Written by: Jaspreet Chahal
Introduction
Cambodia’s demographic and recent history makes it a perfect place for transnational corporations (TNCs) like Nike and Puma to find a young, cheap workforce to work in their factories for low wages. That said, evidence of the poor working conditions and rampant human rights abuses have made their way into mainstream media. Despite widespread denunciation from the western consumers, much remains unchanged. This is partially due to the lack of law enforcement and the compliance of TNCs to their host countries that allow abuses to continue.
Background
Cambodia began their industrialisation process in the mid-1990s after a highly destructive civil war (ending in 1991) which destroyed most of the infrastructure and the limited natural and human resources (one-third of the population had died).[1]Integration into the global market was viewed as the best solution and they were dependent on the international community for aid.[2] Cambodia was reliant on foreign aid and investments to industrialise, but had a strong economically active population which was young, thus, the garment export industry became a key driver for economic development in the region.[3] The garment industry, valued at $5.7 billion[4] quickly became ‘crucial to gaining foreign currency through exporting, attracting foreign investment and creating jobs’ and have ‘thrived on cheap labor’.[5]
Ultimately, human rights abuses and poor working conditions are likely to be rampant given the power imbalance between TNCs and the local workforce.
Various reports on human rights violations and very poor, unreasonable working conditions have surfaced. McVeigh reported in 2017 that ‘more than 500 workers from factories supplying to Nike, Puma, Asics and VF Corporation were hospitalised’ and 360 fainted in 3 days in November. The 10-hour days in boiling temperatures are viewed as blameworthy as well as short-term contracts being ‘a “root-cause” of job insecurity’ causing workers to work overtime to ensure future renewal.[6]
The Law
Article 31 of Cambodia’s Constitution promises that ‘The King of Cambodia shall recognise and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human rights’ (UDHR) and ‘every Khmer citizen is equal before the law’.[7] On this basis, Article 23 of the UDHR stipulates the rights to ‘just and favourable conditions of work and to protection against unemployment’ with ‘human dignity’. However, as previously noted by McVeigh, these abysmal working conditions in Cambodian factories of big brands like Puma lead to high levels of fainting amongst workers. In addition, the short-term contracts of factory workers are exploitative as workers are forced to work overtime to ensure they earn a ‘living wage’ and that they are chosen for further employment. Moscrop highlighted that since the Declarations ‘are not legally binding but do have political impact’,[8] the UDHR may only tell a country a suggested way to behave regarding human rights violations.
Consumers from countries that receive these garments, like the United States, have ‘petitioned their government to investigate’ the conditions in the export factories of Cambodia. They have been successful; Cambodia and the US signed a bilateral trade agreement US-Cambodia Textile and Apparel Trade Agreement (UCTA) in 1999. To ensure working conditions would be approved, the US agreed to allow Cambodia ‘favorable treatment from the US with increased quotas of Cambodian garments with tariff-free access to the US apparel market’.[9] However, this quid pro quo is at risk.
Lawreniuk observed that over 2018, the Cambodian government has failed to uphold their agreement in the European Union’s Everything But Arms (EBA) trade scheme, a scheme to encourage duty-free and quota-free exports (except armaments) from the least developed countries. This failure was due to the human rights abuse in Cambodian factories which contravened a clause binding ‘beneficiaries to recognise and uphold fundamental human and labour rights conventions’.[10] In 2018, Cambodia became a de facto one-party state as the dominant party won a landslide of all 125 seats available in the National Assembly and has begun re-affirming its connections with China.[11] The fear of losing the EBA would result in huge tariffs of around $700 million and risk the loss of foreign direct investment and perhaps even the loss of 800,000 garment industry jobs to a country with a better track record of human rights.[12] The chance for a one-party state like Cambodia to create ties with China would mean that Cambodia would no longer have to continue their façade of improving the human rights of members of their garment industry as China could replace North America and Europe in providing Cambodia with foreign direct investment.
