by Eda Güçlü
The Rana Plaza, an eight-story commercial building in Dhaka, Bangladesh, which housed shops, a bank, and garment factories, collapsed on the 24th of April 2013. The upper four floors were illegally constructed on an already weak structure that had been initially designed for shops and offices. The garment factories, which employed around 5000 workers, produced clothes for major international brands including Gucci, Prada, Benetton, Versace, Mango, and others. The heavy weight of the machinery and the vibration it generated in these factories overwhelmed the strength of the columns, and it resulted in what trade unions called “mass industrial homicide.” The death toll was 1134, and the number of the injured was around 2500 people. Such an extent of loss and suffering captured international attention on the lack of safety measures in the garment industry in Bangladesh. It also underlined the concerns for the risks created by the complex and unregulated outsourcing models across global supply chains, which exploit cheap labor and insufficient health and environmental regulations in less developed countries.
The Rana Plaza collapse gave a stimulus and wider legitimacy to political campaigns and global movements that had started earlier advocating an international legal framework to put an end to corporate impunity and make parent companies responsible for the consequences of their subcontractors’ operations along their supply chains. The campaign of several civil society organizations which had begun before the presidential elections in 2012 in France was one of these efforts.1 The French campaign was organized by a coalition of NGOs including Amnesty International France, Sherpa, CCFD-Terre Solidaire, ActionAid France-Peuples Solidaire, Amis de la Terre France, and Collectif Éthique sur l’étiquette. Their struggle came to fruition in 2017 when the French Parliament finally promulgated the “Corporate Duty of Vigilance” law (loi relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre). Olivier Petitjean, a journalist who wrote a book on the law, considers it “atypical legislation“, because it was initiated by a coalition of NGOs with the support of a group of deputies whose support they secured before the elections. In that sense, it is an example of “citizens’ initiative legislation.”
The Corporate Duty of Vigilance law requires multinational companies together with their subsidiaries, subcontractors and suppliers to prevent risks and take responsibility for the harm that their business poses for human rights and the environment. In other words, subcontractors and suppliers are no longer considered legal entities independent from parent companies when it comes to catastrophes like the Rana Plaza collapse. Therefore, the law has been regarded as a “historic step” towards safer work conditions and greater environmental protection. Sandra Cossart, Executive Director of Sherpa, one of the NGOs involved in the legislation process, and Lucia Chatelain, Advocacy Officer at the same organization, welcome the law as “a new tool for justice” which creates “binding obligations for companies, and providing judicial avenues for victims.” For them, the law marks a “paradigm change” in the efforts to increase corporate accountability, in other words, a shift from self-regulation and voluntary action by companies to binding regulations:
“The French Duty of Vigilance law is not only a formal recognition that soft law principles and voluntary initiatives are insufficient. It also translates into legal terms an economic reality: the decisive influence of parent companies over their subsidiaries and their supply chain when it comes to preventing and remediating human rights and environmental violations. To a certain extent, the choice of vigilance as a new legal term has enabled this paradigm change to enter the realm of hard law.” (Sandra Cossart)
Here, the term ‘vigilance’ refers to the legal responsibility of parent companies for monitoring the operations of subcontractors in order to ensure the safety and health of their workers, and environmental protection. The law forces French companies to prepare a vigilance plan on an annual basis and publish it. Corporations that fail to implement vigilance plans are subject to legal sanctions. A vigilance plan must include the following measures:
- mapping of risks to human rights and the environment
- regular evaluation of subsidiaries, subcontractors and suppliers’ operations in conjunction with risk maps
- actions to prevent and mitigate risks
- creation of a safe whistleblowing mechanism that opens up channels for workers and trade unions within a company to report risks without being intimidated or criminalized
- a system of regular, comprehensive and transparent monitoring that evaluates the implementation process and the effectiveness of the vigilance plan
To these measures, one can also add the creation of channels for stakeholders to participate in the drafting and implementation processes of vigilance plans. All of these provisions require careful elaboration as it is not a simple issue to identify the multitude of risks involved in each sector of production organized along complex supply chains.2 As a matter of fact, the question of what constitutes a risk involves competing understandings and asymmetrical power relations between different stakeholders. In that regard, the creation of secure whistleblowing mechanisms stands out among these measures as it is workers who face the risks on a daily basis.
However, making the law of Vigilance an effective tool of justice requires another layer of monitoring: the one exercised by civil society and local populations over corporations. Therefore, NGOs and trade unions continue to address the ambiguities and loopholes of the law as well as the problems in its implementation. They work together to monitor which corporations published their annual vigilance plans for the years 2018 and 2019, and identify the shortcomings of these plans. The website “vigilance-plan.org,” for instance, presents a list of companies that are within the scope of the law, a list which France’s Ministry of Economy and Finance has not prepared despite the demands of civil society organizations. It also provides access to the available vigilance plans. Sherpa published Vigilance Plans Reference Guidance in order to offer a legal analysis of the law. A non-profit French organization, called Multinationals Observatory: Tracking French Corporations Worldwide, provides independent and global information on the operations of corporations for the use of civil society and local communities in seeking social and environmental justice. Another example is the European Coalition for Corporate Justice (ECCJ) that unites over 450 organizations in different countries with the aim of promoting corporate accountability. The efforts and coalition of these various organizations aim to bolster public surveillance over corporations.
