Bilchitz, David

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David Bilchitz Mi 18 Jul 2018 Mi 18 Jul 2018Germany’s Moral Responsibility to Support a Treaty onBusiness and Human Rightsverfassungsblog.de/germanys-moral-responsibility-to-support-a-treaty-on-business-and-human-rights/As a Jewish academic currently writing a book in Berlin, I am moved by the significantefforts in evidence across the city to remember the victims of the Holocaust. From thesobering stolpersteine  to the powerful formal memorial sites, the terrible results of denyingthe worth and value of Jewish, Roma and gay individuals (amongst others) are clearly inevidence.Yet, memory of past violations cannot be enough: it must spur us to prevent futureviolations of human rights. In one significant respect, Germany is currently falling short:business interests have clouded the current government’s moral compass in driving it tooppose one of the most important developments for the protection of human rights in theC21: the development of a business and human rights treaty.Let us begin with the use of forced labour – and complicity in many other major crimes – ofGerman businesses during the second World War. In a visit to certain major Germanbusinesses, it was intriguing for me to see how the 1930s and 1940s were often omittedfrom the histories they showed the public. Perhaps it is time for a greater reckoning of their1/5role – as, business leaders may then find it more awkward to oppose progress in protectinghuman rights.To have a sense of what we are talking about, I would like to return to the use of slavelabour by the armaments manufacturer Krupp during the second World War. Jews, andother ‘undesirables’ were forced to work as slaves for Krupp: one woman described herexperience as follows:‘[i]t was impossible to do all that was demanded of us. I worked in a galvanizing section,dripping hot irons into cold water. The sparks flew into my eyes and burned my hands. It wasterrible. . . . I can hardly believe that I’m still alive today. . . . The German civilian foreman ofthe Krupp Company kept rushing us and we were all so terrified that if we stopped or sloweddown we would be put in [a] crematorium that we worked to the last ounce of our strength.’A doctor who saw conditions in the factories described them as follows:‘Conditions . . . were greatly overcrowded. . . . The diet was extremely inadequate. . . . Onlybad meat, such as horse meat or meat that had been rejected by veterinarians as infected withtuberculosis germs, was passed out in these camps. Clothing, too, was altogether inadequate.Foreigners from the east worked and slept in the same clothing in which they arrived.Normally all of them had to use their blankets as coats in cold and wet weather. Many had towalk to work barefoot, even in winter.’A few German business leaders were tried for these crimes at Nuremberg including Krupp– though, in a political decision, he was released only three years after being convicted andhis fortune restored to him. The process of denazification focused on the state rather thanthe private sector. What should have happened  properly to address this past, was toschool a new generation of German business leaders with the fundamental commitmentnever to put profits before people. Instead, we have the sad reality that many in Germanindustry fail to recognise their historic moral responsibility and instead actively lobby toensure the government opposes a treaty initiative that is meant to protect the fundamentalrights of individuals against unscrupulous businesses.Some readers may wonder what am I speaking about: after all, surely there are no suchserious violations in Germany? Even if this is so, the nature of business today is global – asthe recent trade disputes with the United States indicate, the markets for German goodsextend way beyond its borders. And, so too, goods today are produced in complex chainsthat cross borders.  That leads to the potential for violations of human rights by businesssin countries who are unable or unwilling to impose adequate regulations. Consider, forinstance, the description of what took place in Myanmar during the 1990s in theconstruction of a major oil pipeline that was a joint venture between the multinationals Totaland Unocal.  Raj (based on court documents) describes how,2/5                  ‘[i]n 1990, the tatmadaw (armed forces of Myanmar) began to force the civilianpopulation to provide the preliminary preparation for the pipeline’s construction, and markedcivilians to provide the labor for the project. Thousands of villagers were forced to cut downtrees, dig out stumps, and build barracks and helipads, or risk fatal consequences. Thosevillagers who refused, attempted to escape, or could not physically manage to sustain thebrutal conditions, were subject to beatings, rape, torture, and extra-judicial killings. Even morealarming has been the detailed documentation by several NGOs that entire villages have beenrazed and/or its inhabitants forcibly relocated in order to make way for construction along thethirty-nine mile stretch of the pipeline.’This quote is just one instance of how thousands of people have had their lives destroyedby the activities of multi-national corporations. A major gas leak in Bhopal, India (1985) andoil spills in Oganiland, Nigeria (ongoing over decades) have killed, maimed and causedlasting environmental damage. Garment workers desperate for an income were forced towork in an unsafe building in Bangladesh by employers and, eventually, 1130 of them diedwhen the building collapsed (2013). These are just some of the well-known examples ofrights violations on the part of corporations. Yet, people affected by these severe harmshave, generally, struggled to hold the perpetrators to account and receive damages toameliorate their