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Business and Human Rights in a Changing World Order: Beyond the Ethics of Disembedded Liberalism 变化中的世界秩序中的企业与人权:超越脱离自由主义的伦理
IF 2.2 Q1 Social Sciences Pub Date : 2023-05-18 DOI: 10.1017/bhj.2023.10
D. Karp
Abstract The UN Guiding Principles (UNGPs) and their concept of human rights due diligence (HRDD) cannot succeed in their current form, because they reify neoliberalism’s public/private divide. This article establishes this argument across historical, theoretical, and normative dimensions, and charts a new way forward. The UNGPs’ separation of the ‘state duty to protect’ from the ‘corporate responsibility to respect’ reflects a contestable conception of companies as private actors: free to act/transact in any way that is not harmful. This is a problem because harm is often invisible, even when taking an active due-diligence approach. To resolve this, HRDD practices must also be based on the positive value of equality. However, businesses are more than mere agents; they also coordinate production and enable social connections. These structural features reveal a ‘missing fourth pillar’ of the UNGPs: a collective political responsibility to challenge and change our current world order.
摘要联合国指导原则及其人权尽职调查概念不能以目前的形式取得成功,因为它们具体化了新自由主义的公共/私人分歧。这篇文章从历史、理论和规范的角度建立了这一论点,并描绘了一条新的前进道路。联合国大会将“国家保护义务”与“公司尊重责任”分离,反映了公司作为私人行为者的一个有争议的概念:以任何无害的方式自由行事/交易。这是一个问题,因为即使采取积极的尽职调查方法,伤害往往是看不见的。为了解决这一问题,人力资源开发与发展实践也必须以平等的积极价值为基础。然而,企业不仅仅是代理人;他们还协调生产,建立社会联系。这些结构特征揭示了联合国大会“缺失的第四支柱”:挑战和改变我们当前世界秩序的集体政治责任。
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引用次数: 0
BHR Agenda and Authoritarian Regimes: The Case of Political and Human Rights Crisis in Belarus Since 2020 BHR议程与威权体制:2020年以来白俄罗斯的政治和人权危机案例
IF 2.2 Q1 Social Sciences Pub Date : 2023-04-20 DOI: 10.1017/bhj.2023.8
Ekaterina Deikalo
The topic of business and human rights (BHR) is of multidimensional character. A purely legalistic dimension is hardly sufficient to capture the multiple aspects of BHR. This is why the effective promotion of the BHR agenda on universal and local levels depends upon a variety of factors, including sociocultural context and legal, political and economic modes and practices. These factors are distinct in different regions, including Western and Eastern Europe, Eastern Europe and Central Asia (albeit the former two regions are often joined in BHR discussions on a global level).1 Yet, the challenges of the Eastern European region also vary from country to country. For example, if we take the rule of law indicator (which is very important for effective BHR promotion), it is obvious that the rule of law situation in Eastern European countries that are members of the European Union (EU) creates very different challenges compared with those in Eastern European countries that are not members of the EU.2
商业与人权问题具有多层面的特点。纯粹的法律层面很难涵盖BHR的多个方面。这就是为什么在全球和地方各级有效促进BHR议程取决于各种因素,包括社会文化背景以及法律、政治和经济模式和实践。这些因素在不同的地区是不同的,包括西欧和东欧、东欧和中亚(尽管前两个地区经常在全球范围内参与BHR讨论)。1然而,东欧地区的挑战也因国家而异。例如,如果我们以法治指标(这对有效促进BHR非常重要)为例,很明显,与非欧盟成员国的东欧国家相比,属于欧盟的东欧国家的法治状况带来了非常不同的挑战。2
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引用次数: 0
Power, Participation, and Private Regulatory Initiatives: Human Rights Under Supply Chain Capitalism (University of Pennsylvania Press, 2021) Edited by Daniel Brinks, Julia Dehm, Karen Engle and Kate Taylor 《权力、参与和私人监管倡议:供应链资本主义下的人权》(宾夕法尼亚大学出版社,2021),Daniel Brinks、Julia Dehm、Karen Engle和Kate Taylor编辑
IF 2.2 Q1 Social Sciences Pub Date : 2023-03-07 DOI: 10.1017/bhj.2023.5
Chris Okafor, D. Birchall
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引用次数: 0
Evaluating the Polish NAPs: Lessons for the Future Implementation of the UN Guiding Principles on Business and Human Rights 评估波兰国家行动方案:未来执行《联合国商业与人权指导原则》的经验教训
IF 2.2 Q1 Social Sciences Pub Date : 2023-03-07 DOI: 10.1017/bhj.2023.4
Marcin Kilanowski
Since their adoption, the UN Guiding Principles on Business and Human Rights have become crucial to intensify actions to protect human rights in the context of business conduct. Numerous countries, including Poland, have adopted National Action Plans (NAPs). Taking into account the years that have passed, it is worth assessing the implementation of their goals. Guidelines for the preparation of NAPs on business and human rights of the United Nations Working Group on Business and Human Rights (UNWG) are helpful in assessing the Polish NAPs. This Development in the Field piece concludes that every NAP should begin with an assessment that would help identify areas where there is a need to implement necessary policies. Such an assessment could be used to compare the initial stage with future achievements. It should rely on clear milestones mentioned in NAPs, and on key performance indicators to assess effectiveness while also relying on inclusive decision-making processes. Unfortunately, this was not the case with the two Polish NAPs.
