Forward

The Covid-19 pandemic has sharply exposed the vulnerability of workers in global value chains. Around the world, local and global labor movements struggle under immense pressures to uphold and advance labor and human rights. In doing so, these movements have developed various strategies in the past decades to address inhumane working and living conditions of workers. Next to union organizing and advocacy for law reform on the local and national level in production countries, the transnational legal toolbox now available ranges from multi-stakeholder initiatives, global framework agreements, enforceable brand agreements, workers’ compensation funds and transnational litigation to mandatory human rights due diligence.

Since the UN Guiding Principles on Business and Human Rights went into force in 2011, labor organisations have joined hands to create an increasing number of legally binding mechanisms to hold multinational enterprises responsible for workers’ rights violations. Recently, within the context of the European Union, the debate on mandatory human rights due diligence legislation has gained significant traction. There are hence new and exciting opportunities to make the voices of workers from production countries heard and to protect their rights.

This report offers a toolbox of legal strategies and approaches taken by the labor movement and contextualizes key lessons learned. It furthermore outlines current legal developments with regard to the responsibilities of multinational enterprises. We hope that such an overview helps the movement to align strategically when employing legal tools.

For many years, the Friedrich-Ebert-Stiftung (FES) has been working on the topic of mandatory human rights due diligence and on how to shape and ensure a fair globalisation, which puts human rights at its heart. FES is represented in over 100 countries worldwide. We are active in many production countries of German and European companies. Issues such as ending child labor, living wages and ensuring freedom of association are and will remain a key focus of our work.

We are therefore immensely thankful to build on a long partnership with our cooperation partner, the European Center for Constitutional and Human Rights (ECCHR). This study is a continuation of our enriching discussions with ECCHR, which have been significantly shaped by the exchanges with the authors of this study, Michael Bader and Miriam Saage-Maaß, to whom we extend our gratitude.

We hope that you enjoy unpacking this legal toolbox – and that it stimulates further critical and creative thinking in the field of transnational legal strategies for labor movements.

Frederike Boll-von Galen and Tina Blohm Global and European Policy Friedrich-Ebert-Stiftung

Introduction

When the study Labour Conditions in the Global Supply Chain: What Is the Extent and Implications of German Corporate Responsibility? was written in 2011, the question of the legal responsibility of German businesses for human and labour rights violations in their global value chains (GVCs) was fairly new.1 The study concluded that civil actions against German companies before German courts for violations of human and labour rights along GVCs were possible in theory, but had not yet materialized successfully in practice.

The publication of the study was followed by a decade of both tragic events and tremendous shifts in the corporate accountability landscape. In the same year the report was published, the United Nations Guiding Principles on Business and Human Rights (UNGPs) were unanimously endorsed by the UN Human Rights Council. Among other developments, the UNGPs established a coherent and detailed standard for the human rights responsibilities of multinational enterprises (MNEs) within their GVCs. This led to a major acceleration in the international engagement with corporate accountability. In the years that followed, three factory disasters shocked South Asia, causing death and injury to thousands of workers: in 2012, the Ali Enterprises factory in Pakistan and the Tazreen Fashion production site in Bangladesh burned to the ground and, in 2013, the Rana Plaza building in Bangladesh collapsed. Since all three factories were primarily producing for European and North American brands and retailers, the question of the legal responsibilities of lead firms for their suppliers captured more universal attention. The horrendous conditions under which production for Western markets occurs became undeniable, not only for workers and labour movements of the global South or the business community, but also for a wider public and policy-makers in Europe at the national and international level. This gave momentum to a broad variety of initiatives that aim to create legally binding obligations of lead firms and accountability mechanisms for workers in supplying factories. 1

Following the Ali Enterprises factory fire, the first supply chain case was brought before German courts: the litigation against KiK in the Ali Enterprises case amounted to a procedural test of one of the potential legal pathways outlined in the 2011 study. It relied on a German court to determine the (shared) legal responsibility of a lead firm, the German retailer KiK, for health and safety conditions in a supplying factory. While the case was never decided on its merits, it certainly accelerated the debate concerning MNE responsibility and liability for rights violations in their production networks. Currently, new legislation is being fiercely debated and will hopefully be introduced on the EU level and domestically in various European countries in the shape of mandatory human rights due diligence (mHRDD) laws. These laws formulate human and labour rights obligations of companies and a legal duty of care towards workers in their GVCs.

Our aim in this report is to contextualise both the lessons from the aftermath of the South Asian garment factory disasters as well as the current legal developments in regard to MNE responsibility in their home jurisdictions. We are certain that no law or transnational legal proceeding can by any means replace trade union struggle, movement building, transnational campaigning and the collective organising of workers in their quest for change. Still, we believe that laws can serve as an important tool for change: litigation and legal proceedings have the potential to amplify workers’ voices and throw light on particular struggles. Targeted lawsuits can increase pressure on states in the South and North as well as MNEs and local factory owners to bring about reform. Moreover, such lawsuits can help to secure much needed financial compensation, whether through the litigation itself or the pressure it generates. Therefore, we aim to present the various transnational legal tactics that were developed by workers, trade unions and labour movements in their struggle to pursue accountability and change at the factory level following the South Asian factory disasters. In this way, we hope to make them accessible to labour movements and trade unions that are struggling for improvements in the working and living conditions of workers within and outside of the garment industry and beyond South Asia. We hope that this mapping will provide them with tactical assistance in their current and future struggles.

Read full report here.