO has strongly ascertained that the issue of child labour has never been raised before its Body37 and, as
regards international trade, the predominant view in developing countries who are major exporters is that imposing harsher conditions on trading goods would result in an increase in their poverty and a decrease in their principle means of subsistence38. Following the strategy of investment treaties, trade treaties could
also be more inclusive of human rights clauses directed at businesses, bearing in mind that host states can annul the investment or trade agreements if human rights abuses persist.
As noted in CRC GC 16, 'the Committee recognizes that duties and responsibilities to respect the rights of children extend in practice beyond the state and state-controlled services and institutions and apply to private actors and business enterprises'39. GC 16 has an interesting addition on state obligations in specific sectors, such as the informal economy in which children are found to work, ranging from toys and garment manufacturing to agriculture on small family enterprises40. These sectors demand special attention, given that this type of work interferes with children's rights to education, rest and play and they have the potential of bearing a high risk for children's health. What states are obliged to do regarding these special sectors is to regulate decent working conditions in an adequate environment and a proper payment, while at the same time monitor the businesses that operate in those sensitive sectors. Another point on the GC 16 regards the extraterritoriality of states obligations41 in the context of the separate legal personalities of the parent company and its subsidiaries. As a frequent argument that corporations use, namely the corporate veil, they argue that the parent company does not have a duty of care towards a victim of human rights abuse caused by its subsidiary. Because companies like to use the principle of separate legal personality in order to avail themselves of any form of accountability, it is indeed more problematic to establish the responsibility of a parent company for its subsidiaries. Nonetheless, the principle of separate legal personality could give rise to the parent company's responsibility for its own
35 Ibid, 15.
36 ILO Constitution (April 1919) Article 26.
37
WTO 3rd WTO Ministerial Conference, 'Top 10 Reasons to Oppose the WTO? Criticism, yes...misinformation, no!' <https://www.wto.org/english/thewto_e/minist_e/min99_e/english/misinf_e/03lab_e.htm> accessed 28 May 2020. 38 WTO 3rd Ministerial Conference, 'Trade and Labour Standards' (30 Nov-3 Dec 1999)
<https://www.wto.org/english/thewto_e/minist_e/min99_e/english/about_e/18lab_e.htm> accessed 28 May 2020; governments in developing states argued that any potential sanction imposed on countries with lower labour standards will merely delay improvements in their working conditions.
39 CRC GC 16, para 8. 40 CRC GC 16, para 35. 41 CRC GC 16, para 39.
conduct, on the one hand, and to the subsidiary's responsibility on the other hand42. The issue of separate legal personality is further detailed in the next chapter, as it holds a deeper relevance for the national legal framework.
A similar indirect responsibility of businesses is found under the ILO framework, the main organization concerning labour rights and standards. The ILO has a unique tripartite structure engaging governments, employers' and workers' organizations, while its Conventions address states and its Declarations are applicable to member states whether or not they are parties to the ILO core conventions, and some also directly address multinational enterprises43. As such, all parties involved, businesses included, have to
contribute to the attainment of the fundamental rights enshrined in the ILO Conventions, therefore they also have to ensure the effective abolition of child labour44. The ILO Worst Forms of Child Labour
Convention urges states parties to collaborate with employers and workers' organizations to take
immediate actions to abolish child labour and states can also apply penal sanctions or other appropriate sanctions in case of non-compliance45. Equally important is the ILO Minimum Age Convention, aimed at progressively raising the minimum age for admission to employment so as not to damage the complete development of children, and the age can either be the age of completion of compulsory schooling, but no less than 15 years unless some special circumstances are proven46.
2.3 Non-legal Instruments
Voluntary-based instruments such as recommendations, business codes of conducts, initiatives, and the work of NGOs play an important part in tempering corporate behaviour. Although they are not legally binding, their strong voice has often times proved to be useful not only for raising awareness, but also for putting pressure on governments and businesses, while also providing guidance on compliance. CRC GC 16 entails that voluntary initiatives stemming from the business sector, such as codes of conducts and public policy engagement, can advance children's rights without substituting business responsibility to respect human rights47.
The UN Guiding Principles on Business and Human Rights
Ever since the formal approval by the Human Rights Council in 2011, the UNGPs have been a widely used reference and starting point on the topic of business and human rights. Even though its provisions are quite extensively established to operationalize the Three Pillar Framework to 'Protect, Respect,
42 J Zerk, Corporate liability for gross HR abuses: Towards a fairer and more effective system of domestic law remedies (22 July 2013) 46.
43 ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (5th edn revised 2017) para 4.
