Abstracts

Daniel Augenstein (University of Tilburg), ‘Private’ Human Rights Law: With or Without the State?

One of the most compelling arguments in favour of directly imposing legal human rights obligations on non-state actors is that the traditional preoccupation of human rights law with protecting individuals against the oppressive power of the ‘public’ and ‘territorial’ state becomes increasingly overshadowed by concerns about the human rights impacts of ‘private’ power that coalesces around globally operating multi-national corporations. One of the main challenges to the cogency of private (‘horizontal’ or ‘direct’) human rights law is that, on many accounts, it continues to operate in the shadow of the state. Whether at the international or the domestic level, private legal human rights obligations are often considered to be created and enforced by public institutions. This creates two interrelated problems. On the one hand, the renunciation of the public nature of human rights obligations through private human rights law opens the private sphere – the original locus of human rights protection – to unfettered state interference. On the other hand, private human rights law needs to situate corporate rights and duty holders between the state (as the conventional bearer of human rights obligations) and the individual (as the conventional rights-bearing subject). While the first part of the presentation elaborates the above challenges, the second part argues that the cogency of private legal human rights obligations hinges on a more radical break with the state-based paradigm of law than is often assumed.

Gentian Zyberi (University of Oslo), International adjudication of certain human rights obligations of corporations: Kiobel and other developments

This article shall discuss recent developments and relevant legal proceedings concerning obligations of corporations to respect human rights. The environments of the Niger delta as well as the Gulf of Mexico have suffered considerably due to the activity of large corporations as Shell and BP. The effects of the Deepwater Horizon oil spill and the massive pollution of the Niger delta on the livelihood of the people concerned are considerable. This article will explore the possibilities of adjudication and other settlement mechanisms employed in ensuring accountability of corporations for causing human rights violations and serious environmental damage which affects the life quality and means of thousands of people by focusing on some recent cases as Kiobel v. Shell before the US Supreme Court and four Nigerian farmers and the Friends of the Earth against Shell in the Netherlands.

Cedric Ryngaert (University of Leuven, University of Utrecht), Transnational private regulation and human rights: The limitations of stateless law and the re-entry of the state

Also in the field of global business and human rights has stateless law entered the regulatory arena: transnational corporations, often in cooperation with other stakeholders, have developed private standards that regulate corporate conduct, especially in developing countries where state willingness to regulate is low. Such transnational private regulation may have definite advantages vis-à-vis state regulation: it is more responsive to the needs of businesses and allows them to genuinely internalize the norms, thus increasing their effectiveness. Nonetheless, as human rights transnational private regulation (TPR) is not simply concerned with technical standardization, but rather with the promotion of public values, corporations have shown a certain resistance to meaningful TPR norm-setting and genuine involvement of other stakeholders, especially in the absence of sustained consumer pressure. Therefore, to fully realize the potential of TPR in the human rights field, some external incentives ought to be offered. States, and international organizations, as public regulators serving the public good, including human rights, are ideally placed to offer these incentives. There are signs that public regulators are taking this regulatory challenge seriously, but more needs to be done to increase the quality of TPR. In this contribution, the progressive development of a number of pertinent public law mechanisms – public procurement and government contracting, financial reporting requirements, and trade concessions – is advocated. It is important to realize that this new sort of ‘facilitative’ or ‘orchestrating’ government intervention differs from classic command regulation: it does not require that businesses comply with a fixed set of rules. Rather, it allows businesses to choose the regulatory option they see fit, provided this option meets minimum standards of quality and due process. Often, businesses may not even be obliged to comply with any rules, but then they may forfeit the – possibly sizable – benefits (e.g., government contracts or licensing) that come with participation in recognized TPR initiatives. Ultimately, the aim of this new kind of soft government intervention is not to re-assert the power of the state and supplant stateless law, but rather to support and improve the latter, and defer to it when adequate. It is no exaggeration to say that this represents a paradigmatic shift in our thinking about the desired nature and scope of government regulation in the 21st century.

Nicolas Zambrana Tavar (University of Navarra, Pamplona), Right to Remedy under the Ruggie framework

Part III of the UN Guidelines on Business and Human Rights seems to have received less attention than the State duty to protect and the corporate responsibility to respect. Nevertheless, setting up or modernising existing adjudication mechanisms seems like the only way to enforce human rights and protective norms in the context of violations by multinationals and other businesses. This paper also deals with the characteristics that State based and non-State based mechanisms must have in order to fulfill the standards set by the Guiding principles and whether existing mechanisms like ordinary courts in developing countries have the necessary tools and expertise requested by the principles. Attention will also be given to comercial arbitration and mediation in order to see if they can be useful as an another type of grievance mechanism for populations affected by the activities of international businesses.

Karin Lukas (University of Vienna), Right of access to remedy for victims of corporate abuses

In recent years companies have faced increasing scrutiny in view of their human rights conduct. Current international human rights law has been traditionally state-based and offers hardly any avenues for potential human rights victims to hold companies accountable. Moreover, judicial proceedings may not be the primary option for both parties involved due to their costs and length as well as the often associated negative public attention. The aim of this study was to address this current gap in international human rights law and to explore alternative ways of conflict resolution that may provide for more immediate and equitable solutions on an extra-judicial basis. For this purpose, a total of five complaint mechanisms, both international and corporate initiatives, have been examined in order to assess their capacity to strike a fair balance between human rights and business interests. The analysis has revealed decisive factors and major challenges for establishing and implementing a human rights compatible extra-judicial grievance mechanism.