自《联合国商业与人权指导原则》通过以来,该原则对加强商业行为中保护人权的行动至关重要。包括波兰在内的许多国家都通过了国家行动计划。考虑到已经过去的几年,评估其目标的执行情况是值得的。联合国工商业与人权工作组关于工商业和人权的国家行动方案的编制准则有助于评估波兰国家行动方案。这篇“实地发展”文章的结论是,每个国家行动方案都应该从一项评估开始,这将有助于确定需要实施必要政策的领域。这种评估可用于将初期阶段与未来成就进行比较。它应该依靠国家行动方案中提到的明确里程碑,以及评估有效性的关键业绩指标,同时也依靠包容性的决策过程。不幸的是,波兰的两个国家行动方案并非如此。
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引用次数: 0
‘From Nuremberg to Kabuga’ “从纽伦堡到卡布加”
IF 2.2 Q1 Social Sciences Pub Date : 2023-02-06 DOI: 10.1017/bhj.2023.1
Jonathan Kolieb
In September 2022, the international criminal trial of Félicien Kabuga for participation in the 1994 Rwandan genocide began in a courtroom in The Hague. Kabuga’s trial is noteworthy, not only as it is probably one of the last international criminal trials arising from the genocidal scheme that saw 800,000 Tutsis murdered, but also because Kabuga is not accused of directly participating in the killings but facilitating and enabling them through his various business enterprises.1 Kabuga’s trial is a rare moment in the history of international criminal law that sees a businessman being held accountable for his involvement in atrocity crimes. To understand the 75þ years’ history of international criminal law (ICL) that have led to this point and why having a businessman being tried for international crimes is such a rare occurrence, there is no better book than Joanna Kyriakakis’ Corporations, Accountability and International Criminal Law: Industry and Atrocity. ‘There is a problem with the global economy’, Kyriakakis begins, that of a ‘governance gap’ identified by John Ruggie – the lack of effective regulation of transnational corporations. Addressing that problem serves as the framing and impetus for the book. On this basis, Kyriakakis has produced a timely and important contribution to the increasing literature around corporate accountability through hard-law mechanisms for egregious human rights abuses. From Nuremberg to Kabuga, this book provides a comprehensive overview of the key moments when ICL has been used to try and hold companies, and individuals within them, accountable for ‘atrocity crimes’. Kyriakakis weaves legal commentary into each section as well as critical analysis of the key jurisprudential, sociolegal and political debates that surround the core animating question of the book: ‘what is the appropriate role to be played by atrocity law in addressing corporate wrongs?’ The historical review of ICL’s treatment of corporate defendants begins with the postWorld War II period (in chapter 2). Both German and Japanese companies were accused of actively participating and abetting in war crimes. The chapter devotes considerable space to the treatment of corporate actors at Nuremberg – widely seen as the founding moment of modern-day ICL. The absence of an industrialist in the primary International Military Tribunal is discussed as well as subsequent trials of corporate leaders in the trials held by each of the Allies in each of their German occupation zones. The inclusion of how Russian and French authorities treated economic actors, as well as the treatment (or lack thereof) of the Japanese zaibatsu conglomerates in the Tokyo war crimes trials – are useful
