This article utilizes a ‘rituals-ritualism’ framework to assess the perils and potentials of relying upon mandatory human rights due diligence (mHRDD) laws to regulate the behaviour of transnational corporations (TNCs). This framework offers a socio-legal perspective that seeks to show how law is both influenced by and influences the social context within which it operates, i.e., the socially embedded operation of law.1 It has been advanced as a useful rubric for assessing whether and how states comply with human rights treaties,2 but can be extended to an assessment of mHRDD laws. Ultimately, this article hypothesizes that the potential regulatory effectiveness of mHRDD laws hinges on the extent to which HRDD obligations are transformed into rituals akin to cultural norms. In the absence of such a transformation, ritualism in HRDD will only further entrench a problematic status quo that has allowed TNCs to externalize the human rights and environmental impacts of their activities.
{"title":"Mandatory Human Rights Due Diligence (mHRDD) Laws Caught Between Rituals and Ritualism: The Forms and Limits of Business Authority in the Global Governance of Business and Human Rights","authors":"C. Lichuma","doi":"10.1017/bhj.2023.47","DOIUrl":"https://doi.org/10.1017/bhj.2023.47","url":null,"abstract":"\u0000 This article utilizes a ‘rituals-ritualism’ framework to assess the perils and potentials of relying upon mandatory human rights due diligence (mHRDD) laws to regulate the behaviour of transnational corporations (TNCs). This framework offers a socio-legal perspective that seeks to show how law is both influenced by and influences the social context within which it operates, i.e., the socially embedded operation of law.1 It has been advanced as a useful rubric for assessing whether and how states comply with human rights treaties,2 but can be extended to an assessment of mHRDD laws. Ultimately, this article hypothesizes that the potential regulatory effectiveness of mHRDD laws hinges on the extent to which HRDD obligations are transformed into rituals akin to cultural norms. In the absence of such a transformation, ritualism in HRDD will only further entrench a problematic status quo that has allowed TNCs to externalize the human rights and environmental impacts of their activities.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":"142 43","pages":""},"PeriodicalIF":2.2,"publicationDate":"2024-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139452938","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}
{"title":"Seeking Justice. Access to Remedy for Corporate Human Rights Abuse, by Tricia D. Olsen (Cambridge: Cambridge University Press, 2023)","authors":"Jordi Vives-Gabriel","doi":"10.1017/bhj.2023.46","DOIUrl":"https://doi.org/10.1017/bhj.2023.46","url":null,"abstract":"","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":"20 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2023-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139241576","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}
Abstract Non-judicial remedies for corporate human rights abuses have a viable and complementary role to judicial remedies in mature jurisdictions, although in Ukraine the ‘bouquet’ of effective remedies is more of a still-life. The national mediation community is gaining momentum and the authors argue that mediation may take place within state-based non-judicial remedies when institutionalized by the office of the Ombudsman. The objective of this article is to scrutinize the rule of law, access to justice, and the effectiveness criteria of the UNGPs with regard to mediation. The authors conclude that mediation can meet all of the effectiveness criteria requirements and special effort should be devoted to addressing the challenges of power imbalances between parties, the confidential nature of mediation and the public demand for transparency, to ensure that mediation outcomes are in accord with internationally recognized human rights. Based on the findings, the authors suggest that a state-based business and human rights mediation scheme, in line with the UNGPs’ effectiveness criteria, should have its own three pillars, namely, accessibility, availability and awareness, with quality assurance as its cornerstone.