Mary Footer (University of Nottingham), The role of due diligence in the responsible supply of gold and other precious metals from conflict-affected and high risk areas

This paper draws upon earlier work that examined the sourcing of diamonds and gold by the fine jewellery industryfrom conflict-affected and high-risk areas. Taking the UN Guiding Principles (UNGP) and the OECD’sDue Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas(OECD Due Diligence Guidance) as its starting point, the emphasis here is on the role of due diligence in the responsible supply of gold and other precious metals from those areas. Due diligence is understood in OECD terms as being an ‘on-going, proactive and reactive process through which companies can ensure that they respect human rights and do not contribute to conflict’. It is argued that the sort of risk-based due diligence, which companies are required to take in order to identify and address actual or potential risks in their sourcing activities, relies on a number of factors. The first involves identifying the factual circumstances surrounding all the elements of the supply chain of gold and other metals originating from conflict-affected and high-risk areas, irrespective of the number of actors or different processes involved, and with reliance on greater traceability. The often amorphous structure and the number of processes involved in these particularsupply chainsmake this a particularly onerous undertaking. The second is the ability of corporations and other business enterprises to identify and assess any actual or potential risks in their supply chains by evaluating the factual circumstances against standards set out in their supply chain policies. This may include – but not be limited to – UN or other sanctions mechanisms that prevent the supply of gold and other precious metals from certain conflict-affected or high risk areas. The third is action to prevent or mitigate the risks identified through the adoption and implementation of a risk management plan, even where it might lead to the suspension of trade or the cessation of dealings in gold and other precious metals with a particular supplier. The fourth is the responsibility that flows from a corporation’s or other business enterprise’s failure to exercise due diligence in respect of human rights in the supply chain, and the potential for remedial action on the part of those affected by the omission. The contribution reflects upon each of these four factors in light of prevailing principle and practice on due diligence, as highlighted in the UNGP and the OECD Due Diligence Guidance, and makes some recommendations on the matter.

Charline Daelman (University of Leuven), The Issue of State-Owned Companies in the Case-law of the European Court of Human Rights

The CSR discourse is recently confronted with hybrid constructions that fall in between the private and public sphere, such as state-owned companies. Although they have the features and structure of a private company, state companies are partly or even fully controlled by a state. This makes their categorisation as either a private party or state organ complicated and hereby the establishment of their responsibility for human rights violations. As a possible guideline of how to qualify state-owned companies, this paper critically analyzes the case-law of the European Court of Human Rights (ECtHR) relating this topic. Firstly, the case-law relating to companies who lie at the origin of a human rights breach, is scrutinised. This gives a background and context in which the ECtHR deals with the issue of state-owned companies specifically. Secondly, the case-law involving state-owned companies is discussed. Special attention is given to the recent ECtHR’s decision, Transpetrol, A.S. v. Slovakia (2011) in which the ECtHR establishes in a clear manner when a state-owned company is regarded as a governmental organization or state organ. By looking at the reasoning of the ECtHR, a guideline is derived that could also be meaningful outside the European context.

Tara L. Van Ho (University of Essex) “Due Diligence” in “Transitional States”: An Obligation for Greater Transparency?

This paper concentrates on two aspects of the corporate obligation towards human rights due diligence. First, it accesses the relevance of the obligation in states emerging from armed conflict or authoritarian regimes (“transitional states”). Utilizing data from social sciences, it is argued that new investment in transitional states poses a danger of exacerbating underlying social tensions. It is therefore argued that all human rights requires due diligence for all new investment in transitional states. The paper then assesses what that requirement actually entails as far as societal and individual rights. Utilizing jurisprudence from international human rights law and international arbitration, itis submitted that “due diligence” requires consultation, though not necessarily consent, with local populations. It is argued that an adequate consultation must include greater transparency about the design, construction, and damage resulting from new investment projects. The paper concludes that this robust understanding of due diligence will best protect the state, individuals, and the corporation in states emerging from conflict and authoritarian regimes.

Jernej Letnar Černič (The Graduate School of Government and European Studies) The Direct Human Rights Obligations Of Corporations In International Law, From Utopia to Reality ?

Over the past decades globalisation has stirred a number of positive and negative developments in national and international environments. An important feature of globalisation is the rise of the economic, social and political power of corporations. This paper explores the direct human rights obligations of corporations in international law. Corporations play an important role in the realisation of the civil, political, economic, social and cultural rights of their employees and of society as a whole. For example, they are responsible for guaranteeing adequate labour conditions to their employees, and they may be involved in the provision of basic services to communities. They can become violators of human rights, for example where their activities lead to denial of access to water, food, housing, health and education or where their activities infringe upon right to life, right to privacy or freedom of expression. Primary responsibility for realising human rights lies with states. Yet, given the powerful position that corporations increasingly possess, it is argued that corporations carry an additional responsibility under human rights law. This paper therefore analyzes the potential legal basis of corporate human rights obligations, trying to draw out lessons concerning the understanding of the field of business and human rights. Equipped with this knowledge, this paper argues that there exist strong normative and moral grounds for arguing for the direct human rights obligations of corporations in international law.

Jan Wouters and Ann Sofie Cloots (University of Leuven), Direct Human Rights Obligations of Business Corporations under International Law

The call for corporate accountability for human rights violations surfaces regularly. The elaboration of the UN Guiding Principles brought about a plethora of briefs and surveys on the status of direct human rights obligations of corporations under international law. National law suits such as the Kiobel proceedings in the United States assess this question as well. Meanwhile, guidance documents for specific sectors are published regularly and international or regional forums such as the OECD and the EU have recently revised their policies on corporate social impacts. These documents provide important guidance as to what society expects from corporations. However, one should not lose sight of the core legal documents that underlie these documents. It is worth going back to the basics and assess what indication for direct corporate human rights obligations can be found in the basic human rights treaties, if any. The paper will look specifically at the Universal Declaration of Human Rights, the UN Convention on Civil and Political Rights and the European Convention on Human Rights, as well as the concrete application of these international instruments by the relevant UN committees and the European Court of Human Rights - to the extent these can clarify what current international law requires from corporations when it comes to human rights violations. The aim is not to re-do the work of the Special Representative on Business and Human Rights, but rather to assure that the policy concerns and moral aspirations reflected therein are discerned from the legal state of affairs, in order to start the discussion with a clear view of de lege lata and the existing gaps.

