Law, Business & Human Rights Notes PDF

Law, Business, and Human Rights 1/23/25 Class 2 What is a human rights perspective? -​ “Domestic” or international -​ local/national law vs international law -​ Universal Declaration of Human Rights -​ Base of international rights -​ “Human Rights” vs human rights -​...

Law, Business, and Human Rights 1/23/25 Class 2 What is a human rights perspective? -​ “Domestic” or international -​ local/national law vs international law -​ Universal Declaration of Human Rights -​ Base of international rights -​ “Human Rights” vs human rights -​ Human rights v treaties; what standards are legally binding What are human rights? -​ Costco -​ 5 categories: Inclusion, employee development, communities, supplier delivery, human rights -​ Will take what they believe to be reasonable and appropriate steps to support their commitment which are informed by following internationally recognized human rights standards -​ 1/23/25: Costco is denying shareholder requests to scale back DEI (diversity, equality, inclusion) policies Podcast: Entitled- What's the matter with rights? -​ Difference between the philosophical definition of human rights and the legal definition -​ Some rights are universal -​ Different cultures and belief systems can include different rights -​ Different rights sourced from different places ​ Rights v Interests ○​ Rights necessarily imply duty - no right if there is no corresponding obligation ○​ Rights are how we organize state power ​ Human rights vs. other rights ○​ Human rights = relatively immune to trading off ○​ Human v citizen - the source of rights ​ Rights in Morality vs. Rights in Law ○​ Which rights can be made effective and be deemed legitimate to enforce ○​ What are the consequences? ​ Human rights law as language ​ How and where are rights enforced? ○​ What do you make of the suggestion that the us is uniquely court-forced in terms of rights enforcement? Bhopal Industrial Disaster -​ A paradigmatic case for the Business and Human Rights field -​ Reminder: real people and places How to approach cases: -​ Facts: key facts and actors -​ Procedure/Issue/Rulings: attempts at justice, legal challenges and decisions -​ Context: Main factors at play- legal, political, social, historical, and other 1/28/25 Class 3 What is a business? Main thoughts from readings: -​ Corporations/businessmen do not all have the same views on the purpose of a corporation. While some prefer the prosperity of business and economic growth, others believe shareholder rights are more important. Shareholder Primacy Stakeholder Capitalism Other options Stakeholder Capitalism -​ Shareholder primacy (Milton Friedman) -​ “Its interest” -​ “Rules of the game” -​ Business Roundtable -​ Statement on the purpose of a corporation -​ Stakeholder capitalism -​ Focuses on benefiting all stakeholders -​ Critiques: idolizes corporations having lots of power in society, lots of flexibility of responsibility to stakeholders -​ Shareholder advocacy -​ To whom are business leaders responsible? -​ Ethics -​ Business -​ Law -​ Fiduciary duty -​ Harms caused -​ Short-term or long term -​ ESG Do Benefit Corporations Respect Human Rights? - Bauer and Umlas Benefit corporations: for-profit corporations that try to balance profit and their purpose Key Points: 1.​ Legal Framework: Benefit corporations are required to consider the impact of their decisions on all stakeholders, including workers, communities, and the environment, and to report on their social and environmental performance. 2.​ Accountability and Transparency: While the structure encourages accountability, there are questions about how rigorously companies implement these commitments. Reporting standards vary, and enforcement mechanisms are limited. 3.​ Human Rights Integration: The authors argue that most benefit corporations lack explicit commitments to human rights. Many focus on broad sustainability goals but fail to address specific human rights issues like labor rights, gender equality, and community impacts. 4.​ Challenges: Companies often face trade-offs between profitability and fulfilling social objectives. Without robust oversight, some may prioritize profit over stakeholder well-being. 5.​ Recommendations: The authors suggest adopting clearer frameworks for integrating human rights into benefit corporation mandates, strengthening reporting and monitoring systems, and encouraging alignment with international standards like the UN Guiding Principles on Business and Human Rights. 