User:Oceanflynn/sandbox/Duty of Vigilance Law

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The November 6, 2019 iteration of this sandbox article is based on a Google translation of Loi relative au devoir de vigilance des sociétés mères et entreprises donneuses d'ordre which was created and developed by User:V.caila on September 30, 2019 with contributions from User:Shev123, User:Tortliena, User:Jules78120, and User:IBG2018.

Duty of Vigilance Law Law No. 2017-399 is a French law on the duty of care of parent companies and ordering companies, also known as the duty of vigilance law, obliges large French companies to develop, publish and implement appropriate measures. identifying risks and preventing violations of human rights and fundamental freedoms, human health and safety, and the environment. It was definitively adopted in March 2017.

Background
According to a February 2019 report commissioned by the Policy Department of the European Union, the "use of judicial mechanisms to hold companies to account for human rights abuses in third countries is receiving increased attention." The report listed 35 relevant cases in of EU-Based companies accused of human rights abuses in third countries.

The Due Diligence Act was drafted in response to various human and environmental disasters involving multinational companies "at the other end of the world" where the civil parties have been unable to obtain redress for disasters caused by these companies. Examples include the 1984 Bhopal disaster in Bhopal, India,   the Chevron scandal in Ecuador related to the Lago Agrio oil field,   the sinking of the MV Erika, oil spills in Nigeria including the 2010 ExxonMobil oil spill and the Mobil Nigeria oil spill, the explosion of the AZF plant in France, and more recently, the rupture of the Brumadinho dam in Brazil. The collapse of Rana Plaza in Bangladesh in 2013 played a political accelerating role in the regulation of multinational enterprises. The tragedy, which left 1,188 people dead and more than 2,000 wounded, revealed the poor working conditions of suppliers and subcontractors of major European and North American textile groups, as well as the difficulty of the responsibility of the companies giving orders. The splitting of companies into subsidiaries and the increasing use of outsourcing, represent a major obstacle for people affected by harmful economic activities to obtain justice.

Following the tragedy of Rana Plaza, a first bill was tabled in October 2013. A second proposal was tabled in February 2015, on the initiative of Dominique Potier and Philippe Noguès. According to a March 27, 2015 article in Le Monde, the draft law was the subject of a long legislative process of three and a half years, having encountered numerous oppositions from the economic sectors, which claimed in particular, that this law posed a threat to the competitiveness of the French companies and hampered entrepreneurial freedom.

According to its authors, "the objective of this bill is to establish a duty of care of parent companies and contractors to their subsidiaries, subcontractors and suppliers. This is to empower transnational corporations to prevent the occurrence of tragedies in France and abroad and to obtain reparations for victims in the event of damage to human rights and the environment ".

Two days after the plenary vote in the French National Assembly on 21 February 2017, a group of 60 deputies and 60 senators appealed to the Constitutional Council. On March 23, 2017, the Constitutional Council validates most of the law. On March 27, 2017, it became law.

Legislative process
The bill was tabled between November 2013 and April 2014.

It passed into law in March 2017.

Goals
The duty of care law creates a new obligation for large French companies: to prevent and provide reparation for human rights violations and environmental damage caused by their activities and the activities of their subsidiaries, subcontractors or suppliers with whom is maintained an established commercial relationship.

Scope
The law concerns companies established in France that employ at least 5,000 employees in France or 10,000 in the world.

It applies to the company itself (parent companies or client companies); companies that they control directly or indirectly; and subcontractors and suppliers with whom an "established commercial relationship" is maintained.

The law of due diligence covers all sectors of activity and a wide field of application: all are concerned "serious violations of human rights and fundamental freedoms, health and safety of people and the environment "(Article 1).

