Practical Definitions of Cause, Contribute, and Directly Linked ..., Summaries of Human Rights

Download Practical Definitions of Cause, Contribute, and Directly Linked ... and more Summaries Human Rights in PDF only on Docsity! Practical Definitions of Cause, Contribute, and Directly Linked to Inform Business Respect for Human Rights Discussion Draft February 9, 2017 Prepared by the Debevoise Business Integrity Group in collaboration with Enodo Rights Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked ii TABLE OF CONTENTS EXECUTIVE SUMMARY...................................................................................................................................................... 3 I. Structure............................................................................................................................................................... 4 II. Method ................................................................................................................................................................. 4 A. Note on Omissions ....................................................................................................................................... 5 III. Key Findings................................................................................................................................................... 6 IV. Cause and Contribute ................................................................................................................................... 7 A. Interpretation................................................................................................................................................. 7 B. Definitions ...................................................................................................................................................... 8 C. Practical Application .................................................................................................................................... 8 D. Case Studies: Cause and Contribute.......................................................................................................... 9 V. Directly Linked .................................................................................................................................................13 A. Interpretation...............................................................................................................................................13 B. Definition ......................................................................................................................................................13 C. Practical Application ..................................................................................................................................14 D. Case Studies: Directly Linked ...................................................................................................................14 ANNEX: DETAILED ANALYSIS........................................................................................................................................20 I. Objectives ...........................................................................................................................................................20 II. Interpretive Approach.....................................................................................................................................21 III. Cause and Contribute .................................................................................................................................22 A. Key Cause and Contribute Provisions......................................................................................................23 B. Ordinary Meaning.......................................................................................................................................24 C. Meaning in Light of Guidance’s Object and Purpose .........................................................................29 D. Note on Knowledge and Foreseeability .................................................................................................30 E. Definitions ....................................................................................................................................................31 IV. Directly Linked ............................................................................................................................................31 A. Key Directly Linked Provisions.................................................................................................................32 B. Ordinary Meaning.......................................................................................................................................32 C. Meaning in Light of Guidance’s Object and Purpose .........................................................................33 D. Vicarious Liability .......................................................................................................................................34 E. Definition ......................................................................................................................................................39 Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 5 analysis proceeds in two stages: first, we consider the ordinary meaning of cause, contribute, and directly linked, including in the context of the natural and social sciences, and analogous legal contexts, particularly with respect to civil injuries and human rights abuses; and second, we consider the meaning of the involvement terms with reference to the context and object and purpose of the Guidance itself. This approach leads us to definitions of each of the involvement terms specifically linked to the Guidance, which we have tested for consistency with decisions of OECD National Contact Points and prior interpretive guides released by authoritative institutions. Finally, we demonstrate how our proposed definitions might work in practice, with practical tests of involvement illustrated with representative case studies. A. Note on Omissions While it is beyond the scope of this paper, one issue that warrants careful study is the meaning of omission. Under the Guidance, businesses may be involved in human rights impacts through actions or omissions, but the term is undefined.4 The OECD has recently proposed a definition in the Draft Due Diligence Guidance, but it appears to foster uncertainty by leaving material questions unanswered: Carrying out due diligence provides the knowledge and tools to avoid adverse impacts to the greatest extent possible. Thus, where due diligence shows or would have shown that action was necessary to prevent or mitigate an adverse RBC impact, and that action was not taken, then this would be an omission under the Guidelines. In addition, the Guidelines set out specific recommendations for actions expected of enterprises. Failing to take these actions would be considered an “omission” under the Guidelines.5 The proposed definition raises two practical challenges: overbreadth and circularity. The risk of overbreadth flows from the reference to “action … necessary to prevent or mitigate” an impact. If any failure to act when one has the power to “prevent or mitigate” an adverse impact could constitute involvement in that impact, leverage would determine business responsibility for human rights: a powerful company would by virtue of influence alone be in a position to curb, or attempt to curb, abuses by the state where it operates—no matter their relationship to the business’s products, operations, or services. We do not believe that is the intent of the Guidance. As John Ruggie has noted regarding the limits of business responsibility: [C]ompanies cannot be held responsible for the human rights impacts of every entity over which they may have some influence, because this would include cases in 4 Guiding Principles, Commentary to Guiding Principle 13 at 15. 5 OECD, Due Diligence Guidance for Responsible Business Conduct (Draft 2.1) 28 (2016), http://mneguidelines.oecd.org/OECD-Due-Diligence-Guidance-Responsible-Business-Conduct.pdf [hereinafter Draft Due Diligence Guidance]. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 6 which they were not a causal agent, direct or indirect, of the harm in question. Nor is it desirable to have companies act whenever they have influence, particularly over governments. Asking companies to support human rights voluntarily where they have influence is one thing; but attributing responsibility to them on that basis alone is quite another.6 The related circularity challenge arises from the fact that if involvement in the proposed definition depends on the scope of due diligence a business conducts, a critical component of due diligence guidance becomes circular: a company is expected to conduct due diligence on adverse human rights impacts with which it is involved; a company is involved with adverse human rights impacts on which it fails to conduct due diligence. Such a definition would preclude a company from ever conducting due diligence of sufficient scope and rigor to align with the Guidance, for an integral component of appropriate due diligence would be to consider impacts on which due diligence had not been conducted. These challenges are serious, practical, and immediate. The proposed definition leaves an essential component of the practical scope of expected due diligence unsettled—without a definition of omission that is prior to, and independent of, the scope of due diligence, we are unable to tell exactly what “due diligence … would have shown” if conducted appropriately. We would thus encourage the OECD to develop more concrete guidance regarding when businesses have a duty to act to prevent or mitigate adverse human rights impacts, so that they may tailor their due diligence accordingly. III. Key Findings Our broad-based research and analysis suggests that none of the involvement terms is as clear as many presume. Even cause, the term considered most obvious, has been subject to extensive debate in the natural sciences, social sciences, and the law. In each discipline, experts have found that it is often impossible to say definitively that a particular event results from a particular act or omission. The consensus is thus that impact on the probability of an event should determine whether an act or omission is the event’s cause—both prospectively and retroactively. In practice, contribution becomes much harder to separate out from cause, as both fundamentally bear on risk. The analytical challenge is even more difficult with directly linked, which has no clear antecedents in the disciplines we considered. To understand directly linked, we therefore rely on the structure and objectives of the Guidance, drawing on the analogous legal concept of vicarious liability to understand the term’s proper scope. The following observations animate our definitions: 1. Rather than falling on a continuum, the involvement terms are better understood as founded on two distinct bases: risk and benefit. Cause and contribute involvement turn 6 Protect, Respect And Remedy: A Framework for Business and Human Rights: Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, H.R.C., 8th Session, at ¶ 69, U.N. Doc. A/HRC/8/5 (2008)(emphasis added). Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 7 on a company’s effect on the risk of an impact. Directly linked involvement turns on the benefit a company derives from an adverse human rights impact. 2. From the perspective of the Guidance, knowledge and foreseeability are not implicated in the question of whether a company is involved with an adverse human rights impact. Because the Guidance does not create liability directly, fault in any legal sense does not come into play. A business may be involved with an adverse impact even if no one could have foreseen that impact. Conversely, a business may not be involved with an impact even if it knows of, or ought to have known of, the impact. 3. Remoteness is crucial to delineating the scope of business responsibility to respect human rights. There is a distinction between increasing the probability of legitimate business activity A and increasing the risk of adverse human rights impact x flowing from A. If A could reasonably have been performed without causing or contributing to x, a third party that facilitates A does not necessarily cause or contribute to x. IV. Cause and Contribute A. Interpretation Cause and contribute ordinarily mean, respectively, “to make happen or bring about” and “to help make happen or bring about.” In the context of business impacts on human rights, the difficulty lies in practically making such determinations. Questions of causal complexity are commonplace when considering responsibility for adverse human rights impacts. For instance, when three companies simultaneously pollute a community’s water supply, it may be very difficult—even impossible—to determine as a matter of fact whether any one of them brought about—or even helped to bring about— the adverse impact on any individual’s right to health. Similarly, when a factory fire leads to the death of workers, it is very difficult to parse as a factual matter whether government failures, auditor negligence, factory-owner indifference, or inadequate monitoring by the purchaser brought about the adverse impacts on workers’ rights. The challenge for a practical definition of cause and contribute is to enable businesses and stakeholders to determine when a business act or omission can be deemed to bring about a particular impact against a backdrop of factual uncertainty. Such a definition should be consonant with the object and purpose of the Guidance, which is voluntary and remedial rather than binding and punitive. The Guidance does not create or define liability for business enterprises. Rather, it seeks practically and voluntarily to “promote positive contributions by enterprises to economic, environmental and social progress worldwide.”7 The definition of cause and contribute should advance these ends by encouraging businesses voluntarily to engage in human rights due diligence, which is at the heart of the Guidance. 7 Guidelines at 3. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 10 iii. Are the manufacturer’s activities sufficient to result in the adverse impact? • No, the encouragement alone would not result in any abridgement of workers’ rights. Ultimately, the supplier would need to act on that encouragement. Recommendation: The company is contributing to an adverse impact on human rights and is expected to cease, prevent, and remedy the impact(s) to the extent of its contribution; it is also expected to exercise its leverage over the supplier to mitigate any remaining impact. Example 3: A multinational bank lends to a food and beverage company to build a factory in an emerging economy. The company retains forced labor in building the facility. i. Is this an actual or potential adverse human rights impact? • Yes, forced labor adversely impacts, among others, the right to liberty, the right to be free from slavery or servitude, and the right to be free from inhuman or degrading treatment. ii. Do the bank’s activities materially increase the risk of this adverse impact? • No, the loan itself does not increase the risk of this specific impact. The loan may have materially increased the likelihood that the facility would be built. But that does not mean that the loan affected the risk that the facility would be built with forced labor. Recommendation: The bank is not causing or contributing to an adverse impact. As discussed in the next section, however, it may nonetheless be directly linked to the adverse impact, in which case it should exercise its leverage over the company to mitigate the impact. Example 4: A pharmaceutical company markets an over-the-counter painkiller by making misleading claims about its health benefits. i. Is this an actual or potential adverse human rights impact? • Yes, the misleading claims about the drug’s effects adversely affect, among others, the right to health—specifically, an individual’s right to make informed choices about his or her health. ii. Do the company’s activities materially increase the risk of this adverse impact? • Yes, by making misleading claims, the company materially increases the risk that consumers will make health decisions based on false information. iii. Are the company’s activities sufficient to result in the adverse impact? • Yes, the making of misleading claims is sufficient to result in consumers making poorly or falsely informed decisions regarding their health. Recommendation: The company is causing an adverse impact. It should cease, prevent, and remedy the impact. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 11 Example 5: A pharmaceutical company distributes an over-the-counter painkiller to pharmacies with clear, accurate, and detailed information about the benefits and adverse effects of the product. One of the pharmacies repackages the drug in smaller quantities, without sharing any of the relevant health information, to sell to socioeconomically disadvantaged consumers. i. Is this an actual or potential adverse human rights impact? • Yes, the failure to inform consumers about the drug’s effects adversely affects, among others, the right to health—specifically, an individual’s right to make informed choices about his or her health. ii. Do the company’s activities materially increase the risk of this adverse impact? • No, the pharmaceutical company’s activities only materially increased the likelihood that consumers would have access to the drug. There was nothing in the manner of distribution that necessarily increased the risk that consumers would not be properly informed about the drug’s effects. Recommendation: The company is not causing or contributing to this adverse impact. As discussed in the next section, however, it may be directly linked to the adverse impact, in which case it should exercise its leverage over the pharmacy to mitigate the impact. Example 6: An oil and gas company begins development of a project in a relatively peaceful and well- governed region. The project results in significant in-migration. As the population of the surrounding areas doubles, violent crime skyrockets and public forces are unable to protect the security of the most vulnerable inhabitants, particularly women and children. i. Is this an actual or potential adverse human rights impact? • Yes, the failure to protect individuals from violent crime adversely impacts, among others, the right to security of the person. ii. Do the company’s activities materially increase the risk of this adverse impact? • No, by building the project, the company only materially increased the likelihood of in- migration. But that does not mean that the company materially increased the risk of security failures. Given the operating context, in-migration was not necessarily or strongly correlated12 with security failures. The project’s development is too remote from the impact to be considered as bearing on the specific risk. Recommendation: The company is not causing or contributing to this adverse impact. (As discussed below, depending on its arrangement with the government, the company may nonetheless be directly linked to these adverse impacts.) 12 Correlation is distinct from foreseeability. As a factual matter, an unforeseeable event may still be the inevitable consequence of a particular action. Mesothelioma, for instance, was necessarily and strongly correlated with asbestos exposure arguably before the disease was the foreseeable result of asbestos exposure. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 12 Example 7: An oil and gas company begins development of a project in a post-conflict region where ethnic tension is high and violence is endemic. The project results in significant in-migration. As the population of the surrounding areas doubles, violent crime skyrockets and public forces are unable to protect the security of the most vulnerable inhabitants, particularly women and children. i. Is this an actual or potential adverse human rights impact? • Yes, the failure to protect individuals from violent crime adversely impacts, among others, the right to security of the person. ii. Do the company’s activities materially increase the risk of this adverse impact? • Yes, by developing the project, the company materially increased the likelihood of in- migration. Given the operating context, significant in-migration was necessarily and strongly correlated with violent crime and security failures. Thus, in increasing the likelihood of in-migration, the project itself materially increased the risk of these specific adverse human rights impacts. iii. Are the company’s activities sufficient to result in the adverse impact? • No, project development alone is not sufficient to result in violent crime or the failure of security forces to protect individuals. Recommendation: The company is contributing to an adverse impact on human rights and is expected to cease, prevent, and remedy the impact(s) to the extent of its contribution; it is also expected to exercise its leverage over the government and others to mitigate any remaining impact. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 15 Example 1: A pension fund invests through an asset manager in a multinational steel producer; the steel producer is involved in a joint venture which causes or contributes to land rights violations. [NB: This fact-pattern closely tracks the allegations in Lok Shakti Abhiyan et. al. vs POSCO, ABP/APG and NBIM15, which was considered by the Norwegian National Contact Point (NCP) and decided in 2013. We assume, for illustrative purposes alone, that there was in fact an adverse human rights impact in the circumstances; no such determination was made by the NCP.] i. Does the pension fund have a relationship for mutual commercial benefit with the joint venture? • Yes, the pension fund’s commercial interest is a return on its investment; in exchange, the joint venture receives the direct and indirect benefits of increased steel producer share price. ii. Does the benefit provided by the joint venture retain consistent form as it is transmitted to the pension fund’s products, operations, or services? • Yes, the benefit is monetary, i.e., profit. This benefit is transmitted as financial returns via the steel producer and the asset manager to the pension fund. iii. When acting within the scope of the mutually beneficial relationship, did the joint venture materially increase the risk of an adverse human rights impact? • Yes, the entirety of the joint venture’s operations may be considered as directed to the end of profit, the very benefit sought by the pension fund; the joint venture’s adverse impact on land rights thus occurred within the scope of the relationship. Recommendation: The pension fund is directly linked to the joint venture’s adverse impacts on land rights. It should use or seek leverage to mitigate the construction company’s adverse impact. Example 2: A pension fund invests through an asset manager in an industrial products company. The industrial products company retains a construction company that relies on forced labor. i. Does the pension fund have a relationship for mutual commercial benefit with the construction company? • Yes, the pension fund’s commercial interest is a return on its investment in the industrial products company. The construction company’s provision of infrastructure to the industrial products company advances this interest. Similarly, the pension fund’s financial benefits to the industrial products company flow to the construction company in the form of ability to pay or possible future demand. ii. Does the benefit provided by the construction company retain consistent form as it is transmitted to the pension fund’s products, operations, or services? • No, the benefit provided by the construction company is of goods and services to the industrial products company. To the extent a benefit accrues to the pension fund’s 15 Lok Shakti Abhiyan et. al. vs POSCO, ABP/APG and NBIM, Final Statement of Norwegian National Contact Point (May 27, 2013), http://www.oecdwatch.org/cases/Case_262. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 16 products, operations, or services, it is monetary. Such a benefit is, at most, indirectly tied to the original benefit provided by the construction company. Recommendation: The pension fund is not directly linked to the construction company’s use of forced labor. (Note: This conclusion would change if the industrial products company’s activities had materially increased the risk that the construction company would use forced labor.) Example 3: A mining company enters into a concession agreement with the Ministry of Mines under which the government agency will lay down railway tracks for minerals to be transported to the nearest port. Under the direction of the Ministry of Mines, when building the railway, public security forces arbitrarily arrest and detain without charge protestors who objected to the railway’s path. i. Does the mining company have a relationship for mutual commercial benefit with the government agency? • Yes, the mining company’s commercial interest is the development and commercialization of the mine, which the railway facilitates; the Ministry of Mines benefits through the revenues conferred by the mine’s development and commercialization. ii. Does the benefit provided by the Ministry of Mines retain consistent form as it is transmitted to the mining company’s products, operations, or services? • Yes, the government’s development of the railway is a good that benefits the mining company’s operations by facilitating transport. This benefit is delivered as-is to the mining company. iii. When acting within the scope of the mutually beneficial relationship, did the Ministry of Mines materially increase the risk of an adverse human rights impact? • Yes, the use of security to forge and protect the railway’s path is one of the activities incidental to the development of the railway. The act of the public security forces constitutes a violation of, among others, the right to liberty and security of the person, and the right to be free from arbitrary arrest and detention. Recommendation: The mining company is directly linked to the public security forces’ violations of human rights. It should use or seek leverage to mitigate the security forces’ adverse impact. Example 4: A mining company enters into a concession agreement with the Ministry of Mines to develop a mine in Province Q. Independently of this arrangement, the Ministry of Infrastructure builds a dam in neighboring Province Y. The dam will provide electricity throughout the country, including to the area around the proposed mine. The Ministry of Infrastructure does not consult with affected indigenous groups before rerouting the water sources on which they rely. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 17 i. Does the mining company have a relationship for mutual commercial benefit with the Ministry of Infrastructure? • No, the mining company’s commercial interest is the development and commercialization of the mine. The Ministry of Infrastructure’s project is in its non- commercial capacity, to provide a public benefit, not to provide a commercial benefit to the mine specifically or the mining industry in general. Recommendation: The mining company is not directly linked to the Ministry of Infrastructure’s failure to seek free, prior, and informed consent. Example 5: A venture capital firm takes a minority stake in a mining company that has entered into a concession agreement with the Ministry of Mines under which the government agency will lay down railway tracks for minerals to be transported to the nearest port. Under the direction of the Ministry of Mines, when the railway is being built, public security forces arbitrarily arrest and detain without charge protestors who objected to the railway’s path. i. Does the venture capital firm have a relationship for mutual commercial benefit with the Ministry of Mines? • Yes, the venture capital firm’s interest is a return on its investment in the mining company, which the railway construction facilitates; the Ministry of Mines benefits through the infusion of capital into the mining company, to enable the mine’s development. ii. Does the benefit provided by the Ministry of Mines retain consistent form as it is transmitted to the venture capital firm’s products, operations, or services? • No, the development of the railway is a good that benefits the mining company’s operations by facilitating transport; the benefit received by the venture capital firm from the mining company is monetary. The railway construction thus only indirectly benefits the venture capital firm. Recommendation: The venture capital firm is not directly linked to the public security forces’ human rights abuses. Example 6: A food and beverage company sources its cocoa through a broker who in turn relies on a local cocoa distributor who purchases the cocoa from thousands of small-holder farms. One of those farms relies on child labor for cocoa farming. i. Does the food and beverage company have a relationship for mutual commercial benefit with the farm that relies on child labor? • Yes, the food and beverage company’s interest is obtaining cocoa for its products, which the farmer provides; the farmer receives financial remuneration from the food and beverage company, albeit via the distributor. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 20 ANNEX: DETAILED ANALYSIS We share the analysis below to be transparent about our reasoning and to facilitate constructive stakeholder engagement. The analysis is preliminary and for discussion purposes only. In the pages that follow, we explain in detail our interpretive approach and how we arrived at each of our proposed definitions. I. Objectives A common response during our civil society engagement over the last few months was skepticism about the need for, or value of, precise definitions of the involvement terms. That skepticism flowed chiefly from concerns that the nature of the Guidance did not allow for rigorous or precise interpretation and/or that developing precise definitions would transform business and human rights into a mechanical, check-the-box exercise divorced from the spirit of the Guidance. Rather than undermining the spirit of the Guidance, we believe that definitions are essential to advance rigorous and legitimate respect for human rights in a quickly hardening risk environment. In particular, precise definitions serve three ends: (i) to facilitate constructive stakeholder engagement; (ii) to promote accountability and consistent non-financial disclosure; and (iii) to encourage businesses to embrace respect for human rights against a backdrop of mounting legal risk. First, a chief virtue of the Guidance is the framework it provides for effective engagement between businesses and stakeholders. The Guidance enables companies and stakeholders to discuss the scope of business responsibility using a shared language. The shared language is the foundation of credible human rights due diligence, remedy, and grievance mechanisms. Credibility, in turn, depends on a common interpretation of core terms. If businesses and affected stakeholders do not agree on what human rights mean, they will hardly be able to resolve grievances effectively. Similarly, leaving the meaning of the involvement terms to the eye of the beholder risks eroding the trust of stakeholders and businesses alike. Second, the Guidance increasingly shapes corporate accountability through voluntary initiatives and legally binding measures. The Corporate Human Rights Benchmark and the Reporting Assurance Framework Initiative, among others, will shape stakeholder and market perception of how well particular businesses respect human rights. And compliance with the EU Non-Financial Reporting Directive will require companies to report in line with standards directly or indirectly derived from the Guidance. Against this backdrop, relatively precise definitions are critical to ensure consistency, which underpins any reasonable accountability. If Company A interprets the involvement terms narrowly and Company B interprets them broadly—and neither is explicit about its interpretation—their non- financial disclosures will not be comparable. The challenge is all the greater where (as is common) different individuals and functions within the company interpret the involvement terms