44 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up (Geneva 1998, revised Annex June 2010) para 2(c).
45
ILO C182 (n 16), Article 7(1).
46ILO Minimum Age Convention C138 (1973) Article 1 corroborated with Article 2(3)-(5).
Remedy'48, they lack an explicit language that corporations have legal obligations and instead they use the softer term of 'responsibility', which refers to the negative responsibility of not infringing human rights of individuals49. At the same time, the UNGPs are deficient in taking a powerful stance that corporations might also have positive responsibilities in relation to human rights, so the Principles are only partially sufficient for the complete operationalization of the Framework50. Notwithstanding the downsides of the UNGPs, various international instruments make reference to the principles or use them as a starting point for engaging the topic of business and human rights. Obviously, the lack of a binding character of the UNGPs represents the main obstacle, so the Intergovernmental Working Group on TNCs and OBEs with respect to human rights (IGWG) changed its focus on drafting a legally binding instrument that would complement the UNGPs.
Draft Treaty on Business and Human Rights
As a consequence of the appointment of the IGWG, so far there have been several sessions on the drafting of a legally binding instrument and the most recent session has closed with the negotiations of a Revised Draft on a legally binding treaty51. Important modifications have been made, such as the
expansion of the scope to all types of business activities, to cover both TNCs and OBEs, as well as the reporting obligations of small and medium-sized enterprises52. The UNGPs are definitely not the ultimate goal in regulating corporate activity, but they undoubtedly are a major step towards the adoption of such legally binding instrument that is currently under the scrutiny of the international community. In this light, it is desired that the adoption of the treaty be near, while at the same time there are still some shaky aspects that require better clarification or some that still need consensus from states. An interesting point in the Revised Draft is made in Article 14 that provides for state parties to take all necessary legislative, administrative or other action in establishing monitoring mechanisms to ensure implementation of the treaty and it also refers to the attention that has to be given to specially affected groups, children
included53. At the same time, the Revised Draft provides for a system of legal liability of natural as well as legal persons for, amongst others, forced labour and slavery or slavery-like offences54.
The OECD Guidelines
48
'Protect, Respect, Remedy: A Framework for Business and Human Rights', Report of the Special Representative of the Secretary-General, A/HRC/8/5 (April 2008).
49 OHCHR, UNGPs (n 19). Also see S Deva, D Bilchitz (eds), Human Rights Obligations of Business: Beyond the Corporate
Responsibility to Respect? (CUP 2013) 15.
50 HRW, 'UN Human Rights Council: Weak Stance on Business Standards' (16 June 2011)
<https://www.hrw.org/news/2011/06/16/un-human-rights-council-weak-stance-business-standards> accessed 27 May 2020. 51 OHCHR Revised Draft (n 14).
52 I Oribhabor, 'Revised draft UN treaty on business and HR: A few steps forward, a few unanswered questions' (undated) < https://www.business-humanrights.org/en/revised-draft-un-treaty-on-business-and-human-rights-a-few-steps-forward-a-few-unanswered-questions> accessed 27 May 2020.
53
OHCHR Revised Draft (n 14) Articles 14(1), 14(4).
54
The Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises (MNEs) are a perfect example of an instrument referring to the UNGPs, which concerns recommendations made by governments to MNEs55. It has been accepted by now that the Guidelines can also be adopted by non-OECD member states56, with the general mission of ensuring that its standards are applied in both home and host states57. Two particular aspects can be extracted from the OECD
framework, namely that there are several Guidelines on specific topics that derive from these Guidelines on MNEs and that the MNEs Guidelines have created an implementation system through National Contact Points. Countries adhering to the MNEs Guidelines should set up National Contact Points, with the purpose of ensuring effectiveness of the Guidelines58. The OECD Watch, which monitors the cases
before the Points, has seen an increasing caseload, proving its usefulness despite lacking binding
character. A detailed analysis of the Contact Points follows in the next chapter, as it depends on the states to implement the Guidelines and engage the national business sector, while the Guidelines lack an
international enforcement mechanism. Furthermore, the OECD Guidelines on specific topics such as Responsible Mineral Supply Chains (2016) and Responsible Supply Chains in the Garment and Footwear Sector (2017) target these economic sectors where corporations are highly involved, where there is a higher risk for human rights abuses, not overstepping the national laws that play the most significant roles in implementing OECD standards, and implicitly other international standards to which they refer. These sectorial Guidelines are relevant for their provisions on transparency and especially on traceability
throughout an MNE's supply chain, as well as for the due diligence guidance they provide for businesses.
