Pub Date : 2023-08-29DOI: 10.1163/18719732-bja10102
Sondra Faccio
The paper discusses the potential impact of the World Health Organisation (WHO)’s recommendations and guidelines on the assessment of the State’s right to regulate by investment tribunals, and on the assessment of the State’s decision to limit and/or suspend certain human rights for reasons of public interest and in cases of emergency by human rights Courts.
{"title":"The World Health Organization’s Response to the Health Emergency and its Impact on Investment Arbitration and Human Rights Case Law","authors":"Sondra Faccio","doi":"10.1163/18719732-bja10102","DOIUrl":"https://doi.org/10.1163/18719732-bja10102","url":null,"abstract":"\u0000The paper discusses the potential impact of the World Health Organisation (WHO)’s recommendations and guidelines on the assessment of the State’s right to regulate by investment tribunals, and on the assessment of the State’s decision to limit and/or suspend certain human rights for reasons of public interest and in cases of emergency by human rights Courts.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"47 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75422585","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-29DOI: 10.1163/18719732-bja10100
T. Gazzini
The expression “international community” is ubiquitous in international legal instruments, government policies, jurisprudence and scholarship. Yet, its meaning, significance and repercussions in international law are still unclear. The departing point of the analysis is the horizontal or decentralized character of the international legal order, which lacks any authorities above States and has traditionally been the kingdom of bilateralism. In the second part of the XX Century, however, States moved beyond bilateralism and accepted the existence of obligations owned to the international community as a whole. The paper looks at such historical development from three different perspectives: (a) the definition(s) of “international community” in State practice and its possible identification with the United Nations; (b) the legal implications of the emergence in international jurisprudence and practice of obligations owned to the international community as a whole, as celebrated in the Barcelona Traction Case (1970); and (c) the rules governing international responsibility for breaches of those obligations, which were not completely defined in the International Law Commission’s Articles on State Responsibility (2001).
{"title":"International Community? What International Community?","authors":"T. Gazzini","doi":"10.1163/18719732-bja10100","DOIUrl":"https://doi.org/10.1163/18719732-bja10100","url":null,"abstract":"\u0000The expression “international community” is ubiquitous in international legal instruments, government policies, jurisprudence and scholarship. Yet, its meaning, significance and repercussions in international law are still unclear. The departing point of the analysis is the horizontal or decentralized character of the international legal order, which lacks any authorities above States and has traditionally been the kingdom of bilateralism. In the second part of the XX Century, however, States moved beyond bilateralism and accepted the existence of obligations owned to the international community as a whole. The paper looks at such historical development from three different perspectives: (a) the definition(s) of “international community” in State practice and its possible identification with the United Nations; (b) the legal implications of the emergence in international jurisprudence and practice of obligations owned to the international community as a whole, as celebrated in the Barcelona Traction Case (1970); and (c) the rules governing international responsibility for breaches of those obligations, which were not completely defined in the International Law Commission’s Articles on State Responsibility (2001).","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"7 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75523713","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-29DOI: 10.1163/18719732-bja10106
P. Martini, María Paula López Velásquez
The article examines whether corporations can be held liable for breaches of Indigenous peoples’ right to a healthy environment in Colombia. After exposing the scope of the right in the international, regional and Colombian legal orders, it tackles Colombia’s obligation to protect it against infringements committed by third parties, and to provide judicial remedies in the event of breaches. Then, it discusses how the absence of a binding international and national legal frameworks imposing obligations on corporations in environmental matters affect available judicial remedies for Indigenous peoples. It argues that the Colombian Constitutional Court and the Special Jurisdiction for Peace have attempted to fill the void left by the legislator. Whilst the first has acknowledged the existence of obligations on corporations in environmental matters, the second has recognized Indigenous territories as subjects of rights in order to further protect Indigenous rights and overall environment. It concludes by a few recommendations.
