Exploring Lawyers’ Role in Business & Human Rights, and Stepping Up in Combat Against Trafficking in Persons

Business and human rights was a key theme at PILnet’s 3rd Annual Asia Pro Bono Forum, with two sessions dedicated to the topic: one focused on exploring the role of lawyers and law firms in promoting business’s respect for human rights, and one specifically on how the business and human rights framework applies to labor issues and supply chain sustainability. There were also two separate panels exploring specifically how pro bono lawyers could join in the fights against trafficking in persons.

 

The Evolving B&HR Discourse: New Challenges and the Need to Move Beyond “Social Auditing”

 

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“Business & Human Rights: A Closer Look at Labor Issues and Supply Chain Sustainability” (From left to right: Seth Gurgel of PILnet, Lowell Chow of Business & Human Rights Resource Centre, Jeremy Prepscius of BSR: Business for Social Responsibility, Jingjing Zhang of Open Society, Mimi Zou of Chinese University of Hong Kong)

From ethical oversight to legal oversight, panelists reviewed the movement of corporate social responsibility (CSR) of multinational corporations (MNCs) in the West from the 1990s until now. The achievements and shortcomings of the mainstream practices that most MNCs have followed were critically examined. It was stressed that methodologies of CSR in management of supply chains must go beyond traditional ways like social auditing. For example, businesses could build closer partnership with civil society, like how Thai Union, a seafood company, is working closely with migrant workers rights network to improve labor conditions in their factories in Thailand.

 

[There are many] things we need to do beyond social auditing, but not many brands are working on it.Lowell Chow of Business & Human Rights Resource Centre

 

Meanwhile, the downsides of the trend of legal oversight, from the differences amongst jurisdictions to difficulties in law enforcement, should not be overlooked. The potential human rights impacts of new actors, such as China in its homelands as well as overseas investment, and the forces that drive the new MNCs to change their business behaviors were also debated.

 

From legal compliance to sustainability: What (more) can lawyers and law firms do?

 

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“Role of Lawyers in Business and Human Rights” (From left to right: Bobbie Sta. Maria of Business & Human Rights Resource Centre, Jessica Marsh of TrustLaw, Catriona Martin of DLA Piper, Andi Muttaqien of the Institute for Policy Research and Advocacy (ELSAM), and Antony Crockett of Herbert Smith Freehills / Hiswara Bunjamin & Tandjung)

 

Policies [and] due diligence practices have improved, but concrete actions among companies are generally still lacking. Many companies are still being driven by legal requirement to act and not just its voluntary guidelines.Bobbie Sta. Maria of Business & Human Rights Resource Centre

 

The Forum provided a great opportunity that enabled delegations to discuss a key question: What can lawyers and law firms do to uphold the emerging framework of business and human rights? Successful stories of pro bono initiatives addressing community grievances and advocacy of standard setting at both international and national levels were shared. Insightful thoughts and cases linking modern slavery, forced labor, land grabbling and environmental pollution were discussed as well.

 

Business and human rights is becoming something very mainstream in Southeast Asia … and something that increasingly is on the radar of regulators, boardrooms, and general counsels in major corporations.Antony Crockett of Herbert Smith Freehills / Hiswara Bunjamin & Tandjung

 

Amongst all the experiences shared, efforts on (i) incorporating due diligence terms into contracts of state-owned companies and (ii) promoting B&HR national action plan from an Indonesian peer were particularly inspiring.

 

Pro bono clearinghouses could play a bigger role in bridging gaps between lawyers and potential clients in the B&HR field and involving more commercial lawyers in public interest cases.Andi Muttaqien of the Institute for Policy Research and Advocacy (ELSAM)

 

Addressing woes of migrant workers

In addition to a broad discussion on the seemingly abstract theme of business and human rights, the Forum drew attention to hotspot issues relating to B&HR in the context of Asia and worldwide, especially in relation to migrant workers’ rights and anti-trafficking. NGOs, lawyers, university legal clinics, and researchers from both sending countries and receiving countries shared their experiences in improving rights protection of migrant workers and addressing significant challenges they meet due to the cross-border nature of seeking remedies for the victims of trafficking and forced labor.

 

Various good practices were explored such as: i) delivering information and service to the communities and families of migrant workers, ii) conducting student exchange between neighboring sending countries and receiving countries to tackle the challenge together, iii) promoting evidence-based policy advocacy on government’s strategic plan to prevent trafficking, iv) raising companies’ awareness and capacity on due diligence and accountability in relation to human rights issues by providing trainings on the ground, v) supporting complaints across borders in the region of Southeast Asia and vi) focusing on strategic litigations.

 

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“Anti-trafficking and Cross-border Solutions” (From left to right: Archana Kotecha of Liberty Asia, Henry Rojas of Lawyers Beyond Borders, Wayne Palmer of BINUS University, Theresia Sri Endras Iswarini of HIVOS Southeast Asia Regional Office, Leni Widi Mulyani of Pasundan University)

There is a huge role for lawyers to play at the preventing level looking at … the anti-corruption model, enforcement of judgment, etc. So much needs to be done at that level with just as much priority as representing vulnerable people, because unless the system changes, they will continue to be vulnerable.Archana Kotecha of Liberty Asia

 

The discussion focused on factors that hamper vulnerable migrant workers’ pursuit of justice. The critical role of lawyers and law students in making transformative changes in the issue was highlighted by the many law-related challenges identified: difficulties in filing cases/making criminal complaints across border due to the different legal frameworks of different jurisdictions, limits on the reach of local efforts in delivering service and disseminating information over vast geographical spread, laws and policies unfavorable to victims of trafficking, insufficient collaboration among actors from different areas and levels, little coverage in terms of pro bono in many Asian countries, etc.

A call was made for as much focus at advocacy as at representation. There needs to be improved legal support at both national and international levels, which requires more capacity building and synergies among NGOs and lawyers, small human rights advocates and large international law firms, students and grass-root groups, as well as governments and civil societies.

 

Follow the Money

 

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Forced labor is not only a social issue but an economic issue as well. It’s good that banks have already realized it.Urszula McCormack of King & Wood Mallesons

 

A panel on debt bondage, forced labor and other challenges faced by migrant workers focused on the money side of things: e.g. unethical debts provided by recruitment agencies and moneylenders in both sending and receiving countries, and promoting economic empowerment through pro bono initiatives and collaborations in Hong Kong and Singapore, for example. In particular, the discussion tried to highlight the role of financial institutions and companies in this combat against trafficking, and explored diverse solutions that involve more stakeholders, including lawyers, companies and financial regulators, and that involve strengthening existing anti-corruption and anti-money laundering infrastructures and processes.

 

Business & Human Rights and Migrant Workers & Anti-trafficking will remain two key themes of PILnet’s work in the coming years. Watch this space!