Fair Labour Association
Another important voluntary initiative is the Fair Labour Association (FLA) that operates on the basis of ILO core principles (including effective abolition of child labour), which sets standards for companies to join voluntarily, but, once joined, they must meet strict labour conditions as long as they are affiliated. An impressive number of large TNCs, such as Nestle, have joined the FLA standards and an interesting feature is the Third Party Complaint Process, available for any person, group or organization whose working rights have been violated. The Process complements the existing internal complaints procedures of a company and the national legislation of a state59.
The Children's Rights and Business Principles
55 OECD (2011) OECD Guidelines for Multinational Enterprises, Concepts and Principles para 1. 56 A Clapham, Human Rights Obligations of Non-State Actors (n 11) 203.
57 OECD Guidelines (n 55) Concepts and Principles para 4-5. On this point see also A Clapham, Human Rights Obligations of
Non-State Actors (n 11) 207.
58 OECD Guidelines (n 55) Procedural Guidance, National Contact Points.
59
The Children's Rights and Business Principles60 make an explicit reference to corporate responsibility to respect and support children's rights inside the workplace, building on the UNGPs and ILO Conventions 182 and 138. The mechanism of integration and remediation should be demanded at the national level, so once again a relevant tool for protecting children's rights against corporate abuse is anchored in states' obligation to have in place effective and accessible mechanisms. Interestingly enough, this document reflects the reality in which children indeed have rights, but corporations have mere 'principles' to respect on a voluntary basis.
2.4 The interplay between legal and non-legal instruments
Taking into account the international legal as well as non-legal instruments analysed in this chapter, there are several important aspects regarding their relationship. On the one hand, voluntary-based instruments have the potential of not only raising awareness about industries where child labour occurs, but they also challenge the business sector by having a loud voice to put the necessary pressure on governments. On their part, governments can regulate business activity by adopting national human rights laws to hold corporations liable before national courts or adopt domestic laws that can have transboundary impact61.
On the other hand, the credibility of non-legal instruments or the real chance of them coming into being is often times uncertain, the UNGPs and the subsequent binding treaty are a perfect example of such
uncertainty. It is mostly a political decision whether or not such a treaty is needed, but also the opposition from the business sector is slowing down the negotiation process62. The argument of promoting economic growth as a democratic principle falls short of addressing the wider picture of human rights, but the major contributions that the ILO brings through its guidance or the OECD Guidelines on the previously
mentioned topics, to name but a few, are a concrete proof that child labour is a persisting problem that cannot be undermined by economic growth. Thus, the voluntary initiatives might also evolve through precedent63 and domestic courts have often times used the international guidelines, as is shown in the
sub-section regarding the OECD National Contact Points. 2.5 Interim Conclusion
To conclude, the relevance of available international instruments cannot be denied, but the issue of child labour is so persistent that it still requires not only a mere attention from the public and private spheres, but also an adequate mechanism to sanction corporations and determine them to use fairer practices. Corporations still do not possess direct international legal obligations, they can only be held liable
indirectly via the state and it is important to emphasize that the interrelationship and cooperation between
60 UN Global Compact, Save the Children and UNICEF, Children's Rights and Business Principles (March 2012) <https://www.unicef.org/csr/theprinciples.html> accessed 29 May 2020.
61 N Justine (n 24).
62 Joint IOE-ICC-BIAC Comments on the Draft Guiding Principles on Business and Human Rights (January 2011) Commentary to Principle 12, 9.
63 B Sheppard, 'Norm Supercompliance and the Status of Soft Law' (2014) 62 Buff L Rev 787, 791 <https://digitalcommons.law.buffalo.edu/buffalolawreview/vol62/iss4/2/> accessed 29 May 2020.
the two sectors has to be strengthen to work towards effective abolition of child labour. The wide variety of instruments that relate to the issue of corporate human rights, whether legal or non-legal, have a long way to go until they could be materialized and operationalized before a court. Therefore, the next chapter focuses on the implementation of the international framework through regional and national legal
systems.
3 CHILD LABOUR UNDER THE NATIONAL LEGAL FRAMEWORK
The CRC, as well as GC 16, provides that states have an obligation to take 'all appropriate legislative, administrative, and other measures'64 to facilitate children's rights as set out in the Convention.
Consequently, the efficiency of an international instrument is better assessed through national laws65, which states are obliged to adopt using the most appropriate means. This chapter focuses on the following
sub-question 'Which are the national obligations of corporations in relation to child labour and
what steps have been taken to strengthen these obligations?' and, to meet these ends, the attention falls on domestic laws that regulate corporations operating abroad, as well as on impactful case law from various legal systems. Due to the multitude of different legal systems, the chapter re-states the absolute necessity of an international treaty to regulate TNC's activities abroad.