What is perhaps more important is that NGOs also bring cases to court in order to enforce the rights of workers and local people affected by the operations of corporations, such as exploited laborers and victims of environmental damages (e.g., local communities which suffer from the consequences of deforestation, air and pesticide pollution, or farmers who lost their land and/or their access to water). The first lawsuit initiated under the Vigilance law is, for instance, a case filed by six NGOs in October 2019 against the French energy company Total on the basis of the corporation’s alleged failure to meet environmental and human rights obligations in its mega oil project in Uganda.3
It is these two layers of monitoring – one over subcontractors by parent corporations, and the other over both by civil society and NGOs – which makes the term vigilance appropriate for this law. The nature of vigilance as embodied in this law is bottom-up. The term does not denote a sense in which human attention is “aimed at specific targets and channeled to the right recipients, typically to institutions which then enforce the law or implement other forms of official policy.”4 First of all, this law was not initiated by the French government or corporations, but by NGOs. It was opposed by business circles like the French Association of Private Enterprises (AFEP), and given this opposition, passed by the Parliament only reluctantly. Second, the character of the Corporate Duty of Vigilance as “citizens’ initiative” law makes it hard to simply regard law as something imposed upon people from above. Even without such a character, any law operates within the larger context of the rule of law at least at a rhetorical level in order to differentiate itself from arbitrary power, no matter how much it represents the interests of a certain class or power. And the rule of law provides rights for everybody in principle, if not equally in practice. E. P. Thompson defines the rule of law as “the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims,” and as such, as an “unqualified human good.”5 His warning against any tendency to depreciate this “human good,” or to obscure the potential that it provides for bottom-up usages of law deserves to be quoted here:
“To deny or belittle this good is, in this dangerous century when the resources and pretensions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws, and class-bound procedures, and to disarm ourselves before power.”
The French law presents a legal means to check the power of corporations and limit their intrusions, which is embedded in the term vigilance as an organized, bottom-up activity. This is not a case where the attention of ordinary citizens is “directed” by a state, an institution, or a corporation into a “specific task,” such as “public security,” a term which hardly includes any notion of protection against the death of hundreds of workers as in the collapse of the Rana Plaza. The terms of vigilance and the “task” here are largely defined by the NGOs together with the involvement of trade unions and local populations. It is these stakeholders who direct the attention of corporations into a specific task, to the task of monitoring the operations of their subcontractors and suppliers to prevent and mitigate the risks against human and environmental rights. The agents ‘made responsible’ are corporations, and their attention is a legal obligation. In the case of monitoring of corporations by civil society organizations, there is no implication of passivity as in “being aimed” by a third party. Monitoring here is an organized activity for a particular purpose. Altogether, it seems that the Vigilance law presents an example where citizens created a legal framework that allows them to devote their attention into tasks that they set and define themselves. They can use it to demand corporate accountability, transparency, safer work conditions, and the protection of the environment upon which public health depends.
- For other examples of similar campaigns, see https://lieferkettengesetz.de/; No Courage to Commit: Comments of German non-governmental organisations on the German government’s National Action Plan on Business and Human Rights (Revised version, 6 February 2017): https://germanwatch.org/sites/germanwatch.org/files/publication/17767.pdf; Huib Huyse, Boris Verbrugge, Belgium and the Sustainable Supply Chain Agenda: Leader or Laggard? Review of Human Rights Due Diligence Initiatives in the Netherlands, Germany, France, and EU, and Implications for Policy Work by Belgian Civil Society (KU Leuven HIVA Research Institute for Work and Society, 2018): https://www.business-humanrights.org/en/report-assesses-compares-human-rights-due-diligence-initiatives-in-3-eu-countries-with-belgium%E2%80%99s-agenda-for-sustainable-supply-chains.
- For a report prepared by CCFD-Terre Solidaire which specifies the basic risks involved in the agro-food sector, see Camille Burlet, “Vigilance on the Menu: The Risks that Agro-Industry Must Identify” (CCFD-Terre Solidaire, March 2019): https://vigilance-plan.org/wp-content/uploads//2019/06/2019-04-10_-_vigilance_on_the_menu_-_uk.pdf
- See also: https://www.foei.org/news/total-legal-action-france-human-rights-environment-uganda; https://www.theeastafrican.co.ke/business/NGOs-sue-Total-over-Uganda-oil-project/2560-5323092-r3aeku/index.html
- Brendecke, Arndt/Molino, Paola: “The Cultures of Vigilance: Historicizing the Role of Private Attention in Society: An Introduction,”. In: The History and Cultures of Vigilance: Historicizing the Role of Private Attention in Society. Special issue of Storia della Storiographia 74, 12 (February 2018).
- Thompson, E. P.: Whigs and Hunters: The Origin of the Black Act. London 1975, 266.