Business and Human Rights

• Dates of the lectures range from 1/23/25 to 2/18/25
• The course title is "Law, Business, and Human Rights"

Class 2: What is a Human Rights Perspective?

• Human rights can be viewed from "domestic" (local/national law) or international perspectives.
• The Universal Declaration of Human Rights serves as a base for international rights.
• A distinction exists between "Human Rights" and human rights.
• Human rights standards are defined in human rights treaties.

What Are Human Rights?

• Costco categorizes human rights into five areas: inclusion, employee development, communities, supplier delivery, and human rights.
• Companies take reasonable steps informed by internationally recognized human rights standards to support their commitments.
• Costco has denied shareholder requests to scale back DEI (diversity, equality, inclusion) policies.

Podcast: What's the Matter with Rights?

• There is a difference between the philosophical and legal definitions of human rights
• Some rights are considered universal
• Different cultures and belief systems and different places can source different rights

Rights vs. Interests

• Rights imply a corresponding duty or obligation.
• Rights organize state power

Human Rights vs. Other Rights

• Human rights are relatively immune to being traded off
• Human vs. citizen is a potential source of rights

Rights in Morality vs. Rights in Law

• Questions to consider are what rights can be effectively enforced and deemed legitimate, and what the consequences are.
• It is important to understand how and where rights are enforced
• The U.S. may be uniquely court-focused in terms of rights enforcement as concerns suggestions

Bhopal Industrial Disaster

• This disaster is a paradigmatic case for the intersection of business and human rights.
• Remember the real impacts of the disaster on people and places.

How to Approach Cases

• Key facts and actors are essential
• Understand the procedure/issue/rulings, attempts at justice, legal challenges, and decisions.
• Consider the legal, political, social, historical, and other factors at play.

Class 3: What is a Business?

• Corporations/businessmen have differing views on the purpose of a corporation
• Some prioritize prosperity and economic growth, while others emphasize shareholder rights.
• Concepts to be aware of include Shareholder Primacy, Stakeholder Capitalism, and other options

Stakeholder Capitalism

• Milton Friedman is related to Shareholder primacy
• Considers stakeholder capitalism as "Its interest" and "Rules of the game" from Shareholder primacy
• The Business Roundtable put out a statement on the purpose of a corporation

Shareholder Advocacy

• Raises the question of who business leaders are responsible to
• Considers Ethics, Business, Law, and considerations of Fiduciary duty and Harms caused
• Includes ESG, and Short-term or long term

Do Benefit Corporations Respect Human Rights? - Bauer and Umlas

• Benefit corporations are for-profit entities that seek to balance profit with purpose

Key Points

• Benefit corporations must consider the impact of their decisions on all stakeholders and report on social and environmental performance.
• There are questions about how rigorously companies implement commitments to accountability, as reporting standards and enforcement are limited.
• Most benefit corporations lack explicit commitments to human rights, focusing on broad sustainability goals instead.
• Companies face trade-offs between profitability and social objectives potentially prioritizing profit without adequate oversight.
• Adoption of clearer frameworks, strengthening reporting/monitoring, and aligning with international standards is recommended.

Class 4

• The material covered CSR (Corporate Social Responsibility) and HR (Human Rights)

Ramasastry Lecture

• There is a governance gap defined as "Spaces that are beyond the reach and control of public regulatory authority and in which activities or private actors remained unchecked and transgressions remain largely unaccounted for” -Florian Wettstein
• The governance gap isn't stagnant but it grows and evolves due to globalization and many other factors
• Consequences of the governance gap include No access to justice and impunity with no incentive to change
• Forum non conveniens is referenced as Union Carbide in the Bhopal case

Judicial Doctrine

• In the U.S., the forum non conveniens doctrine involves a two-step test:
  • Is there an adequate alternative outside the U.S.?
  • How are private and public interests affected?
• Typically brought up by the defendant in a motion to dismiss

Transnational Governance

• Inter-national is between nation states
• Foreign refers to another country
• International law can be universal and regional
• Home State (where business is incorporated) vs Host State (where business operates temporarily)

Soft Law vs. Hard Law

• Soft law is "non-binding" and refers to anything outside formal law-making
• Soft law can be like "organized chaos" with ambiguous consensus
• Soft law plays a critical role in developing international law
• There is no overall authority for creating law internationally, so soft law is important for international law

Social License to Operate

• It is necessary to consider Who has the social capital to give or revoke a "license"
• To look at what is needed for the "Courts of public opinion" to apply Social license
• UNGPs (Guiding Principles) reflect society's basic expectations of business
• The Internet and rights defenders or enemies of the state play roles

