University of Essex

28 March 2016

Essex Autonomy Project at the Committee on the Rights of Persons with Disabilities

Filed under: Human Rights — Daragh Murray @ 8.05 am

By Risa Tominaga

In response to the work of the UN Committee on the Rights of Persons with Disabilities (the Committee), a worldwide reform processes of mental health and mental capacity legislation has begun. In advance of the United Kingdom’s review by the Committee in 2017, the Essex Autonomy Project (EAP) will hold a side event at the 15th session of the Committee on 31 March, 2016, 9am at Palais Wilson. The goal of the side event is twofold: to update the Committee regarding the situation in the UK, and to contribute to the operationalization of human rights protections at the UN level in the area of mental incapacity. In an interview with Professor Wayne Martin, Director of the EAP, we discussed the project’s goals in relation to the UK’s compliance with the Convention on the Rights of Persons with Disabilities (CRPD) and the Committee’s future development.

At the UK’s review in 2017 the Committee will assess progress taken by the UK towards compliance with the Convention. The UK will be required to provide information in relation to the UK’s three devolved jurisdictions: the Mental Capacity Act (MCA) of England and Wales, the Adults with Incapacity Act (AWI) of Scotland, and the recently approved Mental Capacity Bill (MCB) of Northern Ireland. These pieces of legislation all share certain commonalities, but how they are applied in practice may differ from jurisdiction to jurisdiction. Professor Martin highlights this difference as “a test bed of democracy” an opportunity “to look at what’s most effective in advancing human rights, particularly in the context of care.” In other words, the UK has the opportunity to learn lessons from its devolved jurisdictions about what works best in practice. Prof. Martin notes that the EAP’s aim is to take lessons learned from the UK and to “feed them into the broader process of deliberation at the UN level about how to actually realize the goals of the CRPD.”

 In this light, the Essex Autonomy Project, in cooperation with Edinburgh Napier University, leading lawyers, public figures from around the UK, and the Human Rights Commission in Northern Ireland, is studying different elements of the legislation, in order to identify the most appropriate path towards CRPD compliance. Having gathered information from disabled persons organizations (DPOs) and public consultations they are now developing a set of recommendations regarding legislative change. For example, Mr. Colin Caughey, a policy leader at the Northern Ireland Human Rights Commission, highlighted that, at the upcoming side event, he will provide the Committee with information about law and practice in Northern Ireland, framing this in the context of international best practice, with the aim of encouraging the Committee to make recommendations that can be used to press for positive change.

Professor Martin believes that the project has the potential to contribute to the Committee’s development of guidelines for the operationalization of human rights protections in accordance with CRPD. However, he is also waiting to see how receptive the Committee is to their input, especially regarding one point on which they disagree with the Committee. He explains the disagreement as follows: “The Committee holds that the exercise of legal capacity should not be contingent on the ability to make decisions (decision-making capacity)”, with the result that “the Convention requires abolition of any competency requirement on the exercise of legal capacity”. The EAP holds a different position. They argue that while everyone absolutely has ‘passive legal capacity’, which refers to the recognition of the person before law and their rights, they think that there are some persons who lack ‘active legal capacity’, which is the ability to actually make changes with legal effect (e.g. to sign a contract, to marry, etc). More technically put, he says, “the Committee thinks that ‘substitute decision-making’ needs to be abolished, and replaced by ‘supported decision-making’, whereas we believe that a human rights regime needs to have a combination of both.” Substitute decision-making involves a third person making a decision on the concerned person’s behalf where he/she is unable to make a decision about a particular matter. This approach is currently adopted in many jurisdictions around the world. By contrast, the third person’s role in supported decision-making is not to make decisions for the concerned person but to identify what it is that the person wants in order to give effect to what Committee refers to as the ‘will and preference of the person’. In short, the Committee’s position is that decisions should always defer to the will and preferences of the person even if he/she lacks decision-making capacity.

The EAP takes a position that abolishing all substitute decision-making would have adverse consequences for human rights protection and so an appropriate balance needs to be established between protection and respect for autonomy. The EAP accordingly advocates the ‘rebuttable presumption approach’. The idea is that decision-making for a person with incapacity should start off from the presumption that we are going to do what the person wants to be done, but when there are exceptional circumstances where the consequences of doing so is sufficiently grave, the right thing may be to act contrary to their will or preference. In these cases, and with appropriate safeguards in place, the EAP believes that substitute decision-making is appropriate — and indeed may be required in order to protect fundamental rights and freedoms.