{"title":"Creating an Effective Mediation Scheme for Business-Related Human Rights Abuses: The Case of Ukraine","authors":"Nataliia Mazaraki, Tetiana Tsuvina","doi":"10.1017/bhj.2023.34","DOIUrl":"https://doi.org/10.1017/bhj.2023.34","url":null,"abstract":"Abstract Non-judicial remedies for corporate human rights abuses have a viable and complementary role to judicial remedies in mature jurisdictions, although in Ukraine the ‘bouquet’ of effective remedies is more of a still-life. The national mediation community is gaining momentum and the authors argue that mediation may take place within state-based non-judicial remedies when institutionalized by the office of the Ombudsman. The objective of this article is to scrutinize the rule of law, access to justice, and the effectiveness criteria of the UNGPs with regard to mediation. The authors conclude that mediation can meet all of the effectiveness criteria requirements and special effort should be devoted to addressing the challenges of power imbalances between parties, the confidential nature of mediation and the public demand for transparency, to ensure that mediation outcomes are in accord with internationally recognized human rights. Based on the findings, the authors suggest that a state-based business and human rights mediation scheme, in line with the UNGPs’ effectiveness criteria, should have its own three pillars, namely, accessibility, availability and awareness, with quality assurance as its cornerstone.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":"248 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135969129","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}
Abstract This piece recounts the efforts by NGO Sign of Hope (SoH) to rectify human rights violations in South Sudan, which manifested themselves as drinking water pollution by the oil industry. Committed to exposing and remediating this water contamination, SoH was able to prompt the automobile company Daimler’s CSR to engage in extended dialogue with the oil industry stakeholders in Unity State. Despite a tactful use of various methods ranging from cooperation to confrontation, SoH’s campaign did not lead the oil producers to reverse the harm inflicted on the people of Unity State. When SoH tried to hold these companies accountable, SoH had the impression that it was hitting an elastic wall. This piece identifies lessons which may help to counter corporate human rights violations and compensate for the weakness of CSR in fragile states and in the face of corporate irresponsibility.
{"title":"Corporate Social Irresponsibility, an Elastic Wall, and a Fragile State: Sign of Hope’s Unfinished Quest to Mitigate Human Rights Violations in South Sudan","authors":"Daniel Kinderman, Klaus Stieglitz, Laure Almairac","doi":"10.1017/bhj.2023.39","DOIUrl":"https://doi.org/10.1017/bhj.2023.39","url":null,"abstract":"Abstract This piece recounts the efforts by NGO Sign of Hope (SoH) to rectify human rights violations in South Sudan, which manifested themselves as drinking water pollution by the oil industry. Committed to exposing and remediating this water contamination, SoH was able to prompt the automobile company Daimler’s CSR to engage in extended dialogue with the oil industry stakeholders in Unity State. Despite a tactful use of various methods ranging from cooperation to confrontation, SoH’s campaign did not lead the oil producers to reverse the harm inflicted on the people of Unity State. When SoH tried to hold these companies accountable, SoH had the impression that it was hitting an elastic wall. This piece identifies lessons which may help to counter corporate human rights violations and compensate for the weakness of CSR in fragile states and in the face of corporate irresponsibility.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135351645","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}
Abstract This article argues for a fundamental raison d’être reconceptualization of international investment law (IIL) through Martha Fineman’s ‘vulnerability theory’. The theory helps identify the structural sources of IIL’s shortcomings, whilst philosophically challenging the one-sided view that foreign investors are entitled to protections, but are free from obligations vis-à-vis the communities affected by their undertakings. Emphasizing the productive power of the state to take positive action that acknowledges ordinary citizens’ embeddedness within, and dependence upon, surrounding structures, the vulnerability theory challenges the hegemonic perception of the state as a source of danger – a view which has hitherto undermined both the potency and the enforceability of investor obligations. Used as a heuristic device in studying both IIL’s existing structures and the potential avenues for reimagining it, Fineman’s theory not only shines a novel light on the foundational premises of IIL, but also grants theoretical traction to existing ideas about improving the system.