The first sub-section focuses on legal instruments adopted by national authorities providing that
corporations have to conduct due diligence and disclose the forms of slavery discovered in their supply chains66, as well as the forms of liability if such abuses occur. Before looking into a couple of domestic laws and several cases of child labour in supply chains, the so-called doctrine of 'corporate veil' is addressed, doctrine generally used by parent companies to detach themselves from the conduct of its subsidiaries.
The second sub-section refers to non-legal instruments, whether they are recommendations or guiding principles, which have a real impact if grounded into national law67. Moreover, the reports issued by NGOs influence the manner in which local authorities address child labour in supply chains, and some NGOs work closely with corporations to help them live up to their promises. Lastly, this sub-section points out the significance of the OECD National Contact Points and of the National Human Rights Institutions, as well as the voluntary initiatives adopted by companies themselves.
64
CRC Article 4 and GC 16 para 24.
65 OHCHR 'An Interpretative Guide: The Corporate Responsibility to Respect Human Rights' (2012) 10.
66 A Mehra, K Shay, 'Corporate Responsibility and Accountability for Modern Forms of Slavery' (2016) Journal of
International Criminal Justice, 453-468 <https://academic.oup.com/jicj/article-abstract/14/2/453/2412038> accessed 11 June 2020.
67 Statement by Amnesty International Secretary General, 'Taking stock: Corporate social responsibility and human rights' (Davos 2003) 3 <https://www.amnesty.org/download/Documents/108000/ior500032003en.pdf> accessed 4 June 2020.
Mirroring the previous chapter, the present one highlights the interaction between the two types of instruments, by proving that although corporations need a legally binding framework in order to redress their impact on human rights, the non-legal instruments are also very relevant. At the same time, this sub-section acknowledges the usefulness of judicial and non-judicial redress mechanisms as a way of choice for child labour victims. Lastly, the chapter closes with an interim conclusion of the analysis.
3.1 Legal Instruments and Judicial Remedies 'Corporate Veil'
The issue of separate legal personalities, mostly linked to corporate groups, entails that one body of the group will not automatically be responsible for the conduct of another body68, namely the parent company for the conduct of its subsidiaries. Corporations establish complex internal structures69 and it is difficult
to assess whether the parent company is responsible or its subsidiary, when victims do not have access to this information. However, parent companies have a duty of care towards its subsidiaries that violate human rights, if the parent company is involved in its subsidiaries' activities more than it should be according to the separation of personalities70. The mere finding of a duty of care does not automatically remove the corporate veil, so it is still uncertain who bears responsibility. Companies can be liable either under home state law, meaning the state of incorporation, or under host state law, where the subsidiary operates, so the challenge is to establish which law applies. Although the first instinct is to approach the local courts, victims prefer to address the home state courts, due to a better redress mechanism, trust in the quality of the process, the prospect of legal representation and higher awards, as well as a general lack of trust in the judicial system where the damage has occurred71. Under domestic law, corporations are liable under either civil law or criminal law. Criminal claims can be brought for specific gross human rights abuses, if certain requirements are fulfilled, such as knowledge, intent and causal link72. States are divided between recognizing and not recognizing the corporate criminal liability in their domestic laws, so the thesis focuses on civil proceedings. Furthermore, child labour claims are easier brought under civil law, given that its status as a gross human rights violation is yet to be acknowledged. Nevertheless, it falls under (modern) slavery or slavery-like practices and there are some arguments that can be brought in favour of a future recognition. Considering all the obstacles, it is a positive change that the Revised Draft for the future treaty regulating business activity covers both TNCs and OBEs. Therefore, unless the subsidiary benefits from an exemption of national legislation, it is equivalent to a domestic company73
68 Zerk (n 42) 45.
69 N Jagers, M van der Heijden, 'Corporate human rights violations: The feasibility of civil recourse in The Netherlands' (2008) Brooklyn Journal of International Law 833-870, at 841.
70
Zerk (n 42) 46. 71 Ibid 48. 72 Ibid 31.
73 Christian Aid, 'Behind the mask - The real face of corporate social responsibility' (2000) < https://www.st-andrews.ac.uk/media/csear/app2practice-docs/CSEAR_behind-the-mask.pdf> accessed 14 June 2020.
and could be held liable even without involving the parent company. Conversely, a parent company can be liable when it conducts, contributes to or is linked to the abuses74.
