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?

Elections to the United Nations Human Rights Council and the ‘democratic deficit’

We are delighted to welcome this post from Ruth Houghton on the recent elections to the UN Human Rights Council. Ruth is a Graduate Teaching Assistant and Ph.D. candidate at Durham Law School. There has been a significant response to last week’s membership elections for the United Nations Human Rights Council. Some commentators have criticised the human rights records of newly elected states, such as Saudi Arabia, China and Russia. Others have criticised the election procedure. The uncontested elections for seats in some regional groups coupled with the ‘undemocratic’ nature of some successful states are evidence of a ‘democratic deficit’ at the Human Rights Council. In fact, reports in the BBC that some groups were calling for the censoring of some states highlight a broader discourse on the relationship between democracy and the Human Rights Council. Being ‘undemocratic’ weakens the legitimacy of the Council, as the people it was mandated to protect do not play a part in decision-making. The credibility of the Council is undermined if states can challenge the authenticity of the elections.

The Human Rights Council has 47 rotating Member States that are drawn from regional groups. Seats are allocated according to equitable geographical distribution which means that the African Group hold 13 seats, East European countries have 6 seats, GRULAC (Latin American and Caribbean Group) 8 seats, Asia 13 seats, and WEOG (Western European and Others Group)  have 7 seats. Every year one third of the seats are open for election. This year, Africa and Asia had four seats each, and East Europe, GRULAC and WEOG each had two seats.

In the run-up to the creation of the Council, there was a debate over membership criteria. Whilst some called for strong exclusionary criteria that would prevent states that abuse human rights from becoming members, others advocated the universal nature of the Council. This controversy culminated in the adoption of ‘soft criteria’ only. States have to take into account the candidate’s ‘contribution to protection and promotion of human rights’ as well as their ‘voluntary pledges and commitments’. Whilst the removal of states for ‘gross and systematic violations’ is provided for in paragraph 8 of GA Resolution 60/251, Libya is the first state to have its Council membership suspended. This shows the strong reliance on the political will of states; a somewhat unreliable protector of human rights.

These concerns about membership criteria also touched on the democratic nature of states. The United States in 2004 called for the Council to include only “real democracies”. The criticisms following these elections and the report undertaken by Freedom House, an independent watchdog organisation, that assessed the democratic credentials of candidate states in 2012, highlights the preoccupation with the democratic nature of states at the Council. Being a democratic state, like having a good human rights record, is a criterion that would exclude certain states. This could, in turn, have undermined the ability of the Council to have influence over those states. Although this criterion was rejected in favour of having a universal forum, the requirement of democracy at the domestic level is worth exploring.

Democratic Member States ensure that there is at least some link between the domestic constituents and the international body because the states act as intermediaries. This link can be weakened by certain tactics that are used by states at the Council. The recent criticism of the elected Member States also focuses on the failure of these states to co-operate with the UN. Julie de Rivero, Geneva Advocacy Director at Human Rights Watch, is reported in the Guardian as stating that China is a ‘negative player’ at the Council. Rejecting initiatives to hold human rights abusers to account is one way of playing badly. States also participate in bloc voting and waste valuable time during sessions by making repeat and irrelevant statements. Democratic or not, states can align themselves with strong political blocs and adopt tactics to shield one another from the scrutiny of the Council. This weakens the link between the demos and the international body.

It is not enough then to ask for states to be democratic. Alfred de Zayas, the Independent Expert on the Promotion of a Democratic and Equitable International Order has highlighted that democracy should be seen at two levels; both the domestic and the international. The tactics used by states at the Council suggest that states do not always behave civilly and cooperate, even if they are democratic. One way to democratise the Council would be to have genuine elections for membership.

Human Rights Watch suggests that non-competitive elections weaken the Council because states with poor human rights records are permitted as members. There is an additional reason why these elections undermine the credibility of the Council; they fall short of domestic notions of democracy and party politics where two or more parties stand for election. Like the Commission before it, the Council is plagued by ‘closed slates’ during elections. A ‘closed slate’ or the choice of only one candidate per seat in a regional group, allows for human rights abusers to be elected, and without genuine elections the undemocratic Council loses legitimacy.  This year the seats for the African and GRULAC groups were contested, with South Sudan and Uruguay losing the elections. The other groups ran uncontested elections. It was reported that Jordan pulled out of the contest for a seat in the Asian group. This tactical move highlights the politicisation at the Council. It is this politicisation that can obscure any link between the international body and the demos as well as challenging the democratic nature and credibility of the Council.

Genuine elections, coupled with more interventionist supervision by the Council President, would go some way to ‘democratising’ practices at the Council. Achieving a strong link between domestic constituents and decision-making at the Council would require Member States to be democratic. The internal governance of a state cannot cure a ‘democratic deficit’ that this is maintained by the ‘undemocratic’ elections and practices at the Council.

Elections to the United Nations Human Rights Council and the ‘democratic deficit’

Syria and the UN Human Rights Council

UNHuman Rights in Ireland is pleased to welcome this guest post from Luke Butterly, who is currently undertaking his LLM in Human Rights Law at Queen’s University Belfast (QUB). Luke recently attended the 23rd session of the UN Human Rights Council in Geneva. 

During the recent session  of the Geneva-based UN Human Rights Council (HRC), an urgent resolution on the deteriorating human rights situation in Syria, with special reference to Al-Qusayr, was proposed, debated, voted on and passed. The resolution “strongly condemns all violations of international humanitarian law and the widespread and systematic gross violations of human rights and fundamental freedoms by the Syrian authorities and the Government-affiliated militias”. While such resolutions have no binding power, their purpose is to bring the significant moral force of the HRC, the UN and the international community to bear on the actors involved in human rights violations.

