VII. Voluntary Commitments (Using CSR Initiatives as a tool)
A number of voluntary initiatives on Corporate Social Responsibility (CSR) have been established in response to stakeholders’ growing concerns on the role of multinational companies in human rights and environmental abuses, in particular in developing countries. Most of these initiatives are based on a set of principles, including human rights and/or labour rights, that participating companies voluntarily commit to respect in their operations and within their sphere of influence. Most initiatives propose tools to companies to integrate human rights concerns in their daily activities. The structure of these initiatives vary: some are anchored in international organisations (the Global Compact was initiated by the UN); others were launched by governments (EITI, the Kimberley Process); some bring together a number of stakeholders (so-called “multi-stakeholder initiatives” gathering businesses, governments, NGOs, trade unions); some are business-led, while others are sector-oriented.
In parallel to joining these initiatives, most of the world’s largest companies have adopted their own CSR policies, Human Rights policies, code of ethics, ethical charter, or code of conduct. Some of these policies are based on the company’s own values, while others explicitly refer to internationally recognised human rights standards.
Another trend is the conclusion of International Framework Agreements (IFA) within multinational companies, which are negotiated between the company and a Global Union Federation (GUF). Through these IFAs, the parties commit to respect labour rights standards in all of the company’s operations throughout the world. These types of agreements usually include a monitoring mechanism.
Furthermore, some countries are developing legislation imposing mandatory human rights and environmental due diligence obligations for companies. France, for example, enacted in 2017 the Duty of Vigilance Law 1 , which mandates large French companies to publish and implement a vigilance plan in order to identify and prevent human rights risks linked to their activities. This includes impacts linked to their own activities, those of companies under their control, and those of suppliers and subcontractors, with whom they have an established commercial relationship. The law establishes a mechanism to ensure compliance with the duty of care obligation and a civil liability regime in case of actual harm to fundamental freedoms, health and safety or the environment. The Netherlands also enacted in May 2019, the Child Labour Due Diligence Law. 2 The law requires companies registered in the Netherlands, as well as companies which deliver products or services to the Dutch market twice or more a year, to determine whether child labour occurs in their supply chains and set out a plan of action on how to combat it. Companies that fail to submit a statement could be fined. Apart from other national legislative initiatives 3 , in April 2020, the European Commissioner for Justice, Didier Reynders, announced that the European Commission commits to introducing rules for mandatory corporate environmental and human rights due diligence in 2021 4 . In March 2021, the European Parliament adopted with a large majority the Parliament’s Legal Affairs Committee (JURI) legislative own-initiative report by MEP Lara Wolters on corporate due diligence and corporate accountability with recommendations for the European Commission on necessary next steps to be taken. 5
In parallel, the European Union has passed financial and non-financial reporting obligations for corporations. The EU Non-Financial Reporting Directive (NFRD) on disclosure of non-financial and diversity information by certain large undertakings and groups 6 , including human rights information, has been transposed by all the European Union member States. The European Commission presented in 2021 a legislative proposal that would reform this Directive and would develop mandatory European sustainability standards 7 . Finally, countries such as the UK 8 and Australia 9 have adopted laws introducing general and specific reporting obligations on modern slavery. The US also modified its legislation potentially allowing civil society to petition customs authorities to halt the import of slave-made products 10 .
To respond to criticisms of CSR initiatives that are deemed too “soft” because they lack the power to sanction companies that do not respect the principles they have committed to follow, some initiatives have recently established procedures to review companies’ policies and, ultimately, to remove those not in compliance from the list. Such exclusion can be considered to be extremely weak compared to the harm that the company may have caused. However, NGOs and communities can make use of these procedures to shed light on abuses and “name and shame” companies that use CSR initiatives for so-called “green-washing”. It is difficult to assess the usefulness of some of these complaint mechanisms because some initiatives disclose information regarding complaints that were filed against companies, including their outcomes, while others remain silent. Where available and relevant, this section provides an insight into concrete cases handled through grievance procedures. It can be helpful to conduct certain actions in parallel to filing a case before such a grievance mechanism, including public campaigning to raise awareness on the complaint in order to pressure the company and the CSR initiative in question to solve the matter.
A company’s public commitment to respect human rights and environmental standards, even if considered to be “voluntary”, may be used against it in legal procedures such as those involving competition or consumer protection laws.
The current chapter briefly reviews a number of existing initiatives that include some kind of procedure for complaints; describes international framework agreements; and, finally, suggests ways in which to use voluntary commitments in legal procedures.