inconsistently. Third, uncertainty regarding the involvement terms’ meaning risks undermining good faith corporate commitment to respect human rights. While the Guidance is formally voluntary, the risks of non- Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 21 compliance are increasingly serious. Public decisions of OECD National Contact Points, for instance, can affect legal, financial, and reputational risks. At the same time, courts across the world are hearing more lawsuits related to adverse human rights impacts in far-flung jurisdictions. And investors, financiers, and other stakeholders seek increasing transparency regarding corporate human rights policies, due diligence, and remediation. These manifold pressures are mutually reinforcing: the more public representations businesses make about their respect for human rights, the greater the legal and financial risks they face for failing to implement the Guidance. Without precision regarding what respect for human rights means, companies will be (reasonably) wary of making such commitments in the first place. Against this backdrop, certainty is essential to encourage companies to embrace respect for human rights as an integral business pursuit. Certainty is elemental in the context of the involvement terms. While the Guidance is notably practical in recognizing that salience and various contextual factors may shape how a company responds to adverse impacts with which it is involved, the scope of involvement itself is not flexible. A company is either involved with an adverse impact—and thus expected to respond accordingly—or not. Involvement determines which particular adverse human rights impacts any particular company should aim to foresee and address. And involvement determines how the company should address those impacts once identified. Recognizing when a business is involved with an impact, and how, must precede any accommodation for circumstance and resource limitations. In other words, involvement is fundamentally an issue of principle, not context. That principle should inform how companies practically and legitimately structure their human rights policies, due diligence processes, and remediation processes. II. Interpretive Approach While the Guidance offers an authoritative framework for businesses to respect human rights, many of its terms are subject to interpretation. As voluntary instruments, the effectiveness of the Guidance lies in the willing acceptance of businesses, governments, international organizations, civil society, and affected stakeholders. Such consent depends on a shared ability to discern the meaning of the expectations from the text. The Guiding Principles’ own interpretive guidelines focus on the text, taken in the context of the whole: These Guiding Principles should be understood as a coherent whole and should be read, individually and collectively, in terms of their objective of enhancing standards and practices with regard to business and human rights so as to achieve tangible results for affected individuals and communities, and thereby also contributing to a socially sustainable globalization.16 16 U.N. Office of the High Comm’r for Human Rights, United Nations Guiding Principles on Business and Human Rights at 1 (2011) http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 22 Accordingly, in interpreting the involvement terms, we examine the ordinary meaning of the relevant terms in their context, before refining that meaning with reference to the objectives and purpose of the Guidance. We also rely on the following interpretive maxims derived from the Guidance: • Treat the Guidelines and the Guiding Principles as synonymous. The human rights section of the Guidelines is “consistent with the Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework.”17 • Endeavor to practical results, with an eye to ensuring voluntary respect for human rights. We derive this maxim from two aspects of the Guidance: (i) the Guiding Principles provide that they should not “be read as creating new international law obligations”;18 and (ii) the Guidelines refer to themselves as “non-binding principles and standards for responsible business conduct in a global context.”19 • Privilege consistency with international human rights law. While the Guidance is not law, it repeatedly emphasizes its consistency with national and international law. The Guiding Principles should not be read “as limiting or undermining any legal obligations a State may have undertaken or be subject to under international law with regard to human rights.”20 Similarly, the Guidelines provide that their requirements are “consistent with applicable laws and internationally recognized standards.”21 III. Cause and Contribute The involvement terms cause and contribute are distinct, but they are interwoven throughout the Guidance. There is a good reason for this close relationship: for practical reasons, the distinction between the two terms is inherently inconstant and permeable. Indeed, in the Guidance itself, “contribution” is derived from “cause.”22 We therefore consider the meaning of both involvement terms together before deriving their independent definitions. [hereinafter Guiding Principles]. While the Guidance is non-binding, this approach is reminiscent of the approach under the Vienna Convention on the Law of Treaties, which likewise focuses on the good faith interpretation of the text of a treaty, in accordance with the ordinary meaning given to the terms in context and in light of its object and purpose. Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155 U.N.T.S. 331. 17 Guidelines at 3. 18 Guiding Principles at 1. 19 Guidelines at 3. 20 Guiding Principles at 1. 21 Guidelines at 3. 22 See, e.g., Guidelines at 23 (in the context of due diligence aimed at identifying adverse impacts, “contribution” means “an activity that causes, facilitates, or incentivises another entity to cause an adverse impact.”). Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 25 This definition may be too rigid in practice. Social impacts are frequently the result of myriad factors. Identifying with precision which factor brought about a particular human rights impact—and to what degree—is a herculean task. Indeed, the complexity of causal uncertainty is well-recognized in the social sciences: “Despite a growing interest in causal mechanisms in the social sciences . . . there is little consensus in the literature about what causal mechanisms are.”30 The challenge has also been recognized in the physical sciences: “Causation may be important, both in science and in everyday life, and yet not the sort of thing we should expect to find in physics.”31 The issue is the difficulty of separating causation from correlation. It may be straightforward to note that one event happened before another; it is more difficult to determine whether the earlier event brought the later event into being. In social contexts—where cultural, institutional, and individual factors may bear on any particular impact—separating causal signal from noise is a challenge no matter the number of data points. “Problems involving causal inference have dogged at the heels of statistics since its earliest days. Correlation does not imply causation, yet causal conclusions drawn from a carefully designed experiment are often valid.”32 Sociologists thus generally deploy cause in terms of likelihood: “The concept of causality is most often used in a probabilistic way in sociology.”33 The question is not whether presumed cause x meets the four formal criteria of productive causation. Rather, the question is whether presumed cause x increases the likelihood of effect y: “the core idea of such approaches … is that a cause [x] must raise the probability of its effect [y] with respect to some suitably specified set of background conditions Bi.” 34 In other words, the ordinary meaning of cause in sociology is increasing the likelihood of a particular effect. Contribute accordingly means helping to increase the likelihood of a particular effect. 30 Tulia G. Falleti & Julia F. Lynch, Context and Causal Mechanisms in Political Analysis, 42 Comp. Pol. Stud. 1143, 1148 (2009). 