The US Alien Tort Statute
Under the Alien Tort Statute (ATS), the US 'district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States'75. The Statute represents a milestone in corporate litigation and the following paragraphs
demonstrate the inconsistencies in courts' ruling under the Act.
Boimah Flomo et al v. Firestone Natural Rubber Company76 clarified that corporations are liable under
the ATS provisions, but the claimants lost the case due to a lack of evidence that their allegations of forced child labour could be considered customary law and subsequently brought under the ATS. Interestingly, the District Court did not deny the characterization of child labour as customary law, but instead it demanded stronger evidence of corporate liability for such allegations77.
John Doe I et al v. Nestlé USA Inc. et al is a complex case brought under the ATS, first in 2005, against
large multinational chocolate companies for allegations of using forced child labour on the cocoa plantations in West Africa78. As the largest cocoa exporter, the situation in Cote d'Ivoire has attracted exponential international attention, because reports of field visits have shown that these corporations continue to purchase beans from farmers who use child labour, while they also fund them and offer logistical support79.
Considering that there is no appropriate law prohibiting children trafficking and the majority of public officials in Cote d'Ivoire are corrupt, the claimants addressed the US courts. The outcome of addressing the US courts is still unknown, given that the case is ongoing. Meanwhile, the US Supreme Court narrowed the scope of the ATS, stating that a claim must 'touch and concern' the US with 'sufficient force'80. Consequently, the claimants were offered another hearing in 2014, after the Federal Appeals
Court concluded that the victims are entitled to bring their claim under the ATS due to the universality of prohibition of slavery and slavery-like practices. Recent news on the case reported that the US Supreme
74 UNGPs Commentary to Principle 22. 75 ATS 28 U.S.C. §1350.
76 Flomo v. Firestone Natural Rubber Company [2005] US Dist Ct, Southern District of Indiana.
77 Flomo et al v. Firestone Natural Rubber Company < http://www.iradvocates.org/case/africa-liberia/flomo-et-al-v-firestone-natural-rubber-company> accessed 11 June 2020.
78 John Doe I et al v. Nestle USA Inc et al [2010] US CD California 1064.
79
John Doe I et al v. Nestle USA Inc et al < http://iradvocates.org/case/africa-multi-country/john-doe-i-et-al-v-nestle-usa-inc-et-al> accessed 11 June 2020.
Court accepted to hear the claims, although it receives opposition from the current administration81 and from companies who requested dismissal of the case. If the Supreme Court dismisses the case on the basis that domestic corporations cannot be sued under the ATS for abuses they commit abroad, it shows an inconsistent approach to the Statute and an unsettled application of its provisions, while its scope risks being questioned.
US Trafficking Victims Protection Reauthorization Act (TVPRA)
The situation in the Democratic Republic of the Congo (DRC) has long been acknowledged and well documented by several NGOs as falling under the category of a high-risk area82. Given that children still
work under hazardous conditions to extract cobalt, which is processed into ion batteries used in telephones, laptops and electric cars, a class action was filed under the TVPRA against the giant
companies Apple, Dell, Microsoft, Tesla and Alphabet83. This is a perfect example of victims not taking their case before their own domestic courts where the abuse occurred, due to corruption or lack of an effective system altogether84, but to the state of incorporation of the defendants, as the TVPRA provides for extraterritorial human rights abuses85. Even after NGOs' reports were publicly released and
corporations adopted policy programmes, the defendants have nevertheless aided and abetted, and benefitted from the harsh working conditions performed by children86. Meanwhile, children became poorer, their health was put in danger, and they suffered from emotional distress, while some of them suffered severe body injuries or even died in the cobalt mines87. This case of forced child labour
contradicts the ILO Minimum Age Convention, as well as the ILO Elimination of Worst Forms of Child Labour Convention and maybe the court will decide in favour of the victims, in order to bring some hope for the tragic child labour problem in the cobalt mines. Interestingly, one of the defendants' partners - Glencore - is under a current investigation for bribery, arguably for its relationships with the DRC officials88. Sometimes, the partner companies that process the raw materials use smart techniques to modify a specific good, in order to loose its traceability89 and it indeed creates a difficulty in concluding that a parent company was directly involved or, on the contrary, its subsidiary bears the fault. Whatever the outcome of this case, it is important to notice the behaviour of large TNCs, as well as of OBEs,
81 WD Dodge, 'Trump Administration Reverses Position on Corporate Liability under ATS' (June 2020)
<https://www.justsecurity.org/70512/trump-administration-reverses-position-on-corporate-liability-under-alien-tort-statute/> accessed 11 June 2020.
