Supply Chain Laws are at the center of the debate considering business and human rights, especially after the enactment of such laws by France and Germany and the discussions developed in the scope of the European Union. In this context it is also important to reflect on how such laws can affect the implementation of women’s rights, especially those broadly recognized through international conventions. In this vein, this blog post will reflect on the German Act on Corporate Due Diligence Obligations in Supply Chains (German Supply Chain Act), which it will view through the lens of the recommendations of the Committee on the Elimination of Discrimination against Women (CEDAW Committee), the treaty body of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to Germany. The blog post will argue that such Supply Chain Laws are an adequate and useful venue to foster the implementation of international norms, especially the ones related to women’s rights.
The German Supply Chain Act
The German Supply Chain Act entered into force in January 2023 and applies, according to Section 1(1) to enterprises that are located in Germany and are of a certain size. In the beginning of 2024, it expanded its scope of application to companies with a minimum of 1000 employees. According to its Section 3(1), the companies are required to conduct appropriate human rights and environmental due diligence in their supply chains, including by: ‘(a) establishing a risk management system; (b) designating a responsible person or persons within the company; (c) conducting regular risk analyses and issuing a policy statement; (d) laying down preventive measures; (e) taking remedial action and establishing a complaints procedure; and (f) documenting and reporting’.
It is important to note that those obligations are related to the supply chains — being stronger when direct suppliers are considered — and not to the entire value chain. Supply chains are networks that go from sourcing raw materials to creating a manufactured product and selling it. Value chains, on the other hand, are ‘a series of activities by a business to offer valuable products or services to its customers’, which ‘aim at boosting value across the buyer journey while reducing overheads’.
What directly links this Supply Chain Act to international norms and obligations is that according to the Act itself (Section 2), the definitions of protected positions mentioned in its text arise from the conventions on the protection of human rights that are listed in its annex. In this regard, it is interesting to note that it does not mention the CEDAW, but the Convention no. 100 of the International Labour Organization (ILO) of June 29th 1951 concerning Equal Remuneration for Men and Women Workers for Work of Equal Value. Some of the purposes of the latter convention are also encountered in CEDAW.
Transnational Norms and the Implementation of International Law
Given the reference of such international treaties in the German Supply Chain Act, it seems important to recall how transnational norms can be used to foster the implementation of international norms and standards.
International norms usually require implementation within the domestic legal order. Depending on the concrete national setting, this can happen either through a treaty’s ratification (monist approach) or through incorporating it into domestic law (dualist approach). However, adding international conventions as the bases for transnational norms’ interpretation also favors their implementation. In the case of Supply Chain laws, referencing international norms as bases for their interpretation essentially means that companies will also be responsible for incorporating and implementing such international standards within their procedures (Kaltenborn, p. 13-30). Consequently, there is one more venue in which international norms are concretely legally binding.
Turning back to the German case and women’s rights, the Supply Chain Act, by referencing ILO Convention no. 100 among its interpretative bases, requires companies to incorporate and implement the international standards set out in the ILO Convention no. 100 within their procedures. And this is done in more direct way than it would have been, if affected persons had to argue for the horizontal effect of fundamental rights and how internationally recognized women’s rights are integrated to German law and, therefore, must also be observed by private actors. With the Supply Chain Act, German companies that fall under its scope must implement due diligence procedures on human rights and for that they must consider ILO Convention no. 100. This makes the application of international norms much more efficient. Against this background, attention will now be drawn to the CEDAW Committee’s observations about the German Supply Chain Act.
Applying CEDAW in the Scope of the German Supply Chain Act
Although the CEDAW is not mentioned in the German Supply Chain Act’s annex, the CEDAW Committee addressed this topic in its Concluding Observations on the ninth periodic report of Germany in May 2023. Precisely, the CEDAW Committee welcomed the adoption of the Supply Chain Act (Concluding Observations, para. 4) but highlighted that there are still improvements to be made so that the private sector fulfills its obligations related to human rights due diligence, also with respect to women’s rights and gender equality (ibid., para. 19). Moreover, the Committee stressed that such obligations should apply over the entire value chain, and not just the supply chain. Specifically, it recommended Germany to amend the Supply Chain Act so that the companies that fall under the scope of the law would be obliged to fulfill their human rights due diligence obligations also in relation to the value chain, setting a uniform standard across the supply and value chain (ibid., para. 20).
In this sense, it could be noted that the CEDAW Committee aimed to broaden the transnational effect of the German Act so that more women and girls in vulnerable situations could be positively affected by it. Doing so, the Committee essentially proposed the enlargement of the transnational character of the Supply Chain Act, so that the effects and implementation of this transnational norm could be enhanced and expanded to a larger number of cases. Indeed, although the German Supply Chain Act does not constitute an international norm akin to the CEDAW or the ILO Convention no. 100, it is a transnational norm. As such, the act has an exceptional potential to affect the reality outside the State’s jurisdiction (by creating obligations, which are imposed on companies that are based on a given jurisdiction, and by providing that these obligations may also affect the companies’ behavior beyond the respective jurisdiction) and, as the previous section has also underlined, it can serve as a vehicle for the implementation of international norms.
In this sense, the CEDAW Committee seems to have missed an opportunity to make use of the German Supply Chain Act’s potential by omitting to highlight that the Act should include a broader range of international treaties as a direct basis for its interpretation. This is even more problematic considering that the list included in the Act’s annex is considered to be exhaustive, and that CEDAW is not included in this annexed list. As CEDAW acknowledges and safeguards a broader range of women’s rights than the ILO Convention no. 100, its inclusion into the Act would have been of primary significance for the effective protection of women’s rights in the supply and value chain context.
Final Remarks
In order to assure better and broader protection of girls and women in vulnerable situations, the German Supply Chain Act could be enhanced in two ways: (a) by including CEDAW among the international conventions that guide its interpretation and (b) by extending the due diligence obligation to the value chain. Admittedly, it has been argued in relevant literature that laws with such a transnational character can benefit – in terms of legitimacy, especially regarding their extraterritorial effects – from incorporating various international law standards. It is also true, however, that the effectiveness of international norms can benefit from the transnational outcomes of national laws, as they create an additional venue through which international norms may form the concrete standards for individuals’ and companies’ conduct. And here, having international conventions such as CEDAW as the basis for interpreting transnational norms is important, as it grants Supply Chain Laws with the potential to enhance the protection of women’s rights in the context of supply and value chains.
Jessical Holl is a Research Fellow at the Assistant Professorship of Public International Law and International Administrative Law at the University of Erfurt, and a PhD Candidate at the Law Faculty of the Goethe University Frankfurt am Main.