Civil Society Perspectives on Business and Human Rights

Screen Shot 2014-11-05 at 11.11.59We are delighted to welcome the latest in a series of cross-posts by Dr Shane Darcy from the Business and Human Rights in Ireland Blog. The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

The theme for this year’s Department of Foreign Affairs and Trade NGO human rights Forum is ‘Business and Human Rights: Implementing the United Nations Guiding Principles’. The event, which takes places this Friday, 7 November 2014, is seen by the Department as part of its consultative process towards the development of a national action plan for the implementation of the UN Guiding Principles:

The objective is to present the opportunity for business and civil society to set out their views on business and human rights, both in the broad sense and also with a view to helping to develop a national plan.

In the lead-up to the Forum, a series of guest posts have been running on the Business and Human Rights in Ireland blog, bringing together a variety of international and national civil society perspectives on the topic of national plans for business and human rights. In this post, I try to highlight some of the key points made by the contributors, which may be of interest to those attending Friday’s event.

Starting off the series, Shawan Jabarin, the Director General of Al-Haq, the Palestinian human rights organisation, underscores the role that business is playing in perpetuating the Israeli occupation of Palestine. He makes an interesting historical comparision with Ireland, and considers it:

both ironic and disappointing is that today one of Ireland’s largest corporations, Cement Roadstone Holdings, is profiting from the construction of settlements and walls in occupied Palestinian territory, both of which are violations of international law.

Al Haq, who will be represented at the Forum (as will Cement Roadstone Holdings), have expressed their hope that Ireland might use this opportunity to “raise the bar” in the area of business and human rights.

David Joyce from the Irish Congress of Trade Unions reflects in his piece on the contribution that the UN Guiding Principles on Business and Human Rights can make towards the attainment of the decent work agenda. He sees their importance in the clarification they bring regarding the different roles and responsibilities of business and Governments. He rightly observes that “businesses should not decide what their responsibilities to society are”. David also highlights the weakness of the OECD National Contact Point in Ireland and sees an opportunity in this process for its strengthening.

Karol Balfe, a policy adviser for Christian Aid Ireland focuses on the case of Colombia, in particular on issues relating to trade and human rights. She highlights the opposition of many unions and farmers to the EU Free Trade Agreement with Colombia and Peru, which is to be the subject of a forthcoming Dáil debate. Although there are some human rights aspects to the Agreement, she points to the absence of proper monitoring or compliance mechanisms. She calls on the Irish government, in line with the Guiding Principles, to “develop and set out clear and specific human rights guidelines for Irish companies doing business in Colombia in order to ensure they do not violate human rights”.

Selina Donnelly, Policy Officer for Trócaire, also contributed a post, drawing on the detailed policy position paper on business and human rights that the organisation has just published. Extraterritorial enforcement of human rights is particularly important, she writes, “given the increasing globalisation of business, and growth of corporate influence”. She highlights the significant risks that Irish businesses may become directly responsible or complicit in human rights violations, especially in countries with poor human rights records or weak regulatory environments. She outlines Trócaire’s recommendations regarding remedies, due diligence and the need for a gender focus.

On the subject of national action plans for business and human rights, Claire Methven O’Brien, Strategic Adviser to the Danish Institute for Human Rights, makes the compelling case as to why such plans can help advance the business and human rights agenda. She highlights five key reasons as to why States should adopt national implementation plans: stocktaking, increasing the visibility of particular rights issues, exposure of poor human rights practice, facilitating dialogue between Governments, business and civil society, and, finally, permitting home-grown responses to concerns over business impacts on human rights.

In the most recent contributions, Nicholas McGeehan, Middle East Researcher for Human Rights Watchexplains that the adoption of the Guiding Principles has “undoubtedly” helped NGOs address corporate violations of human rights, by providing a framework in which to put pressure on companies. He focuses on forced labour in the Gulf, particularly prominent in the context of the World Cup in Qatar in 2022, and provides some basic advice for construction companies that might be operating there. Hannah Grene, an independent researcher in human rights and development, also looks at issues of extraterritorial respect for human rights. She draws on Ireland’s poor record in relation to bribery overseas and advocates for significant changes to the way in which the OECD national contact point operates here.

 

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This post gives just a flavour of some of the business and human rights issues that civil society will be seeking to be addressed at the annual DFAT NGO human rights Forum this Friday. A recent post on the blog also included a summary of recommendations made by the Irish Centre for Human Rights in 2012 on the subject of business and human rights. Other NGOs in Ireland have also made submissions to the Department in the recent past relating to business and human rights, including Amnesty International, and no doubt they will also make their voices heard at the Forum.

