Human Rights Due Diligence Project – Asia Consultation Hosted by the City University of Hong Kong August 10th

and 11th, 2012 The International Corporate Accountability Roundtable (“ICAR”) is hosting consultations with local experts in various jurisdictions to gain valuable inputs into the Human Rights Due Diligence Project. The Human Rights Due Diligence Project will formulate legal and policy recommendations to governments to promote due diligence to prevent, remedy and mitigate adverse human rights impacts. On August 10th and 11th, 2012, the School of Law at the City University of Hong Kong hosted the Project’s Asia and Australia Consultation. We extend our thanks to City University and Professor Surya Deva, Associate Professor, School of Law, City University of Hong Kong, for the excellent leadership and collaboration in this endeavor. Participants in our Consultation included: Dr. Justine Nolan, Senior Lecturer & Deputy Director Australian Human Rights Centre, Faculty of Law, The University of New South Wales; Dr. Laode Syarif, Lawyer, Jakarta; Mr. Krishnendu Mukherjee, Doughty Street Chambers; Mr. Xiaohui Liang, Chief Researcher, Office for Social Responsibility, China National Textile and Apparel Council; Ms. Lan Shiow Tsai, Singapore Management University; Ms. Geetanjali Mukherjee, Singapore Management University; Mr. Saito Makoto, Attorney, Tokyo; Mr. Dina Mani Pokharel, Lawyer, Kathmandu; Dr. Ali Mohsin Qazilbash, Assistant Professor, Lahore University of Management Sciences, Lahore; Dr. Mark Kielsgard, Assistant Professor, School of Law, City University of Hong Kong; Ms. Farzana Aslam, Faculty of Law, University of Hong Kong; Mr. William Nee, China Labour Bulletin; Dr. Bill Taylor, Associate Professor, Department of Public and Social Administration, City University of Hong Kong; Dr. Chris King-Chi Chan, Assistant Professor, Department of Applied Social Studies, City University of Hong Kong. The Consultation was led by Amol Mehra, ICAR Coordinator; Filip Gregor, Board Member of ECCJ; Catherine Coumans, Research Coordinator, MiningWatch Canada; Professor Surya Deva, Associate Professor, School of Law, City University of Hong Kong and the Human Rights Due Diligence Project experts, including Professor Anita Ramasastry and Mark Taylor. A short summary of the discussion follows. Issues of Enforcement Participants noted the prevalence of due diligence requirements, particularly in the environmental and extractives industries context, but noted that the problem is one of enforcement of these requirements.

Director’s Duties as Triggers for Enhanced Due Diligence Many participants turned to corporate governance to show how obligations on directors and officers could be read to include social and human rights standards. However, there is no current explicit requirement on them to do so; rather these can be interpreted from the tenor of the laws. Workplace Health and Safety Standards are Instructive Participants shared how standards developed for workplace health and safety are instructive in structuring due diligence frameworks, particularly as they often include penalties if breaches occur. Anti-Corruption and Anti-Money Laundering Regulations are Instructive Participants shared how regulations to prevent corruption and money laundering include strong due diligence requirements, often with criminal sanctions for violations. Differences in Interpretation of Human Rights in Asian Context Due to political and historical reasons, the human rights regime in the Asian context has traditionally prioritized different sets of rights vis-à-vis the Western frame. Participants stressed that these considerations are important when drafting guidance or regulations on human rights due diligence. Prevalence of State-Owned Enterprises Participants noted the prevalence of state-owned enterprises in the region, and the nature of due diligence that should be conducted by these entities. Therefore, where human rights violations are found based on the activities of these enterprises, they can be attributed to the State itself. Regulations on human rights due diligence applicable to these entities should therefore be prioritized. Next Steps Participants will submit survey responses by August 31st, 2012 to be incorporated in the presentation of initial findings at ICAR’s Second Annual Meeting in Washington, D.C. on September 6-7, 2012. The Human Rights Due Diligence Project report will be released in December 2012. For more information regarding the Human Rights Due Diligence Project, contact Amol Mehra, ICAR Coordinator, at amol@accountabilityroundtable.org.

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