Although he holds a contradicting view on this particular point, Professor Martin stresses his respect for the UN human rights community and for the Committee’s work. It will be interesting to see how the input of the EAP and the development of the UK’s laws might eventually spark a conversation at the UN and worldwide level about how to actually put the promises of the CRPD into effect while striking the right balance between protection and respect for autonomy where decision-making capacity is impaired.

Disclaimer: The views expressed herein are the author(s) alone.

 



10 November 2015

A (Very Brief) Human Rights Assessment of the Transpacific Partnership

Filed under: Human Rights — admin @ 3.29 pm

 

By Dr. Tara Van Ho. You can follow Tara on twitter: @TaraVanHo

On 5 November, States Parties finally released the actual text of the Transpacific Partnership (the TPP), a “next-generation” trade and investment agreement that will bind together 12 countries. The agreement primarily lowers trade barriers, but it also regulates the relationship between the state and foreign businesses from the other states parties.

The TPP represents the largest trade and investment partnership to date, with about 40% of the world’s economy covered. It is also largely considered a precursor to the Transatlantic Trade and Investment Partnership (TTIP), the final details of which are still being negotiated between the US and the EU.

Negotiations for the TPP were largely conducted in secret. Until last week, it was classified in the US, and only members of Congress and certain member of their staff could access the text in a secure room. They couldn’t make copies, or even handwritten notes, let alone share details with the public.

As a result, this is the first opportunity to review the final version of the treaty. A comprehensive assessment is too long for a blog post, but I’d like to highlight some of the human rights concerns raised by the investment chapter of the TPP.

I’ll be discussing related issues at this year’s UN Forum on Business & Human Rights (see our side event flier).

The relevant legal standards for reviewing the TPP are stated in the UN Guiding Principles on business and human rights (the UNGPs).

The UNGPs provide a conservative means of assessing the treaty’s compliance with states’ human rights obligations. I say conservative because, as the commentators who have assessed the UNGPs since their creation agree, the document reflects a basic, accepted approach to international human rights law as the special rapporteur avoided taking positions on many of the harder or more controversial issues, such as extraterritorial obligations.

The UNGPs reiterate that states have an obligation to regulate corporate activity for the protection of human rights, while businesses must respect human rights (meaning refrain from interfering with human rights).

Yet, common investment treaty provisions have been interpreted in a way that constrains sates’ regulatory power over corporations, requiring states to keep a “stable” regulatory regime from the time an investment enters, sometimes even in the midst of significant crises, such as Argentina’s financial collapse. To the extent that investment treaties prohibit or restrain states from responding in an ongoing manner to human rights situations, or from regulating businesses’ human rights impact, the treaties undermine or threaten state compliance with human rights obligations.

In assessing the TPP, it is therefore necessary to determine whether the TPP includes language that ensures states can meet their human rights obligations.

Why Specific Discussion of Human Rights Matters in an Investment Treaty or Chapter

Investment disputes are typically decided by ad hoc arbitration tribunals. Often, the investor appoints, solely or jointly, 1-2 of the arbitrators on a 3-person panel, and nationals of the state at issue are precluded from serving as an arbitrator. These tribunals have very little oversight, and their decisions generally cannot be appealed either to a domestic court or to an international one.

These panels frequently reach decisions that affect human rights or raise competing claims, and yet they have at times dismissed the relevance of international human rights law to their work (see para 262 here).

If states are not explicit in stating that their investment law provision are to be read in accordance with their human rights obligations, it will be left to the tribunals to fill in that gap however they see fit. Investment law tribunals do not operate on the basis of precedence. This system, coupled with ad hoc appointments, has led to conflicting decisions, even on cases with, quite literally, the same facts at play.

So, unless states are intentionally ceding their authority to balance investment & human rights interests to three foreign arbitrators – something they can’t do under international law – they need to be explicit about human rights in their investment law chapters.

So how does the TPP fair in regards to human rights?

In one word: poorly.  The term “human rights” does not appear once in the entire investment chapter. Instead, the closest reference is to “corporate social responsibility.” I’ve written before about why “business and human rights” and “corporate social responsibility” are not coterminous, so I won’t repeat that here.

