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The Human Rights Blog of the Leitner Center for International Law and Justice


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Protecting abortion as a human right in the U.S.

By Elizabeth Gyori

Just days after the Supreme Court struck down a restrictive Texas abortion clinics law, the state is now seeking to force all fetal tissue to be cremated or buried after abortions. In June, Louisiana passed a law banning the most common and safest form of abortion during the second trimester, effectively forcing women to undergo less safe abortion procedures or to not get abortions after 12 weeks of pregnancy. Alabama’s state legislature passed a bill in May restricting abortion clinics from operating within 2,000 feet of public elementary and middle schools. A new law in Indiana bars women from getting abortions if a fetus’ race, gender or genetic disability is the motivating factor. Bans on abortions at 20 weeks of pregnancy—when the fetus is still not viable outside the mother’s womb—are in effect in many states across the U.S. These are only some of the most recent draconian laws passed by U.S. states to restrict women’s access to abortion and to curtail women’s human and reproductive rights. As attacks on a woman’s right to control her own body increase in frequency and fervor, it is more urgent than ever to protect a woman’s right to abortion as a fundamental human right.

Abortion clinics are closing down at an alarming rate across the U.S., in both blue states and red states. While statistics on abortion clinics closures are scarce, one report by Bloomberg estimated that at least 162 abortion clinics in the U.S. stopped providing services or shut down entirely since 2011. Only 21 abortion providers have opened up to take their place. In many states, just a few (or sometimes, just one) abortion clinics service the entire area. Many women are being forced to travel hours and across state lines to obtain legal, timely and safe abortions. The drastic decrease in abortion clinics is largely due to various laws passed around the country placing medically unnecessary restrictions on doctors and abortion providers. These include requiring doctors to have admitting privileges at or an affiliation with a nearby hospital, imposing burdensome licensing requirements for abortion clinics (i.e. being licensed as ambulatory surgical centers), excessively regulating the facilities where an abortion will be performed and criminalizing the most common forms of abortion. (These first two practices were ruled unconstitutional in the 2016 landmark case, Whole Woman’s Health v. Hellerstedt, by the Supreme Court, and will likely see legal challenges in many states across the U.S. Despite this, history tells us that more creative and restrictive abortion laws will only replace them.)

Beyond these attacks on the clinics themselves, states have passed laws imposing medically unnecessary wait times and counseling on women seeking abortions, as well as restrictions on insurance coverage and minors’ access to abortions. Coupled with the sharp decline in abortion clinics, women all over the U.S. are being denied the health care that they need, deserve and to which they have a right. They are faced with the devastating reality that they no longer have full control over their bodies, their labor, their choice of motherhood. And they are seeing that if they want to take back control—sometimes through purchasing abortion-inducing medication on the internet, as Purvi Patel did in Indiana—they will be arrested, jailed, criminalized and even demonized.

In recent years, abortion access and reproductive rights have been the most threatened since Roe v. Wade legalized abortion in the U.S. in 1973. The debate over abortion has often centered on morality and religion, rather than the rights of women. As states pass more and more laws restricting abortion in one way or another (with, perhaps, the ultimate goal of banning abortion altogether), we must understand that not only are these laws unconstitutional, but they are in violation of the U.S.’ human rights obligations under international law.

Abortion is a critical component of comprehensive reproductive health care for women. Denying women access to this procedure violates women’s right to life and health care. Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which the U.S. is a party, guarantees the right to life, and governments are required to take the necessary steps (“positive measures”) to preserve life. Since reproductive health care is necessary for women’s survival, access to safe and legal abortion is protected under the ICCPR. Not only must governments respect this right, but states are also required to ensure that women do not risk their lives by seeking unsafe and illegal abortions due to restrictive abortion laws.

On several occasions, the Human Rights Committee has expressed concern about laws that restrict abortion, make abortion inaccessible or discourage safe and legal abortion services, and the Committee has consistently recommended loosening abortion laws. Earlier this year, the Committee affirmed that abortion is a human right under the ICCPR in a landmark case in Peru, in which a woman who was denied a medically necessary abortion received reparations from the government. In June, the Human Rights Committee ruled that Ireland’s abortion ban and the criminalization of access to abortion amounted to human rights violations. After the U.N. Working Group on the issue of discrimination against women in law and in practice conducted a 10-day fact-finding mission in the U.S., they noted in their 2015 preliminarily findings that women in the U.S. are facing increasing barriers to safe and legal reproductive care, which does not meet international human rights standards. They group also stressed that freedom of religion cannot justify the denial of reproductive health care.

