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International commercial courts have much to learn from international criminal tribunals (ICTs), as these were the first (along with investment tribunals) to combine domestic and international law, in a manner that today exemplifies the interplay of transnational law. Although ICTs dispensed criminal justice, their hybrid commercial counterparts of the twenty-first century do not depart from the ICT model of justice. There are striking similarities in that both wish to attract users and ultimately become financially independent; they both strive to convince their financiers that they are worth the effort and expense. Ultimately, and although this may not be apparent from the outset (and may not perhaps even be an indirect goal), both ICTs and hybrid commercial tribunals will have to show that they are truly legitimate and that they feed into the local legal system in a meaningful way. If they do not, they will have failed to meet the concerns and aspirations of all users of the pertinent legal system.
How can businesses operate profitably and sustainably while ensuring that they are applying human rights? It is possible to apply human rights while at the same time decreasing cost and making human rights contribute to profits. Yet business efforts alone are insufficient, and states must possess sufficient regulatory power to work together with businesses and investors – not only to improve human rights but also to foster development more broadly. This textbook, the first of its kind, explores all aspects of the links between business operations and human rights. Its twenty-five chapters guide readers systematically through all the particular features of this intersection, integrating legal and business approaches. Thematic sections cover conceptual and regulatory frameworks, remedies and dispute resolution, and practical enforcement tools. Ideal for courses in business, law, policy and international development, the book is also essential reading for managers in large corporations.
This chapter is organized under two main sections. The first discusses how the content requirements of HRIAs are conflated with the ethical requirements of the assessment itself. This, narrow and inadequate species of HRIA ethics is quite different from the extensive body of legal ethics. The second section provides a case study of a World Bank-related impact assessment, which gives rise to legal and non-legal ethical issues and which is meant to demonstrate that the absence of concrete human rights-centred ethical guidelines in HRIAs can, even with the best of intentions, lead to outcomes that effectively violate fundamental rights.
This chapter examines the emergence of a treaty regime at the UN on business and human rights. It examines the key provisions of the Zero Draft as well as the amendments addressed by the draft presented in August 2020. This is a welcome development and it is clear that the focus of the emerging treaty is not so much on the corporations themselves but on the necessary positive measures required of states in this field
This chapter starts from the premise that business and human rights is much more complex than the impact of corporate practices on the fulfillment of human rights and environmental law. Rather, it is crucial that one identifies the underlying causes of this tension, namely: a) the broader corporate perspective in its transnational context; b) the inter-state investment relations and; c) the international financial architecture. Within all three of these, home and host states interact with each other, as well as with corporations. Powerful home states are lobbied by multinational corporations (MNCs) to create an international framework that better guarantees investment and trade. This is taken up as a policy imperative and reflected in international treaty making. States, both home and host, are clearly central to this process and their achievements, good or bad, will ultimately shape, or open up the space for subsequent corporate conduct. Hence, the starting point for our understanding of business and human rights should not be based on corporations themselves, but rather extend to all the contextual and underlying grounds that shape their existence, regulation and performance.
A state should be deemed to be enjoying fiscal sovereignty where it is effectively empowered, without pressure or coercion, to make all policy decisions required to run the state machinery and satisfy the fundamental needs of its people (at the very least), both individual and collective. A state’s effective policy and decision-making power is effectively curtailed where: (1) it has been substituted in these functions by a third state or an organ of that state; (2) it is prevented from taking a particular action, such as unilateral default; (3) it is forced to violate fundamental domestic laws, including its constitution or the result of a referendum; or (4) external pressure is exerted against its government and institutions, with the aim of creating volatility and uncertainty concerning its finances so it succumbs to such pressure.