suffering. The existing soft instruments at the global level – such as theUnited Nations Guiding Principles on Business and Human rights – lack the necessarylegal weight to offer a clear solution, given they do not have binding force nor do theyrequire compliance.That is why the leading human rights NGOs around the world (in a massive conglomerationcalled the Treaty Alliance), together with many luminary academics are calling for a treatybetween states on business and human rights that would seek to prevent human rightsviolations by businesses from occurring and ensure they do not go unpunished (or at leastuncompensated). Such a treaty is necessary given the need to address a number ofproblems in international law that have prevented victims of human rights violations frombeing able to gain remedies against errant corporations.The first of these is that international law has traditionally been built on the idea that eachstate is sovereign within its own domain and required to hold responsible those who commitwrongs within its jurisdiction. However, such an understanding is less well equipped toaddress wrong-doers who cross borders: where, for instance, an environmentallydestructive strategy is planned in one country and executed in another. Suing a corporationin the country where a wrong is committed may thus fail to affect the real centre of power orwealth.This problem is compounded by a second difficulty in that, in law, each corporation isregarded as a separate legal person. As such, a multi-national corporation is in fact anetwork of different entities all formed in terms of the laws of different countries. When acorporation in one country commits a wrong, the related corporations in other countries candisavow responsibility for its actions as they are distinct ‘persons’.The possibility of justice for victims of human rights violations diminishes even further whenwe consider that multi-national corporations often commit violations in countries with weaklegal systems,  where the independence of the judiciary is in doubt or where corporations3/5have significant bargaining power. The likelihood of successful prosecutions or claims forcompensation is very limited in these jurisdictions.A treaty would seek to address these problems.  First, it could require all states to adoptlaws permitting them to hold corporations that have an office there to account for violationsof fundamental rights they commit beyond their borders. Such an approach would helpaddress the difficulty that no-one state alone wishes to be seen as the sole enforcer ofhuman rights norms, and so become unattractive to businesses. It also stops corporationsfrom exploiting weaknesses in legal systems of states in which violations take place tocreate a situation of impunity.Secondly, the treaty could place binding legal obligations on corporations to address theirimpact on human rights across their operations, including when they are structured throughsubsidiaries and long supply chains. Thirdly, the treaty could also address technicalquestions surrounding in which jurisdictions such cases can be brought, how evidence canbe gathered, and how remedies enforced.  Finally, it can also develop internationalstructures to set reasonable minimum standards that businesses must adopt in relation tohuman rights that can be applied across the world.Why then would anyone want to oppose such a treaty, particularly,  a country that pridesitself on respect for rights? Sadly, in Germany, a lot of opposition comes from businesseswho are concerned perhaps about the increased costs to ensure they are not in breachthereof. If the treaty is adopted widely, however, any such costs will have to be borne bycompetitors too. The treaty is also not anti-business but simply would require observanceof human rights across the operations of  a businesses. Indeed, business should notautomatically been seen as against rights and it has many opportunities and responsibilitiesactively to contribute towards the realisation of rights in our society.Another equally unacceptable source of opposition comes from rigid lawyers schooled inthe idea that international human rights only apply to the activities of states. In a worldwhere significant sources of power exist beyond states  – including corporations andgroups such as ISIS – this view leaves victims of human rights abuses often at the mercy ofunscrupulous non-state actors. Lawyers need to learn from the mistakes of Nazi Germanytoo: rigid law is not to be respected for its own sake – ultimately, legal rules are there toenhance the dignity of individuals and must adapt to the challenges posed by presentpower constellations.In light of its history, Germany has a deep moral responsibility to stand up and lead theworld in ensuring respect for the dignity and fundamental rights of individuals particularlywhere business is concerned.  In a few months, the first draft of a treaty on business andhuman rights will be debated in Geneva. This offers a major opportunity for the governmentand business to change course and exercise leadership in meeting its historic andcontemporary obligations to ensure a more humane world.Prof Bilchitz will argue the case for a business and human rights treaty followed by a paneldiscussion on 19 July at 17h00 at Humboldt University, Berlin. This will be followed by aone-day conference on the topic on 20 July by leading German academics.4/5LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Bilchitz, David: Germany’s Moral Responsibility to Support aTreaty  on Business and Human Rights, VerfBlog, 2018/7/18,https://verfassungsblog.de/germanys-moral-responsibility-to-support-a-treaty-on-business-and-human-rights/.5/5

Germany’s Moral Responsibility to Support a Treaty  on Business and Human Rights