Instead, I want to focus on the language in Article 9.16:

The Parties reaffirm the importance of each Party encouraging enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate into their internal policies those internationally recognized standards, guidelines and principles of corporate social responsibility that have been endorsed or are supported by that Party.

So what does that provide for human rights?  Literally nothing.

This provision only recognizes the right of states to encourage businesses to adopt voluntary standards regarding corporate social responsibility. The state can also ensure those voluntary standards are tied to international standards the state has already agreed to.

This is not a reaffirmation of states’ roles in regulating businesses; instead, it is a subversion of that role. Under this provision, the state is not entitled to enact mandatory regulations about corporations’ human rights impacts. The best it can expect is a right to ask corporations to voluntarily agree to international standards.

It’s a weak provision, made even weaker by comparison to the immediately preceding article, which address the “environment, health and other regulatory objectives:”

“Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental, health or other regulatory objectives.”

This makes it clear that for the purpose of the environment and health, states can adopt mandatory obligations for corporations. Now, some human rights will be protected by environmental and health regulations, but obviously not all human right are.

The difference between the language in the two paragraphs is stark, and because “human rights” appears in neither, but the environmental and health language also recognizes “other regulatory objectives.” This leaves two potential interpretations regarding states’ right to regulate for the purpose of human rights.

The Wording of the TPP Means the “Other Regulatory Objectives” Clause May Not Be Interpreted to Cover Human Rights

Regardless of the intent of the State Parties – something we cannot know because of the secretive nature of the negotiations – arbitration tribunals will be the ones deciding which provision addresses human rights.

On the one hand, they could determine that the plain meaning of “other regulatory objectives” requires a broad reading and necessarily entails human rights concerns.

On the other hand, arbitrators could note that human rights are not included in the enumerated list and have traditionally not been an area where tribunals have recognized flexible regulatory authority. As a result, they could may conclude that the inclusion of the CSR provision was intended to address  human rights concerns. This line of reasoning would suggest that by providing only for the voluntary promotion of corporate social responsibility, the treaty is not intended to treat human rights in the same manner it is intended to treat the environment and health.

An arbitration panel reticent to bring human rights into investment proceedings, or which feels uncomfortable with the legal considerations at play, could easily dismiss legitimate human rights regulations by employing this reasoning. Since it will not be subject to oversight or review, the rulings could both stand and create non-binding precedent for future arbitrators.

Which of these strands takes hold may depend on who is on the first tribunal to hear the issue. This does not sit well with effective human rights protections.

Human Rights are not “political” and deserve their own, distinct legal protection in the TPP

The latter interpretation – in which ‘human rights’ are treated as part of CSR and not as an ‘other regulatory concern’  – would drawn upon a significant but common mistake. CSR has never been only about human rights but often includes environment, health, as well as issues like education and community service.

Yet, human rights have often been treated different from the environment and health in areas of economic law. The notion that human rights are “political” but the environment and health are not permeates international economic law, policies, and discourse.

It’s true that human rights are often used as a tool for shaming other states, but simply because their employment has political consequences does not mean that their content is political.

Human right law stems from legally binding instruments that states voluntarily consent to be bound by. They are no more “political” than treaties on the environment, health, or investment protections.

Simple changes could have ensured compliance with States’ human rights obligations

Perhaps the most disappointing point of the TPP’s treatment of human rights is that a few small changes could have ensured the treaty embedded human rights.

All the parties to the TTP may not be parties to the same human rights treaties, but they don’t need to be to formulate appropriate human rights language for an investment chapter.

For starters, explicit inclusion of “human rights” before “other regulatory objectives” would have alleviated any doubt. Alternatively, the parties could have affirmed their obligation to regulate in the interest of human rights.

How the language is employed can vary based on the needs and concerns of the negotiating states, but the obligation to affirm the state’s role in human rights protections as part of an investment treaty is no longer be a voluntary principle. Until the TPP and other investment treaties do this, we have not truly reached the “next generation” of investment treaties.



6 November 2015

Essex Business and Human Rights Project in Geneva

Filed under: Human Rights — Daragh Murray @ 5.11 pm

 

The Essex Business and Human Rights Project is participating at the United Nations Forum on Business and Human Rights, which will be held in Geneva on 16-18 November.

