The Bangladesh Accord: Unfinished Business?

By: Daria Stanculescu, Junior Research Associate, PILPG-NL

On April 24, 2013, the Rana Plaza factory building, which housed five garment factories, collapsed.  More than 1,100 people died in the incident and many others were critically injured.  The International Labour Organization (ILO) has described the Rana Plaza collapse as one of the worst industrial accidents on record.  This incident highlighted the deficient conditions of the ready-made garment sector in Bangladesh.  

A few weeks after the incident, global brands, retailers, and trade unions adopted the Accord on Fire and Building Safety in Bangladesh (the Bangladesh Accord), the first modern legally binding agreement of its kind.  The Bangladesh Accord’s term was meant to end on June 1, 2021, when the Ready-Made-Garment (RMG) Sustainability Council (RSC) would replace it.  Instead, the Accord’s term was extended by three months as trade unions threatened to leave the RSC, which they considered to be less effective than the Bangladesh Accord.  This blog post will examine if the RSC is a suitable replacement for the Bangladesh Accord or whether a more adequate solution can result from the ongoing negotiations.

The Achievements of the Bangladesh Accord

The Bangladesh Accord, signed on May 13, 2013, rendered it mandatory for brands and retailers to ensure that workers in the garment industry carry out their work in safe conditions.  It includes obligations for companies to open their supplier factories to independent inspections, to allow the results of these inspections to be reported publicly, and to help pay for essential safety renovations.  The Bangladesh Accord also provides a complaint mechanism, through which workers can anonymously report potential violations at factories, as well as an enforcement mechanism for workers to bring legal action against signatories.  A Steering Committee with equal representation of trade unions and signatory companies governs the Bangladesh Accord and the ILO provides a neutral chair to the Steering Committee. 

Originally, the Bangladesh Accord’s term expired in 2018, but the parties extended it until 2021 through a Transition Accord to ensure that the collaboration between companies and unions would continue.  Since 2013, over 200 brands and retailers have signed the Bangladesh Accord.  As a result, inspections and monitoring have been carried out in 2,000 factories.  Also, over two million workers have gone through health and safety training.  This has significantly improved the working conditions in the garment industry and has increased the protection of workers in factories across Bangladesh.  

The RMG Sustainability Council 

The RSC, the envisaged successor of the Bangladesh Accord, is a national monitoring compliance system.  The Bangladesh Accord’s Steering Committee and the Bangladesh Garment Manufacturers Employers’ Association (BGMEA) created the RSC through a Memorandum of Understanding (MoU).  Its main goal is to continue the work of the Bangladesh Accord while maintaining the same transparency levels.  

The question that arises is whether the RSC is an effective successor of the Bangladesh Accord.  The MoU does not provide clarity on the institution’s decision-making and finance mechanisms.  The RSC also lacks the enforcement mechanism necessary to ensure that brands and retailers meet their obligations.  Furthermore, in the RSC, trade unions would hold only one-third of the governance seats, instead of half.  This would significantly limit the powers of trade unions and essentially create a system of self-monitoring by companies.  Most importantly, the RSC deal does not include binding commitments.  As such, this mechanism relies on brands and retailers voluntarily complying with their commitments.  These are significant changes compared to the Bangladesh Accord.  The RSC has abandoned the core elements of the Bangladesh Accord which made it efficient and enforceable.  In its current form, the RSC does not appear as effective as the Bangladesh Accord in ensuring the protection of workers’ rights.

Conclusion

The parties have temporarily extended the Bangladesh Accord, while trade unions and retailers come to an agreement.  It is uncertain what will happen next.  While trade unions insist on a binding agreement, brands argue for abandoning key elements of the Bangladesh Accord, such as independent monitoring.  It remains to be seen what the results of the negotiations will be and whether or not the parties will reach an agreement within three months.  An effective agreement will ensure the continued protection of workers in the garment industry.  Mechanisms such as the RSC, however, raise problems of enforcement and limit the powers of trade unions.  Therefore, they fail to consider the core elements that made the Bangladesh Accord effective.