1/30/25 Class 4 CSR v. HR Ramasastry Lecture ​ Governance gap ○​ “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 (gaps grow and evolve due to globalization and many other factors) ○​ Consequences of the governance gap: ​ No access to justice ​ impunity= no incentive to change ​ Forum non conveniens ○​ Union Carbide in Bhopal case  ○​ Judicial doctrine ○​ In US, forum non conveniens doctrine two-step test: ​ Adequate alternative outside US? ​ Private and public interests? ○​ Typically brought up by the defendant in a motion to dismiss ​ Transnational Governance ○​ Inter-national: between nation states ○​ Foreign: another country ○​ International-law based ​ Universal and regional ○​ Home State ○​ Host state - temporarily there ​ Soft Law v Hard Law ○​ Soft law means “non-binding” ○​ Refers to how it came about- anything outside the formal law-making process ○​ Sounds like “organized chaos”- ambiguous consensus ○​ Critical role in the development of international law ​ No overall authority for creating law internationally, so this is how it starts ​ However, there is hard law in international law (ex. treaties) ○​ More important than “Is it binding” is “Is it useful/persuasive”? ​ Social license to operate ○​ Who has the social capital to give or revoke a “license”? ○​ “Courts of public opinion ○​ UNGPs: basic expectations society has of business ○​ Role of the Internet? ○​ Human rights defenders or enemies of the state ​ Terminology ○​ Tort ​ Private wrong (civil), legal liability for harm caused ​ Crime (public, against the state) ○​ Jurisdiction ​ States regulatory power(reach of its human rights obligation) ​ Power of courts to decide a matter (jurisdiction of parties & subject matter) ○​ Corporate complicity ​ Direct v indirect; legal and non-legal ​ Legal construct to establish criminal responsibility ​ Internet ​ MN legacy ○​ Persistent tension between binding and voluntary ​ What is the best approach to generate real impact? ○​ Draft norms- push for binding measures and routes of legal actions ○​ UNPGs (Guiding Principles)- generating buy-in and raising the bar ○​ Corporate accountability vs. business and Human rights  ○​ Prof. Weisbrodt’s motivation: justice for victims, access to effective remedy ○​ UN Special Procedures Just in Time - Ramasatry Lecture (my answers) What is your best guess/understanding of what Prof. Ramasastry means by "governance gap"? What does this have to do with the origins of the field/movement of business and human rights? -​ The topic is slightly confusing, but based on the lecture "governance gap" is the idea that a company from a home state (and headquartered in countries such as the US or Canada) that does business in host states and is in connection through the supply chain or subsidiaries to other countries that the host government is unable or unwilling to provide access to remedy. This is important to the origins of the field because it means the government is unable/unwilling to protect workers or protect against child labor. What does "soft law" mean? You don't have to look it up, but in the context of this lecture, what would you guess to be the difference between soft and hard law? Is "soft law" an oxymoron? -​ In my opinion, "soft law" could refer to the standards that corporations are meant to follow, even if they aren't actually enforced. While it isn't something they would be reprimanded for, it is advised to follow regardless. In the lecture, soft law is described as "not binding but trying to change government regulations". Corporate "complicity": this was made clear to me in the lecture as it is the indirect behaviors of companies that are involved in human rights abuses. "social license to operate": An individual's social license to operate is described in the lecture as the need that companies have to benchmark their conduct around the world to a few key international human rights treaties Jurisdiction: I was already familiar with this term, meaning the official power that the government or a court has. In the lecture, the term is used to describe the weight of corporations and their role in multiple jurisdictions. Forum non-conveniens: While the definition was slightly unclear to me from the lecture, I believe the term refers to the ability of a court to deny a case because there is another location for the case to be heard that makes more sense/is more relevant to the case. Tort: I was already familiar with a tort from other law classes I have taken. A tort is a wrongful act that causes harm or injury to another. In the lecture, she uses a case where a negligent tort was committed by a company in Texas. Additionally, she mentions how torts can be in both civil and criminal jurisdictions. Why does Prof. Ramasastry see the ubiquitousness of the internet as related to the birth of the business and human rights movement? -​ I think