The EBHR is participating in a number of side events. Full details are available in the following event posters: Enhanced due diligence poster Investment and Human Rights poster

 



7 September 2015

Why Europe does not have a refugee crisis

Filed under: Human Rights — admin @ 7.05 am

By Geoff Gilbert, Professor of Law, School of Law & Human Rights Centre, University of Essex.

Putting to one side the question of just how many people arriving in Europe would constitute a crisis given the resources that are available in this region, especially after having regard to the numbers that cross into and remain in states in Africa and south-east Asia, this article is focusing on ‘Europe’, ‘refugees’ and the search for solutions. To start with, the alleged crisis is one that is more about the European Union member states than about Europe as a whole: the twenty-eight member states of the EU are arguing about whether an out-dated allocation procedure for deciding where refugees making it to a member state should have their status determined and then where they shall receive protection. In 1987, when the Soviet Union and Eastern Bloc were still in existence, when West Germany and Austria constituted part of the eastern border of the EU, it was not a major cause of concern to establish that the state where the asylum seeker entered the EU should be the one to make the determination on refugee status. Today, with greater, but still manageable, numbers for the EU as a whole entering from across the Mediterranean from all parts of Africa and with the war in Syria displacing so many into Turkey, Lebanon and Jordan, some of whom then head for Greece or Bulgaria as the point of entry into the EU, that process cannot be sustained. As Germany has recognised, the so-called Dublin system for allocating refugee determination processes as between member states needs to be reconsidered. However, that is an EU problem and one that goes beyond international refugee law as well.

The 1951 Convention Relating to the Status of Refugees does not require persons fleeing to seek refugee status in the first safe country, whatever that might mean, to which they come. Everyone who makes it to the territory of a state party to the 1951 Convention should be able to seek protection there – what had been happening in the 1980s was that individuals would arrive in one EU state and, if their application failed there, they would move to another and start the refugee determination process afresh – the Dublin procedures allowed EU member states to return an applicant for refugee status to the point-of-entry state for their determination which would effectively become an EU-wide decision. It is still the case today, where the issue is more to do with northern EU states trying to ensure that the refugees remain in the southern and eastern member states, despite the fact that since the financial crisis of 2008, these are the generally poorer parts of the EU with fewest resources to devote to handling the numbers who arrive. It is to Germany’s very great credit that it has waived the Dublin procedures as regards Syrian refugees as it prepares for the arrival of 800,000 applicants for status, approximately 40 per cent of all EU applications.

That, though, is only part of the story. Alongside the EU’s Dublin procedures, there is the Council of Europe’s European Convention on Human Rights (ECHR): in this particular context, that means that even though the Dublin procedures allow for return to the point of entry state, that cannot occur if that would mean subjecting the applicant to inhuman or degrading treatment – some of the conditions in detention facilities are so poor that they would amount to a violation of this aspect of Article 3 of the ECHR. In addition, having regard to the broader picture of the population flows from the wars, situations of civil disturbance and gross human rights violations that are taking place in the various countries of origin, and knowing that there are so many vulnerable people trying to reach Europe across the Mediterranean, it is arguable that the positive obligations arising from the ECHR’s right to life and the right to be free from torture, inhuman or degrading treatment require member states to take active steps to search for those who might be in distress on the seas. The picture of the young boy drowned on the front of The Independent newspaper should not have come as a surprise to anyone – the statistics of those dying in hundreds over this summer as they strive for protection not available in their country of nationality or in the countries en route mean that he will not be alone and will not be the last unless the EU’s maritime operation assumes its responsibilities to search for and rescue those making this hazardous crossing. Persons have the right to seek asylum from persecution and it is the height of futility to somehow hope that the rest of Europe will resolve the crisis by asserting that taking more refugees is not a solution – states parties to the 1951 Convention have assumed a responsibility to protect from refoulement all those with a well-founded fear of persecution and, having entered into an EU-wide procedure, that will effectively demand full participation in new EU processes to respond to new crises.

