Environmental offences: finally making the polluter pay?

This update focuses on developments in sentencing for environmental crimes. The imposition of appropriate penalties is crucial, not only to the use of judicial mechanisms for securing access to environmental justice, but also to respect for the polluter pays principle, a keystone of environmental law. There has been long-standing criticism in the UK of the failure of the courts to treat environmental crimes sufficiently seriously when imposing sentences. Fisher et al observed that insufficiently severe sentences, including low levels of fines, undermine the effectiveness of criminal prosecutions, reinforce an attitude of moral ambiguity towards environmental crime and do not produce a deterrent effect. The issues relate to sentencing for both individuals and businesses, though the latter has arguably been the most problematic. Two important facets of this problem have both been addressed this year, through developments in sentencing guidance and in decisions of the Court of Appeal

Judicial review procedures and access to environmental justice.

A number of separate but related threads have, over the past year, drawn attention to questions about accountability, transparency and accessibility of environmental law in the UK. This country report on the UK provides a summary of some of these issues focusing on: changes to judicial review procedures, complaints about the failure of the UK government to fulfil its obligations under the Aarhus Convention and, more generally, some of the assessments being carried out on the state and future of UK environmental law

Evaluating biosecurity law and regulation in developing countries: case studies from Belize

Biosecurity is the term used to refer to the management of risks to human, animal and plant health and safety from cross-border movement of living organisms and goods. The implementation of national legal and regulatory frameworks for Biosecurity will be affected by the various international agreements and standards to which a state is a member. In particular, agreements introduced by the World Trade Organisation (WTO) impose certain restrictions on measures that member countries can adopt for Biosecurity. Furthermore, uncertainties arise from contradictions and conflicts between important Multilateral Environmental Agreements and WTO requirements and these create difficulties for developing countries in particular. The research reported in this thesis focused primarily on the implementation of national Biosecurity frameworks in this context. This was an important departure from much of the literature, in which existing work as well as the identified need for research has focused on apparent conflicts at the international level. The present research sought not to pursue strict hypotheses but to identify the actual challenges and limitations, as well as successes, of Biosecurity frameworks in Belize. The methodology adopted to achieve this was grounded theory. Key characteristics of this were a departure from the traditional legal-centralist approach and the investigation issues at the ground level, through consultation with a broad range of stakeholders. The adaptation of qualitative data analysis procedures, and the application of these using specialist software, was a further important development, allowing for improved evaluation of the interview data. The investigation of Belize's pesticides control and agricultural health frameworks provided substantial empirical data highlighting not only the difficulties concerning implementation of international agreements but also to a range of other important issues. Whereas the burden associated with international agreements was clearly a restraint, the apparent conflicts and tensions between trade and environment agreements, which have been the focus of so much literature, were not seen to be significant. The extent to which the regulatory authority interacts with the regulated community was, however, seen to be an important influence on the success of both frameworks, affecting levels of stakeholder awareness and support for regulation. Enforcement is also important. Although sanction-based enforcement might not commonly be necessary there is a need for a clear distinction between enforcement and other (assistance-based) activities. Other bodies ('third parties') including regulatory agencies, private sector bodies and regional institutions play an important role, either official or de facto, in these frameworks. Governance was also an issue for the regulatory authorities. The implications of these findings for future research are discussed

Promoting responsible electronics supply chains through public procurement

• The electronics industry supply chain is particularly complex, with many companies involved in the manufacturing process and most of them far removed from the end user. Events involving well known electronics brands have highlighted the exploitative and unsafe conditions under which many workers in the supply chain operate. • Public procurement contracts worldwide are estimated to be worth one-thousand-billion euros annually and account for 16 per cent of GDP in the European Union. Because of their considerable buying power, public authorities, through their public procurement contracts, hold the potential for significant leverage in social and sustainability issues. • Within the European Union, public procurement contracts are subject to EU rules which aim to ensure non-discrimination and transparency in the procurement process. These rules also determine the extent to which social considerations are permitted within the procurement process. • The best opportunity to introduce social considerations is within the contract performance stage of the process, which allows the buyer to specify the conditions to be performed once the contract has been granted. • Developing contract performance conditions which apply throughout the supply chain is challenging for several reasons. Two approaches to using such conditions are available: the use of cascading contract conditions and a contractor-led due diligence approach. • The due diligence approach is suggested as a preferable option since it is less onerous in overall terms, is a responsive model and therefore may be better suited to addressing supply chain problems. It is also more practicable from a contractual perspective. • The necessary features of an effective contract performance condition include requirements for the disclosure of factory locations, determination of labour conditions and standards to be required, provision for access to factories and monitoring and for remediation and the imposition of penalties

Human rights in global supply chains: Corporate social responsibility and public procurement in the European Union