Professor Ramasastry sees how the implementation of the internet in our society has shed light on human rights, and activism is much more prevalent through constant communication using the internet. Because news and resources are so easily accessible through the internet, we can closely observe how human rights and businesses connect. Workers are able to organize and connect. Prof. Ramasastry mentions how David and John raised the bar to open the dialogue between business and human rights. By creating the UN Guiding Principles and creating the expectation for companies to have a social license to operate they have made a huge difference in connecting these topics, which have been further merged by the internet. Prof. Ramasastry sums up why she believes David (Prof. Weissbrodt) worked on the Draft Norms. What does she say was his motivation - and "all of ours"? -​ The draft norms that were created by David took all of the human rights treaties we had in our world and spelled out what it would look like for businesses to respect human rights. Prof. Ramasastry explains his motivation for the draft norms was to set a framework for the constant work that can be put in. Prof. Ramasastry emphasizes in her lecture how his work was singular, and we still have a long way to go. His motivation is to go past just talking about it, and rather provide access to effective remedies for those that are harmed by companies and corporate power. The idea for drawing: someone crossing the street (jaywalking) (hard law) vs apologizing to the officer (soft law) What are benefit corporations? -​ Fiduciary duty: -​ Reporting -​ B-corps: standard for benefit corporations 2/4/25 Class 5 What is international law law? Part 1: Key Takeaways -​ Corporate governance v. governance gap -​ Benefit corporations, shareholder primacy, stakeholder capitalism, fiduciary duty -​ Soft law v. hard law -​ Home states/host states -​ Inequality and impunity -​ Social license requires social capital -​ Law as dynamic -​ Agency of actors involved -​ Law as made and used -​ Jurisdiction v. forum non conveniens -​ Tort v. crime -​ Tort: private actors -​ Crime: recognized action publicly -​ Corporate complicity v. corporate accountability -​ CSR v. human rights-based approach Alien Torts Claims Act -​ The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US ○​ Role of national courts ○​ Sources of international law ○​ Role of litigation ○​ Social capital ○​ Meaning of justice What is International Law? -​ Is international law important? Arguments for and against -​ How does international law emerge? How is it enforced? -​ Socialization -​ Monist v. Dualist  -​ Vertical, horizontal, transnational -​ Role of courts -​ State to state- horizontal International Criminal Law (ICL) 1. Key Sources of Law Primary Sources ​ Treaties and Conventions: ○​ Rome Statute of the International Criminal Court (1998) – Establishes the International Criminal Court (ICC) and defines core international crimes. ○​ Genocide Convention (1948) – Prohibits and defines genocide. ○​ Geneva Conventions (1949) – Regulate the conduct of war and protect civilians and prisoners of war. Customary International Law ​ Certain crimes, such as genocide, crimes against humanity, and war crimes, are widely recognized as crimes under customary international law, 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. 2. Main Enforcement Bodies and Strategies ​ International Criminal Court (ICC):​ The most prominent enforcement body for international criminal law. It prosecutes individuals (not states) for genocide, war crimes, crimes against humanity, and the crime of aggression.  ○​ It can only prosecute crimes committed after 2002 and has 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 – For crimes committed during the Yugoslav Wars. ○​ ICTR – For the 1994 Rwandan genocide. ​ Hybrid Courts:​ These courts combine international and domestic elements. Examples: ○​ Special Court for Sierra Leone – For crimes committed during the Sierra Leone Civil War. ○​ Extraordinary Chambers in the Courts of Cambodia (ECCC) – For crimes committed during the Khmer Rouge regime. ​ National Courts (Universal Jurisdiction):​ Some states prosecute international crimes under their own laws, even if the crime occurred abroad (e.g., Belgium and Spain have applied universal jurisdiction to prosecute crimes against humanity). 