31 CAUSATION, PHYSICS, AND THE CONSTITUTION OF REALITY 2 (Huw Price & Richard Corry eds., 2007). 32 Paul W. Holland, Statistics and Causal Interference, 81 J. Am. Stat. Ass’n 945, 945 (1986). 33 RAYMOND BOUDON & FRANCOIS BOURRICAUD, A CRITICAL DICTIONARY OF SOCIOLOGY 62 (Peter Hamilton trans., Univ. of Chicago Press 1989) (1982). See also JUDEA PEARL, CAUSALITY: MODELS, REASONING, AND INFERENCE 1 (2nd ed. 2009) (“[P]robability theory is currently the official mathematical language of most disciplines that use causal modeling, including . . . sociology . . . In these disciplines, investigators are concerned not merely with the presence or absence of causal connections but also with the relative strengths of those connections and with ways of inferring those connections from noisy observations.”); Isajiw at 41 (“ascertaining causation is a matter of degree of possibility (probability included) that all the characteristics of the causal bond are present. The more the variables within a system are limited and the more their correlative relation to each other is defined, the more probability there is that a variable will be a productive cause of a state of the system in which it appears.”). 34 James Woodword, Causal Models in the Social Sciences, in PHILOSOPHY OF ANTHROPOLOGY AND SOCIOLOGY 157, 175 (Stephen P. Turner & Mark W. Risjord eds., 2007). Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 26 3. Meaning in Analogous Legal Contexts The legal context is another candidate to illustrate the ordinary meaning of cause and contribute, particularly when speaking of social impacts. Across legal systems, cause and contribute are used to establish fault and determine liability for private and public wrongs. Notwithstanding the voluntariness of the Guidance, the legal definitions of these terms are therefore instructive when understanding their ordinary meaning in the context of business responsibility for human rights. a. Conditio sine qua non The dominant test of causation in most legal systems is the conditio sine qua non test.35 This formulation literally means “condition without which the damages would not have occurred.” That is, causation is established by considering a hypothetical alternative reality in which the allegedly wrongful act did not occur. If the injury would nonetheless have occurred, the wrongful act is not the cause of the injury. If the injury would not have occurred, the allegedly wrongful act is considered a conditio sine qua non, or the cause in fact. In common law jurisdictions this test is usually called the but for test. The test applies beyond private wrongs and appears to be the default approach to causation applied by the European Court of Human Rights: When ruling on the ‘causal connection’ under art 41 of the [European Convention on Human Rights], the Court seems to employ ‘the conditio sine qua non’ test without, however, mentioning the test by name. The ‘conditio sine qua non’ test entails the question of whether the harmful result would also have occurred but for the damaging event (ie the violation of the Convention). Should the answer be negative (‘No, the harmful result would not have occurred in the absence of the damaging event.’), then causation between harm and event is established. Should the answer be positive (‘Yes, the harmful result would also have occurred in the absence of the damaging event.’), causation is missing.36 b. Limitations of conditio sine qua non: causal complexity In theory, the but for test has an appealing simplicity. It has limitations, however, in contexts of causal complexity.37 Such contexts are common in the realm of business and human rights. Take the example of several unrelated businesses who each release pollutants into a municipal water supply. The pollutants released by any one of the businesses would be sufficient to render the water undrinkable and dangerous to health. In such a scenario, each business would be able to argue that it is not the conditio 35 Cees van Dam, European Tort Law 310 (2d ed. 2013). 36 Markus Kellner & Isabelle C. Durant, Causation, in TORT LAW IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS 449, 457 (Attila Fenyves et al. eds., 2011) (citation omitted). 37 Van Dam at 289-290. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 27 sine qua non of any adverse human rights impact—but for its actions or omissions, the pollutants would still have been released by others, any one of which would have been sufficient to result in the harm. Courts have addressed this type of evidentiary complexity by unshackling the formality of the but for test. In such scenarios, several European jurisdictions would hold each business that could have caused the adverse human rights impact responsible for the entire injury.38 In other words, if a company’s wrongful actions would have been sufficient to result in the injury—even if it cannot be determined whether the injury would have occurred but for those actions—courts are willing to deem the company the cause in fact of the injury. For example, in French law, each business would be considered liable unless it could prove that the actions of a third party caused the adverse impact in question.39 A second type of causal complexity is where a series of actions, omissions, or events result in an adverse impact. In a famous English case, Bonnington Castings v. Wardlaw, an employee sued his employer after contracting pneumoconiosis.40 The disease was shown to be the cumulative result of two sources, even one of which would place fault on the employer.41 The House of Lords held that the employee did not have to prove which source had been the more probable cause of his disease. Instead, it was sufficient if he proved that the action for which the employer might be at fault had “materially contributed” to the development of the disease.42 Any more than minimal contribution would be material.43 That is: an action or omission that makes a non-negligible contribution to an injury may be deemed the cause of that injury. The principle of causation as contribution was taken further in McGhee v. National Coal Board.44 As with Bonnington Castings, the case concerned industrial disease. Unlike Bonnington Castings, in McGhee one of the potential causes, for which the company could not be faulted, might have been sufficient by itself to result in the injury; the other potential cause, for which the company could be faulted, might not in fact have made a difference to the plaintiff’s injury.45 The court nonetheless found that the company caused 38 Id. at 329-332. 39 Id. at 331 (“If a collective faute is established, the defendants may prove that the conduct of a third party (including the victim) yields an external cause (cause étrangère) which was unforeseeable and unavoidable (imprévisible et irrésistible). If they cannot prove this, they are bound in solidum, which means that they are each fully liable towards the victim but each has a right of recourse towards the other tortfeasor(s).”) (citation omitted). 40 Bonnington Castings v. Wardlaw, [1956] 613 (HL) 614 (appeal taken from Scot.). 41 Id. at 622. 42 Id. at 620. 43 Id. at 621 (“I do not see how there can be something too large to come within the de minimis principal but yet too small to be material.”). See also J.F. CLERK & W.H.B. LINDSELL, CLERK & LINDSELL ON TORTS § 2-30 (21st ed. 2014) (noting that, in Bonnington, “[a]nything which did not fall within the principle de minimis non curat lex would constitute a material contribution.”). 44 McGhee v. Nat. Coal Board, [1972] 3 All E.R. 1008 (HL) (appeal taken from Scot.). 45 See generally Id. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 30 recurring.”54 That is, a business’s ability to shape the “chance of the impact occurring” informs whether it has caused or contributed to an impact. A business that cannot shape the “chance of the impact occurring” cannot be said to cause or contribute to that impact. The difference between cause and contribute lies in the degree of prospective influence over the risk. “[W]here a business enterprise causes or may cause an adverse human rights impact, it should take the necessary steps to cease or prevent the impact.”55 If a business causes an adverse impact, it is presumed to exercise such control over the “chance of the impact occurring” that it has the ability to “cease or prevent the impact.”56 No such presumption exists with “contribution,” in which case a business is expected to “take the necessary steps to cease or prevent its contribution and use its leverage to mitigate any remaining impact to the greatest extent possible.”57 The Guidelines specify that, notwithstanding this difference, contribution must pass a threshold level of importance to warrant a response: ‘Contributing to’ an adverse impact should be interpreted as a substantial contribution, meaning an activity that causes, facilitates or incentivises another entity to cause an adverse impact. An enterprise can also contribute to an adverse impact if the combination of its activities and that of another entity result in an adverse impact.58 This qualification parallels the threshold of “material” contribution or increase in risk in multi-cause legal contexts. In other words, a business may contribute to an adverse impact even if the business itself does not have the ability to “cease or prevent the impact” as long as its activities have a material bearing on “the chance of the impact occurring.”59 D. Note on Knowledge and Foreseeability The discussion above has not touched on knowledge or foreseeability. Rather, we have focused only on cause in fact. This is not the sole determinant of liability in law. Courts in both civil and common law jurisdictions further condition liability on the concept of foreseeability. The European Court of Human Rights, for instance, has held that an actor will not be liable for harm “that even a particularly prudent, knowledgeable and experienced person at the height of the current state of scientific knowledge would 54 Interpretive Guide at 18. 55 Guiding Principles, Commentary to Guiding Principle 19 at 21. 56 Interpretive Guide at 18; Guiding Principles, Commentary to Guiding Principle 19 at 21. 57 Guiding Principles, Commentary to Guiding Principle 19 at 21. 58 Org. for Econ. Co-Operation & Dev., OECD-FAO Guidance for Responsible Agricultural Supply Chains 20 (2016), https://mneguidelines.oecd.org/OECD-FAO-Guidance.pdf. 59 Interpretive Guide at 18. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 31 not have had to foresee because of its complete improbability.” 60 Neither knowledge nor foreseeability fall within the ordinary meaning of cause; the role of these related concepts is largely to negate fault rather than to identify the action or omission that brought about an event. As the Guidance is not liability creating, fault in a moral sense is not relevant. Indeed, foreseeability is expressly discounted as an element of causation in the Guidance: “even with the best policies and practices, a business enterprise may cause or contribute to an adverse human rights impact that it has not foreseen or been able to prevent.”61 Cause and contribute under the Guidance are therefore independent of knowledge or foreseeability. This is also consonant with the purpose of the Guidance, which is to encourage companies to engage in human rights due diligence across their value chains. Were knowledge or foreseeability material to determining a company’s involvement with—and thus responsibility to address—an adverse human rights impact, the effect would be a disincentive for companies to conduct rigorous due diligence in the first place. E. Definitions The practical meaning of cause and contribute based on ordinary usage in analogous contexts and the object of the Guidance turns on increasing the risk of a particular effect. In both cases, that increase in risk must be “substantial” or “material,” i.e., not negligible. The best way to understand the difference between cause and contribute thus lies not in the impact on risk but in the sufficiency of the underlying activity to bring about the adverse impact. Based on these principles, we propose the following definitions: • A business causes an adverse human rights impact when its activities (including omissions) materially increase the risk of the specific impact which occurred and would be sufficient, in and of themselves, to result in the impact. • A business contributes to an adverse human rights impact when its activities (including omissions) materially increase the risk of the specific impact which occurred even if they would not be sufficient, in and of themselves, to result in the impact. IV. Directly Linked Directly linked is rather more complex than the other involvement links. Unlike cause and contribute, we have found no identically phrased precedent in the social sciences or law to ground a definition of the term. Nonetheless, the context and objectives of the Guidance provide a structural foundation to identify the contours of directly linked involvement. Indeed, while it has unique features, directly linked bears a familial resemblance to the established legal concept of vicarious liability. Considering the two 60 Franz Bydlinski, Methodological Approaches to the Tort Law of the ECHR, in TORT LAW IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS 29, 75 (Attila Fenyves et al. eds., 2011). 61 Guiding Principles, Commentary to Guiding Principle 22 at 24. Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 32 concepts in tandem in the specific context of the Guidance illuminates the underlying objectives and proper scope of the term. A. Key Directly Linked Provisions 1. Guidelines States have the duty to protect human rights. Enterprises should, within the framework of internationally recognized human rights, the international human rights obligations of the countries in which they operate as well as relevant domestic laws and regulations: … 3. Seek ways to prevent or mitigate adverse human rights impacts that are directly linked to their business operations, products or services by a business relationship, even if they do not contribute to those impacts.62 2. Guiding Principles Guiding Principle 13: The responsibility to respect human rights requires that business enterprises: … (a) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.63 B. Ordinary Meaning The Oxford English Dictionary defines “directly” as “straightforwardly” or “without changing direction or stopping” or “with nothing or no one in between.”64 It defines the verb “link,” of which “linked” is the past participle, as “make, form, or suggest a connection with or between.”65 These definitions suggest that the ordinary meaning of “directly linked” is “a connection formed, or a bond created, without intervention.” 62 Id. at 31. 63 Guiding Principles at 14. 64 OXFORD ENGLISH DICTIONARY 705 (2d ed. 1989). 65 OXFORD ENGLISH DICTIONARY (2d ed. 1989). Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 35 Vicarious liability thus conceived turns on two elements—business relationship and wrongdoing in the scope of that relationship. Business relationship. In the most common form of vicarious liability regime, an employer or partner typically is held liable for the wrongful acts of an employee or partner.76 Wrongdoing in the scope of the relationship. Vicarious liability applies only to those harms that occur within the scope of the business relationship. In other words, no vicarious liability exists where the harm is unrelated to the relationship in question.77 The contours of vicarious liability are readily discerned in the structure of directly linked involvement. The differences between the concepts lie in the breadth of relevant relationships and depth of resulting responsibility. First, vicarious liability traditionally applies to a narrow class of undertakings in concert, particularly employment and partnership arrangements. Business relationships under the Guidance, by contrast, are much broader in scope: “direct linkages are not limited to first-tier or immediate business relationships.”78 Second, and related, vicarious liability imposes legally enforceable penalties on those found so liable. Under the Guidance, however, while a business is expected to address adverse human rights impacts to which it is directly linked, it is not expected to provide a remedy.79 1. Justification for Vicarious Liability There is arguably no single definitive or comprehensive justification for vicarious liability.80 Three main principles have been advanced by courts and commentators: deterrence, compensation, and fairness. Deterrence. The deterrence rationale for vicarious liability turns on moral and economic justifications. The moral case presupposes control, as in the employment context.81 That is, 76 See JENNY STEELE, TORT LAW: TEXT, CASES, AND MATERIALS 564 (2007). 