{"title":"Holding Corporations Liable for Breaches of Indigenous Peoples’ Right to a Healthy Environment in Colombia: Chimera or Reality?","authors":"P. Martini, María Paula López Velásquez","doi":"10.1163/18719732-bja10106","DOIUrl":"https://doi.org/10.1163/18719732-bja10106","url":null,"abstract":"\u0000The article examines whether corporations can be held liable for breaches of Indigenous peoples’ right to a healthy environment in Colombia. After exposing the scope of the right in the international, regional and Colombian legal orders, it tackles Colombia’s obligation to protect it against infringements committed by third parties, and to provide judicial remedies in the event of breaches. Then, it discusses how the absence of a binding international and national legal frameworks imposing obligations on corporations in environmental matters affect available judicial remedies for Indigenous peoples. It argues that the Colombian Constitutional Court and the Special Jurisdiction for Peace have attempted to fill the void left by the legislator. Whilst the first has acknowledged the existence of obligations on corporations in environmental matters, the second has recognized Indigenous territories as subjects of rights in order to further protect Indigenous rights and overall environment. It concludes by a few recommendations.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"43 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90495283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-29DOI: 10.1163/18719732-12341491
Jacinta Studdert, Valencia Govender, J. Spies, Marta Jarque Branguli, Sofia Nievas, Maria Fernanda Roca Silva, Wen Zhu, Pryderi Diebschlag, Remi Sassine, Wim Cilliers, K. Swart, Milena Szuniewicz-Wenzel, Sarah Hill-Smith, Saskia Wolters, Catherine Wang
Human rights, climate and nature-related corporate due diligence and reporting requirements differ around the world. In this article, we examine the legal and regulatory landscape that businesses are faced with in the following eight jurisdictions: (i) Australia; (ii) Chile; (iii) Mainland China; (iv) Hong Kong; (v) Colombia; (vi) France; (vii) South Africa; and (viii) the United Kingdom. We also provide a snapshot of key climate and sustainability-related legal developments in these jurisdictions, including important climate litigation and new legislation. Our findings indicate that reporting standards and regulatory requirements are evolving in each jurisdiction, and they show that a further increase in climate-related litigation is anticipated across these jurisdictions.
{"title":"Corporate Due Diligence and Reporting Requirements for Climate Change and Human Rights","authors":"Jacinta Studdert, Valencia Govender, J. Spies, Marta Jarque Branguli, Sofia Nievas, Maria Fernanda Roca Silva, Wen Zhu, Pryderi Diebschlag, Remi Sassine, Wim Cilliers, K. Swart, Milena Szuniewicz-Wenzel, Sarah Hill-Smith, Saskia Wolters, Catherine Wang","doi":"10.1163/18719732-12341491","DOIUrl":"https://doi.org/10.1163/18719732-12341491","url":null,"abstract":"\u0000Human rights, climate and nature-related corporate due diligence and reporting requirements differ around the world. In this article, we examine the legal and regulatory landscape that businesses are faced with in the following eight jurisdictions: (i) Australia; (ii) Chile; (iii) Mainland China; (iv) Hong Kong; (v) Colombia; (vi) France; (vii) South Africa; and (viii) the United Kingdom. We also provide a snapshot of key climate and sustainability-related legal developments in these jurisdictions, including important climate litigation and new legislation. Our findings indicate that reporting standards and regulatory requirements are evolving in each jurisdiction, and they show that a further increase in climate-related litigation is anticipated across these jurisdictions.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"6 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85067772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-29DOI: 10.1163/18719732-bja10107
M. Burnay, Bin Li
Growing multipolarity in international affairs together with the rise of non-state actors do require us to re-think what constitutes sustainable development, in general, but also how economic growth can be respectful of the environment and individual rights. The People’s Republic of China (China) does constitute an important part of that story. This paper aims to analyse China’s discourse, laws, and policies on sustainable development at both national and international levels. It situates sustainable development in the broader context of China’s current development policy; addresses the ways in which China engages with multilateral and bilateral institutions (i.e. legal instruments) in the area of sustainable development; as well as assesses the scope and limitations of China’s focus on sustainable development in the context of Outward Foreign Direct Investment in the framework of the Belt and Road Initiative.