Roos van Os (University of Amsterdam), Corporate Accountability, Human Rights and International Investment Agreements: Imbalances and Policy Options

Corporate globalisation has so far been a process that has secured and legalized the rights and privileges of transnational enterprises: at times beneficial, but also with unequal outcomes and detrimental impacts on (global) public goods and the wider public interest. Current International Investment Agreements (IIAs, including Bilateral Investment Treaties - BITs), firmly based in the internal law regime, are based on the premise that all investments are beneficial to development and that foreign investment will be attracted by agreements that guarantee the protection of foreign investors. However, there is an increased recognition that such agreements do not or insufficiently take into account the impact of foreign investors on societies, workers, consumers, the environment and other corporate accountability issues. Also, BITs do not have co-operation mechanisms to allow home and host governments to support responsible corporate behaviour, including on human rights issues, among their investing companies.ii My paper will look into the relation between this, and explores, also based on arbitration cases, several relevant aspects of the relation between the current human rights and corporate accountability framework and international investment law.

Adriana Espinosa González (Universidad Carlos III de Madrid), The conflict between international investment and human rights international regimes and its effects on human rights protection

The relationship between corporations and States is mainly regulated by the international investment legal regime, which lays down the rights and obligations for the parts. As many authors have argued, this branch of international law is focused in promoting and protecting international investment flows, disregarding human rights considerations. It therefore gives the investing corporation a wide leeway, granted with a strong set of rights, while restricting the regulatory capacity of the host State. It´s been pointed out that governments receiving foreign investment may refrain from enacting political measures (derived, for instance, from its international human rights obligations) due to a fear of being subject to an international arbitral process for violation of an investment provision. This situation entails a conflict between international investment and international human rights legal regimes. Though there is no formal hierarchy between branches of international law, practice shows a prevalence of the former over human rights norms. The present paper intends to present this so-called 'fragmentation of international law' phenomenon, summarizing its causes and its impacts on the protection of human rights (for example, human rights violations committed by corporations in the course of their activities are currently out of the scope of arbitral tribunals, stuck to the economic aspects of investments). Finally, it will depict proposals presented by some authors to address the issue, like the incorporation of human rights considerations into the interpretation of investment provisions by arbitral tribunals.

Lana Olup (European School of Law, Nova Gorica), Respecting human rights as an investment strategy


This paper will address the issue of corporations’ respect for human rights (HR) from the perspective of corporations’ benefit as oppose to obligation and burden. Regardless of the question whether corporations do in fact have an international obligation to respect HR, corporations should strive to respect them. History shows that violating HR is not beneficial for the company in the long run. Even though social rights of the workers in the developed countries have grown over the time and the working hours are shorter, the production is enlarged and added value per employee has become bigger. It is becoming more and more debated that taking into account the moral values is the way to go forward in combating the economic crisis. Some even say the only way. As companies’ primary goal is to create profit for the owners, what needs to be changed is the perception of what is the best way to make profit. Banks and other investors should be, and in many instances already are, more incline to financially support projects in which HR are respected and other CSR issues addressed. Investors are becoming aware that sustainable businesses that respect HR are a safer investment. Businesses that act socially responsible are more likely to still be there in the years to come to repay the debt and make profit. As companies need the loans to finance research and development it should become clear that the way to attract the money is to respect HR. A case study shows that stress related illnesses can be a financial burden on the company. On the other hand, respecting workers rights to rest and a good work-life balance is financially beneficial. Bad publicity regarding the violation of HR costs a company a lot of working hours to mitigate the undesired effect and to convince the concerned and well informed consumers that their strategy has in fact changed. Lawsuits again take a lot of time and are not flattering. Having a more active than a reactive approach saves money for the company and protects its reputation. Corporations should acknowledge that respecting HR does not mean just fulfilling legal obligations but it is a good investment strategy and an opportunity to prosper.

Yannick Radi (University of Leiden), The Contribution of International Investment Law to the Horizontalization of Human Rights

As is well-known and often criticized, international investment agreements (IIAs) provide obligations only upon states and none upon foreign investors. Another feature of IIAs is their traditional terseness with respect to human rights, labour conditions and the environment. However, the current state practice and the debates in the investment epistemic community display a growing concern about the societal impact of IIAs that results in the continuous humanization of international investment law. Parallel to this evolution and as illustrated by the topic of the Glothro workshop, one witnesses the horizontalization of human rights. Against the analysis of the above-mentioned evolutions, the presentation investigates the avenues through which international investment law currently contributes and may further contribute in the future to the horizontalization of human rights. Three avenues are mainly discussed: IIAs, state contracts and guarantee agreements. Starting with IIAs, the presentation examines corporate social responsibility (CSR) provisions, the imposition of direct human rights obligations upon foreign investors and the conditionality of the IIAs protection to the respect of these human rights obligations. As for CSR provisions, it describes and analyses their content as for human rights as well as their current features, in particular their focus on states and their softness. Beyond, it discusses how the incorporation of CSR standards in international treaties and the creation of accountability mechanisms can contribute to blur the distinction between soft law and hard law as well as to the customarization of CSR standards. The presentation then investigates the possibility to incorporate direct human rights obligations binding upon investors in IIAs. In particular, it examines whether the current context can lead states to overcome their traditional reluctance to incorporate such obligations.Furthermore, it analyses how the respect of their human right obligations by foreign investors can condition the benefit of IIAs protection. Turning to state contracts, the presentation investigates how these international law instruments can be used to contribute to the horizontalization of human rights. It does so from both a substantive and procedural point of view. As for the former, it discusses how these contracts concluded between host states and foreign investors can put direct human rights obligations upon these investors. In particular, it examines the reasons why such instruments may be better suited to contribute to the horizontalization of human rights than IIAs. For instance, in relation to the schizophrenia that characterizes states when concluding IIAs, the presentation emphasizes their interest in the incorporation of direct obligations in state contracts. Concerning the consequences of the violation of these obligations, it describes and analyzes the dispute settlement methods open to states, in particular arbitration. Finally, the presentation discusses the role that guarantee agreements, for instance those concluded between investors and the Multilateral Investment Guarantee Agency, can play in the horizontalization of human rights. It examines this role at two stages. ‘Upstream’, it analyzes how the granting of the guarantee can depend upon human rights conditions. ‘Downstream’, the presentation examines how this granting can be suspended or terminated in situations where the adverse impact on human rights caused by the investment guaranteed is not reduced, mitigated or compensated.

