Pub Date : 2021-11-10DOI: 10.1163/18719732-23050003
B. Gronowska, Julia Kapelańska-Pręgowska
The problem of the different ways transnational corporations (TNCs) are held responsible for their violations of human rights standards has its own, long history. All the academic and legal efforts to date that have sought to clarify the proper grounds for effective remedies for wrongs that have been committed, have however failed to overcome the substantive obstacles and objections. Against such a complicated background the Authors present some reflections regarding the question of whether there is any possibility to take a step forward. Bearing in mind the powerful position of the TNCs, the Authors try to argue that – to some extent – mechanisms connected to State obligations in the field of human rights could be effective, if properly used, in relation to this type of corporate entity. Moreover, the absence of legally binding international rules (i.e. hard law) in the field under discussion is undoubtedly a missing factor for success. The article concludes that as long as the obligations and responsibilities of TNCs are not covered by legally binding and effectively enforced international rules, it will be impossible to cut this “Gordian knot”.
{"title":"Transnational Corporations and Human Rights","authors":"B. Gronowska, Julia Kapelańska-Pręgowska","doi":"10.1163/18719732-23050003","DOIUrl":"https://doi.org/10.1163/18719732-23050003","url":null,"abstract":"\u0000The problem of the different ways transnational corporations (TNCs) are held responsible for their violations of human rights standards has its own, long history. All the academic and legal efforts to date that have sought to clarify the proper grounds for effective remedies for wrongs that have been committed, have however failed to overcome the substantive obstacles and objections. Against such a complicated background the Authors present some reflections regarding the question of whether there is any possibility to take a step forward. Bearing in mind the powerful position of the TNCs, the Authors try to argue that – to some extent – mechanisms connected to State obligations in the field of human rights could be effective, if properly used, in relation to this type of corporate entity. Moreover, the absence of legally binding international rules (i.e. hard law) in the field under discussion is undoubtedly a missing factor for success. The article concludes that as long as the obligations and responsibilities of TNCs are not covered by legally binding and effectively enforced international rules, it will be impossible to cut this “Gordian knot”.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"86 2 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79887158","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 : 2021-11-10DOI: 10.1163/18719732-23050006
Karol Karski, Bartosz Ziemblicki
The status of commercial companies in international human rights law is controversial. Despite efforts to subject them to legal obligations in this field, they still cannot be held accountable for human rights violations. Companies have a standing before a few international courts, but only one international human rights court – the European Court of Human Rights. Surprisingly though, they can be applicants but never respondents. Even though this has been the reality for several decades now, it still raises a lot of concerns among academics. The Court itself justifies its decisions very sparingly. Meanwhile the scope of protection for companies constantly increases through its jurisprudence. Some rights, originally clearly designed to protect human beings, today apply to corporations as well.
{"title":"Commercial Companies as Applicants before the European Court of Human Rights","authors":"Karol Karski, Bartosz Ziemblicki","doi":"10.1163/18719732-23050006","DOIUrl":"https://doi.org/10.1163/18719732-23050006","url":null,"abstract":"\u0000The status of commercial companies in international human rights law is controversial. Despite efforts to subject them to legal obligations in this field, they still cannot be held accountable for human rights violations. Companies have a standing before a few international courts, but only one international human rights court – the European Court of Human Rights. Surprisingly though, they can be applicants but never respondents. Even though this has been the reality for several decades now, it still raises a lot of concerns among academics. The Court itself justifies its decisions very sparingly. Meanwhile the scope of protection for companies constantly increases through its jurisprudence. Some rights, originally clearly designed to protect human beings, today apply to corporations as well.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"16 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89578354","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 : 2021-11-10DOI: 10.1163/18719732-23050001
Elżbieta Karska, Karol Karski
{"title":"Special Issue Editorial","authors":"Elżbieta Karska, Karol Karski","doi":"10.1163/18719732-23050001","DOIUrl":"https://doi.org/10.1163/18719732-23050001","url":null,"abstract":"","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87893262","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 : 2021-11-10DOI: 10.1163/18719732-23050002
Surya Deva
COVID-19 has affected the full range of human rights, though some rights holders have experienced a disproportionate impact. This has triggered debate about the respective obligations and responsibilities of states and business enterprises under international human rights law. Against this backdrop, this article examines critically whether the “protect, respect and remedy” framework operationalised by the UN Guiding Principles on Business and Human Rights is “fit for the purpose” to deal with the COVID-19 crisis. I argue that while the UNGPs’ framework provides a good starting point, it is inadequate to bring transformative changes to overcome deep-rooted socio-economic problems exposed by this pandemic. Realising human rights fully would not only require harnessing the potential of states’ tripartite obligations, but also move beyond limiting the responsibility of businesses to respect human rights.