Furthermore, laws that restrict access to abortion are discriminatory towards women, as they deny only women’s right to life and necessary health care. They also discriminate against female racial minorities and poor women, who are disproportionately affected by abortion bans and restrictions in the U.S. Since Articles 3 and 26 of the ICCPR protect the equal enjoyment of the rights stipulated in the covenant, anti-abortion laws violate women’s right to be free from gender-, race- and class-based discrimination under the ICCPR.

Beyond this, forcing women to carry pregnancies to term or to seek out unsafe, clandestine abortions is cruel, inhuman and even torturous. Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which the U.S. is also a party, guarantees individuals the right to be free from torture and cruel, inhuman or degrading treatment. The U.N. Committee against Torture has recognized that forcing women to carry pregnancies to term or to seek out illegal and unsafe abortions (in which their lives may be placed in danger) qualifies as cruel, inhumane or degrading treatment. Juan Mendez, the U.N. Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, classified lack of access to abortion as torture in his 2013 report. Furthermore, complete bans on abortion violate the rights guaranteed under CAT, according to the Committee, especially since these bans force women to carry pregnancies that result from rape or incest to term. Forced pregnancy, especially as a result of rape and incest, can be incredibly traumatizing, both physically and emotionally.

Recent attacks on abortion are fundamentally about controlling—and arguably, torturing—women. These restrictive laws not only violate women’s basic human rights, but they also contribute to an increasingly polarized, vicious and violent political and social climate. In March 2015, Donald Trump, the presumptive Republican nominee for president, said that women should be “punished” for getting abortions illegally. On Nov. 27, 2015, three people were shot dead and nine people were injured during a shooting at a Planned Parenthood in Colorado. Robert L. Dear Jr., the accused shooter, yelled that he was “a warrior for the babies” during his court hearing, making it clear that his acts of violence were motivated by anti-abortion views. Incidents of violence against and harassment of abortion providers, including arson, vandalism and attempted murder, have increased over the past few years. And groups of anti-abortion activists regularly gather near abortion clinics to terrorize women seeking to exercise their reproductive rights and control over their own lives.

Pro-choice advocates have long worked to establish and portray abortion as a constitutional right, recognized and protected by Roe v. Wade and derived from the constitutional right to privacy. While the latest Supreme Court case was a distinct victory for women and reproductive rights, restrictive laws on abortion like the ones mentioned before have slowly and will likely continue to erode women’s right to abortion. As women face sustained and relentless attacks on their reproductive rights, we must work to protect abortion not just as a constitutional right, but also as a fundamental human right.

Elizabeth Gyori is the Editor of Rights Wire.

The views expressed in this post remain those of the individual authors and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Steve Rainwater/Creative Commons


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The shortfalls of third party certification schemes and possible remedies for stronger worker protection (part 2 of 2)

By Sreelatha Babu, Denis Nolasco and E.Constantinos Pappas

Whiting_BoxDieline.pdfAs consumers have grown more conscious of the human rights, labor and environmental impacts of their purchases, they have turned to third party certifications (i.e. the Fair Trade or Rainforest Alliance certifications) to distinguish how to ethically spend their money. In terms of human and labor rights, the proliferation of certification schemes is a helpful and welcome development to protect vulnerable workers in developing economies. Especially after news organization have exposed how slave labor, child labor, trafficking of undocumented migrants and debt bondage are rampant in the Thai seafood industry, these schemes may be a useful tool for corporations seeking to uphold human and labor rights in their supply chains.

Unfortunately, a litany of issues, including undue influence from corporate interests, economic pressures, lax enforcement, lack of financial independence, insufficient chain of custody procedures and ineffective auditing procedures, plague third party certification schemes, making them often inadequate in preventing the worst kinds of human rights abuses. In the second part of this two part series on human rights violations in global supply chains and the role that certification schemes can play in ensuring rights, we will discuss the criticisms and shortfalls of current schemes and how reforms can make these schemes more effective. This research and these recommendations derive from a project in the Spring 2016 Corporate Social Responsibility Clinic in partnership with the International Labor Rights Forum.

