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The metal-mining boom Latin America experienced in recent decades precipitated highly contentious anti-mining social movements in Central America. In this context, El Salvador became the first country in the world to ban all metal mining by law. In contrast, policy in nearby Guatemala, Honduras and Nicaragua remained pro-mining. These cases are compared using a most similar systems design. Comparison reveals the importance of three variables: how national economic-elite networks and interests relate to multinational corporations; national movement coordination and goals, specifically in relation to prohibition; and how parties and leaders relied on popular bases or capital. These factors shaped the contention between elites and movements that influenced state actions around mining and led to this ‘least likely case’ of extractive policy change in El Salvador.
All across Africa, local transporters ferry humanitarian shipments, beer, powdered milk, mobile phones, soft drinks, and other ‘global’ commodities all the way into the interior of the continent. On their return journey, they feed local products like tropical hardwood, minerals and peanuts back into global supply chains. Through these logistical connections, whatever conspires in the dense forests of Central Africa is linked to the rest of the world. Whether it is to export timber from the Central African Republic, deliver food aid in South Sudan, or access consumer goods markets in the Democratic Republic of Congo, for logistical entrepreneurs, Central Africa is a ‘supply chain frontier’ where vast profits are made. But these expanding supply chains are also the engine behind new patterns of predation on the continent. To explore this hidden side of the global economy, Chapter 6 asks, how does a multinational corporation navigate roadblock politics? Or, put differently, how come today’s panoply of Central African roadblocks doesn’t disrupt global supply chains? Chapter 6 makes the case that transnational circulation is not somehow detached from the terrain through which it transacts; global supply chains come to life by empowering and sustaining a host of actors along their routes.
One dynamic for the entanglement of law might be the mobilization of law from below. The myriad mobilizations of law by local social struggles around transnational relations refer to presumed precedents from other situations and other jurisdictions, and claim the applicability of norms from other legal orders. Rumours of rights entangle law. Such mobilizations from below rely on strategic comparisons, sometimes conjectural and tentative, and a belief in law’s coherence. From their position of relative weakness, they appeal to any norm that might provide legal arguments. They struggle to make these norms binding, and hence for their trans-systemic validity. This chapter argues that these entanglements strive for relational coherence – a coherence that is simultaneously trans-systemic and unsystematic. It is trans-systemic inasmuch as it refers to norms from various normative orders, and unsystematic to the extent that it does not move towards an intra-systemic logic. Yet such entanglement might lead to cases being treated increasingly as singular, that is, in relation to their unique characteristics. This is evident in out-of-court settlements in which transnational legal struggles frequently end. The paradox is thus that entanglements engendered by struggles seeking the trans-systemic validity of norms increase attention to the singular characteristics of a constellation.
Transnational regulation of corporate behaviour is characterized by a multiplicity of reflexive norm-making processes in a variety of different forums, creating a web of corporate social responsibility (CSR) normativity in which relationing, cross-referencing but also contestation between bodies of norms become the rule rather than the exception. These interactions are particularly visible within a subset of CSR norms described as meta-regulatory, which often serve as focal points for entanglement. The chapter focuses on one such instrument – the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises. The structure of the guidelines facilitates coordinated entanglement by including strategic openings and references to external bodies of norms. Moreover, the existence of OECD National Contact Points (the guidelines’ implementation mechanism) also enables more fluid and contingent interactions between bodies of norms, described in the chapter as ad hoc entanglement. By analysing both coordinated and ad hoc entanglement in relation to the OECD guidelines, the chapter identifies some of the dynamics which characterise the interactions between bodies of CSR norms. The resulting picture is nuanced, with entanglement being present in varying shades ranging from distancing to proximity.
On June 17, 2021, the United States Supreme Court reversed and remanded a suit filed against Nestlé USA and Cargill under the Alien Tort Statute (ATS) for lack of jurisdiction. This case has already garnered attention over the nature of the dispute (child slaves in Africa), the Supreme Court's treatment of jurisdiction under the ATS, and the finding shared by five of the nine Supreme Court justices that domestic corporations can potentially be sued under the ATS. This analysis focuses on the child slavery and global supply chain aspects of the decision.
The goal of this chapter is to elucidate the role and responsibility of the business sector for safeguarding these two rights by clarifying the origins, legal nature, scope and enforcement of obligations placed upon corporate actors. Specifically, the chapter examines whether and how the status of a duty-bearer affects the ambit of the two rights and obligations they give rise to. In other words, what are the differences between the role of businesses and that of states in securing the rights to work and just and favourable conditions of work? While the traditional (positivist) paradigm of human rights protection sees states as ultimately responsible for ensuring that rights are respected by everyone within their respective jurisdictions, certain aspects of the two rights may be fulfilled only by states. In that sense, the scope of duties arising out of the rights to work and just and favourable conditions of work which businesses can in theory be responsible for is materially different.
