Business And Human Rights: NGOs Set Out Key Considerations For EU Import Controls To Tackle Forced Labour

• Published date: 15 September 2021
• Subject Matter: Corporate/Commercial Law, Environment, Government, Public Sector, Corporate Governance, Environmental Law, Human Rights
• Law Firm: Mayer Brown
• Author: Mr Sam Eastwood, James Ford, Libby Reynolds and Kahroba Kojouri

There is an undisputed trend of increased and strengthened human rights and environmental due diligence laws (for example, see our previous Blogs here and here). A related trend is the rise of import controls to supplement such measures. For example, the United States' Customs and Border Protection agency have in recent times increasingly issued Withhold Release Orders to detain shipments of products suspected to be produced, in whole or in part, using forced labour (for example, see our Legal Updates here and here).

The European Commission is now assessing the adoption of action and enforcement instruments to tackle forced labour. Its consideration of such mechanisms coincides with the forthcoming legislative proposals from the European Commission on Sustainable Corporate Governance (SCG), a key element of which includes an obligation for corporations to undertake human rights and environmental due diligence (HREDD).

A coalition of NGOs, including Anti-Slavery International and the European Coalition for Corporate Justice, have released an NGO position paper raising some key considerations in the development of potential import control measures in tandem with a mandatory corporate HREDD obligation.

The NGOs raise the following considerations in their position paper:

Relationship between potential EU import controls and upcoming mandatory HREDD

1. The EU must establish a separate law that requires corporations to undertake HREDD and provide remedies to victims of corporate abuse.
2. The SCG directive must contain both administrative enforcement by authorities and judicial enforcement by virtue of injunctive compensatory and/or restorative claims by (potential) victims and representative stakeholders.
3. EU import controls on products made or transported with forced labour would be a powerful supplementary instrument to enforce forthcoming HREDD laws.
4. For EU import controls to remain effective, the SCG directive must require corporations to disclose their subsidiaries, business partners and suppliers to ensure that stakeholders and public officials can externally monitor their operations, and ultimately hold them accountable.

Scope of import controls

5. In order to better align the functioning of any future import controls regime with the forthcoming HREDD obligation, the European Commission should actively explore extending import controls on products made in violation of other types of human rights or environmental harm.

Elements of a forced labour import...