Germany’s Moral Responsibility toSupport a Treaty on Business andHuman Rightsajv2016 2018-07-18T10:00:31As a Jewish academic currently writing a book in Berlin, I am moved by the significantefforts in evidence across the city to remember the victims of the Holocaust. Fromthe sobering stolpersteine to the powerful formal memorial sites, the terrible results ofdenying the worth and value of Jewish, Roma and gay individuals (amongst others)are clearly in evidence. Yet, memory of past violations cannot be enough: it must spurus to prevent future violations of human rights. In one significant respect, Germanyis currently falling short: business interests have clouded the current government’smoral compass in driving it to oppose one of the most important developments forthe protection of human rights in the C21: the development of a business and humanrights treaty.Let us begin with the use of forced labour – and complicity in many other major crimes –of German businesses during the second World War. In a visit to certain major Germanbusinesses, it was intriguing for me to see how the 1930s and 1940s were often omittedfrom the histories they showed the public. Perhaps it is time for a greater reckoning oftheir role – as, business leaders may then find it more awkward to oppose progressin protecting human rights.To have a sense of what we are talking about, I would like to return to the use of slavelabour by the armaments manufacturer Krupp during the second World War. Jews, andother ‘undesirables’ were forced to work as slaves for Krupp: one woman describedher experience as follows:               ‘[i]t was impossible to do all that was demanded of us. I worked in a galvanizingsection, dripping hot irons into cold water. The sparks flew into my eyes and burned myhands. It was terrible. . . . I can hardly believe that I’m still alive today. . .. The Germancivilian foreman of the Krupp Company kept rushing us and we were all so terrified thatif we stopped or slowed down we would be put in [a] crematorium that we worked tothe last ounce of our strength.’ A doctor who saw conditions in the factories describedthem as follows: ‘Conditions . . . were greatly overcrowded. . . . The diet was extremelyinadequate. . . . Only bad meat, such as horse meat or meat that had been rejectedby veterinarians as infected with tuberculosis germs, was passed out in these camps.Clothing, too, was altogether inadequate. Foreigners from the east worked and slept inthe same clothing in which they arrived. Normally all of them had to use their blanketsas coats in cold and wet weather. Many had to walk to work barefoot, even in winter.’A few German business leaders were tried for these crimes at Nuremberg includingAlfred Krupp – though, in a political decision, he was released only three years afterbeing convicted and his fortune restored to him. The process of denazification focused- 1 -on the state rather than the private sector. What should have happened properlyto address this past, was to school a new generation of German business leaderswith the fundamental commitment never to put profits before people. Instead, wehave the sad reality that many in German industry fail to recognise their historicmoral responsibility and instead actively lobby to ensure the government opposes atreaty initiative that is meant to protect the fundamental rights of individuals againstunscrupulous businesses.Some readers may wonder what am I speaking about: after all, surely there are nosuch serious violations in Germany? Even if this is so, the nature of business todayis global – as the recent trade disputes with the United States indicate, the marketsfor German goods extend way beyond its borders. And, so too, goods today areproduced in complex chains that cross borders. That leads to the potential for violationsof human rights by businesss in countries who are unable or unwilling to imposeadequate regulations. Consider, for instance, the description of what took place inMyanmar during the 1990s in the construction of a major oil pipeline that was a jointventure between the multinationals Total and Unocal.  Raj (based on court documents)describes how,               ‘[i]n 1990, the tatmadaw (armed forces of Myanmar) began to force thecivilian population to provide the preliminary preparation for the pipeline’s construction,and marked civilians to provide the labor for the project. Thousands of villagerswere forced to cut down trees, dig out stumps, and build barracks and helipads,or risk fatal consequences. Those villagers who refused, attempted to escape, orcould not physically manage to sustain the brutal conditions, were subject to beatings,rape, torture, and extra-judicial killings. Even more alarming has been the detaileddocumentation by several NGOs that entire villages have been razed and/or itsinhabitants forcibly relocated in order to make way for construction along the thirty-nine mile stretch of the pipeline.’This quote is just one instance of how thousands of people have had their livesdestroyed by the activities of multi-national corporations. A major gas leak in Bhopal,India (1985) and oil spills in Oganiland, Nigeria (ongoing over decades) have killed,maimed and caused lasting environmental damage. Garment workers desperate foran income were forced to work in an unsafe building in Bangladesh by employersand, eventually, 1130 of them died when the building collapsed (2013). These arejust some of the well-known examples of rights violations on the part of corporations.Yet, people affected by these severe harms have, generally, struggled to hold theperpetrators to account and receive damages to ameliorate their suffering. The existingsoft instruments at the global level – such as the United Nations Guiding Principles onBusiness and Human rights – lack the necessary legal weight to offer a clear solution,given they do not have binding force