The Responsibility of Royal Dutch Shell to Comply with Human Rights Obligations and Environmental Law Through the Unwritten Standard of Care

By: Jochem de Hoop, Junior Research Associate, PILPG-NL

On May 26, 2021, the District Court of The Hague ordered Royal Dutch Shell (RDS) to reduce the CO2 emissions of the Shell Group by a net 45% before 2030, compared to 2019 levels.  The court considered that the CO2 emissions of the Shell Group, its suppliers, and customers exceed those of many states.  This contributes to global warming, which causes climate change and creates serious risks to human rights, such as the right to life and the right to respect for private and family life.  While individuals and civil society organizations cannot directly invoke international and European human rights obligations against companies, they still should respect human rights and apply the relevant standards.  The court decided that the Shell Group has an obligation to comply with international human rights obligations, the UN Guiding Principles on Business and Human Rights (UNGP), and the goals of the 2015 Paris Agreement, in accordance with the unwritten standard of care under Dutch tort law.

This blog post focuses on the responsibility of the Royal Dutch Shell to ensure its policies comply with human rights obligations under international and European law and the interpretation of the unwritten standard of care under Dutch tort law. 

Background of the Case

In 2019, a group of seven NGOs, including Milieudefensie and Greenpeace, and 17,379 individuals filed a class-action lawsuit against RDS.  The claimants argued that RDS failed to reduce CO2 emissions by not investing more in renewable energy.  On this basis, they argued that RDS violated the unwritten standard of care laid down in Book 6 Section 162 of the Dutch Civil Code, which implies a duty of care for individuals and companies to act in accordance with generally accepted norms of social conduct, and the right to life and the right to family life under Articles 2 and 8 of the European Convention on Human Rights (ECHR).

As one of the world’s largest producers and suppliers of fossil fuels, RDS, which is the parent company of the Shell Group and is headquartered in the Netherlands, is responsible for a significant amount of CO2 emissions that exceed those of many states, including the Netherlands.  RDS endorses the climate goals of the Paris Agreement and expressed support for the European Green Deal, which contains the European Union’s climate policies, and expressed support for the National Climate Agreement, which is part of the Dutch climate policy.  However, Milieudefensie et al. argued that RDS instead increases investments in oil and gas and therefore fails to adhere to the climate targets in accordance with the Paris Agreement.

Responsibility of Corporations to Comply with Human Rights Obligations

In the decision, the court addressed the question of whether RDS has a legal obligation to reduce CO2 emissions in accordance with the goals of the Paris Agreement.  The court decided that it would interpret the unwritten standard of care under Dutch tort law based on the relevant facts and circumstances of the case, scientific reports on climate change, the international consensus that human rights offer protection against climate change and environmental harm, and that companies must respect human rights.

Based on the Urgenda judgment, a climate litigation case against the Dutch government, the court reiterated that Articles 2 and 8 ECHR offer protection against the impact of dangerous climate change as a result of CO2 emissions.  Similarly, the UN Human Rights Committee determined that Articles 6 and 17 of the International Covenant on Civil and Political Rights (ICCPR) offer protection against environmental harm, climate change, and unsustainable development.  The court considered that the impact of dangerous climate change includes health risks and deaths due to heat waves, deterioration of air quality, increase of UV exposure and water-related problems due to rising sea levels.  These serious and irreversible consequences of dangerous climate change pose a threat to the human rights of current and future generations of Dutch residents and inhabitants of the Wadden region, an archipelago along the Northwestern coast of the Netherlands, Germany, and Denmark.  