{"title":"COVID-19, Business, and Human Rights: A Wake-Up Call to Revisit the “Protect, Respect and Remedy” Framework?","authors":"Surya Deva","doi":"10.1163/18719732-23050002","DOIUrl":"https://doi.org/10.1163/18719732-23050002","url":null,"abstract":"<p><span style=\"font-variant: small-caps;\">COVID</span>-19 has affected the full range of human rights, though some rights holders have experienced a disproportionate impact. This has triggered debate about the respective obligations and responsibilities of states and business enterprises under international human rights law. Against this backdrop, this article examines critically whether the “protect, respect and remedy” framework operationalised by the UN Guiding Principles on Business and Human Rights is “fit for the purpose” to deal with the <span style=\"font-variant: small-caps;\">COVID</span>-19 crisis. I argue that while the <span style=\"font-variant: small-caps;\">UNGP</span>s’ framework provides a good starting point, it is inadequate to bring transformative changes to overcome deep-rooted socio-economic problems exposed by this pandemic. Realising human rights fully would not only require harnessing the potential of states’ tripartite obligations, but also move beyond limiting the responsibility of businesses to respect human rights.</p>","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"81 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138531556","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 : 2021-10-22DOI: 10.1163/18719732-12341484
C. Tomuschat
The 2030 Agenda for Sustainable Development aims to change the world’s system of governance by introducing more justice in the distribution of material goods and services and protecting at the same time humankind’s natural foundations of existence from degradation. Although not binding in legal terms, the Agenda traces the lines for political action aiming to make social and economic rights a reality for everyone. International law descends from its high horse of intergovernmental relations to address the vital needs and interests of the common man or woman like poverty and hunger. In this sense, one can speak of a project aiming to establish a true international community whose guiding principle is equality within and among nations. Through its mechanism of monitoring and review the Agenda attempts to involve all societal forces for the objective of development. The great challenge is to translate the Agenda into concrete action, leaving the province of diplomatic statements.
{"title":"The 2030 Sustainable Development Goals","authors":"C. Tomuschat","doi":"10.1163/18719732-12341484","DOIUrl":"https://doi.org/10.1163/18719732-12341484","url":null,"abstract":"\u0000The 2030 Agenda for Sustainable Development aims to change the world’s system of governance by introducing more justice in the distribution of material goods and services and protecting at the same time humankind’s natural foundations of existence from degradation. Although not binding in legal terms, the Agenda traces the lines for political action aiming to make social and economic rights a reality for everyone. International law descends from its high horse of intergovernmental relations to address the vital needs and interests of the common man or woman like poverty and hunger. In this sense, one can speak of a project aiming to establish a true international community whose guiding principle is equality within and among nations. Through its mechanism of monitoring and review the Agenda attempts to involve all societal forces for the objective of development. The great challenge is to translate the Agenda into concrete action, leaving the province of diplomatic statements.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"12 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85203743","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 : 2021-10-06DOI: 10.1163/18719732-12341483
Jamal Barafi, Aliakbar Al-Obeidi
The development of the Internet and mass media has facilitated access to information and freedom of expression in unprecedented ways, but in so doing there have been many violations, especially of the right to privacy. Such violations have led to calls for the establishment of the right to be forgotten. In this paper, we focus on clarifying the concept of the right to be forgotten and the conditions for establishing this. Moreover, we consider the European approach to the right to be forgotten (RTBF), showing how different European instruments have been employed to recognize this right, such as recommendations, regulations, and directives, in order to coordinate national efforts on this issue. In addition, this paper will analyze the stance of some national Arabic legislation regarding the RTBF.