{"title":"Chinese Perspectives on Sustainable Development","authors":"M. Burnay, Bin Li","doi":"10.1163/18719732-bja10107","DOIUrl":"https://doi.org/10.1163/18719732-bja10107","url":null,"abstract":"\u0000Growing multipolarity in international affairs together with the rise of non-state actors do require us to re-think what constitutes sustainable development, in general, but also how economic growth can be respectful of the environment and individual rights. The People’s Republic of China (China) does constitute an important part of that story. This paper aims to analyse China’s discourse, laws, and policies on sustainable development at both national and international levels. It situates sustainable development in the broader context of China’s current development policy; addresses the ways in which China engages with multilateral and bilateral institutions (i.e. legal instruments) in the area of sustainable development; as well as assesses the scope and limitations of China’s focus on sustainable development in the context of Outward Foreign Direct Investment in the framework of the Belt and Road Initiative.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"15 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88040226","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-29DOI: 10.1163/18719732-bja10105
Dalia Palombo
The US often portrays human rights to be Western values America cherishes. But what happens when American corporations abuse human rights transnationally? While a decade ago, the US could be considered to be one of the most advanced jurisdictions in terms of business and human rights litigation, now it is no longer the case. The US Judicial, Legislative and Executive branches all appear to be behind a number of other countries in terms of ensuring that domestic corporations respect human rights and the environment transnationally. In the past decade, US courts have substantially limited the possibility of suing corporations for transnational torts; US lawmakers have failed to adopt a mandatory due diligence law of general application requiring US multinationals to oversee and prevent human rights and environmental abuses in their supply chains; and the US Government, under three separate administrations (the Obama, Trump and Biden) have consistently opposed a UN treaty initiative for the Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. Is this negative trend reversible?
{"title":"The US at the Margins of Business and Human Rights","authors":"Dalia Palombo","doi":"10.1163/18719732-bja10105","DOIUrl":"https://doi.org/10.1163/18719732-bja10105","url":null,"abstract":"\u0000The US often portrays human rights to be Western values America cherishes. But what happens when American corporations abuse human rights transnationally? While a decade ago, the US could be considered to be one of the most advanced jurisdictions in terms of business and human rights litigation, now it is no longer the case. The US Judicial, Legislative and Executive branches all appear to be behind a number of other countries in terms of ensuring that domestic corporations respect human rights and the environment transnationally. In the past decade, US courts have substantially limited the possibility of suing corporations for transnational torts; US lawmakers have failed to adopt a mandatory due diligence law of general application requiring US multinationals to oversee and prevent human rights and environmental abuses in their supply chains; and the US Government, under three separate administrations (the Obama, Trump and Biden) have consistently opposed a UN treaty initiative for the Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. Is this negative trend reversible?","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"17 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81810341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-29DOI: 10.1163/18719732-bja10108
Ludovica Chiussi Curzi
As climate change hazards keep intensifying, there seems to be an increasing recognition that corporations are not immune from international obligations on the protection of human rights and the environment. The present article argues that the climate crisis might be contributing, as a ‘Grotian Moment’, to the crystallisation of an already developing principle on corporate liability for human rights and environmental violations. After a brief account of the long-lasting debate on the existence and nature of corporate obligations under international law, the relevant business and human rights (non-binding) instruments will be addressed, highlighting their limits as well as their preparatory role in the ongoing paradigm shift. The ‘Grotian’ implications of climate change will be examined through the lens of climate litigation against companies, which highlights a crucial osmosis between the relevant international standards and domestic legal systems.