{"title":"Vulnerability Theory as a Paradigm Shift in International Investment Law: Reimagining the Role of the State","authors":"Aysel Küçüksu, Güneş Ünüvar","doi":"10.1017/bhj.2023.38","DOIUrl":"https://doi.org/10.1017/bhj.2023.38","url":null,"abstract":"Abstract This article argues for a fundamental raison d’être reconceptualization of international investment law (IIL) through Martha Fineman’s ‘vulnerability theory’. The theory helps identify the structural sources of IIL’s shortcomings, whilst philosophically challenging the one-sided view that foreign investors are entitled to protections, but are free from obligations vis-à-vis the communities affected by their undertakings. Emphasizing the productive power of the state to take positive action that acknowledges ordinary citizens’ embeddedness within, and dependence upon, surrounding structures, the vulnerability theory challenges the hegemonic perception of the state as a source of danger – a view which has hitherto undermined both the potency and the enforceability of investor obligations. Used as a heuristic device in studying both IIL’s existing structures and the potential avenues for reimagining it, Fineman’s theory not only shines a novel light on the foundational premises of IIL, but also grants theoretical traction to existing ideas about improving the system.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":"213 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135350328","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}
Abstract In June 2023, the OECD published ‘targeted updates’ to the newly renamed OECD Guidelines for Multinational Enterprises on Responsible Business Conduct. This piece examines some of the most significant updates from the perspective of civil society. The majority of the updates strengthen the authoritative international standards on responsible business conduct; for example, by addressing new and important topics, such as climate change, and clarifying expectations on established due diligence concepts. Meanwhile, the revised implementation procedures suggest progressive measures for governments to strengthen their National Contact Points, but largely do not require specific improvements. This piece discusses the strengths and shortcomings of these changes and assesses the impact of the updates on international norms.
{"title":"The 2023 Update of the OECD Guidelines sets Stronger Standards for Companies but Weak Expectations for Governments – High and Lowlights from the New Text","authors":"Marian G. Ingrams","doi":"10.1017/bhj.2023.40","DOIUrl":"https://doi.org/10.1017/bhj.2023.40","url":null,"abstract":"Abstract In June 2023, the OECD published ‘targeted updates’ to the newly renamed OECD Guidelines for Multinational Enterprises on Responsible Business Conduct. This piece examines some of the most significant updates from the perspective of civil society. The majority of the updates strengthen the authoritative international standards on responsible business conduct; for example, by addressing new and important topics, such as climate change, and clarifying expectations on established due diligence concepts. Meanwhile, the revised implementation procedures suggest progressive measures for governments to strengthen their National Contact Points, but largely do not require specific improvements. This piece discusses the strengths and shortcomings of these changes and assesses the impact of the updates on international norms.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":"111 1","pages":"427 - 433"},"PeriodicalIF":2.2,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139328551","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}
Abstract In its 2019 report to the Human Rights Council, the United Nations (UN) Working Group on business and human rights emphasized that ‘gender-transformative’ remedies can bring ‘change to patriarchal norms and unequal power relations that underpin discrimination, gender-based violence and gender stereotyping’. This article aims to deepen our knowledge of such remediation for women human rights defenders who fight against corporate human rights abuses. Human rights remediation is highly fragmented. This has the advantage that remedies at one level can offer sources of learning for remedies at other levels. This article uses relevant communications that the UN Special Rapporteur on the situation of human rights defenders sent to states and corporations jointly with other Special Procedures (including the UN Special Rapporteur on violence against women and girls, its causes and consequences and the UN Working Group on discrimination against women and girls in law and practice) between 2011 and 2020 as a source of learning.
{"title":"Gender-Transformative Remedies for Women Human Rights Defenders","authors":"Aleydis Nissen","doi":"10.1017/bhj.2023.41","DOIUrl":"https://doi.org/10.1017/bhj.2023.41","url":null,"abstract":"Abstract In its 2019 report to the Human Rights Council, the United Nations (UN) Working Group on business and human rights emphasized that ‘gender-transformative’ remedies can bring ‘change to patriarchal norms and unequal power relations that underpin discrimination, gender-based violence and gender stereotyping’. This article aims to deepen our knowledge of such remediation for women human rights defenders who fight against corporate human rights abuses. Human rights remediation is highly fragmented. This has the advantage that remedies at one level can offer sources of learning for remedies at other levels. This article uses relevant communications that the UN Special Rapporteur on the situation of human rights defenders sent to states and corporations jointly with other Special Procedures (including the UN Special Rapporteur on violence against women and girls, its causes and consequences and the UN Working Group on discrimination against women and girls in law and practice) between 2011 and 2020 as a source of learning.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":"6 1","pages":"369 - 402"},"PeriodicalIF":2.2,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139328353","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}
{"title":"Rethinking Global Value Chains and Corporate Social Responsibility by Peter Lund-Thomsen (Cheltenham: Edward Elgar Publishing, 2022). ISBN 978 1 83910 208 0","authors":"Lara Bianchi","doi":"10.1017/bhj.2023.42","DOIUrl":"https://doi.org/10.1017/bhj.2023.42","url":null,"abstract":"","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":"23 1","pages":"477 - 479"},"PeriodicalIF":2.2,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139331127","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}
Abstract This article opines that corporations should utilize leverage in procurement contracts with states to prevent human rights abuses. Capitalizing on leverage over state business partners should be understood as an under-explored but intriguing dimension to the advancement of human rights. This article uses the example of the Pfizer-Israel procurement contract to provide mRNA COVID-19 vaccinations as a case study. While the Pfizer-Israel contract required Israeli governmental compliance with various laws, and referenced other legal obligations, no reference to human rights, such as the right to informed consent, was referenced in any contractual provision. The failure of Pfizer to insert contractual provisions regarding the Israeli government’s duty to obtain informed consent provides a glaring exemplar of a missed corporate opportunity to fulfil the corporate responsibility to respect human rights.