nor do they require compliance.That is why the leading human rights NGOs around the world (in a massiveconglomeration called the Treaty Alliance), together with many luminary academicsare calling for a treaty between states on business and human rights that would seek toprevent human rights violations by businesses from occurring and ensure they do notgo unpunished (or at least uncompensated). Such a treaty is necessary given the need- 2 -to address a number of problems in international law that have prevented victims ofhuman rights violations from being able to gain remedies against errant corporations.The first of these is that international law has traditionally been built on the ideathat each state is sovereign within its own domain and required to hold responsiblethose who commit wrongs within its jurisdiction. However, such an understanding isless well equipped to address wrong-doers who cross borders: where, for instance,an environmentally destructive strategy is planned in one country and executed inanother. Suing a corporation in the country where a wrong is committed may thus failto affect the real centre of power or wealth.This problem is compounded by a second difficulty in that, in law, each corporation isregarded as a separate legal person. As such, a multi-national corporation is in fact anetwork of different entities all formed in terms of the laws of different countries. When acorporation in one country commits a wrong, the related corporations in other countriescan disavow responsibility for its actions as they are distinct ‘persons’. The possibility ofjustice for victims of human rights violations diminishes even further when we considerthat multi-national corporations often commit violations in countries with weak legalsystems,  where the independence of the judiciary is in doubt or where corporationshave significant bargaining power. The likelihood of successful prosecutions or claimsfor compensation is very limited in these jurisdictions.A treaty would seek to address these problems. First, it could require all states toadopt laws permitting them to hold corporations that have an office there to account forviolations of fundamental rights they commit beyond their borders. Such an approachwould help address the difficulty that no-one state alone wishes to be seen as thesole enforcer of human rights norms, and so become unattractive to businesses.It also stops corporations from exploiting weaknesses in legal systems of states inwhich violations take place to create a situation of impunity. Secondly, the treaty couldplace binding legal obligations on corporations to address their impact on humanrights across their operations, including when they are structured through subsidiariesand long supply chains. Thirdly, the treaty could also address technical questionssurrounding in which jurisdictions such cases can be brought, how evidence canbe gathered, and how remedies enforced.  Finally, it can also develop internationalstructures to set reasonable minimum standards that businesses must adopt in relationto human rights that can be applied across the world.Why then would anyone want to oppose such a treaty, particularly, a country thatprides itself on respect for rights? Sadly, in Germany, a lot of opposition comes frombusinesses who are concerned perhaps about the increased costs to ensure they arenot in breach thereof. If the treaty is adopted widely, however, any such costs willhave to be borne by competitors too. The treaty is also not anti-business but simplywould require observance of human rights across the operations of  a businesses.Indeed, business should not automatically been seen as against rights and it has manyopportunities and responsibilities actively to contribute towards the realisation of rightsin our society. Another equally unacceptable source of opposition comes from rigid lawyers schooledin the idea that international human rights only apply to the activities of states. In a- 3 -world where significant sources of power exist beyond states  – including corporationsand groups such as ISIS – this view leaves victims of human rights abuses often at themercy of unscrupulous non-state actors. Lawyers need to learn from the mistakes ofNazi Germany too: rigid law is not to be respected for its own sake – ultimately, legalrules are there to enhance the dignity of individuals and must adapt to the challengesposed by present power constellations.In light of its history, Germany has a deep moral responsibility to stand up and leadthe world in ensuring respect for the dignity and fundamental rights of individualsparticularly where business is concerned. In a few months, the first draft of a treaty onbusiness and human rights will be debated in Geneva. This offers a major opportunityfor the government and business to change course and exercise leadership in meetingits historic and contemporary obligations to ensure a more humane world. This blog entry is being cross-posted on Verfassungsblog.David Bilchitz is a Professor of Fundamental Rights and Constitutional Law at theUniversity of Johannesburg and Director of the South African Institute for AdvancedConstitutional, Public, Human Rights and International Law. On 19 July at 5pm, ProfBilchitz will give a lecture at Humboldt University Berlin on the case for a business andhuman rights treaty, followed by a one-day conference on the topic on 20 July.Cite as: David Bilchitz, “Germany’s Moral Responsibility to Support a Treaty onBusiness and Human Rights”, Völkerrechtsblog, 18 July 2018, doi: 12345678.- 4 -

Germany’s Moral Responsibility to Support a Treaty on Business and Human Rights

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Germany’s Moral Responsibility to Support a Treaty on Business and Human Rights

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