{"title":"Climate Change and its ‘Grotian’ Effects on a Principle of Corporate Liability in International Law","authors":"Ludovica Chiussi Curzi","doi":"10.1163/18719732-bja10108","DOIUrl":"https://doi.org/10.1163/18719732-bja10108","url":null,"abstract":"\u0000As climate change hazards keep intensifying, there seems to be an increasing recognition that corporations are not immune from international obligations on the protection of human rights and the environment. The present article argues that the climate crisis might be contributing, as a ‘Grotian Moment’, to the crystallisation of an already developing principle on corporate liability for human rights and environmental violations. After a brief account of the long-lasting debate on the existence and nature of corporate obligations under international law, the relevant business and human rights (non-binding) instruments will be addressed, highlighting their limits as well as their preparatory role in the ongoing paradigm shift. The ‘Grotian’ implications of climate change will be examined through the lens of climate litigation against companies, which highlights a crucial osmosis between the relevant international standards and domestic legal systems.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"10 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83711668","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-11DOI: 10.1163/18719732-bja10095
Constantinos Yiallourides
The paper outlines the contemporary legal framework of global health focusing on the legal duty of States to cooperate in the surveillance, prevention, and control of epidemic and pandemic disease. The paper details, in particular, the content and nature of States’ duty to cooperate under the International Health Regulations – the primary international legal instrument governing the global response to such events. It also examines the role of the World Health Organization and other UN bodies in fostering cooperation between States in the fight against epidemics and pandemics.
{"title":"The Legal Duty of States to Cooperate in the Fight Against Pandemic Disease under the International Health Regulations","authors":"Constantinos Yiallourides","doi":"10.1163/18719732-bja10095","DOIUrl":"https://doi.org/10.1163/18719732-bja10095","url":null,"abstract":"\u0000The paper outlines the contemporary legal framework of global health focusing on the legal duty of States to cooperate in the surveillance, prevention, and control of epidemic and pandemic disease. The paper details, in particular, the content and nature of States’ duty to cooperate under the International Health Regulations – the primary international legal instrument governing the global response to such events. It also examines the role of the World Health Organization and other UN bodies in fostering cooperation between States in the fight against epidemics and pandemics.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"48 4 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78646768","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-02-01DOI: 10.1163/18719732-02501000
{"title":"Front matter","authors":"","doi":"10.1163/18719732-02501000","DOIUrl":"https://doi.org/10.1163/18719732-02501000","url":null,"abstract":"","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134976728","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-17DOI: 10.1163/18719732-bja10097
Ulf Linderfalk
International lawyers ascribe to the lex specialis principle three distinctly different meanings. Thus, lex specialis is referred to, first, as a norm designed to resolve conflicts between entire categories of norms; secondly, as a norm designed to resolve conflicts on a case-by-case basis; and, thirdly, as a rule of interpretation designed to avoid the occurrence of normative conflicts, rather than to resolve them. Scholars have attempted to explain this divergent use of legal language. In so doing, they have consistently had their focus on the different mind-sets or inclinations of lawyers active in different branches of international law. Symptomatic is Marko Milanović, who pictured the divergent use of lex specialis as a reflection of a debate waged between “human rights enthusiasts” and “human rights sceptics”. This article approaches the issue at a different level of abstraction. As it argues, the divergent use of lex specialis is the result of users’ different conceptions of an international legal system. Thus, lawyers conceive differently of the lex specialis principle, depending on whether they take the position of a legal positivist, a legal idealist or a legal realist. In no case are lawyers equipped to conceive of this principle in all of its three senses.
{"title":"Neither Fish, Nor Fowl","authors":"Ulf Linderfalk","doi":"10.1163/18719732-bja10097","DOIUrl":"https://doi.org/10.1163/18719732-bja10097","url":null,"abstract":"\u0000International lawyers ascribe to the lex specialis principle three distinctly different meanings. Thus, lex specialis is referred to, first, as a norm designed to resolve conflicts between entire categories of norms; secondly, as a norm designed to resolve conflicts on a case-by-case basis; and, thirdly, as a rule of interpretation designed to avoid the occurrence of normative conflicts, rather than to resolve them. Scholars have attempted to explain this divergent use of legal language. In so doing, they have consistently had their focus on the different mind-sets or inclinations of lawyers active in different branches of international law. Symptomatic is Marko Milanović, who pictured the divergent use of lex specialis as a reflection of a debate waged between “human rights enthusiasts” and “human rights sceptics”. This article approaches the issue at a different level of abstraction. As it argues, the divergent use of lex specialis is the result of users’ different conceptions of an international legal system. Thus, lawyers conceive differently of the lex specialis principle, depending on whether they take the position of a legal positivist, a legal idealist or a legal realist. In no case are lawyers equipped to conceive of this principle in all of its three senses.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"20 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83446753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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