In addition, the court followed the UNGP, which is an authoritative and internationally recognized non-binding instrument that outlines the responsibilities of states and businesses in relation to human rights.  Interestingly, the court considered that even though the UNGP does not create new rights or legally binding obligations, it can provide a guideline for the interpretation of the unwritten standard of care.  In accordance with the UNGP, the court decided that companies have a duty to respect human rights.  This duty requires companies to avoid causing or contributing to negative human rights impacts through their own activities.  Moreover, it requires companies to prevent or mitigate negative human rights impacts that result from their operations, products or services.  Even though the court acknowledged that RDS is not the only actor responsible for mitigating the impact of dangerous climate change, it concluded that RDS has an individual responsibility to respect human rights, which also extends to its suppliers and customers.  This means that RDS has to ensure through its corporate policy that its own activities result in a reduction of CO2 emissions.  Moreover, it has a “significant best-efforts obligation” with respect to its suppliers and customers, which means that RDS should try to mitigate or prevent the serious human rights risks resulting from the CO2 emissions generated by its suppliers and customers as much as possible.

Implications for Future Climate Litigation Cases

The decision by the Dutch district court has unprecedented implications for future climate litigation cases against big oil companies.  It is the first time that a court decided that a company has a legal obligation to reduce CO2 emissions in accordance with the goals of the Paris Agreement.  Furthermore, it is the first time that a court applied international human rights standards and soft law instruments to impose a legally binding obligation for a company to reduce CO2 emissions.  While the decision does not have direct consequences for climate litigation cases abroad, other domestic courts could replicate the arguments in relation to the application of international human rights standards and international environmental law.  Considering that the concept of a standard of care exists in other legal systems in Europe and other parts of the world, these courts could similarly apply international human rights standards and soft law instruments to companies.  For instance, French NGOs and local authorities have filed a lawsuit against Total for violating the duty of vigilance under French law, which stipulates that large companies have to take appropriate measures to prevent any human rights violations or environmental damage resulting from their activities.

Concluding Remarks
While there have been previous lawsuits against states for violations of human rights obligations and environmental law in relation to climate change, the Milieudefensie et al. v. RDS decision is the first case in which a court decided that a multinational company has the responsibility to reduce CO2 emissions in accordance with international human rights obligations and environmental law. The application of international human rights standards and soft law instruments in interpreting the unwritten standard of care provides an interesting approach to hold companies responsible using international law. While this could set a legal precedent for future climate litigation cases, it is important to note that RDS has announced that it will appeal the decision in the Dutch Court of Appeal. So it remains to be seen whether this decision will have a lasting effect on global climate litigation.

Nigeria’s Twitter Ban and its Human Rights Implications

By: Katherine Grzadkowska, Junior Research Associate, PILPG-NL

Since June 4, 2021, President Muhammadu Buhari has suspended the use of Twitter in Nigeria.  Buhari's move follows Twitter's removal of his tweet in which the president suggested that secessionists in the South of the country would be met with violence.  The social media platform swiftly removed the president’s post as it violated Twitter’s policy against expressing “a desire for death [or] serious bodily harm” against a group of people.  Buhari’s government insists that the Twitter ban is necessary, claiming that the social media platform is a threat to “Nigeria’s corporate existence” through the spread of “fake news.”  Users who circumvent the ban face prosecution and imprisonment.  The ban has sparked criticism worldwide from human rights organizations and the African Commission on Human and Peoples’ Rights as an infringement of Nigerians’ fundamental freedoms of expression, association, and access to information. 

This blog post will examine Nigeria’s Twitter ban through the lens of applicable international and regional human rights instruments.  It assesses whether Nigeria’s Twitter ban poses a severe infringement on Nigerians’ fundamental freedoms and socio-economic human rights. 

Freedom of Speech, Opinion, and the Right to Receive Information

Many international/regional treaties and national constitutions articulate the fundamental freedoms of speech, opinion, and the right to share information.  Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone has the right to “hold opinions without interference” as well as “the right to freedom of expression.”   This includes the right “to seek, receive and impart information and ideas of all kinds” in any form and through any media of the speaker’s or author’s choice.  Article 9 of the African Charter on Human and Peoples’ Rights (African Charter) echoes the ICCPR and also enshrines the right to receive information and express and disseminate opinions.  Domestically, Section 39 of the Nigerian Constitution provides for freedom of expression, opinion, and the right to “receive and impart ideas and information without interference.”