Problematic beginnings

Yet this resolution is problematic, and has some serious implications. This resolution is only ostensibly concerned with the protection of the human rights of all the Syrian people. Rather, it is a politicized attempt to condemn the Syrian regime and its allies, while simultaneously ignoring the very serious and wanton Continue reading “Syria and the UN Human Rights Council”

Syria and the UN Human Rights Council

Ireland's interaction with human rights regimes in 2012

Human Rights in Ireland welcomes this post from our regular author, Aoife O’Donoghue, as part of its contribution to Human Rights Week 2012.

This post examines Ireland’s role within the various international human rights regimes over the past 12 months, particularly Ireland’s chair of the OSCE and the outcome of Universal Periodic Review.

First, Ireland’s Chairpersonship of the OSCE, beginning in January and handing over to Ukraine in 2013, culminated in its Ministerial Conference last week. At the Conference, Tániste Eamon Gilmore called particularly for, the protection of human rights defenders and the reinvigoration of the OSCE’s conflict settlement mandate. The main outcome of the Conference was the Helsinki +40 roadmap and further supporting the Transdniestrian settlement process, both of which formed part of the OSCE’s attempts to reinvigorate the organisation. As was discussed in a post on the OSCE in January, the organisation had suffered some discredit for Kazakhstan’s chair of the organisation and its particularly poor human rights record and with Ukraine’s chair in 2013, it is potentially also heading for similar censure. While Ireland had attempted to put human rights at the centre of the OSCE, combined with a focus on human security, the failure to reach agreement on rights concerns in Dublin remains disappointing. Nonetheless, the renewed commitments to settlement of the Transdniestrain conflict remains a positive step forward which Ireland can use as an indicator of some success. Continue reading “Ireland's interaction with human rights regimes in 2012”

Ireland's interaction with human rights regimes in 2012

The G8 comes to Ireland

The UK has announced that, next June, the G8 Summit will be held in Enniskillen, County Fermanagh. This will probably be the most powerful international meeting ever to be held on the island. Coming during a period that sees Ireland’s Presidency of the OSCE, Ireland holding the Presidency of the EU Council, the G8 Foreign Ministers meeting in April in London and the election of Ireland to the UN Human Rights Council during 2013-2015, it seems that the next 12-18 months appears to hold many opportunities for Ireland to not only present itself globally but also to positively influence some of the policy decisions made at the world’s most important regional and global organisations. Of these opportunities the G8 Summit probably offers some of the more interesting possibilities for Ireland to influence global policy at a body in which it, and most other states, rarely get seats. The last time Ireland held the Presidency of the Council of Europe, and thus attended a G8, was in 2004 when most commentary seemed to be based around Bertie Ahern’s choice of yellow trouser than anything more substantial.

The G8 remains one of the more nebulous quasi-organisations in the world. Its influence on organisations such as the IMF, World Bank or WTO can be profound. Continue reading “The G8 comes to Ireland”

The G8 comes to Ireland

Families Against Forced Divorce

Families Against Forced Divorce: To protect the privacy of our children and our spouses, we feel we are unable to publicly put our names to this article.

In a country where divorce was illegal twenty years ago, is it about to be made compulsory for some?  Imagine being told that the State will not legally recognise your identity unless you first divorce your husband or wife.  This is not some nightmare scenario from the Nazi 1930s.  It’s all too real and about to be inflicted on transgender families in Ireland today.

Ireland remains the last of the 27 EU Nations which still does not allow Gender Recognition for transgender people. This lack of legal recognition of our true gender has many important implications for our lives.  First and foremost is the lack of being respected and protected in Irish law in our true gender which impacts on every corner of our lives.

Without such protection, difficulties can arise in our jobs, pensions, insurance, foreign travel and even our ability to engage in most sporting activities to the point that we simply cannot participate at all.  For example, to play ladies golf you must be recognised by the State as a woman.  Or, what do you think your chances of getting a job would be if you are “outed” as a transgender person in the process?  Only with full Gender Recognition can we hope to move on with our lives.

Marriages where one spouse is transgender are lucky to survive.  Let us look at one example: Sandra and Michelle.  Sandra suffered from Gender Identity Disorder and always felt female despite the fact that she had a functioning male body.

At the time Sandra married Michelle in 1990, she was endeavouring to be the “man” that society expected her to be.  Their marriage is fully valid Continue reading “Families Against Forced Divorce”

Families Against Forced Divorce

Human Rights Olympics? The UN Universal Periodic Review UK Report

Every four years the world watches, expecting to be wowed by national performances. This summer is no exception, with Great Britain and Northern Ireland facing a weight of expectation to improve upon its 2008 performance (and largely delivering). Unlike the Olympic and Paralympic Games, however, the UN Universal Periodic Review of human rights in the United Kingdom failed to garner many headlines when the draft report was published in June. With London basking in the glow of the Olympic and Paralympic Games (pictured left), it is worth reconsidering the UK’s performance (not least because the UK delegation was keen to point to London’s hosting of the Games, apparently as evidence of the UK’s human rights credentials, in its response to the review (See Draft Report, UPR p.15)). Continue reading “Human Rights Olympics? The UN Universal Periodic Review UK Report”

Human Rights Olympics? The UN Universal Periodic Review UK Report