Silvia Scarpa (John Cabot University, Rome), Direct obligations of Multinational Corporations for the Works Form of Child Labour in Cocoa Plantations


Research on the issue that multinational corporations might have direct obligations under international law is still in a phase of embryonic development, and experts disagree as to its opportunity. However, it is my belief that the specific sector of the worst forms of child labor in cocoa plantations could be used as a tester for the development of a binding instrument for these actors. The time seems right: the “shame and blame approach” included in recent journalists’ reportages, NGOs & consumer associations’ campaigns, and experts’ reports on the issue has already determined announcements by three big chocolate companies – namely Nestlé, Harshey and Ferrero – to promote very-much needed action and funds to eliminate the worst forms child labor from cocoa plantations. In this respect, and in consideration of the failure of the Harkin-Engel Protocol, a new – and this time - binding instrument could be developed - containing basic rules and standards as well as an independent monitoring mechanism, shaped on UN human rights monitoring bodies - as a way to eliminate the worst forms of child labour from cocoa plantations. The aim of the paper will be to explore the feasibility and the strengths and weaknesses of such an instrument.

Josh Curtis (Irish Centre of Human Rights, Galway), Implications of the Obligation to Cooperate for the Renegotiation of International Investment Law

The subject of my thesis is the increasingly dogmatic prescription of Foreign Direct Investment (FDI) as the only valid ‘engine’ of development, and the associated structural clash between international investment law and human rights law. The aim of the research is threefold. Firstly, to explore ways that human rights law can enlighten the proper place of FDI in development. Secondly, to determine to what extent this body of law could reorganise our approach to international investment regulation. More specifically, to determine how this enlightenment and reorganisation may be effected through application of the developing legal content of the norm of international cooperation. And finally, to use this discussion as a backdrop for developing certain themes connected to the utility of human rights law in prioritising social values over perceived economic exigencies; namely the relationship between human rights advocates and heterodox economists, the debate over a global constitutional order, and the use of obligations of international cooperation to limit global competition. An introduction sets out the historic separation of the two fields of economics and human rights, the recently increasing awareness of their deep connection and the development of a conflict between the two. International investment law is presented as a particular and often overlooked site of this conflict, largely due to the insular nature of the field of investment law and to its lack of transparency. The need to deepen the analysis to the reasons for the development of modern investment law (set as they are in a forced dependence on foreign direct investment for development) is explained, and this forced dependence is contrasted with a brief introduction to the international obligation to cooperate under human rights law. Finally the themes of the thesis are introduced. The body of the argument proceeds in three parts. Part I sets out the ‘problem’ as such, characterised as a forced dependence on FDI for development informed by the dominant neo-liberal development paradigm. This dependence is critiqued from the viewpoint of heterodox economics. Part II explains how the problem is enforced by international investment law that conflicts with the state’s duties under human rights law. Part III sets out the developing legal content of the obligation to cooperate under human rights law and the kind of ‘solution’ it would facilitate or envisage. Two complimentary modes are suggested. Firstly, it offers the basis for the renegotiation of investment law, as well as the principles whereby guidelines could be drawn up to define and frame the process of those negotiations. Secondly, it provides an ethical and practical basis for founding a global constitutional principle and a new paradigm for global economic governance. The conclusion summarises and draws the themes through.

Ajda Pistotnik (Humana, Ljubljana), Human right to water crisis

Several commentators (the Pacific Institute 2009, Institute for Human Rights and Business 2010, UNDP 2006 and the World Bank 2004) argue that global competition, environmental stress and unpredictability of access to water are powerful drivers of water insecurity for a large proportion of the global population, where over a billion of people worldwide already do not have access to clean and safe water. Moreover, there is a growing recognition in the last decade that the world faces a new crisis, the water crisis. This paper argues that the water crisis is manufactured through political processes and institutions of the major global actors such as states, transnational corporations and international organizations, as a consequence of the global governance crisis. Further, water means political and economic power in many societies and inequalities in power can induce deep inequalities in supply and access to water, and that can violate a human right to water. This paper is going to link water crisis to global governance crisis. The reduction of the role of the state and the increased power and impact of transnational corporations and international organizations are defining the global developments and water policies as well as the way forward. The paper will explain the differences and similarities of the two (governance and water) crises. The main research question is who has the access to water resources and how is this connected with the human right to water. In this context, it will be emphasized what is the role of the international human rights law. Gaining access to water is related to power relations and not only to law-based rights and ownership. This raises a question about a need for global policy to pay attention not only to who should receive and who should provide, but also how decisions are to be taken, by whom and with what degree of participation of different actors. Therefore, a crucial challenge is to ensure that globalization becomes a positive force, i.e. fully inclusive, accountable and participatory
process with a shared responsibilities of the global actors.