The Human Rights Committee (HRC) has said that freedom of opinion and expression is “the foundation stone for every free and democratic society” and integral for the enjoyment of other human rights.  As such, restrictions on free speech have to be narrow and limited to matters that threaten “the rights or reputations of others” or national interests such as security, public order, health, or morals. 

The Role of Social Media as a Human Rights Facilitator

All of the above-mentioned human rights instruments were enacted before the internet and Twitter existed.  Yet, today’s massive social media platforms have become a common means of sharing ideas, communication, and expression throughout the world.  All of these activities can be viewed as users exercising their fundamental freedoms of speech, opinion, and association, as well as their right to access information.  When social media platforms “are intentionally disconnected or disrupted through deliberate government intervention,” users’ human rights may be endangered.  The HRC has established that “internet-based modes of expression” are captured under Article 19 ICCPR and states have to refrain from banning access to social media platforms in a sweeping and indiscriminate manner.  The Declaration on Principles of Freedom of Expression and Access to Information in Africa also restricts states from interfering or disrupting public access to “digital technologies” like social media platforms, “through measures such as the removal, blocking or filtering of content, unless such interference is justifiable and compatible with international human rights law and standards.” 

The Importance of Twitter in Nigeria 

Twitter is an essential source of information, advocacy, and, at times, even livelihood for an estimated 40 million users in Nigeria.  Many Nigerians rely on Twitter to find jobs and promote their work, especially in the state’s growing tech sector.  As such, the Twitter ban also threatens Nigerian users’ socio-economic right to work as articulated under Article 6 of the International Covenant on Economic, Social and Cultural Rights and Article 15 of the African Charter.  Moreover, Twitter is a favored medium of political discussion and activism in Nigerian as recently exemplified in the #EndSARS protests of October 2020 whereby Twitter served as an essential tool for communication and a trusted source for “real-time updates and unfiltered information.”  Moreover, according to the African Commission on Human and Peoples’ Rights, social media, such as Twitter, serves as an integral informational forum in the context of the Covid-19 pandemic, allowing users to access and share crucial information and news on the virus. 

Conclusion 

Social media platforms have become widely used fora for individuals to connect, communicate, and share ideas worldwide.  These platforms also allow users to socialize, make a living, and disseminate ideas that foster important political debate.  Measures and bans, such as the one imposed in Nigeria, can have a significant impact on users' human rights and fundamental freedoms, especially in developing states and in the context of a global pandemic.  Currently, the Nigerian government is in negotiations with Twitter that may restore both access to the social media platform and the country’s obligations under international human rights law.

What the Closure of the Special Tribunal for Lebanon Would Mean for its Cases

By: Henry Smith, Junior Research Associate at PILPG-NL

At the start of June, the Special Tribunal for Lebanon (STL) released a public statement announcing that it faced an unprecedented financial crisis due to the COVID-19 pandemic and the economic crisis in Lebanon, and would not be able to operate beyond July.  As a result of the lack of funds, the Tribunal, which had already reduced its budget by 37 percent for 2021 in relation to previous years, is facing imminent closure.  This blog will look at the possible consequences that the termination of the STL would have for its cases.

The financial crisis 

Upon the establishment of the Tribunal, the United Nations (UN) Security Council determined that Lebanon would bear 49 percent of the STL’s costs, and the remaining 51 percent would be borne by voluntary contributions of third-party states.  The Management Committee, composed of the ten largest contributors, would oversee and approve the annual budgets.  Until now, 29 states have contributed in total with over a billion dollars.

Since late 2019, Lebanon has been facing a serious economic and financial crisis, which has been exacerbated by the COVID-19 pandemic and the explosion at the Port of Beirut in August 2020.  As a consequence, it has been unable to provide its share of funds to the STL.

