Legislating French values for the rest

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This blog post by Debadatta Bose is part of a Blog Series on Colonization in, of and through Business and Human Rights published on Rights as Usual. Debadatta Bose is a Doctoral candidate at the Amsterdam Law School, University of Amsterdam (Netherlands).

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As the foremost mandatory human rights due diligence (mHRDD) law, the French law on the duty of vigilance (French law) has wide acclaim as having ushered in a new era in business and human rights regulation. Owing to the French law, the possibility of holding corporations accountable for transnational human rights harms did not seem far off. Since 2017, civil society organisations have worked tirelessly to ensure that the objectives of the law are fulfilled. The objective of the law is, of course, corporate accountability for human rights violations … or is it?

Drawing from my recent article which analysed the legislative debates preceding the enactment of the law, this blog post reiterates the argument that a neo-colonial flavour is inherently attached to the law. This is due to three characteristics of the French law: first, as a self-described ‘law for the whole world’ enacted by France; second, as a national law of a Global North country (on the use of the terms Global North and Global South, see this post which is a reply to this post); and third, as a law of France and the Global North as opposed to a business and human rights treaty. Let us examine these characteristics one by one.

A French law for the whole world

One of the proponents of the French law said on the floor of the National Assembly that the law ‘is in the tradition of the French Revolution and the Enlightenment by stating the law in a new world, for the whole world.’ This is because France, in itself, represents ‘a foundation of values.’ To advance the French law, the left-wing bloc primarily focused on the narrative of the law as an effectuation of universal French values. In contrast, the right-wing bloc objected that the French law, which then was going to be the only mHRDD law, would impose a disproportionate burden on French companies resulting in a loss of their competitive advantage. The bargain seemed to be between, on one hand, the assertion of French values as exportable to the whole world and, on the other hand, a separation of the economic considerations of French companies from their human rights considerations: what an iconic illustration of a Faustian bargain.

In the latter case of nationalism, the argument was that the onus is on the capital-importing state where supply chains are located, to strengthen its regime of legal protection of human and labour rights, which France may perhaps take a role in setting up. This argument was put forward while ignoring the fact that Global South countries have been vocal since half a century ago about being unable to counter the power of transnational corporations through national measures. Further, the question posed on the floor was that when companies are already progressing in terms of transparency, labelling, etc. why were they being treated as ‘permanent culprits’?

In the former case of universalism, it was argued that it is only natural that France legislate for the whole world since French legislators cannot be blind to the suffering of people elsewhere, especially given France’s important role in the international economic order when international organisations have failed to act on the issue. Further, it was also stated on the floor of the Assembly, ‘Let us not neglect the fact that it is our ideals that ensure the “France brand” keeps all its influence. (…) [W]e can therefore show that our commitments to human rights and respect for the environment are sincere and truly universal.’

In that same session, legislators explained that they ‘cannot continue to ignore certain practices on the pretext that they take place abroad, in countries that do not respect the constraints and standards that apply to our companies on French territory.’ Perhaps, most interestingly, on the day of the adoption of the law by the National Assembly, it was also stated by a major proponent of the law that ‘[W]e are building a more equitable world (…). We humbly say to these people, who live hard in these [Global South] countries, that we will take care of them, and we ask their leaders to do the same.’ Perhaps it was about saving Global South people from Global South states after all.

How is the ‘whole world’ structured anyway?

A large, if not exclusive, focus of the French law was the protection of people in the Global South whose presence in a presumably ‘despotic state’ hinders their enjoyment of human rights, which France must now take it upon itself to guarantee, i.e., to ‘[protect] the weak in new forms.’ These mHRDD legislation by the Global North for the Global South have been aptly called to be of a ‘vigilante justice’ character by one of the seminal works on this topic. Given the historical decentring of Global South people in international law and the international economic order, the assertion of the Global North to set standards governing global corporate conduct, and Global South state conduct, through national laws is problematic to say the least.

This is not exclusive to France, however. For example, in the report introducing the recently adopted European Corporate Sustainability Reporting Directive, the Explanatory Memorandum states that in case these standards are set internationally or from other nations, ‘then sustainable development would be defined by a non-European vision, making it more difficult for European values to be effectively taken into account. (…) What is at stake is European independence and sovereignty (…).’ Yet somehow this is not a problem the other way round.

In this narrative, largely visible throughout the entirety of the legislative discussion, people from the Global South are the victims and France is conceptualised as the generous saviour. The world is therefore structured around the generosity of France and the haplessness of the Rana Plaza victims, who are highlighted in legislative discussions extensively. In this world, how much the experience of Rana Plaza victims counts or how much agency they have within the French legal system is a fair question to ask. The lived experience, agency, and voices of those who are the purported beneficiaries of the laws are decentred now to make way for expert opinions on legal issues that involve interpretations of the laws that would, e.g., in case of the French law, be embedded in the French legal system. What is also at stake is knowledge production since European national laws privilege European academic and professional discourse to advance interpretations and working of the laws, which is particularly unfortunate in laws that seek to regulate global conduct aimed at protection of Global South peoples.