3. Human Rights Impacts of Businesses ​ Corporate Accountability for International Crimes:​ Businesses can be complicit in international crimes, such as providing logistical support for war crimes or profiting from forced labor or pillaging natural resources in conflict zones. ○​ Examples: ​ Companies supplying weapons used in human rights violations. ​ Resource-extraction companies involved in funding armed groups responsible for atrocities. ​ Enforcement Efforts:​ There is growing pressure to hold corporations accountable for their role in international crimes. Although the ICC currently only prosecutes individuals, some national courts are expanding their jurisdiction to include corporate executives. ​ Business and Human Rights Frameworks:​ The UN Guiding Principles on Business and Human Rights emphasize that companies must avoid complicity in human rights violations, particularly in conflict zones. 2/6/25 Class 6 How important are states in creating international law? Civil to Criminal Minnesota Dairy Farm Case -​ $3 mil civil suit; settled for $250,000 -​ Statutory violation -​ 2019 wage theft law -​ First prosecution under hard-fought new law -​ Advocates for Human Rights -​ Felony racketeering -​ Indicators of forced labor Customary International Law -​ Two elements -​ What do we mean by: “beliefs of the state” -​ Views, practices, and opinions of a state regarding legal obligations/their interpretation of the law -​ Alleging what other states are obligated to do -​ Alien Tort Claims -​ Main point: international law, rights, and duties are understood to emerge through the practice, assertions, and acknowledgments of states Treaties “Strictly speaking a treaty is not a source of law so much as a source of obligation under law” -​ Pacta sunt servanda -​ “Agreements must be kept”/”contracts must be honored” -​ Emphasizes that they are legally binding -​ All treaties are contractual; some also have a law-making effect -​ Ex- Vienna Convention -​ Less than half the states are parties but it's considered binding on all states -​ Created the Vienna Convention on Law of Treaties (1969) -​ Establishes how treaties are made, interpreted, and enforced -​ “Writing down a rule which was previously unwritten changes that rule”  -​ Foreshadowing the UN Guiding Principles Barcelona Traction Case (1970) -​ Legal personhood of a corporation -​ Canada- headquarters -​ ICJ: legal personality of a corporation -​ Corporation is a legal entity/person in law -​ Belgium- shareholders -​ Spain- electricity + assets seizure UN General Assembly -​ Resolutions are not legally binding, but many have an important law-making effect Silos- “special systems’ -​ Fragmentation -​ “Specialized and (relatively) autonomous rules or rule complexes, legal institutions and spheres of legal practice” -​ Why would this be a problem? -​ “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 2/11/25 Class 7 Role of Business in International Law - Corporations as “subjects” under international law Questions: -​ Hard and Soft Law -​ Think ‘everything starts as soft law and can evolve into hard law’ Alston Human Rights Committee - “treaty body” -​ The treaty body is charged to supervise the treaty -​ Some decisions they make are binding Maastricht principles -​ Economic, social, and cultural rights Articles on Responsibility of States - hard or soft law? -​ Considered soft law because its not legally binding, however many provisions led to customary law that is binding Sovereignty  -​ UN Charter- 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 -​ Evolving, challenged Questions (again): Fragmentation; Areas of international law -​ Domestic law (family & immigration) -​ International trade and investment law - “new frontiers” International Criminal Law; Nuremberg trials Effectiveness of International Law -​ Factors of compliance/influence -​ Not only judicial enforcement -​ Enforcement- domestic always key Corporate legal personhood Vienna Convention ​ Drafter by International Law Commission ​ UN Conference on the Law of Treaties (1968-69) ​ 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, congress failed to ratify ​ Obj. to Article 46- infringing on national sovereignty ​ Executive branch has recognized as customary international law ○​ Degree has varied Vienna Convention on the Law of Treaties (1969) ​ Purpose: It governs how treaties between states are made, interpreted, applied, amended, and terminated. Essentially, it’s the "treaty about treaties." ​ Legally binding: It’s considered hard law and a cornerstone of international law. ​ Applies to: ○​ Treaties between states (not treaties involving international organizations, though a related convention exists for that). ○​ Treaties written in written form (not oral agreements). Corporations as Subjects What's the problem? -​ Non-state actors in international law -​ Human rights law (and international law) state-centric -​ State obligations - Respect, protect, promote -​ Extraterritorial obligations to