This chapter highlights the importance of the incorporation of international standards into national laws establishing ECAs. With this aim in mind, the global architecture would benefit from enhancing the commitments made through international standards so that adhering states shall be compelled to pass legislation mandating ECAs to conduct human rights due diligence. Furthermore, stakeholders should be properly consulted. Most important, efficient enforcement mechanisms are needed to ensure that a formal complaint process enables stakeholders to challenge loans granted by ECAs on the basis of human rights and environmental violations.
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 discusses the United Nations Global Compact (UNGC) and the OECD Guidelines for Multinational Enterprises as voluntary standards for business and human rights. Both standards have received significant scholarly attention. Although both initiatives differ with regard to some dimensions (e.g., in terms of their scope), they also share a number of similarities (e.g., their voluntary and principle-based nature and their lack of monitoring). It is therefore appropriate to discuss both initiatives and to also compare them with each other (whenever possible and feasible). The discussion in this chapter proceeds as follows. The next section discusses the theoretical background by emphasizing the rise of voluntary standards related to corporate sustainability and responsibility. The following two sections provide a more practical discussion. Section three and four take an in-depth look at the UNGC and the OECD Guidelines and discuss (a) the basic idea underlying both initiatives, (b) their link to the business and human rights agenda, and (c) their enforcement mechanisms. The discussion of both standards shows one important similarity: the lack of a robust system to implement and enforce the promoted principles.
In this chapter, we first discuss the growing expectations for companies to address human rights and the need to develop business models that enable profits and human rights principles to co-exist. We then describe and discuss two empirical cases of companies that are experimenting with new business models to align the expectations for profits with the protection of human rights. The first case from the sportswear industry shows how Decathlon, a French sports retailer, has revised its purchasing practices to create partnerships with its suppliers with a view to improving both productivity and working conditions. The second case, from the extractives sector, discusses how Trafigura, a Swiss-based commodity trading company with headquarters in Singapore, has set up a collaborative project with a mining company to formalize the artisanal mining activities of cobalt in the Democratic Republic of the Congo (DRC) to mitigate human rights risks. Both cases illustrate actions taken by companies to embed human rights into their core activities while also developing their businesses. These cases provide anecdotal evidence for the hypothesis that systematically integrating respect for human rights can indeed go hand in hand with financial success and be considered ‘good business’.
At issue in the SNC-Lavalin scandal was a new tool of corporate criminal law: remediation agreements. Introduced in 2018, remediation agreements allow corporate diversion and create an alternative to the prosecution of corporations suspected of criminal wrongdoing. This article examines why the federal government adopted and chose this particular new tool. Drawing on a wide-ranging documentary record, I argue that this reform was the product of transnational lawmaking and the ongoing influence of Canada's international commitments to prohibit and punish foreign bribery. The article shows how international criticism of Canada's lacklustre anti–foreign bribery enforcement record catalyzed cross-national policy diffusion and learning from other states. This led Canada to adopt corporate diversion, which promised greater enforcement, and also led Canada to adopt a form of the practice with legislative and judicial limits that narrowed the chances of any company—including SNC-Lavalin—of obtaining a remediation agreement.
Despite the tremendous progress in the development of scientific knowledge, the understanding of the causes of poverty and inequality, and the role of politics and governance in addressing modern challenges, issues such as social inclusion, poverty, marginalization and despair continue to be a reality across the world - and most often impact Indigenous Peoples. At the Margins of Globalization explores how Indigenous Peoples are affected by globalization, and the culture of individual choice without responsibility that it promotes, while addressing what can be done about it. Though international trade and investment agreements are unlikely to go away, the inclusion of Indigenous rights provisions has made a positive difference. This book explains how these provisions operate and how to build from their limited success.
Multinational firms operate in multiple national jurisdictions, making them difficult for any one government to regulate. For this reason the firms themselves are often in charge of their own regulation, increasingly in conjunction with international organizations by way of public-private governance initiatives. Prior research has claimed that such initiatives are too weak to meaningfully change firms’ behavior. Can public-private governance initiatives help firms self-regulate, even if they lack strong monitoring or enforcement mechanisms? I take two steps toward answering this question. First, I introduce a new measure of firms’ performance on ESG (environmental, social, and governance) issues: the extent to which the firms issue public responses to claims of misconduct from civil society actors. Second, I argue that public-private governance initiatives allow firms to benefit from the legitimacy of their public partners, lowering the reputational cost of transparent response. Employing novel data on firm responses to human rights allegations from the Business and Human Rights Resource Center, I find that membership in the largest and most prominent initiative, the United Nations Global Compact, significantly increases firms’ propensity to respond transparently to stakeholder allegations. These results suggest a limited but important role for public-private initiatives in global governance.