Civil Society Perspectives on Business and Human Rights

A new Constitutional Settlement for Northern Ireland: Queries from International Law

287px-Uk_map_home_nations (1)This post was jointly written by regular contributor Aoife O’Donoghue and Ben Warwick. Ben is a Graduate Teaching Assistant and PhD candidate at Durham Law School. His research centres on resource constraints and the implementation of economic and social rights. 

The starting gun has been fired on constitutional debate in the UK. The prospect of Scottish independence, potentially increased powers for devolved governments, a new English Assembly, a re-formed relationship with human rights and a reformulation of the relationship with the EU, are all being more or less vigorously discussed. Whilst there has been some public debate about the constitutional issues facing the UK, there remain a number of covert agendas. Each of these agendas represents both threats and opportunities for Northern Ireland. The tendency to define constitutional changes by reference to internal factors is a misguided one. Such an approach neglects the significant external implications of internal debates. Rather, changes to the UK’s constitutional settlement must be situated in the broader regional and international political and economic context. The realities of modern globalisation and commerce, mean that external bodies and countries are both influenced by, and influencers of, ‘internal’ debates and thus cannot be ignored.

For England, and the UK, the electoral fortunes of the Conservative party lurk beneath the surface. Under threat from UKIP, and in arguably long-term decline, the Tories have sought to both capitalise and stave off threats from the Right. The party have undoubtedly seen an opportunity to separate unpopularity in Scotland (the party has just one MP out of 59 potential seats and in contrast to Labour), from relative success in England. Significant devolution to an English Assembly would likely leave the Conservatives (or at least the right of British politics) with a majority. This opportunism can explain changes of heart on devolution.

In Scotland, the covert agendas belong(ed) to the markets. Dominant economic actors vocally campaign(ed) against independence on the basis that it would harm jobs and the prosperity of Scots. This was an important consideration for many, but for the Boards of Directors and CEOs making the threats it was not the primary motivation. Rather, the continued profitability and favourable tax regime for corporations were the unspoken motivation for such a fight against Scottish independence. Companies were concerned, not with the general welfare of the Scots, but with the potential disruption to their healthy profits.

As ever for Northern Ireland, much remains unsaid. There is fear of covert and/or incremental changes that erode cultural identities and (Unionist/Nationalist) identity politics remain an on-going and dominating factor in debates. Besides the internal ‘blockages’, there are also external implications including repercussions for Northern Ireland’s voice in debates on human rights, economic powers, and the division of power in the UK. This is crucial, as a strong voice within the UK affects the province’s capacity to deal with the issues of austerity, social security, rural and urban poverty, policing and employment.

At the Conservative Party Conference in October there was a clearly voiced intention to introduce changes to the UK Human Rights Act (HRA) and the relationship with the European Convention on Human Rights and the associated European Court of Human Rights. It was stated that if changes to that relationship could not be made, a Conservative Government would withdraw from the Convention. As has been noted elsewhere this is a particularly pertinent issue for Northern Ireland as the Good Friday Agreement places the introduction of the HRA as central to its settlement.  Under the settlement the UK agreed to:

complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention,  including power for the courts to overrule Assembly legislation on grounds of inconsistency.

The Irish Government, in return, agreed to incorporate the ECHR into its law and there is no suggestion of a change. The Good Friday Agreement is partially a bilateral agreement between the UK and Ireland, the Conservative proposals would, if enacted, violate international law. Besides legality, courtesy would require the UK to consult with Ireland about such changes, perhaps with a view to releasing Ireland from its obligations. Given that there was a vote in both the Republic and Northern Ireland on the Good Friday Agreement, it is perhaps democratically questionable to change its terms without consulting both constituencies again.

Bordering on the EU

Of further consideration is the potential of the UK leaving the EU and its impact. As the Republic is outside Schengen there is little problem with the open status of the Ireland-UK border. Without wishing to ape the rather ridiculous depictions of what a border with an independent Scotland would look like, should the UK leave the EU and Ireland enters Schengen, it would make the open border problematic. In particular with a dominant aim of UK political actors being to stop inward migration, the border could not be as porous.  Whilst the Irish are (legally) not to be treated as ‘foreigners’ under the Ireland Act 1949 other EU citizens entitled to continue to come to Ireland may pose practical and political difficulties. Further, the entitlement of those born in Northern Ireland to dual citizenship is problematic. If an individual chose to register for an Irish passport they would be able to maintain their EU citizenship even if the UK left. This would be in stark contrast to other UK passport holders in Scotland, England or Wales.