2022年9月,对卡布加参与1994年卢旺达种族灭绝罪的国际刑事审判在海牙的一个法庭开始。对Kabuga的审判值得注意,不仅因为它可能是对造成80万图西族人被杀害的种族灭绝计划进行的最后一次国际刑事审判之一,而且因为Kabuga没有被指控直接参与杀戮,而是通过他的各种商业企业为杀戮提供便利对Kabuga的审判是国际刑法历史上一个罕见的时刻,一个商人因参与残暴罪行而被追究责任。要了解国际刑法75年的历史,以及为什么商人因国际犯罪而受到审判是如此罕见,没有比乔安娜·基里阿卡基斯(Joanna Kyriakakis)的《公司、问责制与国际刑法:工业与暴行》更好的书了。“全球经济存在一个问题”,基里阿卡基斯开始说,这就是约翰·鲁吉所指出的“治理缺口”——缺乏对跨国公司的有效监管。解决这个问题是这本书的框架和动力。在此基础上,基里阿卡基斯对越来越多的关于通过强硬的法律机制对严重侵犯人权的企业问责的文献做出了及时而重要的贡献。从纽伦堡到卡布加,这本书提供了一个全面的概述,当ICL被用来试图和追究公司和个人的“暴行罪行”的关键时刻。基里亚卡基斯在每一部分中都穿插了法律评论,并对围绕本书核心问题的关键法理学、社会法和政治辩论进行了批判性分析:“在解决企业错误方面,暴行法应该扮演什么合适的角色?”对国际刑事法院对待公司被告的历史回顾始于二战后时期(见第二章)。德国和日本的公司都被指控积极参与和教唆战争罪行。这一章用了相当大的篇幅来描述纽伦堡审判中企业行为者的待遇——纽伦堡被广泛视为现代ICL的创始时刻。讨论了在初级国际军事法庭上工业家的缺席,以及随后在每个盟国在其每个德国占领区举行的审判中对公司领导人的审判。书中包括了俄罗斯和法国当局如何对待经济行为者,以及日本财阀集团在东京战争罪审判中的待遇(或缺乏待遇),这些都是有用的
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引用次数: 0
Awareness, Analysis and Action: A Rights Holder Perspective on Building the Fair Food Movement and the Way Forward for Worker-Driven Social Responsibility 意识、分析与行动:从权利持有人的角度看建立公平食品运动和工人驱动的社会责任的前进方向
IF 2.2 Q1 Social Sciences Pub Date : 2023-02-01 DOI: 10.1017/bhj.2022.36
Gerardo Reyes Chavez
There is growing recognition of the need for a more ‘socially just’ implementation of the UN Guiding Principles on Business and Human Rights (UNGPs) that embraces bottom-up, rights holder-driven approaches.1 An initiative is underway to articulate a set of community principles to supplement the three-pillar ‘respect, protect, remedy’ framework of the UNGPs, with a fourth pillar that underscores the importance of rights holder agency to the effective implementation of human rights protections.2 With regard to access to remedy, the UN Working Group on Business and Human Rights has emphasized that ‘rights holders should be central to the entire remedy process’,3 and others have made similar observations, encouraging a ‘co-design’ process.4
越来越多的人认识到,需要更加“社会公正”地实施《联合国工商业与人权指导原则》(UNGPs),其中包括自下而上、权利持有人驱动的方法目前正在开展一项倡议,阐明一套社区原则,以补充《联合国全球指导原则》的“尊重、保护、补救”三大支柱框架,并强调权利持有人机构对有效实施人权保护的重要性关于获得补救,联合国工商企业与人权工作组强调,“权利人应该是整个补救过程的核心”,其他人也提出了类似的意见,鼓励“共同设计”过程
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引用次数: 1
Decentring Narratives around Business and Human Rights Instruments: An Example of the French Devoir de Vigilance Law 围绕商业和人权文书的权力下放叙述:以法国《监督法》为例
IF 2.2 Q1 Social Sciences Pub Date : 2023-02-01 DOI: 10.1017/bhj.2023.6
Debadatta Bose
Abstract There has been tremendous momentum in adoption of business and human rights regulations, specifically national legislation that mandate human rights due diligence. While these laws have been heralded as the torchbearers of progress, this article approaches national legislation on business and human rights by placing them in context of a North–South divide through a Third World Approaches to International Law (TWAIL) lens. It looks at the form of regulation of transnational corporations (national/international) – not the substance – and illustrates the neo-colonial flavour of these laws by diving into the narrative behind the adoption of the French devoir de vigilance law. It illustrates that the French law can also be read as an attempt to universalise European values while reinforcing power hierarchies. The claim of this article is that national legislation cannot be a substitute for a treaty but only a path towards one, because national legislation structurally lacks means to take the Global South participation seriously.