82 Examples of reports by Amnesty International, the Enough Project, Human Rights Watch etc.
83 Class complaint for injunctive relief and damages against Apple Inc., Alphabet Inc., Microsoft Inc., Dell Technologies Inc., Tesla Inc. [2019] <http://iradvocates.org/sites/iradvocates.org/files/stamped -Complaint.pdf> accessed 12 June 2020. 84 Ibid para 18.
85 Trafficking Victims Protection Reauthorization Act (2017) 18 USC §1596. 86 Class complaint (n 83) para 64.
87 Ibid para 99-100.
88
Serious Fraud Office, 'Glencore group of companies' <https://www.sfo.gov.uk/cases/glencore-group-of-companies/> accessed 12 June 2020.
89
because they seem to display their good practices as an intelligent strategy90 to distract attention from the actual reality in the DRC.
EU mechanism
Since the US became scarce with extraterritorial human rights cases, heads turned towards the EU to set up a proper framework91. As further explained, the EU members have adopted National Action Plans to implement the UNGPs92 or laws referring to the proper forum of suing corporations. The Brussels
Regulation entails the appropriate forum to deal with cross-border civil and commercial cases, stating the general rule that courts have jurisdiction over a person domiciled in a member state93. Admittedly, legal
persons have standing before national courts for cross-border damages, but only if they are incorporated in the EU, namely they must have their statutory seat, central administration or principal place of business on the territory of a member state94. Non-EU corporations can only be sued under member states'
domestic laws based on assets that the defendants have in the member state95. Additionally, Rome II Regulation - rules on the applicable law to non-contractual obligations, with a focus on tort and damages - provides the general rule of applicability of the law where damages occur, unless a closer link to another state is proved96.
While the EU requires companies to be incorporated within the EU's territory for engaging their
extraterritorial liability, the US system is different. The threshold is that the company must be sufficiently connected to the US, namely to do significant business on the US territory, besides the condition that the violation must contradict the law of nations. As such, the claimants in the class action case rely on this argument, stating that the companies reside in the US and they also conduct 'substantial and continuous business within the District of Columbia'97. Furthermore, should European states rely more not only on criminal law, but also on tort law, victims might benefit from a supplementary chance to remedies.
Dutch Child Labour Due Diligence Law98
The recently adopted law enhances the obligation of corporations to determine if child labour occurs in their supply chains and display a plan to end it. The rationale of the law is to prevent goods and services
90 Class complaint (n 83) para 73.
91 JA Kirshner, 'A Call for the EU to Assume Jurisdiction over Extraterritorial corporate Human Rights Abuses' (2015) Northwestern Journal of International Human Rights, 1
<https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1175&context=njihr> accessed 17 June 2020. 92 Council of the EU Conclusions on Business and Human Rights, Foreign Affairs Council (June 2016) para 5.
93 Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Article 4(1).
94 Ibid Article 63(1).
95 Opinion of the EU Agency for Fundamental Rights, 'Improving access to remedy in the area of business and human rights at the EU level' (1/2017) 30.
96 Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) Article 4(1), (3). 97 Class complaint (n 83) para 22.
produced with child labour to enter the Netherlands, so consumers can make an informed decision on buying certain products99, while also aiming at discouraging trading goods produced at the expense of children's dignity. All companies doing business in the Netherlands fall under this law, irrespective of where they are registered and they must respond towards a regulatory body that is yet to be determined100. Interestingly, the law provides for fines when companies do not comply or even for criminal liability of directors. Notwithstanding the potential of the law, some shortcomings remain: the law was postponed to enter into force in 2022, the enforcement regulatory body is still undetermined and corporations doing business in the Netherlands less than twice a year do not have to conduct supply chains due diligence101.
French Corporate Duty of Vigilance Law102
Under this law, parent companies established in France have binding obligations to prevent and account for human rights and environmental impacts along their operations, including supply chains103.
Companies are required to adopt a vigilance plan or be liable for a lack of one and the scope of the law is quite broad, since it applies to both contractual and non-contractual relationships. Domestic courts can order compensations for victims, but a major drawback of the law is that victims bear the burden of proof104 and it might be difficult to link corporate fault to the damage without a broad access to
documents. Vinci Qatar, an ongoing case brought under the law with criminal charges of forced labour and enslavement, could set a precedent of parent companies' duty of care for their subsidiaries engaged in human rights violations in developing countries105.