Leaving the EU would also impact upon the Transatlantic Trade and Investment Agreement currently being negotiated with the USA. While there is not space here to discuss the many problematic elements of this trade deal, a UK that sat outside of the EU would leave Northern Ireland without preferential access to the USA. Leaving the EU would also put the UK in an entirely different position within the World Trade Organisation. While currently the UK is an individual member, all of its negotiations are conducted as one EU block. Therefore while the UK would stay as a member of the WTO, it would negotiate as a standalone state rather than part of the world’s biggest market. Again, as the Republic would remain part of the EU’s block in the WTO, it would maintain the many and varied benefits that the EU maintains due to its global economic power.

Goodbye Good Friday

A further indication of the external nuances of the UK’s current constitutional soul-searching lies with border polls. Whilst there has been much talk of a border poll in Northern Ireland, this has largely neglected the voice of the Republic. The Good Friday Agreement mandated a right to self-determination for the people of the Republic in the following terms:

it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.

It is by no means certain that a vote in the Republic on the matter of unification would bring about a majority of yes voters. No vote took place when East Germany rejoined West Germany, partly because the German Constitution never gave up its claim to all of its territory. The Irish situation differs as a result of the changes to Articles 2 & 3 of the Irish Constitution. Further, it was by no means certain that the West Germans would vote to integrate their East German neighbours. The requirement of self-determination for North and South would mean that even if Northern Ireland voted for a unification of Ireland, there would be no certainty of a united Ireland

There are undoubtedly significant international effects that flow from a renegotiation of the UK’s constitutional position(s). Yet the current internalised approach to considering the constitutional issues is masking the broader effects. From human rights, to the EU, to the TTIP and the Good Friday Agreement, there are significant ramifications that urgently need discussed. Having these debates by reference to the Conservative Party’s self-interest, economic hegemonies, or identity politics can only lead to a transient conclusion to the international issues.

A new Constitutional Settlement for Northern Ireland: Queries from International Law

Socio-Economic Rights & Budget Analysis: Some Notes on Available Resources, ‘Progressivity’ and Non-Retrogression

FLACHuman Rights in Ireland welcomes this guest post from Dr John Reynolds. John is a lecturer in law in NUI Maynooth. These are John’s notes from the Free Legal Advice Centres (FLAC) seminar Fairer Budget, Fairer Society: A human rights analysis of Budget 2015 from Irish civil society held today, 16 October 2014. 

We are all too aware of the immediate and cumulative impacts that relentless austerity budgets have had on people in Ireland over the last seven years, with the brunt of that austerity disproportionately meted out on working class communities, low-income families and those most in need of social protection. Structural adjustment during that time has been implemented in keeping with right-wing thinking, coming in the form of a 2:1 ratio of cuts in services to tax increases (themselves often regressive in nature). Levels of poverty and inequality have deepened. Socio-economic protections have been resolutely subordinated by the state’s loyalty to financial institutions and the imperatives of transnational capital. There has been no departure from the race to the bottom for foreign investment in which Ireland is engaged, with the diversion of resources to corporate tax reduction measures continuing in various guises.

In the face of such market hegemony, what can international human rights discourse offer when it comes to social justice advocacy and budget analysis?

The distribution of housing, healthcare, education and water is rooted in the underlying struggle for resources between sectors of society, over which ideological lines are drawn and public policy is formulated. Rights to housing, healthcare, education or water, therefore, cannot be limited to narrow formalistic conceptions of justiciable legal claims. Implementation of the state’s obligations under international human rights treaties pertains as much to the legislative and executive branches as it does to the judiciary. All the more so when it comes to the International Covenant on Economic, Social & Cultural Rights, where constitutional protection for the rights that Ireland has pledged to uphold remains distinctly lacking. Deploying the language of socio-economic rights in this sense is best understood as one tactic within a broader strategy of progressive or radical politics aimed at distributive justice.

In this context, the increased attention devoted to budget analysis and fiscal policy in recent times by human rights organisations, UN Special Rapporteurs and legal scholarship is an important step in opening up the political space to socio-economic rights discourse. This is set against the backdrop of an evolving conversation on the need for a radical transformation from mainstream economics to the assertion of control over the market for social benefit. It is important to be clear from the outset, however, that the field of human rights itself is coming from a low base in this regard. International human rights mechanisms and bodies have traditionally maintained an agnostic approach to the choice of economic model, and as such have been weak in confronting financialisation and the neoliberal economic order. In 1990, at a watershed moment for the global expansion of neoliberalism, the UN Committee on Economic, Social & Cultural Rights took the opportunity to clarify that ‘in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laisser-faire economy, or upon any other particular approach.’ While some inroads have since been made by UN Special Rapporteurs at least acknowledging that the policies of the World Trade Organisation can have negative consequences on social rights, for instance, an overarching ‘trade-related, market-friendly paradigm of human rights’ has implied acquiescence to the prevailing economic orthodoxy and its steady erosion of labour rights standards and public services.