77 See, e.g., CODE CIVIL [CIVIL CODE] art. 1384(5) (Fr.) (« Les maîtres et les commettants [sont responsables] du dommage causé par leurs domestiques et préposés dans les fonctions auxquelles ils les ont employés. »). 78 Due Diligence in the Financial Sector at 11. 79 Guiding Principles, Commentary to Guiding Principle 22 at 24-25 (“Where adverse impacts have occurred that the business enterprise has not caused or contributed to, but which are directly linked to its operations, products or services by a business relationship, the responsibility to respect human rights does not require that the enterprise itself provide for remediation, though it may take a role in doing so.”). 80 SIMON DEAKIN, ANGUS JOHNSTON, AND BASIL MARKENESINIS, MARKENESINIS AND DEAKIN’S TORT LAW 665-66 (6th ed. 2008) (“Though the theoretical justifications of vicarious liability vary, this is not a problem that has often worried the English courts. Lord Pearce’s remark that the doctrine of vicarious liability has not grown from any clear logical or legal principle but from social convenience and rough justice is typical of their pragmatic approach to the question. Perhaps it should also be taken to suggest that, although no single theory can explain the rule, its basis cannot be dismissed entirely.”). 81 NEIL HAWKE, CORPORATE LIABILITY § 3-04 at 69 (2000) (“[liability] is founded on an assumption of control by the employing individual or company”). See also Reedie v. The London & Nw. Ry. Co. [1849] 4 Exch. 244, 154 ER 1201 Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 36 vicarious liability helps ensure that businesses are held accountable for and “internalize” the costs of the risks that they create, thereby most efficiently minimizing risk of injury to others.82 The economic justification turns on incentivizing the party best positioned to mitigate risks to others: “the employer has the opportunity to increase standards of safety, for example through better procedures for selecting employees and for their supervision. Therefore, it is best if there is an incentive for him or her to do so, through liability for the employee’s tort.”83 Compensation. As with deterrence, the compensation principle is built on moral and economic justifications. The former is focused on justice for the victim: when someone is injured due to the fault of a person who has insufficient resources to pay, the injured person should be able to seek compensation from another person who, although not at fault, has a relevant connection to the cause of the injury.84 Thus, the “pragmatic” basis for employer liability for employee wrongs “is that employers . . . can best afford to bear the cost of compensating injured third parties.”85 The economic justification, by contrast, highlights the societal efficiency of distributing such losses widely, as corporations are able to do through insurance and pricing.86 Fairness. Fairness requires that the party to a joint enterprise that benefits from the actions of a wrongdoer should bear the cost of any injury sustained by a third party arising from a wrong committed in the course of that labor.87 Courts have long relied on principles of fairness to impose vicarious liability, noting that, for example, “those who set in motion and profit from the activities of their employees should compensate those who are injured by such activities even when performed negligently.”88 In other words, businesses should assume the risks that they create, and from which they benefit, in the course of their activities.89 (“[t]he party employing has the selection of the party employed, and it is reasonable that he who has made the choice of an unskilled or careless employee . . . should be responsible for any injury resulting [from activities undertaken in the course of employment]”.). 82 Steele at 565. See also Bazley v. Curry, [1999] 2 S.C.R. 534, ¶ 32 (“[e]mployers are often in a position to reduce accidents and intentional wrongs by efficient organization and supervision”). 83 Steele at 566. 84 QUEENSLAND LAW REFORM COMMISSION, VICARIOUS LIABILITY, Report No. 56 at 11 (Dec. 2001) [hereinafter Report No. 56]. 85 Vivienne Harpwood, Modern Tort Law 353 (7th ed. 2009). 86 Report No. 56 at 10 (citation omitted). 87 P.S. ATIYAH, VICARIOUS LIABILITY IN THE LAW OF TORTS (1967). 88 Viasystems (Tyneside) Ltd. v. Thermal Transfer (N.) Ltd., [2006] QB 510, para. 55. See also Bazley v. Curry, [1999] 2 S.C.R. 534, para. 30 (under vicarious liability theory, “a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise”) (citation omitted). 89 Hawke § 3-04 at 69 (“The responsibility of the individual (or company) for acts or omissions of an employee from which a benefit accrues forms the basis of vicarious liability where the plaintiff has suffered loss . . .”). Discussion Draft Practical Definitions of Cause, Contribute, and Directly Linked 37 While they cannot be applied directly and as-is, these underlying principles can help illuminate the Guidance’s objectives in imposing responsibility on businesses for directly linked involvement. First, deterrence is consonant with the Guidance’s express objective of “enhancing standards and practices with regard to business and human rights so as to achieve tangible results for affected individuals and communities, and thereby also contributing to a socially sustainable globalization.”90 That is: no-fault responsibility for directly linked involvement encourages businesses to adopt measures—including policies and due diligence processes—to minimize the risk of adverse human rights impacts by third parties. Second, fairness aligns with the structure of the three involvement links. There are two types of fairness rationale underpinning vicarious liability: (i) a business should bear the risks it creates; and (ii) a business should not benefit from wrongs to others.91 Under the Guidance, cause and contribute involvement address risk creation. The gap remaining is benefit. Drawing on the fairness justification for vicarious liability to animate the purpose of directly linked ensures that the Guidance comprehensively “promote[s] positive contributions by enterprises to economic, environmental and social progress worldwide.”92 2. Understanding Directly Linked through Vicarious Liability The principle of fairness addresses the two ambiguities raised by the structure of directly linked in the Guidance. Link. What kind of non-causal connection could equally explain (i) the relationship between a business and a state or non-state entity and (ii) the relationship between a business and an adverse human rights impact? Fairness is the logic best suited to both types of link: a company may be expected to address adverse human rights impacts that it does not cause or contribute to when it benefits, or is deemed to benefit, from them. Benefit establishes the link between Company A and Entity B to constitute the business relationship. Benefit similarly establishes the link between Company A and adverse impact x. The Interpretive Guide adds support for this interpretation by noting that a business’s “value chain”—the fulcrum of directly linked responsibility—“encompasses the activities that convert input into output by adding value.”93 That is, Company A is directly linked to an adverse impact that it did not cause or contribute to when (i) its products, services, or operations benefit, or are deemed to benefit, from a relationship with Entity B, and (ii) its products, services, or operations benefit, or are deemed to benefit, from adverse impact x caused or contributed to by Entity B in the course of that relationship. 90 Guiding Principles at 1. 91 Steele at 565. 92 Guidelines at 3. 93 Interpretive Guide at 8 (emphasis added).