Host state laws
Some of the developing countries, which are also analysed in the next chapter, have adopted laws transposing the ILO conventions regarding the prohibition of child labour and minimum age for
employment. The ILO stipulates a more flexible standard of setting the minimum age for countries that are still in a developing stage106, recognizing the specific circumstances of these countries. For instance, Ghana set the minimum age for light work at 13 years107, while Bangladesh set it at 12108 and as shocking
99
MVO Platform, 'Frequently Asked Questions about the new Dutch Child Labour Due Diligence Law' (June 2019)
<https://www.mvoplatform.nl/en/frequently-asked-questions-about-the-new-dutch-child-labour-due-diligence-law/> accessed 15 June 2020.
100
J Arvanitis, K Braine, 'Breaking Down the Dutch Child Labour Due Diligence Act' (July 2019)
<https://www.kroll.com/en/insights/publications/compliance-risk/dutch-child-labor-due-diligence-act> accessed 15 June 2020. 101 Ibid.
102 LOI n 2017-399 du relative au devoir de vigilance des societes meres et des entreprises donneuses d'ordre (March 2017). 103 European Coalition for Corporate Justice, French Corporate Duty of Vigilance Law, 'Frequently Asked Questions' (March 2017) <https://corporatejustice.org/documents/publications/french-corporate-duty-of-vigilance-law-faq.pdf> accessed 15 June 2020.
104 Ibid.
105 Vinci Qatar [2015]. 106 ILO C138, Article 2(4).
107 The Children's Act (1998) Act 560, Article 90. 108 Bangladesh Labour Act XLII (2006), Article 44(1).
as these provisions may sound, sometimes they reflect the real situation in the two states, but maybe sometimes the real working age is even lower than the one provided.
India has constitutional provisions regarding employment of children in factories or mines109 and forced labour110 and, interestingly, these rights can also be applied against corporations111. Correlating the Constitution with the Voluntary Guidelines on Corporate Social Responsibility112, the state has shown a remarkable step forward to acknowledge the relationship between corporations and the working children. Furthermore, India uses tort law as the strongest basis for corporate human rights liability, but, given that it is based on common law and thus not codified, victims of human rights abuses might want to address other states' systems113, if jurisdictional conditions are fulfilled.
Notwithstanding the progress made by these countries, their systems still lack fairness, effectiveness and availability to victims of child labour. The unwillingness or lack of expertise of the parties involved proves that such cases are scarce and victims prefer to bring their claims before foreign courts, which they consider more prepared and open towards hearing the on-the-rise cases against TNCs. These host states' laws have a rather vague and soft sanctions mechanism for corporations found to have violated children's rights and they lack provisions on education that children must follow even if they work.
Strategic litigation
Analysing child labour cases, it can be observed that, sometimes, strategic litigation represents an alternative to the traditional way of bringing claims. Lawsuits aim at raising awareness about broader children's rights violations and bringing positive change in the way certain laws are interpreted or
implemented, as well as convincing a court that a certain issue deserves attention114. Arguably, this is yet another manner to bring a problem into public attention and its advantage is that many groups could be involved, from individuals to national human rights institutions (NHRIs). In fact, the cooperation between strategic litigators and NHRIs can prove to be a smart move, especially if it involves transnational cases. Moreover, it could also be more time and resources efficient, so such a strategy of protecting and
promoting children's rights is welcomed. 3.2 Non-Judicial Remedies
Non-Judicial mechanisms are an alternative to the judicial ones, some which are less expensive, with a lower threshold of admissibility and possibly more efficient in terms of remedies by way of settling the
109 Constitution of India, Article 24. 110 Ibid, Article 23.
111 International Commission of Jurists, 'Access to Justice: Human Rights Abuses involving Corporations' (2011) 11. 112 Indian Ministry of Corporate Social Affairs, Corporate Social Responsibility Voluntary Guidelines (2009).
113International Commission of Jurists (n 111) 17 regarding the Bhopal case.
case between the parties. These mechanisms can either be the national action plans adopted by governments, complaints to NHRIs or even the OECD National Contact Points. The CRC General Comment No. 2 provides that independent human rights institutions play an important role in protecting and promoting children's rights at the national level115. The aim in establishing such institutions is to complement the national action plans promoted by governments, while strengthening children's rights protection through specialised institutions.