MAJOR CRITICISMS OF EXISTING THIRD PARTY CERTIFICATION SCHEMES

Although certification standards are formulated with multi-stakeholder engagement, they are often developed with significant influence from corporations that hope to use a given mark. The success of a particular certification depends on retailers and restaurants using the mark on its products. Certifications that require higher standards may result in greater costs to the corporation. If corporations cannot pass these costs onto their supplies, it’s less likely that they will seek to gain certifications. As a result, though many of the schemes purport to use existing International Labor Organization (ILO), Food and Agriculture Organization (FAO) and other international guidelines as a benchmark, many standards cherry-pick or water down the requirements due to business and financial pressures. Furthermore, standards are often silent on important labor rights issues that may not be enshrined in national laws or basic international human rights law. Some certifications only require applicants to honor national labor laws when it comes to critical areas of labor rights, such as daily hour requirements, freedom of association, minimum working age and the right to collective bargaining. This situation is exacerbated when the board of the certification has final say over what standards are selected from the recommendations of the formulation committee.

Certification schemes are also criticized because they do not impose binding obligations on their applicants, due to lax enforcement for non-compliance by the certification organizations themselves. This allows applicants to deviate from their obligations after receiving certification. Most certifications superficially provide for post-certification surveillance audits and heightened scrutiny in regards to complaints of non-compliance. They are also technically equipped to enforce their requirements through sanctions or removal of the right to use the mark. However, most of the certifications surveyed in our project do not provide public reports regarding enforcement or sanctioning, making it difficult to determine whether this occurs in practice. For example, a BAP certified shrimp-processing factory investigated by International Labor Rights Fund (ILRF) and Workers Watch United, revealed substantial human and labor rights violations. Unfortunately, after the investigation, BAP publicly announced that, despite some nonconformities, the factory retained its certification. This suggests that certifications may not completely serious about enforcing their requirements.

These enforcement issues might be related to the fact that certifications and certifying bodies are dependent on fees paid by corporations and applicants, including licensing fees for using the mark and payments for conducting audits. This dependency of certifications on licensing fees could create a conflict of interest between the certifications’ purpose of protecting against human and labor rights violations and their need to generate income to continue operating. This conflict of interest likely permeates the standard formulation process, the initial auditing process and the enforcement process, resulting in less protective standards, over-certification and lax enforcement. The independent auditing organizations themselves are not immune to this, as they are often for-profit organizations that rely on auditing costs for earnings, and are at the mercy of applicants, as many certifications allow applicants to choose their auditor.

Finally, certifications can be criticized for not imposing effective auditing procedures as a condition of certification. Applicants have an economic incentive to gain certification at the lowest cost to their business, preserving access to the market of developed countries with minimal effect on their profits. Despite this, many certifications do not require audit procedures that effectively prevent gaming and manipulation of the audit. For instance, many certifications schemes in our research provide for an initial announced audit and do not provide for random selection of interviewees, among other bare bones procedures. This gives the companies enough time to simulate the conditions required under the certification, resulting in less reliable audit reports and inhibiting the reliability of certifications as a control for human and labor rights risks.

STRENGTHEN EXISTING THIRD PARTY CERTIFICATION SCHEMES

Despite these criticisms, third party certification schemes still provide a feasible and beneficial private sector solution to labor and human rights violations in the seafood industry in developing countries such as Thailand. Much of the present criticism of these standards could be addressed by adopting changes in the organizational structure and procedures undertaken by certification schemes, including making the initial auditing process and the post-certification complaint and grievance process more rigorous and transparent.

During the initial auditing process, more rigor and transparency would help third party certification organizations police human rights violations, such as those discussed in the first part of this series. During the initial auditing process, more rigorous procedures would prevent applicants from gaming the system to achieve certification despite continuing abusive practices. This could include requiring auditors to conduct interviews of employees at random, select safety equipment at random and conduct interviews out of earshot of employers. These practices ensure that the interviewees and conditions of the audit are not prepared beforehand to simply meet standards. More transparency in audit requirements could also aid the non-governmental organization (NGO) community and the public in comparing certifications amongst one another and in effectively advocating for more rigorous procedures.

Certifications could institute more rigorous complaint mechanisms, which would allow the public to ensure that certified applicants continue compliance while giving workers and the public an effective way to voice complaints with confidence. Generally, complaints should trigger unannounced surveillance audits by the certification organization. However, this is not always the case, as shown by the BAP investigation discussed above. More rigorous complaint mechanisms and grievance procedures must be formulated to ensure that union representatives, interested NGOs or workers themselves have an effective outlet for reporting noncompliance. Transparency in this process, including, ideally, a way to see how many complaints have been lodged and their resolution, is essential for ensuring that all issues are promptly addressed. Moreover, a rigorous and transparent complaint mechanism could help prevent situations where certified companies reap the benefits of certification while still profiting from deplorable working conditions, and deter future non-compliance from others who would seek to do the same.