Terminology

• Tort is a private wrong (civil), legal liability for harm caused
• Crime is public, against the state
• Jurisdiction involves States regulatory power (reach of its human rights obligation) and Power of courts to decide a matter (jurisdiction of parties & subject matter)
• Corporate complicity is Direct v indirect; legal and non-legal
• Legal construct must establish criminal responsibility

Internet

• The internet is key to Human Rights enforcement

MN Legacy

• Persistent tension exists between binding and voluntary actions
• Look at the best approach to generate real impact
• Consider Draft norms which push for binding measures and routes of legal actions
• UNPGs (Guiding Principles) generate buy-in and raise the bar
• Focus on Corporate accountability vs. business and Human rights

Ramasastry Lecture

• The "governance gap" is when a company from a home state doing business in host states connects through the supply chain, but the host government can not or will not provided remedy
• In this case, there is no government protection for workers or from child labor
• "Soft law" refers to standards that corporations are meant to follow, even if they aren't actually enforced
• Corporate "complicity" refers to the indirect behaviors of companies involved in human rights abuses.
• "Social license to operate" means companies must benchmark their conduct around the world to a few key international human rights treaties
• Jurisdiction describes the weight of corporations and their role in multiple jurisdictions
• Forum non-conveniens refers to a court's ability to deny a case if another location is more relevant

Internet

• Professor Ramasastry sees that the internet has shed light on human rights, activism is more prevalent through constant communication and increased access to news/resources
• Workers can organize and connect and dialogue between business and human rights can occur

Draft Norms

• Ramasastry believes David (Prof. Weissbrodt) worked on the Draft Norms of the UN Guiding Principles
• The draft norms created by David took all human rights treaties and spelled out what businesses should do to respect human rights to set a framework
• His motivation is to provide access to effective remedies for those that are harmed by companies and corporate power.
• Corporations have Fiduciary duty and are required to provide Reporting which is covered by the B-corps standard for benefit corporations

Class 5: What is International Law?

• Examined Corporate governance v. governance gap
• Considered Benefit corporations, shareholder primacy, stakeholder capitalism, fiduciary duty, Soft law v. hard law
• Addressed Home states/host states, Inequality and impunity, Social license which requires social capital and Law which is dynamic
• Included Agency of actors involved and Law as made and used, as well as Jurisdiction v. forum non conveniens
• Addressed Tort v. crime - Tort: private actors / Crime: recognized action publicly and Corporate complicity v. corporate accountability and CSR v. human rights-based approach

Alien Torts Claims Act

• The district courts have original jurisdiction of any civil action by an alien for a tort in violation of the law of nations or a treaty of the U.S.
• The act includes considerations of Role of national courts, Sources of international law, Role of litigation, Social capital and Meaning of justice

What is International Law?

• One must consider if Is international law important and review Arguments for and against
• How does international law emerge? How is it enforced?
• In this consideration we must review Socialization & Monist v. Dualist
• A review of Vertical, horizontal, transnational factors as well as the Role of courts and State to state- horizontal is needed

International Criminal Law (ICL)

• Key source is Law

Primary Sources

• Key sources include Treaties and Conventions
• Rome Statute of the International Criminal Court (1998) establishes the ICC and defines core international crimes
• Genocide Convention (1948) prohibits and defines genocide
• Geneva Conventions (1949) regulate conduct of war and protect civilians and prisoners of war

Customary International Law

• Certain crimes, like genocide, crimes against humanity, and war crimes, are widely recognized as crimes under customary international law
• Customary international law is are binding even on states that haven't signed specific treaties

Judicial Decisions

• Decisions by international tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) help interpret and develop ICL

Soft Law

• UN General Assembly Resolutions (e.g., on the Responsibility to Protect) and guidelines on prosecuting international crimes - though non-binding, influence how international criminal law is applied

Main Enforcement Bodies and Strategies

• The International Criminal Court (ICC) is the most prominent enforcement body for international criminal law
• It prosecutes individuals (not states) for genocide, war crimes, crimes against humanity, and aggression
• It can only prosecute crimes after 2002, with jurisdiction if the crime occurred in a state party to the Rome Statute or if referred by the UN Security Council

Ad Hoc Tribunals

• Established by the UN for specific conflicts:
• ICTY – Crimes in the Yugoslav Wars and ICTR – 1994 Rwandan genocide

Hybrid Courts

• Combine international and domestic elements
• Examples include the Special Court for Sierra Leone (crimes during the Sierra Leone Civil War) and the Extraordinary Chambers in the Courts of Cambodia (ECCC - crimes during the Khmer Rouge regime)

National Courts (Universal Jurisdiction)

• Some states prosecute international crimes under their own laws, even for crimes abroad
• Belgium and Spain have applied universal jurisdiction to prosecute crimes against humanity

Human Rights Impacts of Businesses

• Businesses can be complicit in international crimes, by providing logistical support for war crimes or profiting from forced labor or pillaging resources in conflict zones
• Includes Companies supplying weapons used in human rights violations and Resource-extraction companies involved in funding armed groups responsible for atrocities
• There is growing pressure to hold corporations accountable in international crimes.