摘要企业和人权条例,特别是要求人权尽职调查的国家立法的通过势头十分强劲。虽然这些法律被誉为进步的火炬手,但本文通过第三世界国际法方法(TWAIL)的视角,将其置于南北分歧的背景下,来处理有关商业和人权的国家立法。它着眼于对跨国公司(国家/国际)的监管形式,而不是实质内容,并通过深入探讨法国解除警惕法通过背后的叙事来说明这些法律的新殖民主义色彩。它表明,法国法律也可以被解读为在加强权力等级制度的同时,试图普及欧洲价值观。这一条的主张是,国家立法不能取代条约,而只能成为达成条约的途径,因为国家立法在结构上缺乏认真对待全球南方参与的手段。
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引用次数: 0
Remedy and Accountability a Decade after the Marikana Massacre 马里卡纳大屠杀十年后的补救和责任
IF 2.2 Q1 Social Sciences Pub Date : 2023-02-01 DOI: 10.1017/bhj.2023.2
Jordi Vives-Gabriel, H. van der Merwe
August 16th, 2022 marked the 10th anniversary of the Marikana Massacre in Rustenburg, South Africa. This was the worst incident of mass killing by police since the Sharpeville Massacre in 1960 in the heyday of the Apartheid regime. In the first days of August 2012, workers at Lonmin plc, a platinum group metals mining company, went on a wildcat strike demanding a minimum salary of 12500 Rand, circa 800 USD, per month and protesting against the poor living conditions they and their families where subjected to in the Marikana vicinity, an area 100 km north of Johannesburg where the mine is located. As days passed, tension escalated leading to the killing of ten people, including three non-striking workers, two security guards, three striking workers, and two police officers. Various attempts to facilitate negotiations with striking workers were turned down by Lonmin management. Instead, Lonmin managers actively engaged in communications with senior political leaders, police officers, and state mining officials to frame the situation as one that required strong and decisive police intervention.1
2022年8月16日是南非勒斯滕堡马里卡纳大屠杀10周年。这是自1960年种族隔离政权鼎盛时期的沙佩维尔大屠杀以来最严重的警察大规模屠杀事件。2012年8月的头几天,铂族金属矿业公司Lonmin plc的工人举行了一场疯狂的罢工,要求每月最低工资12500兰特,约800美元,并抗议他们和家人在马里卡纳附近的恶劣生活条件,马里卡纳是该矿所在的约翰内斯堡以北100公里的地区。几天过去了,紧张局势升级,导致10人死亡,其中包括三名非罢工工人、两名保安、三名罢工工人和两名警察。隆明管理层拒绝了为与罢工工人谈判提供便利的各种尝试。相反,隆明的管理人员积极与高级政治领导人、警察和国家矿业官员进行沟通,将这种情况视为需要警方强有力和果断干预的情况。1
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引用次数: 0
Muddying the Waters: The Concept of a ‘Safe Harbour’ in Understanding Human Rights Due Diligence 浑水:理解人权尽职调查中的“安全港”概念
IF 2.2 Q1 Social Sciences Pub Date : 2023-02-01 DOI: 10.1017/bhj.2022.40
L. Smit, C. Bright, Stuart Neely
Abstract The concept of a ‘safe harbour’ has been mentioned in several contexts during ongoing discussions around regulatory developments towards mandatory human rights and environmental due diligence (mHREDD) which continue at international, European and national levels. This article analyses the concept of a ‘safe harbour’ and how it relates to human rights due diligence (HRDD) as described in the UN Guiding Principles on Business and Human Rights (UNGPs). It discusses examples of other types of safe harbours which were recognized in legislation and case law; considers that a safe harbour could result in a ‘tick-box’ approach; highlights the implications for access to remedy; and distinguishes a safe harbour exemption from a defence of having undertaken HRDD in accordance with an expected standard of conduct.
在国际、欧洲和国家层面持续进行的关于强制性人权和环境尽职调查(mHREDD)监管发展的讨论中,“安全港”的概念在几个背景下被提到。本文分析了“安全港”的概念,以及它与《联合国工商业与人权指导原则》(UNGPs)中所述的人权尽职调查(HRDD)的关系。它讨论了立法和判例法中承认的其他类型安全港的例子;认为安全港可能导致“打勾式”的处理方法;强调对获得补救的影响;并将安全港豁免与按照预期的行为标准进行HRDD的辩护区分开来。
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引用次数: 1
Whistleblowers as Defenders of Human Rights: The Whistleblower Protection Act in Japan 作为人权捍卫者的举报人:日本的《举报人保护法》
IF 2.2 Q1 Social Sciences Pub Date : 2023-01-24 DOI: 10.1017/bhj.2022.41
Masaki Iwasaki
In October 2020, the Government of Japan formulated a National Action Plan (NAP) on Business and Human Rights in response to the United Nations Guiding Principles on Business and Human Rights (UNGPs) and ensuing greater international awareness of violations of human rights by corporations.1 In the NAP, the government of Japan stated that on the basis of the UNGPs, it expects companies to (i) formulate human rights policies, (ii) conduct due diligence with respect to human rights, and (iii) establish grievance mechanisms.2 In order to achieve these goals, businesses need to understand whether and how they are violating human rights and prepare appropriate solutions. Whistleblowers play a crucial role in this process.
2020年10月,为响应《联合国工商业与人权指导原则》,提高国际社会对企业侵犯人权行为的认识,日本政府制定了《工商业与人权国家行动计划》在NAP中,日本政府表示,在ungp的基础上,它希望公司(i)制定人权政策,(ii)在人权方面进行尽职调查,(iii)建立申诉机制为了实现这些目标,企业需要了解他们是否以及如何侵犯人权,并准备适当的解决方案。告密者在这一过程中发挥着至关重要的作用。
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引用次数: 1
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Business and Human Rights Journal
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