Mikko Rajavuori (Åbo Akademi), State-owned Enterprises in Business and Human Rights Agenda

I'm interested in intersections between business & human rights discussion and revitalized policy debate on how states should own corporations. I hypothesize that state's' role as a shareholder has been viewed in isolation from their obligations in the human rights realm, despite the growing awareness of SOEs' adverse human rights impacts. Therefore, I try to integrate human rights considerations with the traditional governance of state-SOE relationship founded on arm's length regulation, competition law issues and the primacy of corporate governance rules. The underlying question relevant for this workshop, I think, is that if a convincing argument for distinct corporate human rights obligations cannot be maintained in cases where state is heavily involved with business through significant ownership, can it be maintained at all?

Tineke Lambooy (University of Utrecht), The development of soft law human rights standards for companies towards legal obligations'

There is little legislation that contains clear directions for companies on how to perform Corporate Social Responsibility or how to avoid human rights abuses. Laws do not normally precisely prescribe what type of corporate behavior is expected. However, what we do see are two developments. The first one is that there has been a large increase in alternative regulation or private regulation in the last decade. Some of it is also referred to as soft law. ‘Soft law’ refers to those instruments of international law that do not have the status of an international treaty ratified by States. Examples of soft law instruments are declarations, recommendations, resolutions, and e.g. the EU COM CSR action plan of 25 October 2011. Private regulation may also contain other types of regulation (alternative from public regulation), such as industry self-regulation or certification standards for labeling certain types of products. An interesting 2008 joint report entitled ‘Overview of Selected Initiatives and Instruments Relevant to Corporate Social responsibility’ by the OECD and the ILO, indicates that CSR related private regulatory instruments differ in their objectives, origins, areas covered and implementation mechanisms. Private regulation includes: the Ruggie Framework and Guiding Principles, the OECD CSR guidelines of 25 May 2011, the UN Principles for Responsible Investment, the Extractive Industries Transparency Initiative. Some address a wide range of issues, such as human rights and labour rights, community development, the use of security forces, bribery and corruption and environmental standards. Others focus on one or a few issues, usually more in depth, e.g. the FSC or MSC certification norms for sustainably harvested timber and fish. The second development is that private regulation as well as public laws are adopting more and more 'process norms' rather than substantive norms when regulating a company's CSR conduct including the issue of human rights. Examples are the obligation for a company to perform a due diligence investigation regarding its (possible) impacts on human rights before it embarks on a new project as well as during the project (Ruggie Guiding Principles, OECD CSR Guidelines). We also see this 'due diligence' approach in the EU Timber Regulation (about avoidance of the trade and use of illegal timber) and the US Dodd-Frank Act (section 1502 on avoiding the trade and use of conflict minerals). Similarly, in the prosecution in the US and the UK of corporate violations of anti-corruption laws also bears a certain element of process: has the company put in place an anti-corruption programme, has it performed due diligence? If so, there may be grounds for alleviating or reducing the sanctions. The trend to create transparency about a company's organisation and activities in CSR reports that are drafted in conformity with the international voluntary guidelines for sustainability reporting promoted by the Global Reporting Initiative are another example of putting more emphasis on the process than on the content of corporate behaviour. There seems to be a resemblance here with the 'business judgment rule' which applies in the US (and in a similar way also in the Netherlands, 'de beginselen van behoorlijk ondernemingsbestuur') to the testing in court of a management board's decision: if the board has followed the procedural rules, then the discretionary power of the board will be considered larger than if it has not followed procedural rules. Do these developments demonstrate that corporate law concepts are entering the CSR and human rights and business discourse? And if so, does that mean that less strict rules apply or does it mean that companies are more encouraged to set up good systems to avoid human rights abuses, corruption and a flawed CSR performance? Lambooy will discuss this question.

Anna Bulzomi (IPIS, Brussels), Human Rights & Investment: Opportunities and Challenges in Conflict-Affected and High-Risk Areas The case of the Democratic Republic of Congo

In light of the burgeoning relationship between business and human rights, the interplay between international human rights law and international investment law and practice is gaining momentum amongst scholars and practitioners. As recognized by the former Special Representative of the Secretary General for Business and Human Rights, John Ruggie, the most critical issue arises with regards to the state duty to protect and promote human rights.
More precisely, tensions arise when investment treaties limit the host state’s room for maneuvering, i.e. translating international human rights obligations into domestic law and, subsequently, enforcing such legislation. Furthermore, in fragile and conflict-affected countries, the task of striking the balance between competing sets of legal obligations becomes considerably harder. On the one hand, externally sourced private investment can foster a country’s transition from war to peace, yet on the other hand it can have a negative
impact on vulnerable communities, unless reference is made to solid human rights standards, namely to the UN Guiding Principles on Business and Human Rights. Drawing from concrete examples of investment contracts negotiated in the mining sector in the high-risk provinces of the Democratic Republic of Congo, this paper seeks to explore the ‘healing’ potential of foreign investment and outline the challenges arising in trying to incorporate human rights standards in the State-investors dialogue.

Damiano de Felice (London School of Economics), Commercial banks and human rights: Why market-based initiatives and international proto-regulations are not enough

[This paper is part of a broader research project (a book) on the relationship between the activities of commercial banks and protection of human rights. The book maps existing (private and public, domestic and international) regimes on business and human rights, and assesses their actual (as well as potential) application to private financial institutions. The purpose of the book is to clarify the state of the art on banks and human rights and offer a broader and more solid factual basis for the ongoing debate on financial regulation.]
Can human rights entrepreneurialism and/or international soft law lead to significant progress in the way private financial actors conduct their business operations with respect to human rights protection? The paper answers this question in the negative. First, the paper reviews the most important voluntary initiatives in the banking sector, that is, (1) human rights policies, (2) sector schemes (such as the Equator Principles and the Thun Group) and (3) socially responsible investment products (such as mutual funds based on Dow Jones Sustainability Indexes). Second, it looks at the most recent international soft law instruments (namely, the UN Guiding Principle on Business and Human Rights and the revised OECD Guidelines for Multinational Corporations) and explores how these apply to financial activities. The article then highlights how these initiatives are not sufficient in terms of actual human rights protection: (a) the market for human rights entrepreneurialism is not large enough to lead to substantial changes in the management of big commercial banks, and (b) soft law initiatives lack any serious monitoring mechanism that can force compliance within the financial sector. The article concludes by suggesting alternative avenues to foster change in financial activities: in particular, domestic/international regulation (sanctions), corporate civil liability (lawsuits against banks) and individual criminal liability (prosecutions against managers and employees).