Ultimately, though, long-term resolution will require recognition that people will continue to come until either the crisis in their country of nationality is resolved in a manner that involves all the relevant actors or through local integration or resettlement through some comprehensive plan of action across not just the entire EU, but globally. It is a mark of the self-obsession of the EU member states that the focus has been entirely on the refugees who make it to their borders, failing to recognise the many more refugees in neighbouring states to the conflicts. The causes of conflict are manifold, but unfair distribution of resources often plays a part and it is also a push factor towards the global north. The mass movements of people cannot be resolved by the EU alone, there is a need for a global conference, organised by the UN, drawing on the expertise of not just UNHCR, but also the other UN actors more focused on development within states and between states. The UN has adopted as core to its operations the rule of law, a principle designed to build state capacity so as to meet states’ international obligations, promote the rights of all individuals within states, including the displaced and the stateless, and to enhance co-operation as between all states so that burdens are fairly shared and as between the various UN bodies so that it may act as one. Now more than ever a global response is needed, not just one reflecting the overreaction of twenty-eight states that are still among the wealthiest states on the planet. Those fleeing armed conflict and other human rights violations will not simply stop coming just because politicians try to outdo themselves in empty rhetoric while failing to fulfil international obligations they try and impose on other less well-off states.

Parts of the argument here follow on from a consultancy with UNHCR in 2014 that was undertaken with Mag. Anna Magdalena Rüsch (LLM IHRHL 2011-12)

Disclaimer: The views expressed herein are the author(s) alone.



27 August 2015

The Impact of enhanced corporate transparency on access to remedy for victims of corporate human rights abuses: Some reflections on the decision of the US Court in the Exxon Mobil case

Filed under: Uncategorized — admin @ 4.20 pm

 

By Dr. Anil Yilmaz Vastardis. You can follow Anil on twitter: @anil_yv.

Human rights reporting by companies has become a hot topic in the business and human rights world, particularly with the passage of an EU Directive making it mandatory for certain large companies to report on their human rights impacts as part of their annual reporting. The Directive requires companies to provide a description of their human rights policy, the main human rights risks they face, including those arising from business relationships, how these risks are managed and the due diligence processes they employ to identify, prevent and mitigate adverse impacts. Corporate groups should disclose the relevant information on a group-wide basis. The Directive is yet to be implemented by EU member states, but some large corporate groups, such as Unilever, Nestle and Ericsson, who fall within the scope of the Directive, have taken a pro-active approach to human rights reporting and endorsed the UN Guiding Principles Reporting Framework.

Unilever was the first to actually publish their human rights report using that framework. Unilever’s report was critically analysed in an earlier blog post published here by Dr Tara Van Ho, who rightly highlighted the lack of information in the report on allocation of responsibilities between different corporate entities within the corporate group. If corporate human rights reporting is to have a real, positive impact on the protection of human rights, companies should stop believing that they can fulfil the human rights reporting requirements by reporting on their CSR activities (the distinction between the two was aptly described, again, by Tara in an earlier blog post published here) and start reporting information pertinent to their impact on human rights. Rigorous reporting would not only require companies to take a good look at their human rights impact, but would also empower victims of corporate human rights abuses with knowledge that could assist them in building a case against companies.

Information is power

In the last two decades, numerous claims for remedy have been filed in various European countries, the US and Canada by victims of human rights abuses committed overseas by subsidiaries of companies headquartered and/or listed in those countries. Obstacles to accessing remedies for such cross-border claims were analysed in depth in a 2013 Report co-authored by Professor Gwynne Skinner, Professor Robert McCorquodale, Professor Olivier De Schutter, and Andie Lambe. Structures of corporate groups (i.e. the challenges created by corporate veil) and evidentiary burden are listed among the most significant barriers to the success of these claims. The report explains how the barriers created by the corporate law principles of separate personality and limited liability shield the direct and indirect shareholders from the liabilities of their subsidiary. Courts may disregard these principles (i.e. lift the corporate veil) on limited grounds provided in national laws and hold the shareholder or the parent company liable for actions of its subsidiary. Among reasons for this, courts have repeatedly pronounced that the disregard of limited liability and separate personality is possible where the parent company exercises beyond a certain level of control over the decisions of the subsidiary.

The separate personality, combined with the allocation of the burden of proof on the claimant to show the direct involvement of the parent, and the difficulties in obtaining such evidence (and add the financial difficulties of pursuing litigation abroad to the list), makes it a miracle for claimants to even overcome the jurisdictional hurdles of such a claim.

