WHEN FASHION COMES AT THE COST OF DIGNITY: THE “TORN LINK” BETWEEN HUMAN RIGHTS AND APPAREL INDUSTRY
Updated: Sep 14, 2020
With the dawn of the new millennium, one of the most visible changes in the arena of human rights studies has been the growing relevance of its interplay with businesses. History shows that the balance required between the fair conduct of business and ensuring human rights to the actors involved therein has always been skewed.
The past few years have been marred with reports of apparel brands of the highest standing not ensuring to their workers the basic human rights that they are entitled to. Discrimination and denudation of human rights have seen every shape and form- news of workers dying in the collapse of an uninspected building designated as their ‘workplace’, or workers being denied the basic right to severance pay have plagued the global apparel industry. This article, thus, analyses the various instances where the apparel industry has been embroiled in controversy relating to human rights violations. Furthermore, the framework for the regulation of businesses to ensure respect for human rights through international conventions has also been discussed. In conclusion, the author reviews the measures that can be adopted to hold companies accountable for human rights violations and reduce them to a minimum.
Case studies- Examples of defaulting brands
The latest report of the Corporate Human Rights Benchmark [“CHRB”], published in November 2019, presents a murky image of how companies perform in their compliance with human rights. Out of almost 200 of the largest global companies, 72 companies had at least one serious allegation connected to them that met the CHRB ‘severity threshold’.
In most cases, the abuse of human rights is a direct consequence of the lack of transparency maintained by the companies. Many apparel companies do not disclose information on any of their production centres, which makes the unauthorised ones a breeding ground for human rights violations. In 2013, the collapse of a building that killed approximately 1500 workers at a production centre in Rana Plaza, Bangladesh emphasised the importance of transparency and, the hesitance of many companies in adopting better transparency mechanisms.
One of the primary requirements to facilitate compliance with human rights standards for workers is to ensure visibility. Brands like Inditex (owner of Zara), Mango, and Forever 21 still grapple with complaints of pregnant garment workers’ firings and workplace sexual harassment. At the same time, several other big companies, including Adidas, Hugo Boss, Puma, and Primark, pledge to ensure transparency and take positive steps in the direction of ensuring greater accountability.
Nevertheless, even with the assurance of visibility, abuse, and gender-based discrimination continue to infiltrate the 2.5 trillion apparel industry. Fashion labels like H&M and GAP have been accused of being ineffective in preventing harassment of female workers in their production centres in countries like Bangladesh, Cambodia, Indonesia, and India. However, upon receiving such complaints, the companies were receptive to an investigation and intervention by the International Labour Organization [“ILO”]. Unfortunately, not every company has been equally amenable to investigations. Nike barred the independent watchdog, Worker Rights Consortium, from entering its factories. This sparked a worldwide movement known as the “#NikeCoverUpChallenge” that effectively called out Nike’s cover-up of many human rights abuses.
On the contrary, multiple complaints of human rights abuse across Adidas production centres in the world led to the formulation of a “third-party complaint” mechanism by the company. The document affirms the company’s commitment towards sustainable business, which “respects human rights and ensures fair, safe, and healthy working conditions” across its global supply chain. This is also in line with the United Nations Guiding Principles on Business & Human Rights [“ UN Guiding Principles”], under which business enterprises should “establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted ”. According to the CHRB Report, Adidas is the only brand that scores in the range of 80-90%. Despite the measures adopted by the company, Adidas too has not been completely immune to human rights abuses that often go unchecked in its vast global supply chain. The unfair and arbitrary firing of approximately 1300 workers in Indonesia was met with no redressal. The situation was further aggravated when the workers were denied their severance pay by Adidas’s shoe supplier Panarub in Indonesia. There were allegations against the company for violating the OECD Guidelines for Multinational Enterprises [“OECD Guidelines”] and the UN Guiding Principles, wherein the company failed to carry out ‘human rights due diligence’ despite halting the production of its supplies at the aforementioned factory.
This leads to another crucial question- how effective is the international legal framework in protecting human rights in businesses?