When it comes to the standard setting and auditing processes, including civil society in the process while separating business and financial interests from having final say on the standards is essential. These changes would result in more rigorous substantive standards with the ability to effect real change for workers. Involving NGOs, labor organizations, and other stakeholders more in the standard setting and standard review process would provide a more diverse and spirited discussion on which substantive requirements and procedures should be included by the certification. The separation of business and financial interests of the certification itself from the standard setting and auditing process would ensure that the economic interests of the certification do not impede its judgment. This could be achieved by delegating formulation of standards and auditing procedures to a truly independent committee with final authority within the certification and removing veto power from the main board that manages the other business and affairs of the certification. The independent committee should be comprised of all interested stakeholders, even members of the certification themselves. This would result in standards and procedures that are free from conflicts relating to the finances of the certification or its directors that may hinder the goal of providing a certification that maximizes benefits to at risk laborers.

Of course, the success of all of these reforms depend on the willingness of the certification to enforce its requirements. Thus, increasing enforcement sanctions and suspensions would give teeth to certifications, ensuring that noncompliant applicants suffer financially from deviating from requirements once they obligate themselves to meet them. Sanctions and suspension can be used as an initial deterrent, with revocation of the use of the mark as a final remedy for repeat offenders, cutting out the market for retailers and restaurants who require certification.

Finally, organizations should alter how certification schemes and auditors function financially by overcoming their dependence on licensing and audit fees from applicants. This change will promote impartiality and ensure that standards are formulated without economic incentives in mind. Although this is undoubtedly the hardest reform to achieve, certification organizations could seek out donations, grants or government funding focused on corporate social responsibility. Similarly, auditing bodies could reorganize as non-profit organizations, removing the self-interest motive from the initial audit and surveillance process. Furthermore, if certification organizations themselves assigned auditors to each applicant, rather than allowing applicants to choose, they would remove the incentive among auditors to relax their requirements for more business, removing the main influence behind the race to the bottom for auditing.

MOVING FORWARD

Multinational corporations must be held accountable for their global supply chains and how their products are produced. When governments fail to uphold basic labor and human rights standards, companies have an obligation to step in. For this reason, we applaud the creation of these schemes by the certification organizations and their proliferation through adoption and requirement by retailers and restaurants around the world. However, the work is not yet done. Third party certification schemes can benefit workers, companies and consumers if they are created and used in a responsible, accountable, and transparent fashion. We believe these recommendations, gleaned through our research in conjunction with the ILRF, provide a helpful starting point for creating an effective private sector response to the human and labor rights crisis in the global seafood supply chain.  We hope that these recommendations spur further attention, reform, and response in this critical area. The lives and livelihoods of workers around the world may very well depend on it.

Sreelatha Babu is an LLM student at Fordham Law School. Denis Nolasco is a 2L at Fordham Law School. E. Constantinos Pappas is a 3L student at Fordham Law School. They all participated in the Spring 2016 Corporate Social Responsibility Clinic at the Leitner Center for International Law and Justice.

The views expressed in this post remain those of the individual authors and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Walmart/Creative Commons


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Human and labor rights violations in the global seafood supply chain and the rise of third party certification schemes (part 1 of 2)

By Sreelatha Babu, Denis Nolasco and E. Constantinos Pappas

While browsing the seafood aisle of the local supermarket, few consumers think about the course that products take before they arrive on the shelf. Even fewer consumers imagine that the seafood that ends up on their plate might have come from exploited, abused or even enslaved workers half a world away. Nonetheless, this exact scenario is playing out on fishing vessels and in factories, hatcheries and fisheries throughout the seafood industry in developing countries such as Thailand. Often times, these abuses occur at the acquiescence of or with the involvement of state and local authorities. Worse still, this seafood ends up in supply chains used by some of the most prominent brands in the world, leaving consumers and investors in developed economies as unwitting bankrollers of egregious labor and human rights violations.