{"title":"Legal Protection of the Right to be Forgotten on the Internet in European and Arab Legislation","authors":"Jamal Barafi, Aliakbar Al-Obeidi","doi":"10.1163/18719732-12341483","DOIUrl":"https://doi.org/10.1163/18719732-12341483","url":null,"abstract":"\u0000The development of the Internet and mass media has facilitated access to information and freedom of expression in unprecedented ways, but in so doing there have been many violations, especially of the right to privacy. Such violations have led to calls for the establishment of the right to be forgotten. In this paper, we focus on clarifying the concept of the right to be forgotten and the conditions for establishing this. Moreover, we consider the European approach to the right to be forgotten (RTBF), showing how different European instruments have been employed to recognize this right, such as recommendations, regulations, and directives, in order to coordinate national efforts on this issue. In addition, this paper will analyze the stance of some national Arabic legislation regarding the RTBF.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"371 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75091419","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 : 2021-09-21DOI: 10.1163/18719732-12341481
K. Allinson
This issue of the International Community Law Review considers the operation of international law across the land, sea and air; from access to rights for air passengers to the rights of those on the high seas. It ends with a novel consideration of the application of the prohibition of the use of force to issues of statehood and recognition. In Taking Air Passenger Rights Seriously: the Case Against the Exclusivity of the Montreal Convention, Nicolas Bernard considers the positions of the Montreal Convention, which unifies the rules relating to the liability of air carriers for damage or delay in the carriage by air of passengers, baggage and cargo. Bernard explores the ‘deleterious consequences on consumer protection of the exclusivity of the Montreal Convention’ in that it inherently favours industry interests at the expense of the consumer. In so doing, he makes the case for adopting a human rights-inspired, subsidiarity-based approach to passenger rights protection. Such an approach, recognises the complementary role of the international, regional and national levels in protecting consumers and enhancing flexibility. Moving from the air to the oceans, Gabriela Oanta’s contribution Access to Remedy in the European Union in Case of Breaches of Human Rights at Sea by Private Actors addresses the specific means of access to remedy that individuals have in the European Union (EU) in case of breaches of human rights at sea by private actors. In examining the role of both Member States and the EU, Oanta provides an original exploration of their responsibility in addressing some of the worst human rights violations which occur on the EU’s fishing vessels, from both a labour and human rights perspective. It addresses the competences of the EU, the remedial mechanism available to individuals subject to fishing-company-related human rights violations, and considers the possible future developments in the field.
{"title":"Editorial: International Community Law Review Issue 23:4","authors":"K. Allinson","doi":"10.1163/18719732-12341481","DOIUrl":"https://doi.org/10.1163/18719732-12341481","url":null,"abstract":"This issue of the International Community Law Review considers the operation of international law across the land, sea and air; from access to rights for air passengers to the rights of those on the high seas. It ends with a novel consideration of the application of the prohibition of the use of force to issues of statehood and recognition. In Taking Air Passenger Rights Seriously: the Case Against the Exclusivity of the Montreal Convention, Nicolas Bernard considers the positions of the Montreal Convention, which unifies the rules relating to the liability of air carriers for damage or delay in the carriage by air of passengers, baggage and cargo. Bernard explores the ‘deleterious consequences on consumer protection of the exclusivity of the Montreal Convention’ in that it inherently favours industry interests at the expense of the consumer. In so doing, he makes the case for adopting a human rights-inspired, subsidiarity-based approach to passenger rights protection. Such an approach, recognises the complementary role of the international, regional and national levels in protecting consumers and enhancing flexibility. Moving from the air to the oceans, Gabriela Oanta’s contribution Access to Remedy in the European Union in Case of Breaches of Human Rights at Sea by Private Actors addresses the specific means of access to remedy that individuals have in the European Union (EU) in case of breaches of human rights at sea by private actors. In examining the role of both Member States and the EU, Oanta provides an original exploration of their responsibility in addressing some of the worst human rights violations which occur on the EU’s fishing vessels, from both a labour and human rights perspective. It addresses the competences of the EU, the remedial mechanism available to individuals subject to fishing-company-related human rights violations, and considers the possible future developments in the field.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"62 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86642433","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 : 2021-09-21DOI: 10.1163/18719732-12341482
Sondre Torp Helmersen
The People’s Republic of China (‘China’) has adopted legislation threatening to invade the Republic of China (‘Taiwan’) if the latter declares independence. Threats of force are prohibited by the UN Charter Article 2(4) and equivalent customary international law. This article proceeds along two apparently contradictory strands. On the one hand, the prohibition probably does not apply to non-State entities such as the Republic of China. One the other hand, the ICJ stated in the Nuclear Weapons opinion that ‘if the use of force itself in a given case is illegal […] the threat to use such force will likewise be illegal’. If the Republic of China declares independence it will become a State, making a PRC invasion illegal. Therefore, the PRC’s current threats should also be illegal. The best way to resolve this apparent paradox is to say that the ICJ’s ‘Nuclear Weapons principle’ must be nuanced.