Those structural constraints notwithstanding, there are strands of international human rights law and discourse that can inform a more progressive approach to budgetary policy when it comes to the state’s obligation to devote the ‘maximum of its available resources’ towards the realisation of economic, social and cultural rights. The Committee has stated that ‘the “availability of resources”, although an important qualifier to the obligation to take steps, does not alter the immediacy of the obligation, nor can resource constraints alone justify inaction’, and that ‘even in times of severe resource constraints, States parties must protect the most disadvantaged and marginalized members or groups of society.’ These ‘minimum core’ obligations are supplemented by an ongoing commitment to progressively realising the full range of economic, social and cultural rights for all.

A principle of non-retrogression has been constructed accordingly, under which retrogressive measures imposed in a developed economy should be almost impossible to justify. Aoife Nolan has suggested, however, that the past failures of the Committee on Economic, Social & Cultural Rights in clearly marking out the parameters of retrogressive measures (as well in engaging with issues around privatisation) have limited the capacity of social justice campaigners to contest specific budgetary moves as violations of the Covenant. The Committee’s practice does finally appear to be moving on this more recently though, perhaps prompted by the work of several Special Rapporteurs with mandates over socio-economic rights who have gone furthest in developing the normative framework around tax, fiscal and budgetary policy as it relates to available resources and non-retrogression.

Among the more progressive authorities in this regard have been Magdalena Sepúlveda as Special Rapporteur on Human Rights and Extreme Poverty, and Olivier de Schutter in his capacity as Special Rapporteur on the Right to Food. Before finishing her mandate earlier this year, Sepúlveda built on her previous examination of fiscal contractions and cuts to social protection systems as deliberately retrogressive measures in an investigation that emphasised of the critical role of fiscal policy, and particularly taxation policy, in tackling inequality and vindicating socio-economic rights. She highlighted, among other things, the needs to: increase reliance on direct and personal taxes on income; move away from indirect and regressive taxes on consumption; design taxes so as to that reduce regressive impact and gender inequalities, including in relation to unpaid care work; ensure that public revenue raised from the financial sector is commensurate to the sector’s profitability and the risks it generates; implement a financial transaction tax; and ensure that affected communities and future generations are protected in the exploitation of natural resources, with extractive industries taxed sufficiently.

De Schutter made submissions to Sepúlveda as part of this process, in which he reinforced the importance of raising taxes as a means available to states to progressively improve access to socio-economic rights, and warned of the converse negative impacts in allowing tax avoidance and tax incentives to foreign investors. He pointed out that a ‘regressive system of taxation seriously limits the redistributive aspect of [social] programmes’, concluding that in such circumstances a state is inherently failing to deploy the maximum of its available resources to the realisation of socio-economic rights. Another notable submission to Sepúlveda from the Independent Expert on the Effects of Foreign Debt on Human Rights emphasised that:

policy-based loans and debt relief from the international financial institutions typically require the borrower countries to implement a range of economic and fiscal reforms including the introduction of a value-added taxes and other regressive taxes, as well as tax holidays for foreign corporations. Although the ostensible aim of these policies is to promote economic growth and restore the debt servicing capacity of borrower countries, research indicates that they, in fact, have a negative impact on the realization of human rights over the longer term and that they have contributed to increasing poverty and marginalization among the poor in debtor countries.

These findings of the UN special procedures have been supplemented by academic analysis which suggests that counter-cyclical tax policies (to manage the periodic structural crises which are endemic to capitalism) are necessary to uphold the principle of non-retrogression.

The lack of adherence to principles of non-retrogression and tax justice in successive austerity budgets in Ireland since 2008 has been well documented. The Centre for Economic and Social Rights, for instance, highlighted the explicit priority given (in the National Recovery Plan 2011-2014) to ‘drastic cuts in social expenditures over progressive tax reforms in a country ranking among the lowest in Europe in terms of overall tax levels.’ Budget 2015 appears to stem the tide in terms of those drastic cuts (although the estimates provided by the government suggest that ‘real’ public spending—factoring in inflation—will continue to decrease through to 2018), but remains problematic from a social justice perspective when it comes to tax policy. Finance Minister Michael Noonan made reference in his Budget 2015 speech to the ‘progressivity’ of the Irish tax regime. The Department of Finance has repeatedly emphasised, even in the context of previous austerity budgets, that it equates the existence of income tax ‘progressivity’ with a normative concept of ‘fairness’. This focuses on one component of the tax system only, and fails to account for the trend toward taxes and charges that are regressive in character; that is, indirect taxes such as water charges or VAT increases, which are not progressively scaled according to concepts of equality or ability to pay. From a socio-economic rights perspective, such a shift to indirect taxation may not be ‘fair’ (the continuation of general ‘progressivity’ in the income tax regime notwithstanding) and may be retrogressive in effect.