As a result, a recent US court ruling allowing a case of human rights abuses filed against ExxonMobil by Indonesian citizens to proceed under the Alien Tort Statute (‘ATS’) is being hailed as a victory for the enforcement of human rights law. The case concerns allegations that ExxonMobil aided and abetted the torture, kidnapping, sexual assault and murder of villagers by security forces in the Aceh province, where the company was operating gas fields. The case was first filed in the US in 2001, for alleged abuses that were committed in 2000 and 2001. Having struggled with probably each barrier listed in the 2013 Report over 15 years, the case is finally moving beyond the jurisdictional phase.

Certainly, this decision will be analysed from many different angles by legal scholars in the US and beyond who are experts in transnational human rights litigation. What caught my attention is the ability of the claimants to fulfil the ‘touch and concern’ standard established previously by the US Supreme Court in the Kiobel v Royal Dutch Petroleumbecause they gained access to key information found only in internal company documents.  The Supreme Court’s decision in Kiobel, in the simplest terms, was that the presumption against extraterritoriality of the ATS could only be reversed if the claimants could show that the claim sufficiently touched and concerned the US. Accordingly, in cases involving corporate defendants, if the tortious acts giving rise to a violation of international law were committed by a foreign corporate citizen outside the US, say in Indonesia committed by the subsidiary or sister of a US company located in Indonesia, the US courts will not have jurisdiction under the ATS unless some element of the violation sufficiently touches and concerns the US. The Supreme Court did not provide guidance in Kiobel as to how this standard would be applied, except to say that having a mere group presence in the US would not satisfy the requirement (Royal Dutch Shell group had a corporate presence in the US and was listed in the New York Stock Exchange, but the Supreme Court found this was an insufficient basis for jurisdiction).

The evidentiary burden becomes immediately evident by the fact the Indonesian claimants will only succeed if they can show that the case sufficiently touches and concerns the US. In this respect, the court stated that “the presumption against extraterritoriality may be displaced if, in combination with other factors discussed below, the plaintiff alleges substantial and specific domestic conduct relevant to a violation of the ATS.” The claimants thus need to show a link between the conduct of the US parent company and the violation, beyond mere investment in the subsidiary operating the business in Indonesia. What made the difference in the ExxonMobil claim was the information uncovered by the claimants’ lawyers among the documents released by ExxonMobil during the discovery phase. After reviewing those documents, the claimants alleged that the parent company executives seated in the US were not only aware of the abuses, but were also involved in the abuses.

The claimants allege that “High-level executives in the United States approved the deployment of military security, including the specific locations and tasks to be performed by the military security personnel…Exxon Mobil received “daily reports” on security matters, officials frequently travelled to the region to address them and company legal counsel approved requests to provide support to the military, the complaint said. Villager complaints were allegedly forwarded to executives in the United States, where company employees could view a live feed from closed-circuit cameras at the Aceh facility that was streamed over an internal computer network.”

Remedying the information asymmetry

Had the claimants not had access to internal company documents during discovery, they would not have the information that helped them show domestic conduct sought by the court. ExxonMobil’s liability is yet to be decided by a jury trial. It is hopeful to see that the victims now have the opportunity to have their day in court.

As explained by the 2013 Report, “[i]n continental Europe there is a particular barrier as there is no discovery or disclosure rule obliging the other party to divulge information in its possession.” The Report gives the example of the Netherlands where “the plaintiffs may demand that the corporate defendant provides relevant documents, [but] such a request is restricted by the fact that the requesting party needs to have a legitimate interest and that they need to specify the documents required.” This creates almost an impossibility for the victims, where the claimant carries the burden of proof but does not have the means to access internal company documents or have a specific knowledge about which documents held by which members of the corporate group would help its case.

Clearly, more generous rules on discovery would assist the victims in fulfilling the burden of proof. But without being naïve, one could expect that rigorous human rights reporting by companies could also remedy the information asymmetry between the claimants and the defendant companies to some extent. We are yet to see how these reports will evolve in practice. No doubt, even if a company is aiding and abetting security forces that commit human rights violations, they will not voluntarily publicise this on their annual report. If, however, they are obliged to honestly report on these issues, as otherwise they would be misleading investors, they are more likely to do their due diligence and refrain from taking part in such atrocities in the first place.