{"title":"Leveraging Human Rights Due Diligence in Corporate-State Procurement: The Exemplar of the Pfizer-Israeli COVID-19 Vaccination Program","authors":"J. Slawotsky","doi":"10.1017/bhj.2023.43","DOIUrl":"https://doi.org/10.1017/bhj.2023.43","url":null,"abstract":"Abstract This article opines that corporations should utilize leverage in procurement contracts with states to prevent human rights abuses. Capitalizing on leverage over state business partners should be understood as an under-explored but intriguing dimension to the advancement of human rights. This article uses the example of the Pfizer-Israel procurement contract to provide mRNA COVID-19 vaccinations as a case study. While the Pfizer-Israel contract required Israeli governmental compliance with various laws, and referenced other legal obligations, no reference to human rights, such as the right to informed consent, was referenced in any contractual provision. The failure of Pfizer to insert contractual provisions regarding the Israeli government’s duty to obtain informed consent provides a glaring exemplar of a missed corporate opportunity to fulfil the corporate responsibility to respect human rights.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":"9 1","pages":"352 - 368"},"PeriodicalIF":2.2,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139328573","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}
Abstract Investor–state dispute settlement (ISDS) has been heavily criticized from the perspective of human rights. However, the potential adverse human rights impacts of ISDS and the responsibilities of businesses to avoid causing or contributing to those impacts under the UN Guiding Principles on Business and Human Rights have yet to be spelled out. Although states are currently reforming ISDS, progress has been slow, and businesses have an independent responsibility to ensure that their operations do not harm human rights. Against this background, this article unpacks how businesses might contribute to three non-exhaustive examples of potential human rights impacts of ISDS: namely, the chilling effect on human rights regulation, crippling mega-awards and direct impacts on third-party rights. This article breaks new ground by exploring how human rights due diligence could be a useful tool for businesses to identify and address these impacts.
{"title":"The UNGPs and ISDS: Should Businesses Assess the Human Rights Impacts of Investor–State Arbitration?","authors":"Stephanie Triefus","doi":"10.1017/bhj.2023.45","DOIUrl":"https://doi.org/10.1017/bhj.2023.45","url":null,"abstract":"Abstract Investor–state dispute settlement (ISDS) has been heavily criticized from the perspective of human rights. However, the potential adverse human rights impacts of ISDS and the responsibilities of businesses to avoid causing or contributing to those impacts under the UN Guiding Principles on Business and Human Rights have yet to be spelled out. Although states are currently reforming ISDS, progress has been slow, and businesses have an independent responsibility to ensure that their operations do not harm human rights. Against this background, this article unpacks how businesses might contribute to three non-exhaustive examples of potential human rights impacts of ISDS: namely, the chilling effect on human rights regulation, crippling mega-awards and direct impacts on third-party rights. This article breaks new ground by exploring how human rights due diligence could be a useful tool for businesses to identify and address these impacts.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":"19 1","pages":"329 - 351"},"PeriodicalIF":2.2,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139330481","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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