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International Human rights law week 7 notes
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International Human rights law week 7 notes
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W7: Non-state actorsBusiness poses a challenge for the international human rights law. The human rights bodies
do not know yet how to deal with negative cooperate impact.
Non-state actors
Eg terrorist groups, NGO’s, multinational corporations (in common: they are not states).
Whose business are human rights?
- Which human rights norms are affected?
Fail labor, right to live, right to work
- Who has committed to these norms?
The state
- How is compliance ensured?
Human rights treaties
- Who monitors compliance with these norms?
National courts
- How are the norms enforced?
National courts
Examples of business related to human rights: Shell and oil pollution in Nigeria, C&A and
factory fires in Bangladesh
Problem: global governance gaps
- Commitment: international human rights law binds states
- Compliance: within jurisdiction, primarily territorial notion
Addressing the global governance gaps
First wave of attention in ‘70’s: ILO, OECD (non-binding!)
Then: United Nations (90’s-2011, UN Guiding Principles)
Developments since 2011: UN supervisory bodies, national case law
Fourth wave? International treaty?
Actually, there is a call for an international treaty on this!
Ruggie Framework (200) and Guiding Principles (2011)
This was drafted to create clearance between states and corporations, but this
already existed
1. Protect: duty of States to protect against human rights abuses including those by
business
2. Respect: responsibility (duty) of corporations to respect (soft law; society expects
this form corporations) human rights where they operate including to a certain
extent along their supply chain (THIS IS A NEW NORM IN IHRL)
3. Remedy: access to effective remedies for victims (states have to make sure there
is an effective remedy) and state have to make sure there is a grieve mechanism
(joint responsibility)
, Pillar 1: State duty to protect
Art ICCPR: this is a territorial jurisdiction. But hope that this is going to be an
extraterritorial obligation…
Pillar 2: Corporate Responsibility to respect
Preamble of the UDHR (non-binding declaration; preamble): ‘every organ of society’
Corporate responsibility to respect human rights: non-legal based in societal
expectations
See Guiding Principle 15: To discharge of the corporate responsibility to respect,
corporations must provide:
- Human rights policy
- Human rights due diligence process (risk-analysis; you have to identify what the
possible risks are)- see Guiding Principle 17 (continuous process, down the supply
chain, ‘courts of public opinion’)
- Remediation
Pillar 3: access to effective remedy
Merging regulatory framework
UNGP’s (United Nations Guiding Principles on Business and Human Rights) increasingly
embedded in regulatory ecosystem:
eg. OECD Guidelines on Business and Human Rights, International Finance Cooperation, EU:
Call for National Action Plans Member States
Proliferation of voluntary multistate-holder initiatives:
Eg. The Bangladesh Accord on Fire and Building Safety
Way forward: a treaty?
- Negotiations about this are ongoing
Monitory voluntary: a false dichotomy
Reality is a complex interplay between legal system of both hard and soft law
- ‘redeployment’ of soft norm in contracts
- legislations of soft norms: human rights due diligence and reporting
popping up: legal obligations for eg due diligence
Call for a legally binding instrument
in 2014: Resolution was adopted
Negotiating the Treaty
- art 2: purpose
- art 3: scope
- art 4: rights if victims
- art 5(2): due diligence (national systems have to take this in their system as well)
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