{"title":"China-Taiwan Threats of Force and the Paradox of the ‘Nuclear Weapons Principle’","authors":"Sondre Torp Helmersen","doi":"10.1163/18719732-12341482","DOIUrl":"https://doi.org/10.1163/18719732-12341482","url":null,"abstract":"\u0000The People’s Republic of China (‘China’) has adopted legislation threatening to invade the Republic of China (‘Taiwan’) if the latter declares independence. Threats of force are prohibited by the UN Charter Article 2(4) and equivalent customary international law. This article proceeds along two apparently contradictory strands. On the one hand, the prohibition probably does not apply to non-State entities such as the Republic of China. One the other hand, the ICJ stated in the Nuclear Weapons opinion that ‘if the use of force itself in a given case is illegal […] the threat to use such force will likewise be illegal’. If the Republic of China declares independence it will become a State, making a PRC invasion illegal. Therefore, the PRC’s current threats should also be illegal. The best way to resolve this apparent paradox is to say that the ICJ’s ‘Nuclear Weapons principle’ must be nuanced.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"84 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73804285","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 : 2021-09-20DOI: 10.1163/18719732-12341480
Marco Longobardo
This article explores the legal challenges related to the standing of indirectly injured states before the International Court of Justice in relation to violations of obligations erga omnes and erga omnes partes. After an examination of the emergence of these kinds of obligations, the article addresses the evolution of the approach of the Court in relation to the issue of standing, in light of the works of the International Law Commission on state responsibility. Especially after the 2012 Belgium v. Senegal case, the Court does not hesitate to recognise the standing of indirectly injured states. Yet, some aspects related to standing – such as the requirement of a special interests and the coordination between the reaction of the directly injured state and the indirectly injured ones – are still imprecise. The Court should take the opportunity to elaborate on these issues in the merits phase of The Gambia v. Myanmar case.
{"title":"The Standing of Indirectly Injured States in the Litigation of Community Interests before the ICJ: Lessons Learned and Future Implications in Light of The Gambia v. Myanmar and Beyond","authors":"Marco Longobardo","doi":"10.1163/18719732-12341480","DOIUrl":"https://doi.org/10.1163/18719732-12341480","url":null,"abstract":"<p>This article explores the legal challenges related to the standing of indirectly injured states before the International Court of Justice in relation to violations of obligations <em>erga omnes</em> and <em>erga omnes partes</em>. After an examination of the emergence of these kinds of obligations, the article addresses the evolution of the approach of the Court in relation to the issue of standing, in light of the works of the International Law Commission on state responsibility. Especially after the 2012 <em>Belgium v. Senegal</em> case, the Court does not hesitate to recognise the standing of indirectly injured states. Yet, some aspects related to standing – such as the requirement of a special interests and the coordination between the reaction of the directly injured state and the indirectly injured ones – are still imprecise. The Court should take the opportunity to elaborate on these issues in the merits phase of <em>The Gambia v. Myanmar</em> case.</p>","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"6 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138531571","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 : 2021-06-29DOI: 10.1163/18719732-12341479
S. Mead, M. Wewerinke‐Singh
This article discusses recent developments in international climate change law, in respect of which Pacific island countries and territories (PICs) have made a particularly significant contribution. PICs have been instrumental in shaping the international climate change treaty regime since its inception in the early 1990s. Since the adoption of the Paris Agreement in 2015, however, progress has stalled – and even more so since the global pandemic. With a focus on the Suva Declaration on Climate Change released prior to negotiations in Paris, this article assesses progress in two areas that have received considerable attention from PIC representatives due to their importance to the region: the long-term temperature goal and the Talanoa Dialogue; and the issue of loss and damage. While PICs have managed to make gains in both areas, climate change science indicates that current global efforts are insufficient to avoid catastrophic climate change impacts for the Pacific region. In light of this, certain PIC leaders are looking outside of the international treaty system for other ways to protect their communities and ecosystems.
{"title":"Recent Developments in International Climate Change Law","authors":"S. Mead, M. Wewerinke‐Singh","doi":"10.1163/18719732-12341479","DOIUrl":"https://doi.org/10.1163/18719732-12341479","url":null,"abstract":"\u0000This article discusses recent developments in international climate change law, in respect of which Pacific island countries and territories (PICs) have made a particularly significant contribution. PICs have been instrumental in shaping the international climate change treaty regime since its inception in the early 1990s. Since the adoption of the Paris Agreement in 2015, however, progress has stalled – and even more so since the global pandemic. With a focus on the Suva Declaration on Climate Change released prior to negotiations in Paris, this article assesses progress in two areas that have received considerable attention from PIC representatives due to their importance to the region: the long-term temperature goal and the Talanoa Dialogue; and the issue of loss and damage. While PICs have managed to make gains in both areas, climate change science indicates that current global efforts are insufficient to avoid catastrophic climate change impacts for the Pacific region. In light of this, certain PIC leaders are looking outside of the international treaty system for other ways to protect their communities and ecosystems.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"12 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85132026","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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