Obligations under International Conventions
All businesses must meet certain globally agreed and ratified standards of human rights that are primarily codified in international conventions like the UN Guiding Principles and the OECD Guidelines. The principle that is foundational to all the international covenants is the state’s obligation to protect human rights and regulate business’ behaviour.
The first foundational principle of the UN Guiding Principles dictates that “states must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish, and redress such abuse through effective policies, legislation, regulations, and adjudication.” Evidently, states cannot be held directly responsible for the abuse of human rights by private actors. Nevertheless, states may be held responsible under international law for failing to take appropriate steps to uphold human rights and prevent their abuse through measures outlined in the guidelines. This accountability on behalf of the states paves the way for enforced transparency of businesses and fairness in the adjudication of instances of human rights abuse.
Similarly, the OECD Guidelines, though not binding on enterprises, place the onus on national governments to foster the promotion of human rights among the enterprises operating in or from their territories. Furthermore, one of the biggest achievements of the OECD Guidelines has been the procedural clarity it has successfully provided. Under these guidelines, the complaints are made to and handled by the National Contact Point [“NCP”] and greater emphasis is placed on mediation as the means of dispute resolution. The most well-known example that evinces the effectiveness of these guidelines is that of the Vedanta controversy. Several NGOs complained to the NCP for the OECD Guidelines in the UK, accusing Vedanta, a globally diversified metals and mining company, of breaching the guidelines. Though Vedanta refused to engage in mediation, the NCP’s final statement against such resistance by Vedanta served as an instrument to lobby the financial sector to “influence and change Vedanta’s behaviour” and even acted as a repeller for future business engagements with the company. Hence, the mechanism successfully ensured that the companies, though not bound by the regulations, were inevitably and indirectly compelled to comply.
The way forward : A Need for Structural Changes In Industrial Policies
Admittedly, the vastness of the apparel industry’s global supply chain makes it seemingly impossible to monitor the working conditions of the subcontracted manufacturers at all times. Though the international conventions discussed above do create an obligation on states to regulate the businesses carried in or from their territory, they do not create any binding duty for companies to comply with.
The author believes that for better enforcement of their foundational principles, the international conventions should bind the very entity whose conduct they wish to regulate. In pursuance of this, a binding treaty on businesses and enterprises has been proposed by the UN Human Rights Council Open-ended Intergovernmental Working Group on Business and Human Rights. Incorporation of a provision that mandates the companies to disclose the locations of their production centres could ensure better accountability and facilitate transparency in businesses, ensuring that the abuse of human rights does not go unchecked or unreported.
Notably, some of the lowest-ranking apparel brands in the CHRB report, like LVMH, Ralph Lauren, and Prada, fail to address sustainable fashion and promotion of human rights diligence in their mission statements. Accordingly, human rights, as defined in the Universal Declaration of Human Rights, must be included in the companies’ ‘global business principles’ itself. This would considerably impact human rights activism and would encourage complaints from the victims. Workers in the local production centres will greatly benefit if they are made aware of their rights, and the kind of exploitation at the local level that their company will not tolerate.
Additionally, companies must develop a mechanism for independent and public reporting of instances of human rights abuse. Such public reporting will facilitate complaints reaching the appropriate authority in the company, whose primary task would be to maintain the company’s compliance with standards of human rights, ultimately increasing transparency.
However, the most crucial step in the positive direction would be to encourage open dialogue between companies and the stakeholder groups concerned with human rights. This would help in addressing the considerable gap and hostility that has emerged between companies on one hand, and the organisations that seek to call out businesses that do not effectively deal with complaints of human rights violations, on the other. In fact, effective communication between the two groups can contribute towards collaborative functioning to bring down the instances of human rights abuses.
While several businesses have responded positively to tackling the challenge of human rights violations, a greater willingness, and cooperation from the apparel industry is yet to be achieved. Nevertheless, with several companies already taking steps in the right direction, a better future for compliance with human rights standards may not necessarily be a distant reality.
Title Image Source: Nur Photo via Getty Images
This article has been written by Navya Saxena who is a third-year law student at National Law Institute University, Bhopal. Navya has a penchant for international commercial arbitration, public international law and humanitarian law.