Putting the French Duty of Vigilance Law in Context: Towards Corporate Accountability for Human Rights Violations in the Global South?

Abstract

The adoption of the French Duty of Vigilance law has been celebrated as a milestone for advancing the transnational business and human rights regime. The law can contribute to harden corporate accountability by challenging the “separation principle” of transnational companies and by obligating companies to report on their duty of vigilance. However, the question of whether the law actually contributes to human rights and environmental protection along global supply chains requires empirically grounded research that connects processes in home and host state countries. This paper contributes to such a new research agenda by linking political ecology literature and empirical insights from the Global South to research on due diligence regulations. With reference to field research data on contestations between the oil and gas company Total E&P and indigenous communities in Bolivia, I argue that the burden of proof and contestations over valid knowledge represent major obstacles when trying to establish legal liability.

Business and Human Rights Regulation After the UN Guiding Principles: Accountability, Governance, Effectiveness

“…They point out significant gaps in the inclusiveness of participatory governance tools such as National Action Plans on business and human rights (Methven O’Brien et al 2022 ). And they reveal the fortification of power and resource asymmetries between transnational corporations and victims of corporate human rights abuses, even through seemingly progressive legal instruments, such as the French Duty of Vigilance Law (Schilling-Vacaflor 2021 ).…”

“…They show that voluntary commitments by companies to respect human rights have only limited impact on their business practices because managers find it difficult to identify human rights indicators and to formulate a positive business case for human rights respect and promotion (Favotto and Kollman 2022 ). The effectiveness of legally binding home state regulations supposed to provide access to remedies for victims of corporate human rights abuses by subsidiary companies of TNCs suffers from the structural defect of placing the burden of proof on the side of the claimants, as the analysis of the French Duty of Vigilance Law demonstrates (Schilling-Vacaflor 2021 ). Similarly, the study of National Human Rights Institutions (NHRIs), which are envisaged by the UNGPs to fulfill the role of state-based, non-judicial grievance mechanisms in relation to corporate rights abuses, reveals that the majority of NHRIs has only limited powers and competences to provide access to remedies and pressurize corporate actors into human rights compliance (Wolfsteller 2022 ).…”

“…In the following article “Putting the French Duty of Vigilance Law in context: Towards corporate accountability for human rights violations in the Global South?”, Almut Schilling-Vacaflor ( 2021 ) 23 explores the potential and pitfalls of such stringent national regulations. She examines the applicability of the French Duty of Vigilance Law of 2017 to the activities of Total E&P, a subsidiary company of the French-based TNC Total, in indigenous territories of Bolivia’s Chaco region, in order to assess the extent to which legally binding home state regulations can break through the “separation principle” of dissociated accountability of parent and subsidiary companies for their human rights and environmental impacts.…”

“…Fifthly, although transnational corporations (TNCs) account for half of global exports, one-third of the global GDP, and approximately one-quarter of global employment (OECD 2018 ), their liability is limited under public (national and international) law because parent companies and their subsidiaries and suppliers operating in different jurisdictions are treated as separate legal entities. Due to this “separation principle,” it is extremely difficult, often impossible, for victims to hold the parent company to account for human rights abuses committed by subsidiaries or suppliers and to seek legal redress (Krajewski 2018 ; Schilling-Vacaflor 2021 ).…”

The Commons, the Common Good and Extraterritoriality: Seeking Sustainable Global Justice through Corporate Responsibility

“…L. 225-102-4 of the French Commercial Code). This extraterritorial reach may stretch throughout the global supply chain, and victims can bring actions in France against a French parent company for damages that have occurred in another state's territory by its subsidiary [53]. Regional legal instruments with international effects are also seen; the most prominent of these is the EU Directive on non-financial reporting [54].…”