Despite the existence of international labor rights standards, many national governments either fail to enact laws that adequately protect workers or fail to enforce existing laws that do. In the face of this impunity and lack of action, there are a number of approaches that retailers can take to prevent or mitigate harmful labor practices that take place within their supply chains, including using their leverage to work with governments to improve regulation and enforcement. One of the approaches taken by multinational companies has been to adopt and comply with third party certification schemes. These certification schemes help companies to identify and remove such violations from within their supply chains while signaling to consumers that the product they are purchasing is “sustainable.” Unfortunately, because of a litany of issues ranging from lax standards and auditing requirements to business influence over the formulation of the standards themselves, these certification schemes are generally insufficient in preventing the worst kinds of human rights abuses, as evidenced by their continued practice.

This two-part series will explore some of the human rights violations plaguing global supply chains and the role that third party certification schemes can play in helping prevent or curb these abuses. The first part of this series will discuss human rights violations in global supply chains, with the Thai seafood industry as a specific example of how trafficking of undocumented migrants, forced labor, debt bondage and child labor can be used to produce items sold all over the world. It will also examine how voluntary third party certification schemes have developed to help companies understand and address human rights violations within their supply chains. The second part of this article series will delve into the major criticisms of these third party certification schemes and propose some reforms to strengthen their efficacy in preventing human rights and labor violations. This research and the reforms that will be proposed in the second article stem from the work of the Spring 2016 Corporate Social Responsibility Clinic in partnership with the International Labor Rights Forum.

HUMAN RIGHTS AND LABOR VIOLATIONS IN THE THAI SEAFOOD INDUSTRY

The globalization of supply chains has caused competition among developing countries to attract investment. In 2007, multinational corporations contributed $3 trillion in foreign direct investment. As a result, national labor laws often fall short of internationally recognized standards, providing little protection to workers. Further, the enforcement of labor laws is often weak, sometimes as a result of political unwillingness or due to corruption or bribery. In the case of Thailand, a combination of these factors has resulted in reports of trafficking of undocumented migrants, forced labor, debt bondage and child labor throughout its seafood industry.

In 2009, the U.S. imported 552,206 metric tons of shrimp, which totaled $3.8 billion, with Thailand making up 35 percent of that supply. In 2015, shrimp imported to the U.S. increased to 587,185 metric tons of shrimp worth $5.3 billion, out of which 11.4 percent was from Thailand. These imports are destined for U.S. food stores such as Whole Foods, Costco and Wal-Mart, as well as prominent restaurants, including Red Lobster and Olive Garden. In fact, an Associated Press investigation found 150 stores across the U.S. selling shrimp associated with human and labor rights violations.

The Thai seafood industry is currently thriving, with the most recent year of exports bringing in approximately $7 billion dollars in revenue. This growth is primarily due to the industry’s ability to maintain low production and processing costs, often through the employment of undocumented migrant workers. In 2011, the International Labor Organization (ILO) estimated that approximately 193,600 migrants from Burma, Cambodia and Laos worked in fishing and fish processing factories, toiling in inhumane working conditions. In the case of shrimp, currently 80 percent of the 700,000 shrimp workers are migrants. Given that many unregistered migrants workers live in the shadows out of fear of deportation, it is difficult to accurately assess the amount of undocumented workers in this industry. However, in Samut Sakhon, the most prominent province in shrimp processing facilities, only 70,000 of approximately 400,000 migrant workers were legally registered, implying a large rate of undocumented migrants in this industry as well.

Thailand’s harsh penal laws for undocumented migrant workers make them especially vulnerable to abuse by their employers due to fear of being reported to authorities, being deported or even facing imprisonment for terms upwards of five years. This gives employers substantial leverage, often culminating in conditions of forced labor. In fact, government officials themselves are often directly responsible for the precarious situation of undocumented migrants. A 2015 U.S. State Department report found that officials “on both sides of land borders accept payment from smugglers involved in the movement of migrants between Thailand and some neighboring countries,” with these migrants often becoming the victim of human rights violations.

In addition to the fear of deportation, most workers are hired in their countries of origin (including Burma, Cambodia and Laos) through labor brokers that charge a recruitment fee ranging in the hundreds to thousands of Baht (between $270 and $570). The workers arrive believing they will pay back their fee with the money they make from working. However, they are often paid meager wages. Laborers in Thai shrimp processing factories peel 175 pounds of shrimp for just $4 a day, far too little to cover their recruitment fee and additional debts charged by their employers for food and equipment. Before long, workers’ debts far outpace their income. But with no alternative to meet their obligations, they must continue to work, resulting in situations of debt bondage.

