Legislating French values for the rest

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This blog post by Debadatta Bose is part of a Blog Series on Colonization in, of and through Business and Human Rights published on Rights as Usual. Debadatta Bose is a Doctoral candidate at the Amsterdam Law School, University of Amsterdam (Netherlands).

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As the foremost mandatory human rights due diligence (mHRDD) law, the French law on the duty of vigilance (French law) has wide acclaim as having ushered in a new era in business and human rights regulation. Owing to the French law, the possibility of holding corporations accountable for transnational human rights harms did not seem far off. Since 2017, civil society organisations have worked tirelessly to ensure that the objectives of the law are fulfilled. The objective of the law is, of course, corporate accountability for human rights violations … or is it?

Drawing from my recent article which analysed the legislative debates preceding the enactment of the law, this blog post reiterates the argument that a neo-colonial flavour is inherently attached to the law. This is due to three characteristics of the French law: first, as a self-described ‘law for the whole world’ enacted by France; second, as a national law of a Global North country (on the use of the terms Global North and Global South, see this post which is a reply to this post); and third, as a law of France and the Global North as opposed to a business and human rights treaty. Let us examine these characteristics one by one.

A French law for the whole world

One of the proponents of the French law said on the floor of the National Assembly that the law ‘is in the tradition of the French Revolution and the Enlightenment by stating the law in a new world, for the whole world.’ This is because France, in itself, represents ‘a foundation of values.’ To advance the French law, the left-wing bloc primarily focused on the narrative of the law as an effectuation of universal French values. In contrast, the right-wing bloc objected that the French law, which then was going to be the only mHRDD law, would impose a disproportionate burden on French companies resulting in a loss of their competitive advantage. The bargain seemed to be between, on one hand, the assertion of French values as exportable to the whole world and, on the other hand, a separation of the economic considerations of French companies from their human rights considerations: what an iconic illustration of a Faustian bargain.

In the latter case of nationalism, the argument was that the onus is on the capital-importing state where supply chains are located, to strengthen its regime of legal protection of human and labour rights, which France may perhaps take a role in setting up. This argument was put forward while ignoring the fact that Global South countries have been vocal since half a century ago about being unable to counter the power of transnational corporations through national measures. Further, the question posed on the floor was that when companies are already progressing in terms of transparency, labelling, etc. why were they being treated as ‘permanent culprits’?

In the former case of universalism, it was argued that it is only natural that France legislate for the whole world since French legislators cannot be blind to the suffering of people elsewhere, especially given France’s important role in the international economic order when international organisations have failed to act on the issue. Further, it was also stated on the floor of the Assembly, ‘Let us not neglect the fact that it is our ideals that ensure the “France brand” keeps all its influence. (…) [W]e can therefore show that our commitments to human rights and respect for the environment are sincere and truly universal.’

In that same session, legislators explained that they ‘cannot continue to ignore certain practices on the pretext that they take place abroad, in countries that do not respect the constraints and standards that apply to our companies on French territory.’ Perhaps, most interestingly, on the day of the adoption of the law by the National Assembly, it was also stated by a major proponent of the law that ‘[W]e are building a more equitable world (…). We humbly say to these people, who live hard in these [Global South] countries, that we will take care of them, and we ask their leaders to do the same.’ Perhaps it was about saving Global South people from Global South states after all.

How is the ‘whole world’ structured anyway?

A large, if not exclusive, focus of the French law was the protection of people in the Global South whose presence in a presumably ‘despotic state’ hinders their enjoyment of human rights, which France must now take it upon itself to guarantee, i.e., to ‘[protect] the weak in new forms.’ These mHRDD legislation by the Global North for the Global South have been aptly called to be of a ‘vigilante justice’ character by one of the seminal works on this topic. Given the historical decentring of Global South people in international law and the international economic order, the assertion of the Global North to set standards governing global corporate conduct, and Global South state conduct, through national laws is problematic to say the least.

This is not exclusive to France, however. For example, in the report introducing the recently adopted European Corporate Sustainability Reporting Directive, the Explanatory Memorandum states that in case these standards are set internationally or from other nations, ‘then sustainable development would be defined by a non-European vision, making it more difficult for European values to be effectively taken into account. (…) What is at stake is European independence and sovereignty (…).’ Yet somehow this is not a problem the other way round.

In this narrative, largely visible throughout the entirety of the legislative discussion, people from the Global South are the victims and France is conceptualised as the generous saviour. The world is therefore structured around the generosity of France and the haplessness of the Rana Plaza victims, who are highlighted in legislative discussions extensively. In this world, how much the experience of Rana Plaza victims counts or how much agency they have within the French legal system is a fair question to ask. The lived experience, agency, and voices of those who are the purported beneficiaries of the laws are decentred now to make way for expert opinions on legal issues that involve interpretations of the laws that would, e.g., in case of the French law, be embedded in the French legal system. What is also at stake is knowledge production since European national laws privilege European academic and professional discourse to advance interpretations and working of the laws, which is particularly unfortunate in laws that seek to regulate global conduct aimed at protection of Global South peoples.

So, why national laws after all?

Even in this context, why is a national law celebrated as a grand avenue of justice, and perhaps even rightly so? The answer is in the historical context of the struggle for regulation of transnational corporate activity with the Global North and Global South hardly having convergent views on either the form or the substance of regulation. Generalising to some extent, the Global North pushed for national regulation in capital-importing states and the Global South pushed for international regulation of the negative impacts of transnational corporate activity.

One may observe from the resolution establishing the treaty process that a clear North-South divide was visible where Global North countries voted against the establishment of the process, while Global South countries voted for. The USA, for example, was ‘extremely disappointed’ that the resolution was tabled, calling it an ‘ill-considered treaty drafting exercise.’ France, explained its negative vote by its preference for national law on the topic. The limited success of international law initiatives has made the celebration of the French law inevitable, partly because the Global North, including France, made (a French) national law from the Global North inevitable. This is because when national laws are the avenue it is possible to govern Fijian corporate conduct through French law but not the other way round. National laws for the whole world are only possible in the current legal architecture when legislated by the Global North. Such laws are not participatory in their legislative deliberation as regards Global South people and perhaps only partially empowering for Global South people (but adopted in a paternalistic manner). They enable Global North courts to subsume justice decisions in faraway territories as part of their ordinary functioning.

So what?

The question, ‘so what?’ as long as either human rights are protected ex-ante or remedy is provided ex-post whether in France or elsewhere is a fair one. However, it privileges pragmatism over asking why we ended up here in the first place. While the French law may have good effects, its contribution to Global South capacity building has to be further explored. This position is not one of no law from the Global North — but that the laws come in context of active erosion of economic power and capacity to respect human rights in the Global South have to be borne in mind; that is the problem to be solved, not that of lack of jurisdiction in French courts. At best, the French law is an ad hoc instrument towards that end, and at worst, a neo-colonial instrument.