In the context of Budget 2015, the net impact of newly introduced regressive water charges and the way in which income tax reductions are scaled means that those at minimum-wage level will benefit least in real and relative terms. Many of those earning between €15,000 and €35,000 will be actually be left in a worse financial situation overall next year. Those earning €70,000, more than double the average wage and falling within in the top 10% of income distribution, will benefit most in relative terms from the budget. The choice to devote available resources to reducing the higher rate of income tax has left social justice campaigners understandably ‘outraged’, and dilutes the progressivity of the income tax system.

The tax credits and benefit allowances offered as sweeteners to reduce water charges slightly does not alter the fundamentally regressive nature of the water tax, and fails to answer broader questions about the government’s decision to turn water into a commodity. As experience elsewhere has shown, it can be a very quick and slippery slope from commodification to privatisation. This is all the more the case in an international trade and investment climate that seeks to create increased ‘market access’ to natural resources and public services, as exemplified in Europe’s case in the Transatlantic Trade and Investment Partnership currently being negotiated with the United States. In this regard, the likelihood of commodification and privatisation amounting to retrogressive steps in the state’s fulfilment of the right to water must be weighed. In resisting these steps, as Paul O’Connell explains, the Right2Water campaign’s use of the language of rights to assert that water is ‘a public good that should be funded through general taxation, available to all on the basis of need, and protected from the vicissitudes and inequities of the market’ is more than a mere appeal to a legal provision; it is ‘a rejection of the idea that there is no alternative to the commodification of essential services and resources.’

Questions around budget deficits, borrowing and debt have garnered increased attention of late from international human rights mechanisms. A substantial chunk of the Irish state’s resources continue to be directed to interest repayments on the national debt, which includes socialised commercial bank debt. The work done under the mandate of the Independent Expert on the Effects of Foreign Debt on Human Rights, in particular in relation to conceptions of illegitimate debt, provides interesting tools with which to analyse the allocation of available resources to accumulated debt in relation to socio-economic rights obligations. Against the sense of a prevailing ‘dictatorship of no alternatives’, we have seen that it is possible to imagine radical alternatives in this sphere. Argentina recently passed legislation to conduct a public audit of its national debt with a view to assessing whether it is composed of any illegitimate or odious debt. Countries such as Ecuador and Norway have cancelled debt previously on the back of similar investigations. And just last month, the UN General Assembly adopted a resolution on the ‘establishment of a multilateral legal framework for sovereign debt restructuring processes’, aimed at preventing debt crises and financial speculation from undermining socio-economic rights in developing countries in particular. It was adopted by 124 votes in favour to 11 against. Despite our own harrowing debt crisis experience, Ireland voted in the minority with the global financial centres of Britain, US, Germany and Japan. This is telling of where the current government’s loyalties and solidarities lie, and of its attitude to financial creditors and socio-economic rights respectively.

A final point worth noting pertains to the norms of transparency and participation that international human rights standards require of a budgetary process. The Economic Management Council was created in the context of an ‘unprecedented national economic emergency’ that necessitated ‘strong, resolute leadership.’ This so-called “super-cabinet” structure was mandated to meet on a weekly basis to oversee key economic, budgetary and banking matters. Operating as ‘the equivalent of a war cabinet’, it is open to obvious critique as a further concentration of executive power, utterly lacking in democratic accountability and treading on precarious constitutional terrain. It was accepted by establishment commentators, however, as an exceptional, but temporary, necessity. In line with the tradition of the exception becoming the norm, the EMC was quickly championed by Dan O’Brien as ‘so good it should be made permanent.’ And despite the recent emergence of triumphalist narratives that the emergency has been overcome and the age of austerity is now behind us, there are no signs of the economic ‘war cabinet’ being dismantled. The other main site of decision-making power when it comes to the budget, the Department of Finance, formally accepts pre-budget submissions, but has shown little interest in meaningful external consultation. So while Irish civil society has developed a strong sense of engagement around budget policy, the impact of any alternative social vision presented remains marginal. This year, Social Justice Ireland presented analysis in its pre-budget submissions which examined six different options of income tax changes being contemplated by the government. The study concluded that ‘the most unfair option would be to decrease the 41% tax rate’. Yet this was the very course taken by the Minister for Finance, and one which he has defended as ‘very fair’

Socio-Economic Rights & Budget Analysis: Some Notes on Available Resources, ‘Progressivity’ and Non-Retrogression

Call for Papers: Human Rights, Transitional Justice and Peace Building

University of UlsterKristian Lanslett is a lecturer in criminology in University of Ulster.