The seventh chapter addresses extraterritorial due diligence obligations which impose upon capable states a duty to regulate harmful conduct of non-state actors operating abroad. In a first step, the chapter explains that such obligations are not generally incompatible with international law and do not infringe upon the principle of non-intervention. It is further suggested that they could even be qualified as mandatory under certain circumstances and states should diligently regulate extraterritorial conduct where they have a sufficient jurisdictional nexus. The chapter concludes with an investigation of two extraterritorial constellations in which such obligations could contribute to more effective human rights protection: the trade of arms and the activities of multinational corporations. Recent examples of domestic legislation such as the 2017 French Law on Duty of Care underline that state practice is emerging which supports the claim for accepting extraterritorial human rights obligations and provides guidance for future action.
The first chapter introduces the broader debate on human rights and non-state actors. With the political and economic power of non-state actors ever increasing, the creation of directly binding international human rights obligations for non-state actors, in particular for multinational corporations, has become a popular suggestion. The chapter discusses why such direct obligations cannot be derived from the existing human rights system and weighs arguments in favor and against creating such obligations in the future. It emphasizes risks and problems that are critical but often overlooked in this context and concludes that direct human rights obligations for non-state actors neither seem feasible nor politically desirable which makes it necessary to look for alternative solutions in order to address the increasing problem of human rights violations caused by actors other than states. Due diligence obligations on behalf of states may present such an alternative.
In recent years, the volume and intensity of attacks on globalization have been steadily rising. It is frequently argued that the antiglobalization backlash stems from strains that have been placed on the compromise of embedded liberalism. We argue that existing research underemphasizes how technological change and the digital revolution have contributed to these strains. Global value chains facilitated by the digital revolution have linked technology in advanced industrial countries to low-cost labor in developing countries, precipitating distributional losses for low-skilled labor in the industrial world. Further, the digital revolution has led to regulatory challenges involving both capital and labor. We argue that, as a result, governments face both mounting opposition to globalization and heightened difficulty in supporting the programs and policies necessary to buffer the adverse domestic effects of globalization and maintain support for embedded liberalism.
Firms from different countries face different challenges to growth and development, with firms in emerging markets generally being at a disadvantage compared to developed countries’ firms. Despite this, some emerging market firms have started expanding to other countries, becoming progressively more established. This chapter will present the case of seven Mexican firms that have undergone an internationalization process and have become multinational corporations and exporters. To analyze this, the study focused on the capabilities each firm had that provided an advantage locally and globally, and whether these capabilities were different for each market. In the comparison, it was discovered that the most common and relevant capabilities for these firms were understanding local customer needs, corporate brand and reputation, and relationship capabilities.
This chapter focuses on the shareholder and its increasingly important place in international economic law and, in particular, international investment law. The increasing importance of the place and role played by shareholders is a consequence of the increasing importance of multinational corporations on the international scene. The more pronounced place and role played by private actors on the international scene leads to the appearance of “new” real parties in interest. Because shareholders qualify as “investors,”,+ they are protected under international investment treaties and can have recourse to investor-state arbitration. As investors, the protection of shareholders in international investment law must be acknowledged in order to preserve the latter’s legitimacy. This chapter also identifies the different conflicts of interest which may exist among different categories of shareholders (minority and majority shareholders or foreign and domestic shareholders), as well as among shareholders and creditors. These conflicts of interest are important to understanding the dynamic at stake in shareholders’ claims for reflective loss and, in some instances, can justify shareholders’ claims for reflective loss in investment arbitration.
The chapter begins by explaining the complementary role of criminal law in the application of international human rights. It then goes on to analyse the function of the concept of individual criminal responsibility under international law and its relationship to human rights violations. Subsequently, we examine the processes and mechanisms for enforcement of criminal rules under international law with an emphasis on policy rather than the procedural rules underpinning jurisdiction. The ‘peace versus justice’ debate, namely whether international prosecution should sometimes be side-lined in favour of negotiated solutions to ongoing conflicts, is an integral part of this discussion. Finally, the chapter concludes with an analysis of the two core mass international crimes, namely genocide and crimes against humanity with a view to demonstrating that their formulation is largely based on human rights (i.e. rights of victims), rather than criminal law, considerations.
American discontent with offshore production features heavily in trade policy debates. But Americans more typically encounter offshore production in apolitical contexts as consumers. We argue that these ostensibly apolitical encounters with offshore production are, in fact, freighted with political consequences. This paper asks: When and for whom does consumer-based exposure to offshore production reduce support for free trade? This is an important in its own right, but also sheds light on the contexts in which more overtly political references to offshore production are likely to find the most fertile ground. We answer these questions using a survey experiment that embeds an offshoring “prime” into an advertisement for pet furniture, varying the location of production across different treatment groups. We find that our experimental exposure to offshore production depressed enthusiasm for free trade, but only when production occurred in China, and mainly among white men living near trade-related job loss. That heterogeneity resonates with work on the economic and social aspects of the decline in American manufacturing employment.