Sisay Alemahu Yeshanew (Åbo Akademi), Beyond Intra-African State Obligations: The utility of the African human rights system to deal with violations emanating from transnational conducts involving non-African states


Human rights treaties in the African regional human rights system do not limit the obligations of states to their territory or jurisdiction. This means that the obligations of states parties may be engaged extraterritorially. The African Commission on Human and Peoples’ Rights has established the existence of such obligations at least in cases of cross-border military activitiesand economic embargo.There are, however, many more triggers of extraterritorial human rights obligations in this era of economic globalisation with the increased role transnational companies (TNCs), international organisations or agencies and multilateral and bilateral trade and investment agreements. The African human rights system may certainly be useful in addressing human rights violations resulting from the economic interactions among African states,includingthe activities of entities under their jurisdiction.However, such interactions havegenerally been quite weak, althoughthey have been rising in recent years.Transnational conducts that cause human rights violations in African states are often sourced from or involve (the developed) non-African states. The usefulness of the African system in the realm of extraterritorial human rights obligations to a large extent depends on its ability to respond to violations resulting from conducts involving non-African states. This paper identifies two such cases: human rights impairments arising from the activities of TNCs incorporated (or with main place of business) outside Africa and trade and investment agreements with non-African states the implementation of which results in the violation of obligations under the African human rights treaties. It assesses the actual and potential utilityof the African human rights system to dealing with such cases.

Vojko Strahovnik (University of Ljubljana), Corporations, group agents and responsibilities

Approaching the question on direct human rights obligations of corporations requires a clarification and a stable foundation of background posits underlying attempts to answer it affirmatively. In this discussion paper I focus on a more general question of responsibilities of corporations. I follow a recently developed approach by List and Pettit (2011) that emphasize that the best way to approach such questions is by first analyzing the concept of group agents. Qua agent one can be responsible if three conditions are met: normative significance, judgmental capacity, and relevant control. Understanding the relationship between corporations and human rights therefore requires answering three basic questions. (1) Are corporations (group) agents? (2) Do corporations meet the conditions for ascribing responsibility to them? (3) Do these responsibilities include responsibilities related to human rights? I will try to argue that the answers to all three questions are affirmative, though my answers will be framed only within ethical and not necessary legal perspective.

Andrew Spalding (University of Richmond), Understanding international corporate bribery as a human rights violation

Among today’s most aggressively enforced statutesgoverning international corporate conduct are anti-bribery laws – in particular, laws prohibiting the bribing of overseas officials for business purposes. As capital-exporting nations increasingly honor their obligations under international conventions, anti-bribery law is achieving extraordinary success in deterring corporate misconduct and shaping global opinion. However, the human rights implications of this emerging field remain underappreciated by governments and academics alike. Because we tend to regard, and to enforce, anti-bribery laws as white-collar crime rather than as human rights law, anti-bribery enforcement is not yet central to the global human rights discussion.
This paper seeks to inject anti-bribery law into that discussion. It has three aims. First, it will demonstrate that under core human rights theory, bribery is properly understood as an inherent rights violation. Second, it will argue that effectively enforcing bribery prohibitions to protect human rights will require a number of specificchanges to the text and enforcement of international law, and of domestic laws governing extraterritorial conduct. Third, it will suggest that anti-bribery laws may indeed be the most promising legal mechanism today for deterring corporate human rights violations, and could provide a template for corporate human rights law generally.

Genny Ngende (Vrije Universiteit Brussels), Establishing corporate liability through vicarious liability

The purpose of vicarious liability is to hold the principal liable for the misconduct of its agent. This paper seeks to examine whether corporations can be held vicariously liable for the human rights offences of directors and/or managers. In the same token, it will be considered if such consideration can be imported to the parent/subsidiary relationship. In other words, can a parent company be vicariously liable for the actions or omissions of the subsidiary company? Indeed, an array of factors is to be present in order for liability to ensue. Notably, the employee must be acting within the scope and course of employment, which is to be for the benefit of the company, and the intent must be imputed to the corporation. This type of accountability (if proven) is secondary in nature, and is thus an indirect liability. One is to question whether the distinction between direct and indirect alters or mitigate blame. The concluding comments will serve to highlight the operative word, and that is ‘liability,’ which in the presence or absence of the words ‘direct’ or ‘indirect’ still results in corporate accountability.

Marko Novak, (European School of Law, Nova Gorica), International Human Rights obligations or human duties for multinational corporations

After the Second World War the international legal language has mostly omitted the explicit mentioning of ‘human duties’ from constitutions and other human rights legal documents. That, however, had existed in pre-war constitutions, e.g. in the Constitution of the Weimar Republic in 1919, as one of the most progressive constitutions of the period, where one of the chapters was entitled “Human Rights and Duties.’ Today legal theory nevertheless emphasizes that duties or obligations are correlated with rights even if that is not specifically mentioned in legal provisions. That most certainly applies to human rights and their correlatives human rights obligations or, simply, ‘human duties’. Most constitutions contain a provision determining that human rights are limited by the human rights of others, which signifies their duty-character. Thus, the paper will explore, by means of a historical and comparative legal analysis, whether the explicit linguistic characterization of the concept of human duties has any weight for its normative validity in the area of international human rights protection.

