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Hanging by a thread: what’s right – and wrong – with the new German supply chain law meant to protect human rights

After years of civil society campaigning against the working conditions of supply chain workers in the Global South supplying German companies and consumers, the German government recently agreed to the introduction of a human rights due diligence law. The law, supposed to force companies to ensure the human rights of these workers and affected communities in countries abroad, will likely be passed before the summer. But unless the parliament makes substantial changes, the law in its current form will not be enough to hold companies responsible. Furthermore, it fails to ensure that the voices of those affected most are heard, writes Josephine Valeske.

Credit: Solidarity Centre

In September 2012, 258 Pakistani workers were killed in a factory fire of a company that supplied garments mainly to German textile discounter KiK. In the aftermath, a survivor and three families of some of the victims filed a lawsuit against KiK under Pakistani law, claiming that the company should bear responsibility for the fire safety deficiencies in the supplier’s factory. After a legal battle of several years, German courts denied compensation since the case had lapsed according to Pakistani law.

From poisoning drinking water in Peru resulting from the German car industry’s copper mines, to expelling 4,000 people from their homes in Uganda to make room for a coffee plantation, to chemical company BASF doing business with a mine in South Africa despite 34 of its workers being shot during a strike, German companies almost routinely make headlines for their involvement in wrongs that they would not be able to get away with back home. A 2015 study from Maastricht University found that Germany ranks fifth globally for the number of companies in the country involved in human rights violations abroad.

The German example provides insight into how things can go very wrong even in countries that are supposed to rank highly in terms of safeguarding human rights. It seems that here, human rights assurance is selective, linked to citizenship rather than to being human. What else could explain the failure to also look after those linked indirectly to Germany, such as through supply chains?

Unfortunately, these are not standalone incidents, but manifestations of a system in which Western retailers, always in search of the cheapest suppliers, use workers’ vulnerabilities and weak legislation in other countries to push prices ever lower. While benefiting from an unequal global labour division, they pay lip service to the interests of those affected by their business activities and shift the responsibilities for upholding human and workers’ rights to their suppliers in the Global South.

A new supply chain law agreed on by the German government is supposed to change the extent to which participants in global supply chains serving German companies are protected. Called the ‘Lieferkettengesetz’ (supply chain law), the law is supposed to ensure that German companies perform due diligence in their supply chains and that those who are guilty of human rights violations are held responsible. This law is considered progressive, as it is one of the first that looks beyond country borders to the rights of those also indirectly linked to the country. German CSOs underscored the fact that the mere decision in favour of a supply chain law is a win, but its usefulness will have to be judged by whether it actually yields any change for the affected people on the ground. The law still has to be approved by parliament, which, depending on the MPs’ susceptibility to corporate lobbying, might either strengthen it slightly or weaken it further. What’s clear is that the law in its current form will not change the lives of those toiling under precarious and unsafe conditions in distant countries.

A toothless tiger

The international legal framework is massively biased towards corporations: under ISDS mechanisms, companies can sue governments for billions for negatively changing the investment climate and even for protecting workers if that harms their expected profits. But barely any legal mechanisms can be identified that allow to hold companies accountable for human rights violations incurred in other countries where their suppliers are located.

Following increased reporting on the role of German companies in human rights violations, German civil society led by a coalition of non-profit civil society organisations (CSOs) have been lobbying for years for a human rights due diligence law that would change how workers abroad are treated. Finally, the government came to an agreement on a law in mid-February. But the CSOs faced a massive corporate lobby on the other side that maintained a stronghold over the Ministry of Economic Affairs, evidenced by the fact that the German Minister for Economic Affairs, Peter Altmaier, exchanged regular emails on first-name basis with a corporate lobbyist. The corporate lobby was able to influence the law so that in its current form it remains a largely toothless tiger. Here are some of the ways in which the current proposal is failing those it’s supposed to protect:

The law lacks a civil liability provision that enables affected people abroad to directly take legal steps against German companies for human rights violations. Instead, an agency forming part of the German Ministry of Economic Affairs will examine whether companies adhere to their due diligence duties and can fine them for the failure to do so. NGOs and unions will have the possibility to file lawsuits in Germany in the name of victims under certain circumstances, but ultimately the victims cannot take action themselves.

It is still unclear whether the law will extend to more than the first-tier suppliers, which means that a vast number of human rights abuses further down the supply chain will likely remain unaddressed. The law mandates companies to take action further down the supply chain if they have substantiated reasons to believe that there are human rights violations, but it does not define what substantiated reasons are. For example, is it enough to know that children work under horrific conditions in Congolese mines that supply raw materials for batteries, or does a German battery company need to know specific details about its individual supply chain to be compelled to act?

