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":null,"pages":null},"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}
Miriam Saage-Maaß, Peer Zumbansen, Michael Bader and Palvasha Shahab (editors), Transnational Legal Activism in Global Value Chains: Ali Enterprises Factory Fire and the Struggle for Justice (Springer, 2021), 333 pp.
{"title":"Miriam Saage-Maaß, Peer Zumbansen, Michael Bader and Palvasha Shahab (editors), Transnational Legal Activism in Global Value Chains: Ali Enterprises Factory Fire and the Struggle for Justice (Springer, 2021), 333 pp.","authors":"Muhammad Asif Khan","doi":"10.1017/bhj.2023.35","DOIUrl":"https://doi.org/10.1017/bhj.2023.35","url":null,"abstract":"Miriam Saage-Maaß, Peer Zumbansen, Michael Bader and Palvasha Shahab (editors), Transnational Legal Activism in Global Value Chains: Ali Enterprises Factory Fire and the Struggle for Justice (Springer, 2021), 333 pp.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135016093","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":"Kinnari I. Bhatt, Concessionaries, Financiers and Communities. Implementing Indigenous Peoples’ Rights to Land in Transnational Development Projects (Cambridge: Cambridge University Press 2020)","authors":"Judith Schönsteiner","doi":"10.1017/bhj.2023.36","DOIUrl":"https://doi.org/10.1017/bhj.2023.36","url":null,"abstract":"","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44076973","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":"Gabriel Webber Ziero, Business, Compliance and Human Rights Law. The Effectiveness of Transnational Private Regulations for Vulnerable Stakeholders (New York: Routledge, 2022), 248 pp. ISBN: 9781032026633","authors":"David Monciardini","doi":"10.1017/bhj.2023.37","DOIUrl":"https://doi.org/10.1017/bhj.2023.37","url":null,"abstract":"","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44997371","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}
There is currently disagreement in the international sports world about whether Russian and Belarusian athletes should be admitted to international competitions. While initially proposing to ban these athletes, the International Olympic Committee (IOC) is now recommending that sports federations readmit Russian and Belarusian athletes under certain conditions. The IOC believes that this is unavoidable in order to respect human rights. Sports federations are invoking their autonomy on this issue, with some following the IOC’s advice, some maintaining a ban, and others allowing unconditional participation. This piece seeks to correct the IOC’s interpretation of the applicable human rights standard. It asserts that sporting bodies must respect human rights, and that the principles of autonomy and neutrality of sport must be considered in light of internationally recognised human rights standards. If these are used as a yardstick, it becomes clear that collective exclusion can be justified in the extreme case of a war of aggression.
{"title":"Chaos in the Sporting World over Russia’s War of Aggression: Political Neutrality in Light of Human Rights Protection","authors":"P. Wiater","doi":"10.1017/bhj.2023.32","DOIUrl":"https://doi.org/10.1017/bhj.2023.32","url":null,"abstract":"\u0000 There is currently disagreement in the international sports world about whether Russian and Belarusian athletes should be admitted to international competitions. While initially proposing to ban these athletes, the International Olympic Committee (IOC) is now recommending that sports federations readmit Russian and Belarusian athletes under certain conditions. The IOC believes that this is unavoidable in order to respect human rights. Sports federations are invoking their autonomy on this issue, with some following the IOC’s advice, some maintaining a ban, and others allowing unconditional participation. This piece seeks to correct the IOC’s interpretation of the applicable human rights standard. It asserts that sporting bodies must respect human rights, and that the principles of autonomy and neutrality of sport must be considered in light of internationally recognised human rights standards. If these are used as a yardstick, it becomes clear that collective exclusion can be justified in the extreme case of a war of aggression.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43403422","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}
This article analyses a domestic litigation matter seeking to establish accountability for air pollution-related human rights violations. It examines how the judiciary applied national and international law to dismiss the case on procedural grounds. It argues that the domestic case deserves careful reading for a number of reasons that can be distilled into two premises. Firstly, the national legal framework and its respective judicial interpretation impede access to justice for victims of state and/or corporate human rights violations. Secondly, it is essential that the state develops laws and policies in line with the United Nations Guiding Principles on Business and Human Rights, which would allow claimants to focus their argumentation on material, rather than procedural issues relevant to proving the merits of the case.