The Transitional Justice Institute (University of Ulster), the Centre for Post-Conflict Justice (Trinity College Dublin), and the Institute for Research in the Social Sciences (University of Ulster) invite proposals for a one- day postgraduate student research seminar to be held on Friday 7 November 2014.

This year’s event, on human rights, transitional justice and peace building, will encourage interdisciplinary exchange and networking around challenging questions which arise for societies emerging from conflict or dealing with the legacy of human rights abuses. Papers are invited from current PhD students, from any discipline, whose work relates strongly to the theme.

Researchers wishing to be considered should submit an abstract of no more than 300 words, with their name, institution, discipline, year of study, and a 200 word biography by 31 August 2014, to Gwawr McGirr, email  mcgirr-g1@email.ulster.ac.uk . Places are necessarily limited, so unfortunately not every paper may be able to be accepted. We anticipate that final acceptances will be notified by the end of September. Non- presenting participants will then be welcome to register to attend, subject only to limitations of space.

About the research day: This conference is being run by and for postgraduate students from universities across Ireland, in conjunction with the Transitional Justice Institute (University of Ulster), the Centre for Post-Conflict Justice (Trinity College Dublin), and the Institute for Research in the Social Sciences (University of Ulster).

Accepted papers will be organised into thematic panels, with short (max. 12 minute) summary paper presentations followed by expert feedback from an established academic in the field, then general Q&A. While there is no registration fee, and lunch will be provided on the day, we regret that we are unable to cover travel and accommodation costs.

This event takes place during the Belfast version of the ESRC Festival of Social Sciences, 1-8 November, and so there will also be other events of interest happening across the city

About TJI: The Transitional Justice Institute, attached to the University of Ulster School of Law, studies the role of law and legal institutions in moves from conflict to peace. See www.transitionaljustice.ulster.ac.uk.

About CPCJ: The Centre for Post-Conflict Justice at Trinity College Dublin explores how societies come to terms with episodes of extreme violence in war, civil war and prolonged civil and political unrest. See www.tcd.ie/cpcj.

About IRiSS: The Institute for Research in Social Sciences at the University of Ulster works on a broad range of social and public policy matters. See  http://www.socsci.ulster.ac.uk/irss/index.html.

Call for Papers: Human Rights, Transitional Justice and Peace Building

Human Rights and Transnational corporations: A Step Forward?

UN imageWe are delighted to welcome this guest post from Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate  at Durham Law School. She is currently researching on history and theory of public international law. You can contact her here or follow her on Twitter @ntinatzouvala  On the 25th of June the first round of the international campaign to create a legally binding framework for the protection of human rights by transnational and other corporations was concluded. The draft resolution tabled by Ecuador in the 26th Session of the UN Human Rights Council was adopted, since 20 states voted in favour, 14 against and 13 abstained. According to Resolution A/HRC/26/L.22/Rev.1 an open-ended working group needs to be established, with a mandate to prepare a legally binding instrument to regulate corporate responsibility regarding human rights violations. In this short blog post I will attempt to provide some context, in order to situate this advancement within the broader legal and political debate regarding both human rights and corporate power. Further, some attention will be given to the internal divisions of the HRC on the issue and finally, I will try to establish why this Resolution, despite certain problematic aspects, constitutes a significant and welcome development.

To begin with, this resolution came as the interim conclusion of a wide-spread campaign co-ordinated by social movements, NGOs and certain governments of the Global South, such as Ecuador , that have started to question the neo-liberal political and economic orthodoxy and, importantly turn to international law to promote these aspirations.  Thus, the Peoples’ Forum on Human Rights and Business issued a manifesto supported by more than 600 socially active groups that called for an international treaty which amongst others:

“Requires States Parties to monitor and regulate the operations of business enterprises under their jurisdiction, including when acting outside their national territory”