This leads to the recent criticisms of TNCs for their role in exacerbating human rights abuses. Frey argues that since the roles of TNCs are too vague, their human rights obligations are generally based on voluntary codes and various regulations, therefore TNCs usually behave according to the moral and legal norms of their host countries.[13] But at the turn of the millennium, many consumers made it clear that they did not want ‘products of forced, convict or child labour’.[14] Thus, TNCs became increasinglymorally and ethically obligated to respect fundamental human rights.[15] Unfortunately, according to Frey, the problem withholding TNCs accountable is that international law instruments, like the UDHR, bind governments and not non-state actors. That said, Frey recognises that corporations could still be held responsible for not ‘affirmatively protecting’ a person from human rights violations by outlining four levels of TNC responsibility on a continuum. The first level is ‘Primary Corporate Responsibility’ where TNCs have the greatest duty to correct its wrongs for directly perpetuating human rights violations outlined in the International Bill of Human Rights.[16] Secondly, ‘Passive Involvement in Human Rights Violations’ is where TNCs allowed human rights abuses to occur despite its ability to prevent it. Here, TNCs have an affirmative duty under international law to protect its own workers, for example pledging to have business norms worded with respect to protect the dignity of humans.[17] Thirdly, corporations must consider their ‘Effective Influence’ where TNCs should intervene, when they have power to do so,even if the TNC is not responsible for the human right violation.[18] At the fourth level, TNCs have the least amount of responsibility according to existing codes to intervene in ‘Pervasive Violations’ occurring in the host country. Despite this continuum of responsibility, Frey recognised that public pressure is likely the most effective manner to bring about change and ‘corporate action to discourage human rights abuses’.[19] It is clear that TNCs are far from creating ideal work environments, but that there is a public outrage which, if continued, will optimistically bring about positive change.
Conclusion
Overall, the political plight of Cambodia as a one-party state, the slight trend of a movement away from economic support from the US and Europe to China, and lack of effective laws to sue the Cambodian government and TNCs, results in vast human rights abuses as well as undignified working environments for members of the garment industry. Although it is hoped that TNCs in Cambodia could take a proactive step in encouraging better and more humane practices, the best manner to improve working conditions would be if the Cambodian government could look past merely securing economic benefits from hosting TNCs at the detriment of their own people and enforce more pro-human rights policies.
[1] Jinyoung Park, ‘International Actors in Cambodian Labor Politics’ [2021] 50(1) Journal of Asian Sociology 186 [2] ibid 181 [3] ibid 186 [4] ‘Cambodia: Labor Laws Fail to Protect Garment Workers’ (Human Rights Watch, 11 March 2015) <https://www.hrw.org/news/2015/03/11/cambodia-labor-laws-fail-protect-garment-workers> [5] Park (n 1) 186 [6] Karen McVeigh, ‘Cambodian female workers in Nike, Asics and Puma factories suffer mass faintings’ (The Guardian, 25 June 2017) <https://www.theguardian.com/business/2017/jun/25/female-cambodian-garment-workers-mass-fainting> [7]‘Article 31 - Constitution of the Kingdom of Cambodia’ (Extraordinary Chambers in the Courts of Cambodia, no date) <https://www.eccc.gov.kh/en/taxonomy/term/514> [8] Hannah Moscrop, ‘Enforcing International Human Rights Law: Problems and Prospects’ (E-International Relations, 29 April 2014) <https://www.e-ir.info/2014/04/29/enforcing-international-human-rights-law-problems-and-prospects/> [9] Park (n 1) 188 [10] Sabina Lawreniuk, ‘‘Hun Sen Won’t Die, Workers Will Die’ The Geopolitics of Labour in the Cambodian Crackdown’ [2018] Made in China Journal 216, 217 [11] ibid 216 [12] ibid 218 [13] Barbara A. Frey, ‘The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights’ [1997] Minnesota Journal of International Law 153, 154, 156 [14] ibid 157 [15] ibid 163, 164 [16] ibid 181 [17] ibid 183 [18] ibid 184 [19] ibid 187, 188