Human Rights Law – Notes
Week 1 – Introduction – Business & Human Rights
Regulatory Framework
Traditionally, the role of protector of human rights has been attributed to states, i.e., their
national governments
Recent shift of responsibility to companies
The framework:
1. Universal Declaration of Human Rights
a. 30 substantive human rights that are the common standard of achievement for
all peoples and nations
b. Declaration of the UNGA, therefore no binding legal obligations
c. Frequently cited as a source corporations should follow
d. Extending the moral, if not legal, authority of the UDHR to corporations relies
on art. 29, which acknowledges that ‘everyone’ has ‘duties’ to the community,
and art. 30, which prohibits any ‘group’ from engaging in any activity or
performing any act aimed at destroying any of the rights and freedoms in the
UDHR
2. International human rights treaties
a. The International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR)
b. Primary responsibility of governments
c. Recently, more direct references to role of States in protecting human rights
d. A Business and Human Rights treaty:
i. Resolution adopted by UN HR Council in 2014 raised the issue
whether the human rights framework can accommodate corporate
liability
3. International Labour Organization’s conventions and guidelines
a. Subset of fundamental human rights
b. Unlike UN, ILO’s structure aims to include not only governments, but also
employer and employee representatives
c. 4 core labour standards: freedom of association and collective bargaining,
elimination of discrimination, elimination of forced labour, elimination of child
labour
d. Also legally bind states, not businesses
4. National laws
a. Can and do directly target companies through provisions on labour rights, anti-
discrimination, environmental protection and crime
b. However, only apply within the jurisdiction of the State, which does not match
the transnational operations of many companies
i. E.g., US cannot punish a US company’s activities in Nigeria
c. Other methods of regulation: transparency requirements
, i. E.g., s. 1502 US Dodd-Frank Act: requires all listed companies to
report on the sources of minerals used in their products that originate
from the Democratic Republic of Congo
International Institutional Initiatives (soft law)
1. The UN Draft Code of Conduct on Transnational Corporations
a. Duties for TNCs to respect host countries’ development goals, observe their
domestic laws, respect fundamental human rights and observe consumer and
environmental protection objectives
b. Never officially adopted, legal status never clarified
2. The Organisation for Economic Co-operation and Development (OECD) Guidelines
for Multinational Enterprises
a. Launched in 1976, updated in 2011 to incorporate the guiding principles
b. OECD members and adhering states are obliged to set up a National Contact
Point (NCP) to promote the OECD Guidelines
i. Dispute resolution mechanism
c. Still, the guidelines are voluntary and enterprises are invited to adopt them
d. Many complaints to the NCPs, but extent of remediation is unclear
3. UN Global Compact
a. Established in 2000
b. Calls on companies to voluntarily embrace and enact a set of 10 principles
relating to human rights, labour rights, the environment and anti-corruption
c. More than 12,000 participants, but very general rights, limited participation, no
tool to hold corporations accountable
4. The UN Norms on the Responsibilities of Transnational Corporations and Other
Business Enterprises with Regard to Human Rights
a. Never officially adopted, but identified specific human rights relevant to the
activities of business, such as the right to equal opportunity and non-
discrimination, the right to security of person, the rights of workers and the
rights of particular groups such as indigenous peoples
b. Many businesses rejected them and lobbied against their adoption
c. Criticized for creating stronger obligations for businesses than for states,
privatizing protection of human rights
d. Hailed by some as filling the regulatory gap where states were ineffective at
legislating or enforcing existing protections
5. The UN ‘Protect, Respect, Remedy’ Framework and Guiding Principles (Ruggie
Principles)
a. Presented by the UN Secretary General-appointed Professor John Ruggie
b. 3 core pillars:
i. the state’s duty to protect against human rights abuses by third parties,
including business;
ii. the corporate responsibility to respect human rights;
iii. the need for more effective access to remedies.
c. Led to establishment of the 2011 Guiding Principles
i. Criticisms:
, 1. Extraterritorial protection of human rights: how far are states
and companies expected to go?
2. Flexibility and ambiguity around the commitment for
companies to respect human rights: GPs criticized for providing
far too much flexibility for companies surrounding reporting,
too many “should” instead of “shall”
3. Access to remedy must be mandated: far too few companies
have effective remedy mechanisms, and this will not change
unless they are legally required to do so
Week 2 – The Substance of International Human
Rights Law
Statute of the International Court of Justice Article 38(1):
o The Court, whose function is to decide in accordance with International Law
such disputes as are submitted to it, shall apply:
International conventions, whether general or particular, establishing
rules expressly recognized by the contesting states
International Custom, as evidence of a general practice accepted as law
General principles of law recognized by civilized nations
Subject to provisions of Article 59 [i.e., that only the parties are bound
by the decision in any particular case], judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of the rules of law
Where do human rights come from?
o State / Positivism
o Human dignity / Naturalism [given that States voluntarily bind themselves to
protect human rights]
Leads to cultural relativism – human rights come from western
traditions and western values / history
Leads back to positivism
Limited reach of Human Rights treaties
o E.g., Universal Declaration on Human Rights – non-binding
o Regional fragmentation:
1) European Convention on Human Rights
2) American Convention on Human Rights
3) African Charter on Human and Peoples’ Rights
o Fragmentation by topic, e.g., women’s rights, indigenous rights, workers’
rights, social or cultural rights, etc.
Human rights applicable only against States
Human rights applicable only in the territories of the signatory states
Week 3 – The State in the Global Economic Order
, State as an element in the contemporary global political economy
o Understanding the State: it is a historically situated form of political
organization that is part of a global economic order
o Keywords in the State legal vocabulary: independence, sovereignty, exclusive
jurisdiction, self-determination, government, authority, territory
Production in contemporary global political economy
o Production is concentrated in ‘centres’ – places with high concentration of
productive capacity (financial capital, technological capital, human capital)
However, the centres also need the ‘periphery’ for its labour and
markets, and the periphery needs the centre for the capital and
technology of the centre
Example: distribution of design & manufacturing of semiconductors in
‘centres’ and the distribution of the materials required to produce them
in the ‘periphery’
Important terms:
o Jurisdictional arbitrage - the practice of taking advantage of discrepancies
between competing legal jurisdictions; exploiting the opportunity in another
country due to its favourable legal system
o Regulatory arbitrage - a corporate practice of utilizing more favorable laws in
one jurisdiction to circumvent less favorable regulation elsewhere
o Lead firms - powerful economic actors in global value chain
o Race to the bottom - a situation characterized by a progressive lowering or
deterioration of standards, especially (in business contexts) as a result of the
pressure of competition