Cees van Dam (University of Utrecht), The role of tort law in protecting human rights
This paper aims to explore aspects of the role tort law may play to hold companies to account for human rights abuses. The emphasis will be on Transnational Companies (TNCs) with headquarters in a Western country and subsidiaries or suppliers in non- Western countries. Questions to be addressed may include: How are tort rights different from human rights?, Factual problems for victims of human rights abuses when filing a claim against a TNC: infrastructure, communication, culture, funding, fact-finding. Legal problems for victims of human rights abuses (I): competent court and applicable law, Legal problems (II): what is the standard of care to be expected from a TNC vis-ŕ-vis its subsidiaries, suppliers, and potentially affected third parties, such as employees of subsidiaries and suppliers, people living in the vicinity of the plant, etc. How is the standard of care different from the due diligence requirement in the Ruggie framework? What is the relationship between the soft law instruments and tort law? What is the result so far of litigated tort claims against TNCs?

Wei Xiaohong (University of Rotterdam), The Alien Tort Statute after Kobel: A Substitute for the International Criminal Court?

Corporations were excluded from the jurisdiction of the ICC at the Rome Conference. Since the Nuremberg Trials, no international precedent concerning corporate accountability for international crimes has been made as a result of the absence of international criminal or civil enforcement mechanisms; also no successful criminal precedent was set despite the possibility available in some national legal systems. The ATS has become the main civil remedy for the victims of corporation crimes. The fate of corporations under the ATS will be decided by the American Supreme Court in the forthcoming Kiobel decision, which will affect the concept of universal civil jurisdiction as well as corporate responsibility for international human rights law. The ICC can only be complementary to national criminal jurisdiction. Considering of money as the main sanction for corporations, the ATS would be a substitute for the ICC? To serve the interest of victims, could national civil remedy be an alternative justice norm under the article 53 of the Rome Statute especially for those countries excluding corporate criminal liability. The author endeavors to analyze the possible relationship between corporate civil and criminal liability for international crimes under the Rome Statute.

Dorothée Cambou, (Vrije Universiteit Brussels), The Ogoni People vs. Shell: towards greater accountability of multinational corporations for human rights violations

On the 11th of October 2012, Royal Dutch Shell appeared in court in the Netherlands to account charges of environmental pollution in Nigeria‘s Ogoniland. The case is brought by the Dutch NGO Friends of the Earth and four Ogoni farmers who claim together that the company has endangered their livelihood and violated their human rights. Next to this case other complaints were filed in the US and UK against Shell for its activities in Ogoniland. Nigeria was also held accountable by the African Commission for its failure to protect the Ogoni People from the conduct of Shell operating in their territory. However, it is the first time that Shell headquarters could be held accountable in the Netherlands for damages involving a subsidiary abroad. Therefore, if the lawsuit is successful, it could become a landmark case internationally and pave the way for other plaintiffs to claim reparation against multinational abuses. The verdict is thus awaited with considerable expectations. Through the analysis of the proceedings and lawsuits filed against Shell elsewhere, the paper analyses in general what role companies play in the violation of human rights, and examines in particular  the challenges that face the community members of the Delta Niger to hold Shell liable for its human rights violations.

Brigit Toebes (University of Groningen), Human rights responsibilities of non-state actors in the health sector

This contribution will focus on the human rights responsibilities of private actors in the health sector. Due to the privatisation of healthcare, private actors are increasingly becoming responsible for the financing and provision of healthcare. This may vary from healthcare provision (private hospitals and privately employed health personnel), to health financing (private insurance companies), to healthcare supply (pharmaceutical companies and producers of medical equipment). Based on international human rights law, the government has the obligation to oversee the private actors in the health sector. However, it is increasingly argued private actors may carry certain derived human rights responsibilities as well. In this contribution I will surpass the legal debate about whether or not they have such responsibilities, and focus on the definition of potential obligations of all the non-state actors in the health sector.

Humberto Fernando Cantú Rivera (Université Panthéon-Assas Paris II), Corporations and compliance with international human rights law: from a “responsibility to respect” to legal obligations and enforcement.

Corporations, as it’s currently being fought in the courts of the United States of America, Ecuador, Canada or Brazil, can be directly liable for violating international human rights law, and therefore required to repair the damage inflicted on victims. This affirmation could seem to be farfetched, given the current state of transnational litigation undertaken by corporations in different places around the world to avoid either being found guilty of breaking the law (with its corresponding naming & shaming or impact on its reputation) or to escape enforcement of judgments condemning them to pay large amounts for damages and reparations. However, cases such as Chevron in Ecuador, Kiobel in Nigeria or John Doe III in Indonesia may be starting to incline judicial perception towards the materialization of corporate responsibility for the breach of international human rights law and jus cogens norms. Some judges in the United States have increasingly found reasons to believe corporations should be subjected to direct liability for breaches of the law of nations, using a mix of perspectives and doctrines deriving from international criminal law and general international law to implement them in the human rights realm, or through which human rights law can be upheld. Therefore, the road seems to be clear enough: it is through national judiciaries that the development of international law imposing direct obligations to corporations –and therefore international standards applicable to every company anywhere- will reach its climax.
After the Second World War the international legal language has mostly omitted the explicit mentioning of ‘human duties’ from constitutions and other human rights legal documents. That, however, had existed in pre-war constitutions, e.g. in the Constitution of the Weimar Republic in 1919, as one of the most progressive constitutions of the period, where one of the chapters was entitled “Human Rights and Duties.’ Today legal theory nevertheless emphasizes that duties or obligations are correlated with rights even if that is not specifically mentioned in legal provisions. That most certainly applies to human rights and their correlatives human rights obligations or, simply, ‘human duties’. Most constitutions contain a provision determining that human rights are limited by the human rights of others, which signifies their duty-character. Thus, the paper will explore, by means of a historical and comparative legal analysis, whether the explicit linguistic characterization of the concept of human duties has any weight for its normative validity in the area of international human rights protection.