So, why national laws after all?

Even in this context, why is a national law celebrated as a grand avenue of justice, and perhaps even rightly so? The answer is in the historical context of the struggle for regulation of transnational corporate activity with the Global North and Global South hardly having convergent views on either the form or the substance of regulation. Generalising to some extent, the Global North pushed for national regulation in capital-importing states and the Global South pushed for international regulation of the negative impacts of transnational corporate activity.

One may observe from the resolution establishing the treaty process that a clear North-South divide was visible where Global North countries voted against the establishment of the process, while Global South countries voted for. The USA, for example, was ‘extremely disappointed’ that the resolution was tabled, calling it an ‘ill-considered treaty drafting exercise.’ France, explained its negative vote by its preference for national law on the topic. The limited success of international law initiatives has made the celebration of the French law inevitable, partly because the Global North, including France, made (a French) national law from the Global North inevitable. This is because when national laws are the avenue it is possible to govern Fijian corporate conduct through French law but not the other way round. National laws for the whole world are only possible in the current legal architecture when legislated by the Global North. Such laws are not participatory in their legislative deliberation as regards Global South people and perhaps only partially empowering for Global South people (but adopted in a paternalistic manner). They enable Global North courts to subsume justice decisions in faraway territories as part of their ordinary functioning.

So what?

The question, ‘so what?’ as long as either human rights are protected ex-ante or remedy is provided ex-post whether in France or elsewhere is a fair one. However, it privileges pragmatism over asking why we ended up here in the first place. While the French law may have good effects, its contribution to Global South capacity building has to be further explored. This position is not one of no law from the Global North — but that the laws come in context of active erosion of economic power and capacity to respect human rights in the Global South have to be borne in mind; that is the problem to be solved, not that of lack of jurisdiction in French courts. At best, the French law is an ad hoc instrument towards that end, and at worst, a neo-colonial instrument.

European Corporations in Brazilian Regions Inhabited by Indigenous Communities: Colonial Legacies and Potential Room for Change

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This blog post by Luiza Pigozzo Rocha is part of a Blog Series on Colonization in, of and through Business and Human Rights published on Rights as Usual. Luiza Pigozzo Rocha is a research associate of the NOVA Knowledge Centre for Business, Human Rights and the Environment. She is currently on the Themis exchange programme at the University of St. Gallen, and enrolled on the 2nd year of the Nova School of Law Master’s in International and European Law.

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In this post I analyze the current efforts to include the protection of indigenous peoples’ rights in the EU Directive on Corporate Sustainability Due Diligence (hereafter the Directive) currently under negotiation. I focus on a practical example to illustrate the challenges of effectively protecting indigenous’ rights.

I first present the violent practices suffered by indigenous peoples during Brazil’s colonial period, and how similar patterns of indigenous’ rights violations are perpetuated by informal European powers nowadays. In light of this example, I then assess the approach taken by the European Commission, the Council of the European Union, and the European Parliament on the Draft Directive. Overall, I aim to stress the need for a more encompassing definition of business’ obligations in respect to indigenous peoples in the final Draft.

Indigenous peoples in Brazil

Brazilian lands were inhabited by indigenous peoples for several centuries before a permanent Portuguese settlement was stablished in 1500. Brazil’s colonisation was fundamentally driven by the dispossession of the local inhabitants’ homeland, and the exploitation of their bodies and labour through enslavement, religious persecution and sexual exploitation. Genocidal policies were implemented to repress insubordination and prevent potential reactions against the settlers. In short, Brazil’s history is marked with brutality, violence, and dominance over indigenous peoples.

After more than 300 years of struggle, the independency act of 1822 recognised Brazil’s sovereignty and formally ended any kind of foreign domination over its politics, peoples, and lands. Nonetheless, Brazil’s independency act was only the beginning of an ongoing process, as informal imperial powers continued to interfere and project dominance on the same lands and over the same people to fulfil neo-colonial political, cultural, and economic objectives.

Nowadays, capital accumulation continues to be fuelled by the violent dispossession of postcolonial subjects. Large-scale resources extraction, unsustainable development strategies, and irresponsible modes of production are often concretized through unjust processes of land appropriation, transgression of local and indigenous communities’ rights, and ethnic-racial hierarchization of populations.

One recent example of this reality is the Yanomami crisis that came to light in the beginning of 2023. The deplorable state of health and malnutrition of the Yanomami indigenous community was brought to light in areas of Brazil where economic projects are carried out, specifically in illegal mining areas. This fueled existing discussions of a never-ending colonial cycle of domination, subjugation and other forms of violence against indigenous peoples in Brazil. This systemic violence is devised and carried out under the auspices of corporate powers today.

 Colonial legacies

European corporations are very much involved in this cycle through their direct or indirect business activities. For example, in the meat sector, companies such as Carrefour, Aldi Süd, Rewe, and Tesco had their supply chain activities linked to indigenous peoples’ rights violations. Many of their imports come from indigenous lands where violation of labour laws, violent conflicts with landowners, and death threats and murders are a common reality.