{"title":"Barriers to Access to Justice in North Macedonia for Violations of Human Rights in the Context of Air Pollution","authors":"Ana Dangova Hug","doi":"10.1017/bhj.2023.20","DOIUrl":"https://doi.org/10.1017/bhj.2023.20","url":null,"abstract":"\u0000 This article analyses a domestic litigation matter seeking to establish accountability for air pollution-related human rights violations. It examines how the judiciary applied national and international law to dismiss the case on procedural grounds. It argues that the domestic case deserves careful reading for a number of reasons that can be distilled into two premises. Firstly, the national legal framework and its respective judicial interpretation impede access to justice for victims of state and/or corporate human rights violations. Secondly, it is essential that the state develops laws and policies in line with the United Nations Guiding Principles on Business and Human Rights, which would allow claimants to focus their argumentation on material, rather than procedural issues relevant to proving the merits of the case.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41244771","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}
This piece analyses the recent judgment from the Makhanda High Court in Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy setting aside the decision to grant Shell and Impact Africa an exploratory right. Shell and Impact Africa intended to conduct a seismic survey along South Africa’s Wild Coast. Such a survey stood to have a substantial impact on the rights and interests of several local communities residing along the coastline. Because Shell, Impact Africa and the Director-General of the Department of Mineral Resources and Energy failed to consider these rights and interests, the court decided to overturn the decision granting the companies their exploratory right. To this end, the judgment provides a powerful vindication of the rights of local communities, illustrating what is possible when regulatory schemes are applied purposively and not as a mere box-ticking exercise.
{"title":"Defending the Rights of Local Communities against Box-Ticking Exercises: An Analysis of Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy","authors":"C. Rankin","doi":"10.1017/bhj.2023.26","DOIUrl":"https://doi.org/10.1017/bhj.2023.26","url":null,"abstract":"\u0000 This piece analyses the recent judgment from the Makhanda High Court in Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy setting aside the decision to grant Shell and Impact Africa an exploratory right. Shell and Impact Africa intended to conduct a seismic survey along South Africa’s Wild Coast. Such a survey stood to have a substantial impact on the rights and interests of several local communities residing along the coastline. Because Shell, Impact Africa and the Director-General of the Department of Mineral Resources and Energy failed to consider these rights and interests, the court decided to overturn the decision granting the companies their exploratory right. To this end, the judgment provides a powerful vindication of the rights of local communities, illustrating what is possible when regulatory schemes are applied purposively and not as a mere box-ticking exercise.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41783964","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}
The United Nations Guiding Principles on Business and Human Rights conceive of human rights due diligence (HRDD) as covering potential impacts across value chains, including downstream. The proposed EU Corporate Sustainability Due Diligence Directive and the revision process of the OECD Guidelines for Multinational Enterprises have sparked renewed discussion on how and whether companies should conduct HRDD downstream to identify and prevent or mitigate adverse human rights impacts. Whilst some debate has occurred previously on downstream HRDD, this has predominantly centred on specific sectors, products and services where the links to egregious human rights harms may be more readily identifiable. This piece seeks to inform the current debate by broadening the examples of sectors, products and services and current business practice which demonstrate the critical need for, and ability of, companies to consider human rights risks downstream.