In 2021, the STL cut its budget by 35 percent in comparison to previous years, made significant cuts in staff, and received a subvention from the UN, which covered 75 percent of the Lebanese contribution.  However, the STL still fell short of the necessary funds due to the lack of contributions from third-party states.  Even members of the Management Committee failed to provide support, and commentators have suggested that this was due to the states’ frustration with the STL’s lack of effective results, having convicted a single suspect, who is still at large.

The cases

The UN established the STL in March 2009, at the request of Lebanon, to prosecute, under Lebanese criminal law, those responsible for the attack of February 14, 2005, that killed 22 people, including the Lebanese Prime Minister Rafik Hariri, and injured 226 more.  The STL charged four suspects, Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi, and Assad Hassan Sabra, who were tried in absentia in the Ayyash et al. case.  In 2020, the Tribunal issued its judgment on the case, acquitting three of the accused, but finding Mr. Ayyash guilty of all charges.  The Tribunal sentenced him to life imprisonment and issued an arrest warrant.  However, Mr. Ayyash has still not been arrested, and the case is currently being appealed by the respondent and the Prosecutor.  The Tribunal also has jurisdiction over other attacks that occurred in connection to the one that killed Hariri, and it had scheduled the beginning of the trial of its second case, the Ayyash Case, on July 16.

What the closure would mean for the cases

On June 1, the Registrar of the STL, Mr. David Tolbert, issued a notice to the Tribunal’s organs, informing them of the imminent exhaustion of funds, and of the activation of the plan to wind down its activities.  This would include the suspension of all cases, the initiation of procedures for the protection of witnesses, and a process to secure records, evidence, and sensitive material.  The following day, the Trial Chamber that was about to initiate the trial of the Ayyash Case announced the trial’s cancellation.

In previous closures of international adjudicative organs, such as International Criminal Tribunals for Rwanda (ICTR) and Yugoslavia (ICTY), the UN set up the International Residual Mechanisms for Criminal Tribunals (IRMCT).  The IRMCT continued to hear appeals, track and prosecute remaining fugitives, and conduct retrials and reviews. 

The problem for the STL is that such mechanisms also demand funding.  Mr. Tolbert has said that he is drawing up plans along with the UN Secretary-General, but that these plans would not involve the same type of residual mechanism as the IRMCT, mainly due to the lack of financial resources.  Alternatively, perhaps the STL's cases could be mandated to the IRMCT.  However, the UN Security Council would have to restructure the Mechanism’s framework, currently divided into two branches, one for the ICTR and another for the ICTY.  The UNSC would also need to redistribute funds, which could be disruptive for the IRMCT. 

Another possibility would be to suspend the cases indefinitely in the hopes that they would be reopened in the future.  Although this is technically possible, experts believe it is unrealistic.  Therefore it is still quite hard to conclude exactly what will happen with the STL’s cases if the Tribunal effectively closes its doors.

Concluding remarks

While the STL makes plans to enter into a state of “dormancy,” determining what to do with its cases, and how to protect witnesses and archives, it is still seeking the funds it needs to conclude its pending cases.  If it fails to do so before the end of July, it will be forced to shut down.  It is still uncertain to conclude what will happen with its cases, but it is improbable that a residual mechanism like the one set up for the ICTR and ICTY will be established, due to the lack of financial resources. 

The Human Rights of Stranded Seafarers in the Covid-19 Era

By: Adam DiSimine, Junior Research Associate, PILPG-NL

In April 2021, Mohammed Aisha flew home to Syria after spending nearly four years aboard the MV Aman, a cargo ship stranded off the Egyptian coast.  An Egyptian court had previously designated him as the ship’s chief officer and was legally required to remain onboard long after his crewmates had left.  While stranded seafarers have long been an issue in the global shipping industry, the Covid-19 pandemic has exacerbated the problem.  As a result, the United Nations Global Compact (UNGC), the Office of the High Commissioner for Human Rights (OHCHR), the International Labour Organization (ILO), and the International Maritime Organization (IMO) jointly launched the Human Rights Due Diligence Tool (HRDDT) in May 2021.  This tool provides businesses with guidance on how to minimize violations resulting from the crew being stranded at sea.  This article will look at the human rights issues facing stranded seafarers, the measures set forth in the Human Rights Due Diligence Tool, and the challenges that remain in providing fulsome protection.