Another example is the soybean trade and financing area. The Netherlands, Spain, Germany and France were identified as the home countries of corporations and financial institutions supporting soy exports from the Amazon and Cerrado regions in which unprecedented rates of deforestation and over-exploitation of indigenous lands were attributed to the soy industry. This pattern of violence against Indigenous peoples in Brazil exists in other sectors such as the sugar, timber, leather, cocoa, dairy and oil extractive sectors.

For many years the lack of corporate accountability for human rights abuses was not addressed in a way that balanced the asymmetries in power-relations between businesses and the people affected by their activities. However, in the last decade, critical discussions around this topic have attracted greater attention. Meaningful progress was made after the launch of the United Nations Guiding Principles on Business and Human Rights (2011), creating an optimistic ground for change in the coming years.

Most recently, the core ideas brought in the Guiding Principles were the basis for the development of national laws such the UK Modern Slavery Act (2015), the French Corporate Duty of Vigilance Law (2017), the Dutch Child Labour Due Diligence Law (2019), the Australian Modern Slavery Act (2019), the Norwegian Transparency Act (2022), the US Uyghur Forced Labor Prevention Act, (2022) and the German Supply Chain Due Diligence Act (2023). In a regional context, the protection of human rights from corporate activity impacts led the European Commission to propose a Directive on Corporate Sustainability Due Diligence, which is currently in the adoption process.

All those initiatives indicate significant advancement formalizing human rights protection in the context of global business operations. Notwithstanding these positive developments, the recent laws are insufficient when it comes to the protection of Indigenous peoples’ rights. As they stand, these legal frameworks cannot end the patterns of rights violations and stop the reproduction of colonial legacies, as discussed below.

 The Corporate Sustainability Due Diligence Draft Directive

In 2022, the European Commission proposed the Draft Directive on Corporate Sustainability Due Diligence aiming to make human rights due diligence mandatory for large companies in EU Member states. The duty to perform human rights due diligence includes ‘identifying, bringing to an end, preventing, mitigating and accounting for negative human rights, environmental and climate impacts in the company’s own operations, their subsidiaries and their value chains .’

During the process of adoption of the Directive, the European Commission, the Council of the European Union, and the European Parliament differently approached the notion of Indigenous peoples’ rights protection when performing human rights due diligence. As such, these three institutions are still grappling for a common ground.

The European Commission’s proposal of February 2022 made no reference at all to Indigenous peoples’ rights and human rights defenders. In November of the same year, the Council of the European Union presented amendments for the Directive and article 26(a) was introduced calling upon companies to consult affected stakeholders throughout the process of carrying out due diligence, indicating that affected individuals could possibly mean Indigenous peoples. This article did not specify any duties in relation to the consultation of Indigenous groups or environmental defenders, nor clarified how to perform due diligence when those communities are affected by business activities. At best, it fell back on mere recommendations to companies.

After months of dialogue, the European Parliament presented the latest amendments adopted on June 1, 2023, with greater progress on indigenous peoples’ rights. This updated document introduced article 8(d) which clarifies what carrying out meaningful engagement with affected stakeholders mean. But the text abandoned suggestions for a more incessive approach that would have strengthened due diligence practices. In addition, the same article mentioned the necessity to fully respect the United Nations Declaration on the Rights of Indigenous Peoples when engaging with stakeholders; and in the amendment of article 3, point n(a), indigenous peoples were included in the list of vulnerable stakeholders.

The Parliament also proposed an amendment to points 19 and 20 of the Directive’s subheading prohibiting environmental harms that affect the rights of Indigenous peoples to self-determination and their right to give, modify, withhold or withdraw their free, prior and informed consent to interventions, decisions, and activities that may affect them and their lands, territories and resources which they have traditionally owned.

Until now, only the European Parliament presented amendments that can bring meaning to the Directive in the sense of changing the colonial cycle of indigenous peoples’ rights abuses. By elucidating what a meaningful stakeholder engagement entails in practice, these amendments increased Indigenous people’s likelihood to benefit from human rights’ due diligence processes. Including Indigenous peoples’ voices in the due diligence process, however, is not a simple activity. Linguistic, geographic, educational, religious and other barriers can make the process very complex and time consuming. But if these crucial points are overlooked and the three institutions do not reach an agreement, Indigenous peoples’ rights violations will continue.

Applying a postcolonial perspective to business and human rights laws is vital to the drafting of effective legislation. Revisiting Brazil’s past colonial practices in light of contemporary corporate activity can contribute to our comprehension of the myriad challenges faced by Indigenous communities and how to develop impactful instruments of change. Overall, the amendments adopted by the European Parliament represent an initial advance in relation to the protection of Indigenous peoples’ rights. Yet, the possibility of changing the colonial cycle of indigenous peoples’ rights violations and rebalancing unequal power relations will depend on the fate of the Directive, which rests on the outcome of a wishful coordination between the three institutions.