Discretion, Divergence, Paradox: Public and Private Supply Chain Standards on Human Rights

S Bogojevic, X Groussot and J Hettne (eds), Discretion in EU Procurement Law (Oxford: Hart, 2019 Forthcoming)

University of Groningen Faculty of Law Research Paper No. 18/2018

19 Pages Posted: 20 Jun 2018 Last revised: 13 Feb 2019

See all articles by Claire Methven O'Brien

Claire Methven O'Brien

Danish Institute for Human Rights, Human Rights and Development Department; University of St. Andrews School of Management; University of Groningen, Faculty of Law - International and Constitutional Law

Olga Martin-Ortega

University of Greenwich - School of Law

Date Written: June 16, 2018

Abstract

Expectations on businesses to manage supply chain human rights risks are becoming increasingly more detailed, demanding and widespread. In response to new legislation and official guidance, corporations have established human rights policies and detailed performance standards for their suppliers that take legal form via incorporation into purchase contracts. In contrast, public buyers’ supply chain responsibilities for human rights have so far scarcely been addressed, notwithstanding increasing concerns about the human rights impacts of public purchasing. Following the introduction, which demonstrates the paradoxical character of this divergence, this chapter reviews relevant developments in law, policy and practice and considers their future implications. Section 2 analyses the framework of norms applicable to purchasing by public and private actors linked to human rights abuses as understood from the perspective of international human rights law. Section 3 illustrates how, in contrast, public buyers’ discretion to promote the achievement of social objectives has conventionally been construed from the standpoint of EU public procurement law, namely as an exceptional derogation from the logic of competition. Section 4 surveys new supply chain standards, demonstrating a growing discrepancy between conduct expected of corporations and public buyers as regards human rights due diligence. Section 5 concludes.

Keywords: public procurement, human rights, responsible business conduct, supply chain, value chain, due diligence

JEL Classification: H57, K23, K38, K42

Suggested Citation

Methven O'Brien, Claire and Martin-Ortega, Olga, Discretion, Divergence, Paradox: Public and Private Supply Chain Standards on Human Rights (June 16, 2018). S Bogojevic, X Groussot and J Hettne (eds), Discretion in EU Procurement Law (Oxford: Hart, 2019 Forthcoming); University of Groningen Faculty of Law Research Paper No. 18/2018. Available at SSRN: https://ssrn.com/abstract=3197615 or http://dx.doi.org/10.2139/ssrn.3197615

Claire Methven O'Brien (Contact Author)

Danish Institute for Human Rights, Human Rights and Development Department ( email )

Wilders Plads 8K
Copenhagen K, 1403
Denmark

HOME PAGE: http://www.humanrights.dk/staff/claire-methven-obrien

University of St. Andrews School of Management ( email )

The Gateway
St. Andrews, Fife KY16 9SS
United Kingdom

HOME PAGE: http://https://www.st-andrews.ac.uk/management/

University of Groningen, Faculty of Law - International and Constitutional Law ( email )

Groningen, 9700 AS
Netherlands

HOME PAGE: http://www.rug.nl/rechten/organization/vakgroepen/int/c-methven-o-brien/cv?lang=en

Olga Martin-Ortega

University of Greenwich - School of Law

CampusOld Royal Naval College
Park Row
London, SE10 9LS
United Kingdom

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