In my view there are three factors that enabled the movement to gain some momentum. First, as John Morrison has pointed out extra-territoriality constitutes a central issue when it comes to the regulation of transnational companies. Therefore, the outcome of the Kiobel case was a wake-up call for those insisting that already existing domestic law can be utilised to address grave human rights violations, like those committed in Ogoniland with the co-operation between Shell and Nigeria. Given that states seem reluctant to legislate in this direction an international treaty could push towards such legislative action. Secondly, the current regulatory framework seems to be in crisis, and quite deservedly so. The 2011 UN Guiding Principles on Business and Human Rights were non-binding and largely based on the idea of self-regulation. Admittedly, soft law and self-regulation have been the dominant legal paradigm both domestically and internationally in the regulation of business conduct during the last three decades. To bring but an example the Basel Committee was established in theUS  to ‘self-govern’ the financial sector through a hybrid mechanism of governance largely based on the premise that business can be better regulated if left alone under a flexible, non-enforceable set of guidelines. The disastrous consequences of this approach became evident with the break of the financial crisis and the inability of the Basel Committee not only to address it, but even to predict it. Hence, there has been some scepticism concerning the efficiency of soft law and self-regulation and the field of human rights was prone of accommodating this aspiring shift. Thirdly, and here come the bad news, the pressure to adopt such an instrument is concomitant of the ever-increasing power of transnational and other corporations and the gradual erosion of other legal means to control them. For instance, the proliferation of investment treaties and the inclusion of arbitration clauses has arguably been detrimental to states’ capacity to regulate the economy and society’s attempts to challenge corporate power in relation to labour rights, the protection of the environment, health concerns and redistributive goals[1]. Within this inimical international legal environment, human rights appear to be one of the last fora left to challenge the tide.

What is also notable is the polarisation within the HRC steered by Ecuador’s initiative. The voting patterns reveal a clear division between the Global North and the Global South with the former voting en bloc against the resolution. It might be of interest for the readers, that Ireland also voted against the motion arguing that the International Law Commission is a forum better situated to address the legal challenges of the issue at hand. This polarisation is worth taking a note of. First, given that the states that voted against the resolution are capital -exporting states, where most of the transnational companies in question are registered, their hostility or reluctance regarding the initiative is a bad omen for its future. Indeed, even if the treaty is drafted successfully lack of ratification by these states would be fatal to its efficiency. Secondly, what is revealed is the intention of certain states to move on with initiatives even when consensus or wide-spread agreement is not secured. This was lamented by the US delegation, but it might be encouraging to the degree that it might indicate the emergence of an alternative perspective of human rights.

This takes me to my final point which concerns the potentially positive implications of the Resolution. It is undeniable that we need not to get too optimistic prematurely, since both the final content and the efficiency of the potential treaty are unknown and indeed, they are going to be the subject of intense political confrontation. In any case, it is significant that the UN acknowledges that corporate power is something that needs to be addressed with a legally binding instrument. Besides the immense or moderate practical effects that this might have in the lives of deprived individuals and communities across the globe, this initiative might also demonstrate significant ideological impact. In a nutshell, the idea that corporations are people , that is vulnerable entities that need to be protected from an evil, arbitrary state and therefore must enjoy rights conceptually comparable to those of the individual, has deeply eroded international law and international legal thought. (See here for an argument in support of the arbitration clause in TTIP entirely based on an analogy between investment and human rights law)  Hence, any legal motion that recognises the fact that corporations, usually with the active collaboration of states, be it host or exporting states, are responsible for the violation of people’s rights is welcome. Finally, the drafting of the treaty could become an excellent forum for documenting in a systematic way the atrocities that are being committed around the globe.

Only future can tell what will be the fate of the newly passed resolution. Frederic Megret once asked if international law can be a law of resistance. My point here is that if international law is to be of some relevance in a time of rising tensions and inequalities both domestically and internationally, being a law of resistance is the only way forward.

[1] See: David Schneiderman “How to govern differently: neo-liberalism, new constitutionalism and international investment law” in Stephen Gill and A. Claire Culter, New Constitutionalism and World Order (CUP,2014)

 

Human Rights and Transnational corporations: A Step Forward?

Rule of Law v National Security: The Big Fight Live

Hanging Boxing GlovesIn his understated way, Lord Justice Gross announced the latest round of the prize-fight that has defined so much of the debate on the role of the legal system in a liberal democracy since the 9/11 attacks (at [4]): “From time to time, tensions between the principle of open justice and the needs of national security will be inevitable.” This morning’s decision in Guardian Media v AB CD once again saw national security, long-running champion interest in the UK legal systems, take to the ring being heralded (at [4]) as “a national interest of the first importance”. Continue reading “Rule of Law v National Security: The Big Fight Live”

Rule of Law v National Security: The Big Fight Live

Obesity and Human Rights in Ireland

CopenhagenKatharina Ó Cathaoir is a graduate of UCC (BCL Law and Irish, 2011) and TCD (LLM International and Comparative Law, 2012). Katharina is currently undertaking a PhD on childhood obesity from a human rights perspective at the University of Copenhagen.