{"title":"Downstream Human Rights Due Diligence: Informing Debate Through Insights from Business Practice","authors":"Benn F. Hogan, Joanna Reyes","doi":"10.1017/bhj.2023.27","DOIUrl":"https://doi.org/10.1017/bhj.2023.27","url":null,"abstract":"\u0000 The United Nations Guiding Principles on Business and Human Rights conceive of human rights due diligence (HRDD) as covering potential impacts across value chains, including downstream. The proposed EU Corporate Sustainability Due Diligence Directive and the revision process of the OECD Guidelines for Multinational Enterprises have sparked renewed discussion on how and whether companies should conduct HRDD downstream to identify and prevent or mitigate adverse human rights impacts. Whilst some debate has occurred previously on downstream HRDD, this has predominantly centred on specific sectors, products and services where the links to egregious human rights harms may be more readily identifiable. This piece seeks to inform the current debate by broadening the examples of sectors, products and services and current business practice which demonstrate the critical need for, and ability of, companies to consider human rights risks downstream.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47316215","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}
On 27 July 2021, the United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises submitted to the United Nations General Assembly the ‘Report on Human Rights-Compatible International Investment Agreements’ (the Report).1 As part of the process of preparing the Report, several regional consultations were convened,2 including Consultations for Central & Eastern Europe and Central Asia (the CEE&CA Consultations), which took place on 21 April 2021 and gathered 31 participants from 15 states.3 The Report recognized that it was informed by ‘rich insights gained from these consultations’, and incorporated suggestions and conclusions reached in many of them.4
{"title":"Human Rights-Compatible International Investment Agreements: A Voice From Central & Eastern Europe and Central Asia","authors":"F. Balcerzak, S. Drozd","doi":"10.1017/bhj.2023.3","DOIUrl":"https://doi.org/10.1017/bhj.2023.3","url":null,"abstract":"On 27 July 2021, the United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises submitted to the United Nations General Assembly the ‘Report on Human Rights-Compatible International Investment Agreements’ (the Report).1 As part of the process of preparing the Report, several regional consultations were convened,2 including Consultations for Central & Eastern Europe and Central Asia (the CEE&CA Consultations), which took place on 21 April 2021 and gathered 31 participants from 15 states.3 The Report recognized that it was informed by ‘rich insights gained from these consultations’, and incorporated suggestions and conclusions reached in many of them.4","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44103381","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}
This article examines the under-researched, inter-connected issues of substantive remedy and a role for Organization for Economic Cooperation and Development (OECD) National Contact Points (NCPs) to complement judicial remedy regimes involving civil liability for companies in home-state jurisdictions. Even where access to judicial procedural remedy exists, it need not ensure substantive remedy. Legal and economic resource-based power-disparities between parties can reduce victims’ opportunities to present and argue their case; and courts offer limited substantive remedy options compared with the types listed by the United Nations Guiding Principles on Business and Human Rights. The article argues that combining access to NCPs and judicial remedy offers important opportunities to address well-recognized challenges for victims’ access to substantive remedy, especially with strong NCPs. NCPs can operate in ways that courts normally cannot, to help give victims voice and a choice of substantive outcome. The European Union’s Corporate Sustainability Due Diligence Directive (CSDDD) proposal serves as a cue for the analysis. However, the issue is relevant for any OECD member or the OECD Guidelines adherent state.
{"title":"Confronting Challenges to Substantive Remedy for Victims: Opportunities for OECD National Contact Points under a Due Diligence Regime Involving Civil Liability","authors":"K. Buhmann","doi":"10.1017/bhj.2023.9","DOIUrl":"https://doi.org/10.1017/bhj.2023.9","url":null,"abstract":"\u0000 This article examines the under-researched, inter-connected issues of substantive remedy and a role for Organization for Economic Cooperation and Development (OECD) National Contact Points (NCPs) to complement judicial remedy regimes involving civil liability for companies in home-state jurisdictions. Even where access to judicial procedural remedy exists, it need not ensure substantive remedy. Legal and economic resource-based power-disparities between parties can reduce victims’ opportunities to present and argue their case; and courts offer limited substantive remedy options compared with the types listed by the United Nations Guiding Principles on Business and Human Rights. The article argues that combining access to NCPs and judicial remedy offers important opportunities to address well-recognized challenges for victims’ access to substantive remedy, especially with strong NCPs. NCPs can operate in ways that courts normally cannot, to help give victims voice and a choice of substantive outcome. The European Union’s Corporate Sustainability Due Diligence Directive (CSDDD) proposal serves as a cue for the analysis. However, the issue is relevant for any OECD member or the OECD Guidelines adherent state.","PeriodicalId":9399,"journal":{"name":"Business and Human Rights Journal","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47215596","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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