Stranded Seafarers

Stranded seafarers are persons who work onboard ships and who are prevented from leaving their ship for a variety of reasons, including an inability to carry out regularly scheduled crew changes, travel bans, and issues with government approvals or authorizations.  In the case of the MV Aman, Egyptian authorities had detained the ship due to expired safety authorizations.  Once Egyptian authorities had designated Mr. Aisha as the ship’s chief officer, domestic law required he remains on the ship until it was sold or a replacement could be found.  There are currently 200,000 stranded seafarers around the globe, with concerns that this number could rise to 400,000.  This phenomenon implicates several human rights under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, including rights to physical and mental health, the right of freedom of movement, and the right to family life.  In addition, many seafarers are forced to work beyond the maximum allowed 11-month period of service on board a ship, raising concerns about forced labor.  The Covid-19 pandemic, which has complicated international travel and reduced opportunities to relieve seafarers from their duties, has worsened the circumstances that lead to these violations .

Human Rights Due Diligence Tool

The HRDDT is directed at private businesses and fits within existing frameworks providing for the protection of the rights of seafarers.  These include the ILO Maritime Labour Convention (2006) and the United Nations Guiding Principles on Business and Human Rights (UNGPs).  The purpose of the HRDDT is to provide a set of measures and mechanisms to help companies in the maritime sector uphold their human rights responsibilities related to crew changes during the Covid-19 pandemic.  The checklist includes a number of measures intended to increase the protection of seafarers, including, but not limited to, (i) a reaffirmation of the 11-month maximum period of service, (ii) respect for the rights of seafarer repatriation, (iii) access to medical care onshore, (iv) flexibility vis-à-vis route changes to facilitate crew changes, and (v) the removal of “no crew change” clauses from agreements.  In addition, the HRDDT refreshes the call for broader human rights due diligence process within the maritime transport industry.  It is intended to complement the UNGPs which provide for robust guidelines urging private businesses to respect human rights.  Together, these documents call on cargo owners, charterers, and logistic providers to mitigate human rights violations within their supply chain through rigorous human rights due diligence process.  Each of these documents is intended to provide businesses with concrete steps to reduce the number of stranded seafarers.

Remaining Challenges

Ultimately, the struggles of stranded seafarers are a symptom of a larger challenge facing international human rights law.  Instruments like the UNGPs and HRDDT are not binding but instead are helpful guidelines intended to promote good practices.  These soft-law instruments only provide guidance to business enterprises and encourage socially responsible corporate behavior.  As a result, challenges persist in changing the practices of shipping companies and in holding those who violate human rights in the context of business activities accountable.  Companies are often the primary perpetrators of human rights violations, especially those related to labor rights.  This accountability gap leaves employees, including stranded seafarers, vulnerable to exploitation and without legal recourse.  ILO Director-General Guy Ryder noted states also have a significant role to play in ensuring the protection of the human rights of seafarers.  These types of scenarios may reignite discussions for a binding international treaty directed at the protection of human rights in the context of business activities.  Until then, the HRDDT will provide valuable guidance to governments to help benchmark business activities.       

Conclusion

Stranded seafarers have become an increasingly common phenomenon during Covid-19 and will remain a human rights problem well after the pandemic is over.  The HRDDT developed by the UNGC, the OHCHR, the ILO, and IMO provides valuable reaffirmations and guidance on best practices to ensure the protection of the human rights of seafarers during this difficult time.  While larger systemic challenges remain at the intersection of business and human rights, this is a welcome tool for increasing compliance and addressing this truly global problem.