The law will only apply to the roughly 600 companies that employ at least 3,000 staff members from 2023, and to around 2,900 companies with more than 1,000 staff members from 2024. It therefore overlooks more than 99% of German companies that belong into the category of small and medium enterprises (SMEs), many of which are operating in high-risk sectors such as the chemical or the textile industry. Furthermore, it does not include foreign-owned multinationals that conduct business in Germany, even if a large share of their profit comes from the German market.

The law does not reflect the wishes of the German public. The final compromise is disappointing and also blatantly undemocratic, since a survey had shown that 75% of Germans were not only in favour of a due diligence law, but wanted this law to include legal mechanisms to hold corporations liable for human rights violations, which are currently absent.

To top it all off, there’s a massive elephant in the room: apart from being structured by class, nationality and income, global supply chains are racialised, with people of colour dominating the lower value-added positions and supply chains becoming increasingly white as the value-added increases. Thus, people of colour are at the receiving end of the human rights violations the law was supposed to prevent. It’s not just a form of injustice – it’s blatantly racialized injustice.

Our inputs can help shape the law

The German due diligence law in its current form may be a disappointment, but there are signs of hope: similar processes are happening in other countries and at the international level. For example, the Legal Affairs Committee of the European Parliament recently adopted a report requesting the European Commission to submit a formal proposal for a EU due diligence law that might include liability measures holding those responsible accountable at the EU level. Furthermore, the ongoing UN Treaty process, driven largely by affected communities from the Global South, aims to develop a binding legal treaty between the United Nations members to hold transnational corporations globally accountable.

And we still have the power to help change the law in its current form. So what can the public in Germany and elsewhere do while the law is still being negotiated? Stay updated about the current process on the CSO coalition’s website or Twitter account, and on the website of the European Center for Constitutional and Human Rights (in English). Subscribe to the Business and Human Rights Resource Centre’s multilingual newsletters to stay updated about general developments in different countries. The German CSOs will soon announce specific actions targeting parliamentarians. Finally, you can directly contact your local parliamentary representative and tell them why you think that an effective due diligence law is important.

About the author:

Josephine Valeske

Josephine Valeske holds a MA degree in Development Studies from the ISS and a BA degree in Philosophy and Economics. She currently works for the research and advocacy organisation Transnational Institute in Amsterdam. She can be found on Twitter @jo_andolanjeevi.

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The EU’s new pact on migration: what’s next after all the shock, sadness, and solidarity talk?

Several shocking events that transpired in Greece last year have not been met by truly humane solutions, showing that the performative moments of ‘refugee crises’ are not enough to move EU leaders into adopting a different approach toward refugees. The EU’s long-awaited New Pact on Migration and Asylum is supposed to change how refugees are treated, but with the European Commission set to promote ‘a European way of life’ through the pact, harsh practices are bound to continue, writes Zeynep Kaşlı.

It has been almost half a year since the catastrophic fire razed the Moria refugee camp on the Greek island of Lesvos in September last year, leaving around 13,000 residents without shelter in the midst of a COVID-19 lockdown. Some were immediately relocated to mainland Greece; however, over 7,000 refugees had no choice but to move to another makeshift camp, awaiting the processing of their asylum applications through ‘accelerated’ procedures. In this context, the question arises: will the EU change its approach toward refugees by introducing the New Pact on Migration and Asylum, and will anything change this year for refugees themselves?

A worrying development that almost went unnoticed

In March last year, at the time when the first COVID-19 cases appeared in most countries across the globe, Greek and EU authorities had to take immediate action at the Greek-Turkish land border when Turkish authorities announced they would not stop passage to Europe and allowed thousands of refugees to pass the Turkish side of the Kastanies-Karaağaç Border Gate in Edirne. In response, the Greek government suspended the submission of asylum applications for one month, and the European border and coastguard agency Frontex deployed 100 additional border guards from 22 EU member states to halt the influx of refugees. Their ardent resistance to forced migration ended with the killing of refugee Muhammad Gulzar, leaving others wounded. Many thousands of other refugees who could not enter Greece were left with no place to go, stuck in limbo between fleeing and surviving.

What do these events tell us about the EU border and migration regime? Do they have any transformative role to play in EU-level policy making, and, if so, what is that role?

The news of these rather shocking and extraordinary events quickly spread across Europe, evoking strong emotions and triggering actions, from deep empathy to suspicion of the intentions of displaced people waiting at the borders. Under these circumstances, the long-awaited New Pact on Migration and Asylum was launched by the European Commission on September 23, 2020 as a “fresh start on migration: building confidence through more effective procedures and striking a new balance between responsibility and solidarity.”