Measures
Due diligence companies now have a legal obligation to publish in their annual report and effectively implement a vigilance plan, in order to identify and prevent the risks of human rights abuses and corruption. 'environment. According to Article 1 of the Due Diligence Act, the plan must include "A risk map for their identification, analysis and prioritization; Procedures for regularly assessing the situation of subsidiaries, subcontractors or suppliers with whom it has an established commercial relationship with regard to risk mapping; Appropriate actions to mitigate risks or prevent serious harm; A warning and collection mechanism for reports relating to the existence or realization of risks, drawn up in consultation with the representative trade union organizations in the said company; and a device for monitoring the measures implemented and evaluating their effectiveness."

The law provides two judicial mechanisms to ensure its application including In the event that an enterprise fails to establish, publish or implement a vigilance plan, Article 1 provides that "any person with an interest in acting" (such as human rights the environment, the unions, the affected populations) can put it on notice to respect its obligations. At the end of three months, as from the formal notice, if the company still does not respect its obligations, it is possible to seize the judge to enjoin it to do it, if necessary under financial penalty. According to Article 2 of the law, the civil liability of the company can be engaged in case of breach of its obligations, that is, if the establishment and implementation of the plan are defective. Victims must then be able to demonstrate to the judges that violations and damages have occurred and are the result of a breach of due diligence. The company may be required to pay damages to the victims, but only in the case of a lack of a plan, an insufficient plan or failures in its implementation.

First cases on the basis of the duty of care
In June 2019, Total was the subject of two formal notices for non-compliance with the duty of care. The oil company was first called to order for the lack of commitments to reduce greenhouse gas emissions in its vigilance plan and a second time for its activities in Uganda. In the first case, 14 local authorities, supported by associations Our Affair to All, the Eco Mayors, Sherpa and ZEA, have called on Total to review its vigilance plan and align with the Paris Agreements in order to limit global warming to 1.5 degrees.

According to the French and Ugandan NGOs behind the second formal notice (Friends of the Earth France, Friends of the Earth Uganda / NAPE, AFIEGO, CRED, NAVODA and Survival), Total would not have taken specific measures in its vigilance plan to prevent the risks of human rights and environmental violations caused by its mega-petroleum project in the Murchison Falls protected natural area on the shores of Lake Albert in Uganda, and the construction of a 1445 km long pipeline through Uganda and Tanzania. On October 23, 2019, the associations summon Total in summary before the tribunal de grande instance of Nanterre (Hauts-de-Seine) for breach of the law on due diligence.

In July 2019, Teleperformance was put on notice by Sherpa and UNI Global Union to take appropriate measures to prevent human rights abuses in its subsidiaries, particularly in Colombia.

Application
The associations have published various studies and reports to ensure the effective implementation of the law.

Friends of the Earth France and ActionAid France - Peoples Solidarity published in 2017 three case studies of law enforcement in the report "End of the run for multinationals? From a pioneering law in France to a treaty at the UN."

In 2018, Sherpa, a French law association, that provides legal assistance and does research on human rights violations, financial crimes, development, and globalization. with sponsorship from ActionAid France, Friends of the Earth France, Amnesty International, Ethique Etiquette—member organizations of FCRSE, published a "Reference Guide for Vigilance Plans" in 2018.

Mighty Earth, France Nature Environment and Sherpa published in 2019, a report on the duty of vigilance and deforestation in 2019.

In the report "Year 1: businesses must do better", several NGOs (ActionAid France - Peoples Solidarity, Friends of the Earth France, Amnesty International, CCFD-Terre Solidaire, Collective Ethics on the Label and Sherpa) establish a number of recommendations to governments and an analysis of major business plans in the arms, agri-food, textile, extractive and banking sectors.

CCFD-Terre Solidaire has published a study dedicated to the agri-food sector, and made a number of recommendations for companies to prevent the risks of land and water grabbing, criminalization of human rights defenders, peasant rights, biodiversity and the environment.

The CCFD-Terre Solidaire and Sherpa have put online the site plan-vigilance.org to identify companies subject to the duty of care and make available public vigilance plans published.

