Business & Human Rights Journal (Volume 2, Issue 2)

The Business and Human Rights Journal (BHRJ) provides an authoritative platform for scholarly debate on all issues concerning the intersection of business and human rights in an open, critical and interdisciplinary manner. It seeks to advance the academic discussion on business and human rights as well as promote concern for human rights in business practice. Its scope encompasses interface of any type of business enterprise with human rights, environmental rights, labour rights and the collective rights of vulnerable groups. The Journal contains peer-reviewed articles alongside shorter ‘Developments in the Field’ items, which include policy, legal and regulatory developments, as well as case studies and insight pieces.

Editors-in-Chief: 

Surya Deva, City University of Hong Kong 
Anita Ramasastry, University of Washington School of Law 
Michael Santoro, Santa Clara University
Florian Wettstein, University of St Gallen

Volume 2, Issue 2, July 2017

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Article
15 June 2017

The French law on duty of care: A historic step towards making globalization work for all

Author: Sandra Cossart, Jérôme Chaplier and Tiphaine Beau de Lomenie (Business & Human Rights Journal)

The difficult journey of the French Bill on the duty of care of parent and subcontracting companies came to an end on 23 March 2017, when the French Constitutional Council [...] decided in favour of upholding the majority of the law’s text... This piece looks at how this French law fits into the growing trend to embed corporate respect for human rights into different types of legal requirements... [It] reflects on the Council ruling and a potential political shift that this decision reveals... Should the new French government maintain this leading role in Europe and at the international level, and should other states and the European Commission seize this opportunity, the duty of care law could have a similar knock-on effect and steer towards wider convergence.

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Article
26 June 2017

Business human rights responsibility for refugees & migrant workers: Turning policies into practice in the Middle East

Author: Samentha Goethals, Joseph Bardwell, Mariam Bhacker, & Bahaa Ezzelarab, Business & Human Rights Resource Centre in Business & Human Rights Journal

...Our focus in this piece is to consider how companies have been implementing their human rights responsibility to address the risks and challenges faced by refugees and migrant workers in the Middle East, a region that is currently experiencing unprecedented population movements. It draws on two case studies from recent research by the Business and Human Rights Resource Centre (BHRRC) on: (1) migrant construction workers in Qatar and the United Arab Emirates (UAE); and (2) Syrian refugees in garment supply-chains in Turkey.
By adopting a mixed methods research approach that includes fieldwork, company surveys and benchmarking, these cases reveal that there is still a long way to go for global businesses to fulfil their potential to help generate economic security and realize the basic rights of migrant workers and refugees to decent and fair work. In both cases, we found small clusters of leading companies and larger groups of laggards. The piece concludes with a reflection on combining increased transparency with scrutiny and benchmarking to create a ‘race to the top’, and makes recommendations for human rights due diligence to prevent exploitation and discrimination against refugees and migrant workers...

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Article
1 September 2017

Commentary: Overview of Intl. Bar Association business & human rights handbook for lawyers & its domestic implementation

Author: Stéphane Brabant & Elsa Savourey, Herbert Smith Freehills, on Business and Human Rights Journal

"From Global Toolbox to Local Implementation: The IBA Practical Guide on Business and Human Rights for Business Lawyers", 17 Apr 2017

In-house counsel and lawyers who advise businesses are increasingly required to integrate human rights into their practice of law. This integration is the result of enhanced international standards, domestic laws, evolving best practices, and increasing clients’ requests. The Practical Guide on Business and Human Rights for Business Lawyers...is the latest testament to this integration and to the new role of lawyers in the twenty-first century.

Human rights are everywhere, both inside and outside companies....As a result, the legal practices connected to human rights are...diverse...However, only a few lawyers advising businesses know what human rights mean in practice for them...

The Practical Guide is to date the most advanced initiative to help bridge the gap between the fact that lawyers feel disconnected from human rights when advising businesses, and the contribution these lawyers could actually make...This piece first explains...what it means in practice for lawyers and law firms to advise businesses on human rights and what the related risks and opportunities are. The piece then goes on to address the challenges associated with ensuring that the Practical Guide reaches the legal profession through implementation at the domestic level...

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Article
4 September 2017

Commentary: Singapore's law to hold companies liable for transboundary environmental & health impacts of haze pollution

Author: Mahdev Mohan, Singapore Management University, on Business and Human Rights Journal

"A Domestic Solution for Transboundary Harm: Singapore's Haze Pollution Law", 23 May 2017

Toxic "haze" from fires, often burning over dry peatland in Indonesia, has affected millions...