Nicholas McMurry (Griffith College, Cork), Fulfilling Rights under Privatisation

The adoption of the United Nations Framework on Business and Human Rights, emphasising the state obligation to protect rights and the corporate obligation to respect rights, represents a positive development in clarifying the human-rights obligations of multinational businesses. However, the Framework?s only comment regarding the obligation to fulfil rights is that it is a continuing state obligation. This obligation is not well established in legal systems around the world but is crucially important to address the deprivation of basic needs for people around the world. The privatisation of essential services can form a strategy to increase the resources available to fulfil rights but can also remove resources from the control of the state. This can result in clashing legal imperatives or impose economic and diplomatic pressure on states. This paper will explore possible legal frameworks to mitigate against these consequences and balance the state?s contractual and human-rights obligations, such as applying an obligation to fulfil rights directly to businesses or recognising the discretion of states in choosing how to fulfil rights as overriding contractual obligations. The problems, obstacles and opportunities inherent in these approaches will be examined, leaving open a discussion to develop an appropriate model.

Juan Ochoa-Sanchez (University of Oslo), Do States Have, or Should Have, a Duty to Ensure the Observance of Internationally Recognized Human Rights by Transnational Corporations which are domiciled in Their Territory While Conducting Operations Abroad? Focus on the Duty to Provide a Remedy to Victims of a Human Rights Violation Involving One of Such Corporations
This paper analyses the duties of the State where the parenting company has its domicile (‘home State’), particularly the duty to provide a remedy to victims of a human rights violation involving a transnational corporation. It will analyse both international practice on this matter and broader normative issues. There are several rationales for conducting this research: first, while there have been several recent developments on this question, there is also little research on the state of international law on this matter, particularly the duty to provide a remedy. The commentary to the relevant Principle of the UN Guiding Principles on Business and Human Rights does not elaborate on the legal basis of the approach taken.1 The recent International Law Association Guidelines on Best Practices for International Civil Litigation for Human Rights Violations are based on comparative rules of conflict of law.2 Second, the general question of the exercise of jurisdiction to adjudicate by States other than that where the alleged human rights violation took place is at issue in Kiobel v. Royal Dutch Petroleum Co., which is outstanding before the US Supreme Court. Last, there are policy rationales for analysing this matter. Some scholars see the exercise of jurisdiction to adjudicate by the home State as the most legitimate mechanism to prevent States other than the host and home States from exercising jurisdiction to adjudicate in this type of cases, which several see as potentially posing serious risks of abuse to companies and third States. (footnotes omitted=

Nicolás Carrillo (Autonoma University of Madrid), Direct International Humanitarian Obligations of Corporations and Other Non-State Entities: Analysis of the lex lata and the lex ferenda

Individuals have always been victimized by non-state entities, as recognized by multiple actors who call for relevant entities to not engage in human rights violations and for competent authorities to protect victims. Among those entities, corporations have power that enable them to threaten human rights. To tackle this, codes of conduct and social responsibility initiatives have been proposed. However, they are limited due to shortcomings as lack of access of individuals, vagueness or a rhetorical and instrumental use that does not answer to the protection needs of human beings. Likewise, indirect protection in the form of obligations of States and other authorities to protect from non-state abuses is not always effective, given some legal shortcomings. To ensure an effective minimum protection of essential rights, as demanded by human dignity and equality, international legal obligations must be set in place at least in some core events, so that multiple actors are empowered to promote and protect rights in relation to non-state entities and there is no impunity. Currently, all entities are bound to respect humanitarian jus cogens provisions, and the remaining core events must be enshrined in law de lege ferenda when they are not envisaged in law.

Karin Buhmann (Roskilde University), The emergence of ‘a government case for CSR’? How and why public policy interests are coming to govern CSR through establishing human rights relevant obligations on business

Drawing on two rather different empirical case the paper explains how public policy interests are coming to form a ‘government case’ for CSR and why public regulation is coming to govern CSR. The ‘government case’ parallels the ‘business case’, the alleged benefit to business offered by CSR, which has been much argued by organisational literature. The ‘government case’ as introduced in this paper, and emerging public regulation of CSR or private sector conduct which impacts on human rights, build on public policy objectives, including that of promoting and protecting human rights extraterritorially. The first case study, the Danish CSR reporting requirement and its 2012 amendment which establishes compulsory human rights reporting for certain companies, demonstrates how public policy interests in affecting business conduct extraterritorial to the jurisdiction of the Danish legislature has led the government to introduce reporting intended to induce business self-regulation. The second case study, the EU’s Forest Legality Enforcement, Governance and Trade (FLEGT) scheme and its implementing modalities, demonstrates how EU public policy and EU law – Regulations, applied within the territory of the EU, and treaties with states outside the EU – may affect human rights relevant conduct of business enterprises as well as some other human rights issues in timber exporting states.


Sara Andersen (Florence), Gendered Harms in the Fashion Industry: Lifting the Veil of Multinational Corporations (MNCs) from an American and Scandinavian Perspective

This paper looks at the role of private international law in promoting American and Scandinavian MNCs’ transnational liability for gendered harms caused by subsidiaries or contractual parties based in a non-EU country. Throughout several years fashion customers have experienced discrimination issues and ethical concerns from fashion companies that have their products manufactured in developing countries such as East and Southeast Asia and South and Central America where gender discrimination is widespread in the lack of appropriate legal mechanisms and/or the political will to enforce relevant mechanisms. This paper seeks to defend a polycentric law approach in dealing with the global challenge of corporate liability contending that the power divisions and geographic diversity of supply chains provide reasons why the contacts approach in private international law ought to be embraced as a starting point.