In terms of access to remedy, rigorous human rights reporting would allow claimants to identify which entities within the corporate group are tasked with taking the decisions that have an adverse impact on their human rights. Reporting on human rights due diligence would allow claimants to acquire knowledge about what the company does or fails to do about identifying, preventing, mitigating and remedying adverse human rights impact. Closing the information gap between the company and the victim would certainly allow the claimant carrying the burden of proof to present a stronger case.

 

Disclaimer: The views expressed herein are the author(s) alone.



7 July 2015

Unilever’s Business & Human Rights Report is a Lesson for All

Filed under: Human Rights — admin @ 3.28 pm

 

By Dr. Tara Van Ho. You can follow Tara on twitter: @TaraVanHo

Last week, Unilever released the first Human Rights Report using a UN Guiding Principles Reporting Framework developed by Shift Project, which is a business and human rights specialty group, and Mazars Group, which is engaged in auditing and transparency. It is worth noting that Shift is largely made up of individuals who worked for John Ruggie, the former UN Special Representative to the Secretary General on business and human rights, while he was developing the 2008 UN Framework on business and human rights and the 2011 UN Guiding Principles on Business and Human Rights (several of those have much longer proper titles, but I’m on a word limit), but has not yet been endorsed by the UN Working Group.

The report came just as the first meeting of UN’s intergovernmental working group on a proposed business and human rights treaty is getting underway this week, and could provide insight into the feasibility of maintaining a voluntary reporting system.

Unilever’s report is an astounding 69-page document outlining exactly how the business has worked to incorporate human rights into its operations and where it intends to go next.

Well, not exactly exactly… (more…)



26 June 2015

The Aftermath of Charleston: the Confederate Flag and a Right to Being Dixie?

Filed under: Uncategorized — admin @ 11.40 am

 

By Dr. Andrew Fagan, University of Essex.

 

In their response to the utterly premediated and brutal murder of nine African-Americans at prayer in Charleston, South Carolina gun lobby spokesmen repeated the formulaic mantra that the best way to avoid such catastrophes is not to restrict homicidal racists’ legal right to bear arms, but to ensure that their victims have unrestricted access to guns also: the Emmanuel Episcopal Church, after all, had the temerity to ban guns amongst the congregation. The massacre of the nine Christians in Charleston will not, I fear, serve as the catalyst for establishing some form of sanity within US gun culture and the constitutional protection it enjoys. It has, however, provoked a surprising and potentially highly significant campaign, which is singling out the confederate flag as a symbol of racism and hatred. People from across different political, racial and social groupings are openly calling upon the removal of the flag from various public sites; from outside the state capitol building of South Carolina to car registration plates across several Southern states. Items bearing the flag’s distinctive image have even been removed from the shelves of large retailers.  The confederate flag is being culturally and politically re-branded. Not everyone thinks that this is a good thing. Some even argue that the campaign to render the flag socially and culturally taboo amounts to a violation of their rights.

The First Amendment of the US Constitution effectively upholds the right to exhibit the flag in private, domestic settings. It also offers the flag substantial protection in many public settings. Free speech protection provides a secure legal ground for those who defend the flag. However, the emotional attachment to the flag really draws its power from a desire to uphold a particular form of cultural identity: to enable a particular constituency of Southerners to continue expressing their identity and upholding their heritage. Across the world, many communities of people cherish their flags as the most visible and immediate signifiers of an asserted shared identity. The ostensive claim to a right to one’s cultural identity has received legal recognition through an ever-expanding body of international human rights law. International human rights bodies have come to see that concerted attacks upon peoples’ most cherished symbols amount to a form of human rights violation in themselves and are often a precursor to even worse violations such as ethnic cleansing and genocide. No small part of the desire for some to defend the confederate flag draws upon a desire to protect a shared cultural identity. After the furore of Charleston has died down, as it surely will, it may be that the claim to restore the flag’s reputation will draw upon the language of a human right to be a certain type of Dixie Southerner.   (more…)



29 May 2015

The Death Penalty for Drug Offences: What do the international drug control treaties say about ‘most serious crimes’?

Filed under: Human Rights — admin @ 2.46 pm

  

By Dr Rick Lines. Rick s the Executive Director of Harm Reduction International, and a Visiting Fellow at the Human Rights Centre, University of Essex. He is Chair of the International Centre on Human Rights and Drug Policy. You can follow him on twitter: @LinesRick

 

The recent mass executions of drug offenders in Indonesia have rekindled international debate on the death penalty for drug offences. A key flashpoint of this debate is whether drug crimes are of a sufficient severity to be capital crimes.