Business and Human Rights Frameworks

• The UN Guiding Principles on Business and Human Rights emphasize avoiding complicity in human rights violations, particularly in conflict zones

Class 6: How Important are States in Creating International Law?

• One consideration is Civil to Criminal actions such as the Minnesota Dairy Farm Case
• The Minnesota Dairy Farm Case involved a $3 million civil suit; which settled for $250,000 for a Statutory violation of Advocates for Human Rights.
• Also at issue in the case was a 2019 wage theft law which was brought up in the First prosecution under hard-fought new law.
• Indicators of forced labor and Felony racketeering must be present in the analysis

Customary International Law

• Customary International Law involves Two elements
• Two elements include consideration for “beliefs of the state” and interpretation of the law
• Also should focus on Alleging what other states are obligated to do and the Alien Tort Claims

Treaties

• "Strictly speaking a treaty is not a source of law so much as a source of obligation under law"
• Pacta sunt servanda is "Agreements must be kept"/"contracts must be honored”
• Pacta sunt servanda Emphasizes that they are legally binding
• All treaties are contractual - some also have a law-making effect like the Vienna Convention.
• Includes Vienna Convention on Law of Treaties (1969) which Establishes how treaties are made, interpreted, and enforced
• The concept of "Writing down a rule which was previously unwritten changes that rule” must be factored in

Foreshadowing the UN Guiding Principles

• Barcelona Traction Case (1970) is important for examining Legal personhood of a corporation
• The Barcelona Traction Case (1970) included Canada (headquarters), the ICJ with legal personality and Corporation who is a legal entity/person in law
• The Spain based case included consideration for Belgium (shareholders) as well as electricity and assets seizure

UN General Assembly

• UN General Assembly Resolutions are not legally binding, but many have an important law-making effect

Silos- "Special Systems"

• Silos include Fragmentation of "Specialized and (relatively) autonomous rules or rule complexes, legal institutions and spheres of legal practice" as they are applied
• There are concerns about “specialized systems’ fragmentation”
• "The tribunal recognized that the meaning of legal rules and principles is dependent on the context in which they are applied"
• Relevant hierarchies are established as hoc with a view to resolving particular problems as they arise

Class 7: Role of Business in International Law - Corporations as “Subjects” Under International Law

• Includes review of Hard and Soft Law
• Examines the idea that 'everything starts as soft law and can evolve into hard law'

Alston

• Addresses Human Rights Committee as a “treaty body" that supervises the treaty and if Some decisions they make are binding

Maastricht Principles

• Includes review of Maastricht Principles with Economic, social, and cultural rights

Articles on Responsibility of States - Hard or Soft Law?

• Considered soft law due to it not legally binding, however many provisions led to customary law that is binding

Sovereignty

• UN Charter says States have supreme authority within their territory, immunity from other states jurisdiction, freedom from other States intervention on their territory, and equal rank to other sovereign States while Evolving and challenged
• Fragmentation - areas of international law, Domestic law (family & immigration) and International trade and investment law - "new frontiers"

International Criminal Law

• Important for its Effectiveness of International Law and Factors of compliance/influence
• Focuses on How Enforcement- domestic always key along with Corporate legal personhood

Vienna Convention Includes Drafter by International Law Commission

• UN Conference on the Law of Treaties (1968-69) and Part of "codification" of international law - 1948-69
• US Constitution: Art.ii Section 2(2) - Advice and consent: President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur"
• President Nixon signed, but the congress failed to ratify
• The Vienna Convention on the Law of Treaties is an objection to Article 46- infringing on national sovereignty

Vienna Convention on the Law of Treaties (1969)

• Governs how treaties between states are made, interpreted, applied, amended, and terminated
• It Is Legally binding and states it essentially is a “treaty about treaties.”
• It Applies to treaties between states (not treaties involving international organizations, though a related convention exists for that) and treaties written in written form (not oral agreements)

Corporations as Subjects

What's the problem from Corporations as Subjects - includes consideration for Non-state actors in international law