Moreover, workers are often coerced or forced into enduring inhumane working conditions. Laborers in shrimp factories can spend up to 16 hours a day with their hands in ice water peeling shrimps.  They are not given adequate time to rest and are often forced to work while ill or are denied adequate medical attention. Beyond this, many factories are woefully inadequate with respect to safety and living conditions, often with 50 to 100 workers crammed into tiny sheds. Workers are threatened with violence (to themselves or their families) or with arrest and deportation (for their undocumented status or outstanding debts) to prevent them from leaving. For those who do manage to escape, they are often caught and returned by complicit local authorities, according to reports, or are sold or forced into a neighboring operation by owners competing for labor.

Furthermore, many reports document child labor in these factories. According to the International Labor Organization report, “Child Labor in the Value Chain of the Shrimp Industry in Thailand,” in Samutsakhon—one of the main Provinces dedicated to shrimp exportation—most children employed in this industry started working before their 15th birthday. In at least one reported case, a worker at a shrimp peeling factory was so tiny that she had to stand on a stool in order to reach the peeling station.

These violations are not limited to the shrimp industry, but are issues throughout the Thai seafood supply chain. Many ILO reports detail how migrant workers in the fishing industry are often tricked into inhumane working conditions. An article by the Guardian also recently found egregious human rights violations aboard fishing vessels operating in and out of Thailand. And until the recent Trade Facilitation and Trade Enforcement Act amended the law, U.S. officials were often powerless to exclude these seafood exports pursuant to their power to exclude goods procured as a result of egregious human rights violations, due to an anachronistic exception for goods that cannot be procured by another source.

THE PRIVATE SECTOR RESPONSE: THIRD-PARTY CERTIFICATION SCHEMES ON HUMAN RIGHTS AND LABOR RIGHTS

In the face of government inaction and impunity, the private sector has turned to third party certification schemes as a tool to ensure that human rights and environmental concerns are addressed within their global supply chains. These schemes seek to reassure retailers, restaurants, suppliers and consumers that certain labor rights protections and sustainability standards are being met. By enabling companies to identify and remove violations that occur within their supply chain, these schemes in turn help companies avoid negative publicity associated with being linked to those practices.

In a third party certification scheme, an independent organization works with stakeholders such as NGO representatives, trade unions, key retailers, academics and the general public to formulate a set of standards that certified companies must meet. A company wishing to gain certification must agree to have their supply chains audited to ensure compliance and follow-up audits are often mandated. Once the company is certified, it receives a license to use the certification mark on all goods it sells. A retailer may also require certification from a certain scheme as a condition for its suppliers, so applicants must be certified to retain access to the most profitable markets.

In the seafood industry, the major certifications for human rights and labor rights compliance include, among others, Social Accountability International 8000 (SA8000), Best Aquaculture Practices (BAP), Marine Stewardship Council (MSC), Aquaculture Stewardship Council (ASC) and Friends of the Sea (FOS). These certifications are voluntarily adopted by both retailers and participants in their supply chains and rely on basic international human and labor rights standards such as those established by the International Labor Organization (ILO) and the Food and Agricultural Organization (FAO). The standards set by these certifications address issues such as forced labor, child labor, traceability and transparency of production processes.

While each of these certifications more or less protects foundational human rights in the same way, there are some differences in how they protect other labor rights. Many certifications differ in the extent to which they require adherence to core ILO conventions or merely defer to national standards.  There are also differences in their organizational governance and the rigor of their audit procedures. With governance for instance, the standards of some certifications are formulated by an independent technical committee, as in the case of FOS and MSC. Others, such as BAP, rely on such committees, but have the discretion to adopt or reject proposals. Similarly, with audit procedures, there are disparity in the manner of auditing and level of scrutiny, with some providing more protection than others. These variances in protections, governance and auditing can determine the success or failure of a scheme in ensuring that companies uphold basic human and labor rights.

After the Associated Press and several other media sources reported on widespread slave labor and human rights abuses in the Thai seafood industry, new attention has been focused on the practice of adopting third party certification schemes as a way to prevent such abuses from occurring in the future. While these certification schemes are certainly a step in the right direction, their efficacy will be limited unless reforms are made. In the second part of this series, we will discuss the shortfalls of third party certification schemes and possible changes to benefit workers, corporations and consumers.

Sreelatha Babu is an LLM student at Fordham Law School. Denis Nolasco is a 2L at Fordham Law School. E. Constantinos Pappas is a 3L student at Fordham Law School. They all participated in the Spring 2016 Corporate Social Responsibility Clinic at the Leitner Center for International Law and Justice.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Rienk Nadema/Marine Stewardship Council/Creative Commons