“There is no nice, non-stigmatising way to wish that fat people did not eat [n]or exist”[1]

Obesity is a compelling wake up call for Ireland to act on its obligations to children in respect of their rights to health, food and protection from exploitation. At the same time, any State action must be informed by the principles of non-discrimination and equality, thereby avoiding stigmatisation.

It is estimated that over 20% of children in Ireland are overweight or have obesity, marking at least a doubling in the last 20 years.[2] The effects of childhood obesity are well documented and may include type 2 diabetes, hypertension and cardiovascular disease. Equally, children with obesity report higher instances of depression and social isolation.[3] Thus, the growing concern with regard to childhood obesity at State, European and international levels should come as no surprise.

Under the International Covenant on Economic, Social and Cultural Rights, Ireland has undertaken legal obligations in regard to the right to health (Article 12) and the right to food (Article 11). The former has been interpreted as including not just access to health care but also the right to the underlying determinants of health, one of which being food. The latter is regarded as access to nutritious and adequate food. Although for the present economic, social and cultural rights are not justiciable in Ireland, the State remains under a duty to ensure the “progressive realisation” of these rights through policies and laws (Article 2). These obligations are also expressed under the Convention on the Rights of the Child (Articles 24 & 27), as well as the duty to protect children from exploitation (Article 36). The Committee on the Rights of the Child has already called on States Parties to take action with regard to obesity including exposure to fast food and marketing.[4] Continue reading “Obesity and Human Rights in Ireland”

Obesity and Human Rights in Ireland

UL Seminar: The Ethics of 'Home': Direct Provision, Homelessness and Ireland's Housing Policies

The Ethics of Home Direct Provision, Homelessness and Ireland's Housing PoliciesThe President of Ireland has asked the seven Universities, along with DIT, to further the discourse on ethics through hosting events across the campuses in the Academic Year 2013/2014. It is expected that these events will culminate in an event hosted at Áras an Uachtaráin towards the end of 2014. The aim is to enhance awareness of ethical responsibility in the professions and in the public domain, and to engage young people in the debate on ethical standards.  The key objective is to enhance community engagement with ethics issues at the local level and nationally.

In rising to this challenge, on Tuesday, 24 June 2014, Dr Ronni Greenwood is organising and chairing an event titled: The Ethics of ‘Home’: Direct Provision, Homelessness and Ireland’s Housing Policies. This seminar will take place in The Exhibition Area, Limerick City Hall from 12.30pm to 2.30pm. Registration is required, and those interested in attending should email Niamh O’Sullivan on niamh.Osullivan@ul.ie or by calling 061-234607. The full programme is as follows:

  • Dr Eoin O’Sullivan (TCD): “Institutions and the Production of Homelessness: Ethics, Service Provision and the Representation of Homelessness”
  • Dr Liam Thornton (UCD): “The Rights of Others: Asylum Seekers and Direct Provision in Ireland”
  • Dr Daithi Downey (DRHE): Reframing Housing Values Towards an Ethical Housing Policy”

 

UL Seminar: The Ethics of 'Home': Direct Provision, Homelessness and Ireland's Housing Policies

Direct Provision : Human Dignity, Personal Autonomy and ECHR

Direct Provision IrelandHuman Rights in Ireland welcomes this guest post from John O’Shea. John holds a law degree, BCL from NUIG, an MA in Public Advocacy and an LLM in International Human Rights law from the Irish Centre for Human Rights. 

Human Dignity.

Human dignity is the rock on which the superstructure of human rights law is built, and references to human dignity can be found throughout the major international human rights treaties. According to Kantian Philosophy, human dignity rests on autonomy which is inherent in each individual. The link between human dignity and autonomy is important when examining the plight of those affected by the system of direct provision which denies personal autonomy for extended periods (average of 4 years extended to 12 and 14 years in some cases) and has been described as an assault on human dignity and an assault on the Rule of law. In addition to the effects of direct provision on the dignity of the individual (asylum seeker) on one level one should also consider the effect direct provision has on the dignity of society itself in a broader sense. The Preamble of the European Convention of Human Rights affirms a commitment to the principles established in the Universal Declaration and therefore dignity is understood to be a central value inherent in the Convention.

 

Personal Autonomy

The term ‘personal autonomy’ may Continue reading “Direct Provision : Human Dignity, Personal Autonomy and ECHR”

Direct Provision : Human Dignity, Personal Autonomy and ECHR