protect -​ Home v. Host states -​ Relation to critiques of stakeholder capitalism? Governance gap? -​ “Global economic law” -​ Human rights assessment -​ Rights-holders; duty bearers; access to justice -​ Rights found in law -​ Participation, human rights defenders -​ Reminder: draft norms & UN guiding principles Dean Oren Gross 2/13/25 UNGPs -​ The strong multi-stakeholder support for the UNGPs was a consequence of ‘their lack of legal blindness, their imprecise provisions on key issues. And their absence of any true control mechanism’ - Ratner critique Key Concepts -​ Extraterritorial obligations -​ State responsibilities -​ Vis-a-vis non-state actors = duty to protect -​ Fulfilled through national legislation, policy, and practice regulating actions and omissions of non-state actors -​ UN Special Procedures -​ EX. Bhopal statement; UN Working Group on BHR -​ Difference: source of legal duty/right (ex. contract) v source of law -​ Strategic approaches: generating voluntary buy-in v. advancing legal accountability Engagement Exercise UN Working Group on Business and Human Rights -​ It is charged by the UN Human Rights Council with the dissemination and implementation of the UN Guiding Principles on Business and Human Rights.  -​ It is made up of 5 independent experts, one of whom was Prof. Anita Ramasastry from 2016-2022. -​ It is an example of a UN Special Procedure. -​ It can conduct country visits as part of its mandate. Under the UN Framework and Guiding Principles, which actors are called on to carry out "human rights due diligence" as part of their human rights responsibilities? -​ Corporations On which source of international law did Prof. Ruggie rely to assert that there is a corporate responsibility to respect human rights? -​ None. The corporate responsibility set out in the UNGPs is based only on "social expectation." Which actor(s) in the Nike case would potentially have extraterritorial human rights obligations that are relevant to the situation described ? -​ United States Extraterritorial Human Rights -​ ETOs are the human rights responsibilities that states have for people outside their states borders -​ Key Principles of ETOs: 1.​ Duty to Protect – States must prevent human rights abuses by their own companies, institutions, or agencies operating abroad. ○​ Example: 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. 2.​ Duty to Respect – States must ensure that their own actions (e.g., military interventions, foreign aid policies) do not violate human rights abroad. ○​ Example: A government carrying out drone strikes that harm civilians in another country could be violating ETOs. 3.​ Duty to Fulfill – States should take steps to help realize human rights globally, such as through development aid or international cooperation. ○​ Example: Providing funding to strengthen healthcare systems in low-income countries. 2/18/25 Class 9 Barrick’s North Mara Gold Mine Facts: -​ Residents near North Mara Mine have accused Tanzanian police of violating human rights violations -​ Reports show between 2006-2023, 77 villagers were killed by mine security of Tanzanian police -​ Barrick holds a majority stake in the mine Procedural History: -​ 2013: lawsuit filed in UK against Barrick and Mara Mine alleging complicity in the killings. Case was settled outside of court -​ 2019: Legal action for 7 human rights violations by mine security and police- no admission of liability and settled outside of court -​ 2022: 21 Tanzanian nationals filed suit against Barrick in Ontario Superior Court of Justice. Claimed Barrick was complicit in extrajudicial killings. Barrick argued the case should be under Tanzania jurisdiction, not Canada. 2024- Ontario Superior Court dismissed case stating it lacked jurisdiction Legal Issues -​ Jurisdiction- is a human rights violation so they do have a jurisdiction however it isn't strong -​ Corporate Liability -​ Forum Non Conveniens Reasoning -​ Forum Non Conveniens -​ Barrick claimed due to evidence and witnesses the jurisdiction should be in Tanzania -​ Was not a suitable convenient forum compared to Tanzania Week 4 Readings- Main Takeaways -​ Role of Business in international law -​ Formal status under international law -​ State v. non-state -​ Participation of businesses in international law -​ State responsibility for non-state actors -​ Obligation to respect -​ Historically closely tied but gap -​ Imputing acts of business to state  -​ Obligation to protect -​ Response to this gap- actors “within its territory or otherwise subject to this jurisdiction” -​ Types of challenges - HR impacts -​ States have legally binding international law obligations, businesses do not have binding obligations