The initial assessment by civil society organizations of the legislative and non-legislative proposals clearly show that the New Pact is considered far from a novel approach in terms of the guarantees put in place for compliance with international and EU legal standards, in promoting the fairer sharing of responsibility for asylum in Europe and globally, or in terms of the kind of migration management practices it is likely to accelerate. These include ‘return sponsorship’ and the increasing use of detention, as well as the restriction and criminalization of all sorts of humanitarian activities.

Meanwhile, the aforementioned ‘shocking’ events are about to become (from a European gaze) an intermezzo of what van Reekum calls a routinized emergency visualized through images of migration by boat. I agree with van Reekum that as manifested in ongoing rescue operations in the Aegean Sea, emergencies gain a routine character due to the unresolved ethical questions that the New Pact seems to be far from solving.

Really ‘shocking’, or history repeating itself?

The events at the Greek-Turkish land border were not new. We witnessed a similar ‘shock’ back in mid-September 2015 when over 3,000 people marched to the Turkish border province of Edirne asking for safe passage to Europe. At that time, they were forcefully stopped a few kilometers before the Kastanies-Karaağaç Border Gate and were allowed to wait until the EU heads of state had an informal meeting on September 23 to discuss the implementation of the European Agenda on Migration and how to increase collaboration with third countries like Turkey to alleviate the migratory pressure on the EU’s frontline member states. Just like in 2020, they were put in buses and transferred to other Turkish cities, while quite a number of them were detained and forcefully expelled to Syria without due procedure.

Hence, what we can call the first intermezzo in 2015 led to the EU-Turkey Statement aiming for a fast-track return of the rejected asylum seekers from Greece to Turkey as a “safe third country.” Five years after this first intermezzo, we can confidently say that the EU’s hotspot approach combined with the EU-Turkey Statement proved to be a highly ineffective policy at best, demonstrated by the low number of returns under the deal, the declaration of the suspension of the deal by the Turkish government, and the order of the Court of Justice of the European Union questioning the authorship and responsibility of the deal.

The second intermezzo in 2020 coinciding with the launch of the long-awaited New Pact further revealed two things. First, the EU has become more dependent on the willingness of its neighbours near and far to continue hosting millions of displaced people. Second, the only action plan the EU and its member states are able to come up with is greater militarization at the border and fewer rights for thousands of people who have already survived different forms of violence throughout their journey to and in Turkey and are in search for a life with dignity and peace.

Going back to the question posed above, the performative moments of the crises seem to play only a reproductive, rather than a transformative, role in shaping the EU-level migration and asylum policy. While the violent encounters at the land border further strengthen what van Houtum and Bueno Lacy call the ‘iron borders’ of fortress Europe, the burning down of camps such as Moria and ‘compassion fatigue’ in the Greek islands are the epitome of the ‘camp border’ within Europe that basically brings home the EU’s decades-old externalization policy. Seen from this perspective, the extraordinary events we witness at the land borders, hotspots and camps described above are only a byproduct what Jeandesboz and Pallister-Wilkins also call part of the routine work of bordering to order politics.

This routine work of bordering already became crystal clear in the discussions on the title of Commissioner-Designate Schinas’ portfolio on migration, security, employment and education. Even though the portfolio title was soon changed from ‘Protection’ to the ‘Promotion of the European Way of Life’ due to sharp criticism, even the changed title remains symbolic of the failure of the EU to transform its refugee policy. This is particularly visible in its reference to a singular European way of life that is to be promoted across Europe. While the EU means different things to different sides of the European public, from the populist right to the green left, it remains a union of free mobility for the lucky few, whereas it has also become a deportation union for many.

As the relatively shocking news from Greece has slowly turned into an intermezzo of routinized emergency, in the face of allegations against the EU agency Frontex, a deeper discussion is necessary on what a ‘European way of life’ entails in the face of EU member states’ responsibility for displaced people arriving at their borders or in the neighbourhood of Europe.

About the author:

Zeynep Kaşlı is Assistant Professor in Migration and Development at ISS, affiliated with the Governance, Law and Social Justice Research Group. Her research interests include mobility, citizenship, borders, transnationalism, power and sovereignty with regional expertise in Turkey, Middle East and Europe.

Are you looking for more content about Global Development and Social Justice? Subscribe to Bliss, the official blog of the International Institute of Social Studies, and stay updated about interesting topics our researchers are working on.