The global supply chains of multinational enterprises are complex and multi-tiered, often involving many stages of production and spanning several jurisdictions. Important questions remain about how to ensure that human rights are respected in these supply chains, including how multinational enterprises are to exercise the responsibility to respect human rights in their supply chains and the role that can be played by states in protecting human rights outside of their borders. This article focuses specifically on the potential for states to use public procurement as a tool to promote human rights protection beyond their borders by purchasing goods from companies that ensure that human rights are respected throughout the whole supply chain of the procured product. The article considers the responsibilities of states and business enterprises with respect to global supply chains, including the recognised relevance of public procurement in the United Nations Guiding Principles on Business and Human Rights as part of the ‘state-business nexus’. The remaining sections analyse how the historical role of public procurement in pursuing social aims has developed to encompass matters of corporate social responsibility (CSR) and of human rights specifically; the development of the EU’s CSR strategy and the approach of the EU to linking this with developments in the EU procurement regime; and, finally, the extent to which the recently revised EU procurement regime supports the use of procurement as a tool to promote human rights in global supply chains

Monitoring Human Rights in Global Supply Chains. Insights and policy recommendations for Civil Society, Global Brands and Academics

Global production systems are organised across contractually and geographically distributed supply chains. As a consequence of this model there exists a ‘governance gap’ in global supply chains which results in limited regulatory and contractual oversight of human rights and labour standards in the factories in the lower tiers of production. Despite a surge in instruments and initiatives designed to address supply chain failures the problems persist. Supply chain monitoring provides the means by which a failure to meet agreed or desired standards or processes can be identified and appropriate action taken. Traditional monitoring models include in-house monitoring of codes of conduct undertaken by corporate brands, third party auditing and multi-stakeholder initiatives. Numerous problems with traditional monitoring models have been discussed by academics and civil society including inherent conflicts of interest, the partial, ‘snap-shot’ nature of auditing processes, the structural problems inherent in distributed supply chains which place downward pressure on factories who are producing goods and components for global brands, the lack of appropriate monitoring methodologies to protect workers from repercussions if they speak out about poor conditions and the lack of effective mechanisms through which workers can raise grievances and seek remedies. Our interviews with a small sample of representatives from labour rights and monitoring organisations build upon existing work on the limitations of supply chain monitoring and give indications of ways forward for the development of more effective monitoring models

Buying power and human rights in the supply chain: legal options for socially responsible public procurement of electronic goods

Several scandals involving well-known electronics brands have highlighted the exploitative and unsafe conditions under which many workers operate in the industry’s long and complex supply chains. As large-scale consumers of electronic goods, public buyers potentially hold significant leverage over the behaviour of their suppliers through their buying power. Consequently, public procurement has the potential to be a significant influence on these supply chains and ultimately the human rights of those working in them. This article critically assesses legal options for the promotion of social considerations in the supply chain, considering in particular the potential of the European Union legal regime for public procurement as a tool for improving working conditions and human rights in the electronics industry supply chain

Monitoring Human Rights in Global Supply Chains. Insights and policy recommendations for Civil Society, Global Brands and Academics

Global production systems are organised across contractually and geographically distributed supply chains. As a consequence of this model there exists a ‘governance gap’ in global supply chains which results in limited regulatory and contractual oversight of human rights and labour standards in the factories in the lower tiers of production. Despite a surge in instruments and initiatives designed to address supply chain failures the problems persist. Supply chain monitoring provides the means by which a failure to meet agreed or desired standards or processes can be identified and appropriate action taken. Traditional monitoring models include in-house monitoring of codes of conduct undertaken by corporate brands, third party auditing and multi-stakeholder initiatives. Numerous problems with traditional monitoring models have been discussed by academics and civil society including inherent conflicts of interest, the partial, ‘snap-shot’ nature of auditing processes, the structural problems inherent in distributed supply chains which place downward pressure on factories who are producing goods and components for global brands, the lack of appropriate monitoring methodologies to protect workers from repercussions if they speak out about poor conditions and the lack of effective mechanisms through which workers can raise grievances and seek remedies. Our interviews with a small sample of representatives from labour rights and monitoring organisations build upon existing work on the limitations of supply chain monitoring and give indications of ways forward for the development of more effective monitoring models

Time for a Reboot: Monitoring in China's Electronics Industry

Two decades ago, exposés of child labor, forced labor, and other worker rights violations in subcontracted systems of production gave rise to global corporations recognizing the need to commit to corporate social responsibility (CSR) principles, which in turn led to extensive programs and policies and supply chain monitoring programs. Many brands have since recognized the shortcomings of these CSR initiatives, which have been mostly voluntary, confidential schemes developed by corporations themselves or by multi-stakeholder initiatives lacking meaningful involvement from the workers whom the initiatives purport to serve. In response to the widely documented failures of this billion dollar CSR industry to protect workers’ rights, workers and their organizations have been exploring new models for engaging global brands to negotiate enforceable agreements and advance worker-driven social responsibility ones that are not confidential, self-regulating, or management-driven. Our vision for more effective corporate accountability is one that ensures a meaningful role for the impacted workers in both the implementation and oversight of the initiative