• State obligations - Respect, protect, promote
• States have Extraterritorial obligations to protect
• Include review for Home v. Host states and Relation to critiques of stakeholder capitalism and the Governance gap and even "Global economic law"

Corporations as Subjects

• Human rights assessment - - Rights-holders; duty bearers; access to justice and Rights found in law and Participation with human rights defenders as well as Reminder for the draft norms & UN guiding principles

UNGPS

• The UNGPS had Strong multi-stakeholder support due to ‘their lack of legal blindness, their imprecise provisions on key issues, and their absence of any true control mechanism' - Ratner critique

Key Concepts

• Key Concepts include Extraterritorial obligations, State responsibilities and UN Special Procedures
• Vis-a-vis non-state actors = duty to protect which includes the work fulfilled through national legislation, policy, and practice regulating actions and omissions of non-state actors
• UN Special Procedures includes Bhopal statement and UN Working Group on BHR and focus the Difference on source of legal duty/right (ex. contract) v source of law
• Strategic approaches - generating voluntary buy-in v. advancing legal accountability

Engagement Exercise

• The UN Working Group on Business and Human Rights is charged by the UN Human Rights Council with the dissemination and implementation of the UN Guiding Principles on Business and Human Rights.
• The UN Working Group on Business and Human Rights has 5 independent experts where one expert being Prof. Anita Ramasastry from 2016-2022.
• This is an example of a UN Special Procedure which can conduct country visits as part of its mandate.
• Under the UN Framework and Guiding Principles, corporations must carry out "human rights due diligence" as part of their human rights responsibilities

International Law

• There is no source of international law that Prof. Ruggie can rely on to assert that there is a corporate responsibility to respect human rights
• The corporate responsibility set out in the UNGPs is based only on "social expectation."
• Actor(s) in the Nike case has extraterritorial human rights obligations which are relevant to the United States

Extraterritorial Human Rights

• ETOs are the human rights responsibilities that states have for people outside their states borders
• Key Principles of ETOs include Duty to Protect, Duty to Respect and Duty to Fulfill
• Duty to Protect – States must prevent human rights abuses by their own companies, institutions, or agencies operating abroad (for instance a U.S-based corporation using child labor in Bangladesh-under ETOS, the U.S. government could be expected to regulate that company's activities)
• Duty to Respect – States must ensure that their own actions (e.g., military interventions, foreign aid policies) which do not violate human rights abroad (such as a government carrying out drone strikes that harm civilians in another country which could be violating ETOs)
• Duty to Fulfill – States should take steps to help realize human rights globally, such as through development aid or international cooperation and providing funding to strengthen healthcare systems in low-income countries.

Class 9: Barrick's North Mara Gold Mine

• Residents near North Mara Mine have accused Tanzanian police of violating human rights where Reports show between 2006-2023, 77 villagers were killed by mine security of Tanzanian police and Barrick holds a majority stake in the mine

Procedural History

• A 2013 lawsuit was filed in UK against Barrick and Mara Mine alleging complicity in the killings however Case was settled outside of court
• A 2019 Legal action was filed for 7 human rights violations by mine security and police with no admission of liability and settled outside of court
• In 2022 21 Tanzanian nationals filed suit against Barrick in Ontario Superior Court of Justice claiming Barrick was complicit in extrajudicial killings however Barrick argued the case should be under Tanzania jurisdiction, and not Canada
• In 2024- Ontario Superior Court dismissed case stating it lacked jurisdiction

Legal Issues

• Legal Issues included Jurisdiction which requires a human rights violation for a jurisdiction however it isn't strong
• Corporate Liability and Forum Non Conveniens

Reasoning

• Forum Non Conveniens required a reivew of Barrick's claims due to evidence and witnesses that the jurisdiction should be in Tanzania
• Barrick did not make for a suitable convenient forum compared to Tanzania

Week 4 Readings

• Included a review of the Role of Business in international law through Formal status under international law with State v. non-state and Participation of businesses in international law
• Looked at State responsibility for non-state actors with the Obligation to respect
• Focused on Historically closely tied but gap and Imputing acts of business to state

Obligation

• Obligation to protect can mean a Response to this gap- actors "within its territory or otherwise subject to this jurisdiction" for this course
• Types of challenges - HR impacts can also be a part of its definition
• States have legally binding international law obligations however businesses do not have binding obligations

Explore the relationship between rights and duties, the Universal Declaration of Human Rights, and the distinction of human rights. Also, examine the Bhopal industrial disaster alongside Milton Friedman's concept of shareholder primacy.