While not absolutely prohibited in international law, Article 6(2) the International Covenant on Civil and Political Rights limits the lawful application of capital punishment to what the treaty terms ‘most serious crimes’. The Indonesian Government and its defenders argue that the Covenant does not define ‘most serious crimes’, and that it is therefore within the purview of sovereign States to decide this threshold themselves.

This is a common argument from retentionist States, and one that contains a number of flaws, the most elementary being that the relevant international human rights authorities have indeed provided a definition of ‘most serious crimes’, and have specifically stated on more than one occasion that drug offences of any kind do not meet this threshold. Another is the danger when States alone are allowed to define their own interpretations of ‘most serious crimes’. As described in the 2007 report of the UN Special Rapporteur on Extrajudicial Killings, capital crimes in domestic law include abetting suicide, adultery, apostasy, corruption, economic crimes, the expression of conscience, financial crimes, embezzlement by officials, evasion of military service, homosexual acts, illicit sex, sexual relations between consenting adults and religious practice. Clearly allowing Statesto set their own standards makes a mockery of the notion of a ‘most serious crimes’ threshold, and quickly becomes a slippery slope towards major human rights violations.

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14 May 2015

How much protection do the new UN Standard Minimum Rules for the Treatment of Prisoners offer LGBTI detainees?

Filed under: Human Rights — admin @ 9.05 am

By Eka Iakobishvili. Eka has worked as a human rights analyst and adviser for number of INGOS and IGOs, such as PRI, HRI, EHRN and UNODC. She was part of the Essex Expert Group meetings that worked on the SMRs in 2012-3, and was part of the NGO discussion at the 13th Crime Congress in Qatar, in April 2015. You can follow her on twitter: @Eka_ia

On 18-22 May, the UN Commission on Crime Prevention and Criminal Justice will adopt new and updated UN Standard Minimum Rules for the Treatment of Prisoners (SMRs). The SMRs were endorsed at the 13th Crime Congress in Qatar last month and it is expected that the UN General Assembly will adopt the rules by the end of 2015.

The original SMRs were adopted in 1955, at the 1st UN Crime Congress in Geneva with minor changes in 1957 and 1977. These rules have served as minimum standards for the protection of human rights of detainees and the management of prison systems for decades. The existing SMRs cover a wide range of issues, and protect ‘special categories of prisoners’, although no specific mention is made of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) detainees.

The new and updated SMRs are widely regarded as a success, and many believe that they will strengthen the justice system. However, while the importance of five-years of intensive work of state delegates, diplomats, experts, professionals and activists all around the world should not be underestimated, it must be highlighted that the new SMRs do not recognise the specific needs of LGBTI detainees. It appears that the lack of protection extended to this category of detainees is a result of political sensitivities. Issues relating to sexual orientation and gender identity in detention have been among the most controversial during the high-level negotiations that informed the SMR drafting process.

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1 May 2015

Nepal Earthquake: Fears that relief efforts could exasperate poor political record

Filed under: Human Rights — admin @ 7.57 am
By Rebecca Cordell. Rebecca is a Quantitative Human Rights PhD student in the Department of Government. Her doctoral research focuses on CIA rendition, secret detention and torture post-9/11. You can follow her on twitter: @RebeccaCordell

At 11:56am last Saturday a magnitude 7.8 earthquake struck Nepal causing widespread devastation. This was the strongest earthquake to hit the Himalayan region in over 80 years and it was followed by a series of tremors and aftershocks that were significant earthquakes in their own right (at a magnitude of 6.6 and 6.7).  Over 5,500 people are known to have died – a number that is expected to grow significantly over the coming weeks as relief efforts continue.  Current estimates indicate that over 100,000 people have been made homeless. These individuals are currently without adequate access to shelter, clean water, sanitation or food; raising the risk of an epidemic.

 I became aware of Nepal’s vulnerability when I visited the country at the end of 2013 to work with local peace building, development and democracy NGO Alliance for Peace.  Given the nations close proximity to two large tectonic plates, poorly constructed buildings, overstretched emergency services and an ill prepared government, I was told that should an earthquake strike – the consequences would be catastrophic. (more…)


 

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