International
France is the first country to have established a legal responsibility of transnational private actors for human rights and environmental violations caused along their value chain. The question of the regulation of multinational enterprises is not new, since it emerged in international organizations as early as the 1970s. In 1974, a "Commission on Transnational Corporations" was created within the Economic and Social Council of Europe. UN, to develop a code of conduct governing the activity of transnational corporations, before being dismantled in 1992. The OECD member countries, anxious to demonstrate their ability to promote corporate responsibility through voluntary standards and not -contractors, publish a first version of the Guidelines for Multinational Enterprises in 1976. They were then revised in 2011. At the end of the 90s, there is a shift in the discourse of the United Nations: we go from 'a logic of supervision to a logic of self-regulation of companies. In 2000, the United Nations launched the Global Compact, an initiative to promote corporate social responsibility through the introduction and promotion of ten principles relating to human rights, labor rights, the environment and the fight against corruption. This initiative is non-binding and relies on the voluntary commitment of companies. Between 1997 and 2003, the United Nations Subcommittee on the Promotion and Protection of Human Rights conducted a major effort to develop human rights standards for multinational enterprises from all UN Treaties: "Norms on the Responsibility of Transnational Corporations and Other Businesses with Respect to Human Rights" were rejected by the United Nations Commission on Human Rights in 2004. In 2005, John Ruggie was appointed Special Representative of the United Nations united on the issue of human rights, transnational corporations and other businesses. In 2008, he published the report "Protect, Respect and Repair" which sets the theoretical framework on the duty of vigilance of multinational companies.

This report sets out three principles including the obligation to protect the human rights of the state, the responsibility of companies to respect human rights, and effective access to redress through judicial and non-judicial mechanisms.

This report will lead to the adoption in 2011 of the UN Guiding Principles on Business and Human Rights.

Draft international treaty under negotiation at the UN
In 2014, the UN Human Rights Council created an intergovernmental working group, led by Ecuador and South Africa, to develop a legally binding international treaty on multinational enterprises and companies. human rights. Negotiations take place every year in October in Geneva.

The 2011 UN Guiding Principles on Business and Human Rights (UNGPs) was the first corporate human rights responsibility initiative unanimously endorsed by the United Nations. In their chapter in the 2018 edited book, Business and Human Rights in Europe, the authors examined the concept of corporate human rights due diligence, as introduced by the UNGPs, with a focus on France's Duty of Vigilance Law. They examined how the European Union might introduce a similar obligation. Cossart, one of the co-authors said that the Duty of Vigilance Law also requires that companies provide a Vigilance Plan.

The European Union and the duty of care
In 2001, in the "Green Paper - Promoting a European framework for corporate social responsibility", the European Commission defines Corporate Social Responsibility (CSR) as: "the voluntary integration by companies of social, environmental and economic concerns in their activities and in their interactions with their stakeholders." In 2011, the European Commission adopts a new definition of CSR, with an action plan for 2011-2014. CSR is defined as "the responsibility of companies vis-à-vis the effects they have on society." The voluntary dimension disappears from the definition, and the approach is geared towards risk management.

In February 2019, the European Parliament publishes, through its human rights committee, a study on access to justice for people affected by the activities of European companies in third countries.

The duty of vigilance in Europe
In 2019, the Netherlands passed the Child Labor Due Diligence Act.

In Switzerland, a coalition of nearly 80 civil society organizations has gathered enough signatures to put forward in 2016 a grassroots initiative called "Responsible businesses - to protect people and the environment". After the rejection of this popular initiative by the Federal Council in 2017, the parliament proposed a counter-project based on the same principles but whose outlines still need to be discussed.

In Germany, the government has committed to put in place a binding legislative instrument on the duty of vigilance of companies, inspired by French law and the Modern Slavery Act 2015.

In Finland, Norway, Spain, Belgium, Luxembourg, the United Kingdom, Slovenia, Sweden, Denmark, and Austria, the supervision of the activity of multinational enterprises concerning the respect of human rights and the environment is also debated.