Despite significant progress in business and human rights (BHR) discourse and the practices of multinational corporations (MNCs), persons with disabilities and disability rights are absent from both the key instruments and practice of BHR. This lacuna exists despite the near-universal ratification of the United Nations (UN) Convention on the Rights of Persons with Disabilities, as well as the fact that disabled persons constitute over 15 per cent of the global population and MNC operations impact them greatly and disproportionately. We argue that MNCs have a central role, responsibility and opportunity to foment change globally in fulfilling the human rights of persons with disabilities through their employment practices and by leveraging their economic power to fulfil other aspects of disability-based human rights. Doing so requires the development and self-enforcement of disability-specific human rights due diligence (HRDD) processes, and creating a general culture of diversity, equity and inclusion that encompasses disability.
This short paper intends to set out a general theory underpinning the process of contractualisation of public international law. In doing so, it explains that this has chiefly been engineered through the establishment of a third sphere of regulation – in addition to the spheres of domestic law(s) and international law – namely transnational law. Both private actors and states operate through this sphere, chiefly because of its flexibility, decreased transaction costs and access to capital (which is scarce in the other two spheres). These benefits of transacting in the transnational-law sphere and the contractualisation of pertinent relationships come at a cost. Such a cost, from the perspective of human rights and parliamentary sovereignty, is explored by reference to two case-studies. The second of these, on the outsourcing of indigenous land rights, is predicated on the research and observations offered by Bhatt (2020).
Although fair trial guarantees have always been recognised as constituting an integral aspect of international arbitral proceedings, this has largely been viewed through the lens of civil procedure rather than as a matter of public law and human rights. This state of affairs has further been compounded by the confidential nature of arbitration and the relative scarcity of set aside (annulment) proceedings before the courts of the seat of arbitration on the grounds of unequal treatment, and before human rights bodies such as the European Court of Human Rights. Moreover, it has always been difficult to reconcile contractual freedom and the advantages offered by arbitration with equal treatment and fair trial claims. This article demonstrates the existence of a set of general principles concerning the meaning and content of equal treatment, which are consistent with its commercial (and civil procedure) and human rights dimensions. The basis of this conclusion is Article 18 of the UNCITRAL Model Law on International Commercial Arbitration, as consistently interpreted and adapted by local laws and judgments, arbitral statutes and determinations by the European Court of Human Rights.
A comprehensive discussion of the UN’s human rights work and institutions is an infinite task given that every atom of the Organisation is engaged in one way or another in the promotion or protection of rights. As a result, a large part of this chapter is devoted to the examination of the principal human rights institution, the Human Rights Council (HRC), and the various mechanisms operating under its wing. This includes a discussion of the universal periodic review (UPR), the HRC’s complaint procedure, as well as its so-called special procedures. The chapter then goes on to analyse the important human rights dimension of the UN General Assembly (UNGA) and the UNSC, since both possess authority to take direct action against violations, in addition to their standard-setting capacity. Institutions that have produced important human rights work, but whose mandate is otherwise peripheral to human rights, such as the International Court of Justice (ICJ), are mentioned in this chapter but are not extensively analysed. Equally, space precludes us from examining specialised agencies such as UN International Children’s (Emergency) Fund (UNICEF) and the UN High Commissioner for Refugees (UNHCR).
International human rights law is part of public international law and shares a number of its features, including sources, obligations (primary rules) and state responsibility (secondary rules). While international human rights law has formed within the broader setting of international law, it has developed distinctive features. Traditional international law was an order based on the sovereign interests of states as its sole subjects. In contrast, international human rights law is characterised by its emphasis on common interests that reflect the fundamental values of the international legal order. This value-based approach is evident in the concept of jus cogens, or peremptory norm, and the notion of erga omnes, obligations owed to the international community as a whole. Undoubtedly, international human rights law can form an important component of a new international order or international constitutionalism. However, unilateralism, selectivity and fragmentation, in addition to challenges of effective implementation, are restraining factors that may slow down, if not undermine, ‘constitutional’ developments at the international level. This chapter examines these dynamics and discusses the key building blocks of international (human rights) law: its sources; its rights and obligations and the scope of their application; and its implementation as well as state responsibility and enforcement.