OECD National Contact Points (NCPs)
As mentioned in the previous chapter, the claims before the NCPs are on the rise, but not without criticism regarding their lack of explicit sanctions, lack of an enforcement mechanism and of a proper redress system for victims116. A claim before an NCP usually takes the form of mediation or 'meeting', in which each of the parties is heard separately, but common meetings are also possible117. The NCPs can conduct investigations into the facts of a case and the parties can send their comments, but compared to a case before a court, companies generally highlight its voluntary character and treat the NCPs decisions as such. Moreover, even if the NCPs find a human rights violation, it is difficult to establish a consequence for the company and even more difficult to enforce it. Nevertheless, it can issue recommendations that companies have to respect in order to shield themselves from further reputational or arguably legal damages and the NCP remains the main tool to dialogue at the national level with corporations, due to a lack of an international OECD enforcement mechanism.
3.3 The role of NGOs and corporations in making national laws function
In this light, this chapter demonstrates that the struggle to hold corporations liable for cases of child labour in their supply chains is complex and cannot be achieved without the involvement of NGOs and NHRIs. As analysed above, national laws have been adopted and courts can hear cases against
corporations, but it is predominantly the NGOs and the NHRIs who make the claims heard. Moreover, NHRIs work with governments on creating the most adequate framework of protecting children and they can also flag that more legal action has to be taken in connection to TNCs and OBEs activities. There are many local initiatives that conduct research on the field and afterwards publish their reports for public awareness, so corporations and governments cannot declare that they are unaware of the situation. Besides reporting, NGOs work closely with children from affected countries, with the prospect of improving their lives118.
115
CRC/GC/2002/2 (November 2002) para 1.
116 CORE Coalition and Amnesty International UK, Joint submission to the UN Working Group on Business and Human Rights <https://www.ohchr.org/Documents/Issues/Business/2018Survey/CORE_UK.pdf> accessed 15 June 2020. 117 See Global Witness vs. Afrimex [2007] and Germanwatch vs. Bayer [2004] on child labour allegations in the DRC and India.
118International Cocoa Initiative, Annual Report 2019, on working with Ghana and Cote d'Ivoire
Another major initiative regards the so-called child labour free zones119, which represents a designated area known for child labour, an area where the general belief is that children should be in schools, rather than working. As such, various stakeholders are involved into keeping children in schools, from teachers to parents and even employers, because they believe that poverty is actually accentuated by child labour and not as the general belief states that poverty causes child labour. What causes and what perpetuates child labour looks like a circle that encompasses various manifestations of the same problem. The child labour free zones do not distinguish between the various forms of child labour, but rather they aim at providing education for all the children that work, no matter the economic sector and no matter the country in which the work is performed. Therefore, the zones are especially established in African and Asian states, which are notorious for child labour cases120.
Corporate behaviour is also of extreme importance. Corporate conduct must be oriented towards an ethical practice and some companies have adopted their own grievance mechanisms as a form of non-judicial redress for victims121. A remaining grey area is the corporate veil that is so difficult to pierce and parent companies that set up subsidiaries in foreign states, without further surveillance, must be aware that a lack of due diligence in its supply chains attracts the very least its duty of care or its negligence122. Ultimately, it is not sufficient for corporations to display their goodwill on their websites as a mere PR strategy that is remote from what their factual activity entails123, but rather they must actively engage in fair practices to show they also care about children, not only about their profits.
3.4 Interim Conclusion
To close this chapter, the main takeaway is that more and more domestic laws have been adopted, while some states have legislative proposals of such laws124, but this merely represents a part of improving the corporate liability problem. The gaps that still remain represent real barriers for child labour victims, given that there is no uniformity amongst the various legal systems and therefore the prospect of remedy is uncertain. Another barrier regards the doctrine of 'corporate veil', namely that it is difficult to tell apart which of the company's bodies is liable, while it does not disclose any internal hierarchical information for victims to prove who conducted the abuse. At the same time, it is crucial to take account of the
119Stop Child Labour Organisation, Child Labour Free Zones <https://stopchildlabour.org/child-labour-free-zones/> accessed
22 July 2020.
120Ibid.
121 Adidas < https://www.adidas-group.com/media/filer_public/3a/a8/3aa87bcf-9af9-477b-a2a5-100530e46b19/adidas_group_complaint_process_october_2014.pdf> accessed 17 June 2020.
122 R Mares, Responsibility to Respect: Why the Core Company Should Act When Affiliates Infringe Human Rights? (Martinus Nijhoff Publishers 2012) 9.
123 Christian Aid (n 73) 10.
124
European Coalition for Corporate Justice, 'Mapping mHRDD progress in Europe: map and comparative analysis of mHRDD laws and legislative proposals' (May 2020) < https://www.business-humanrights.org/en/eccj-publishes-updated-map-comparative-analysis-of-mhrdd-laws-legislative-proposals-in-europe> accessed 22 July 2020.