Singapore's Ministry of Environment...ha[s] attributed the...pollution...to the conduct "of errant companies...", and note that "their emphasis on profit at the expense of the environment and society has led to serious and harmful consequences affecting millions of people". 

Singapore's extraterritorial Transboundary Haze Pollution Act [THPA]...imposes both civil and criminal liability on errant companies domiciled or operating overseas but which cause or contribute to haze pollution in Singapore.

...Section 9...extends the..."precautionary principle"to corporations as well, obligating entities...to take certain precautionary and remedial measures....[T]he THPA...endorses...the Guiding Principles, particularly Principle 2, which provides that "States should set out clearly the expectation that all business enterprises domiciled in their territory...respect human rights throughout their operations."

...Scholars acknowledge environmental pollution as one of the most significant risks to the right to health protection...

...Notwithstanding its limitations, the THPA provides a basis for an unprecedented domestic response to transboundary haze pollution reminiscent of the UN Framework and Guiding Principles. It is important to note that the greatest value of the THPA lies in the fact that it has prompted a degree of compliance on the part of companies that have responded to the preventive notices. Indonesia too has taken further strides with enforcement...

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Article
23 November 2017

Business responsibilities for human rights: A commentary on Arnold

Author: Nien-hê Hsieh

"Business Responsibilities for Human Rights: A Commentary on Arnold," 1 August 2017

Human rights have come to play a prominent role in debates about the responsibilities of business. In the business ethics literature, there are two approaches to the question of whether businesses have human rights obligations. The ‘moral’ approach conceives of human rights as antecedently existing basic moral rights. The ‘institutional’ approach starts with contemporary human rights practice in which human rights refer to rights enumerated in the Universal Declaration of Human Rights and subsequent international documents, and in which states are the primary duty bearers of human rights. This commentary argues that the implications of adopting one or the other approach are much greater than most scholars recognize, and that we have reason to reject the moral approach and to adopt the institutional approach instead. The commentary highlights key questions that need to be addressed if human rights are to play a central role in framing the responsibilities of business...

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Article
23 November 2017

Equipping Professionals for the Next Challenges: The Design & Results of a Multidisciplinary Business & Human Rights Clinic

Author: Joanne Bauer

"Equipping Professionals for the Next Challenges: The Design and Results of a Multidisciplinary Business and Human Rights Clinic," 22 June 2017

Since the 1990s, the subject of business and human rights has evolved from an academic critique of ‘corporate social responsibility’ as an approach to understanding business’s social impacts, to a movement and a field of study… As the field grows, so too does the demand for professionals... The need to equip professionals with the skills to analyse and address complex business and human rights challenges is steadily gaining recognition at universities across the globe... [P]rofessors share and debate teaching techniques – across topics related to global labour supply chains, extractives and social licence, and privacy and censorship – including case studies, role plays, simulations, debates and direct engagement with practitioners... This piece examines the experience of...a year-long multi-disciplinary business and human rights clinic housed at a school of public policy. Combining seminars, guest lectures, skills training, group work and discussion, field visits and self-reflective exercises, the [School of International and Public Affairs] SIPA Business and Human Rights Clinic (the Clinic) [at Columbia University] is designed to provide students cutting-edge skills with strong career potential while deepening students’ knowledge and experience of business and human rights...

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Article
23 November 2017

Human rights impact assessments in a Brazil land conflict: Towards a hybrid approach

Author: Irit Tamir & Sarah Zoen

"Human Rights Impact Assessments in a Brazil Land Conflict: Towards a Hybrid Approach," 19 June 2018

In recent years there has been a surge in both community- and company-led human rights impact assessments (HRIAs) thanks in part to the due diligence requirements of the United Nations Guiding Principles on Business and Human Rights (UNGPs). Community-based HRIAs, by nature, analyse impacts from the perspective of a local community. Oxfam America has promoted a community-based HRIA methodology found in Rights & Democracy’s Getting It Right tool, an approach that emphasizes a community’s human rights concerns rather than starting from a company’s perspective

...Companies have also developed tools and processes to assess the potential impact of their projects; however, they often fail to seek out the expectations or assertions of the very people whose rights they may be adversely impacting. Common pitfalls of company-led HRIAs include heavy reliance on desk research or failure to extend interviews beyond government officials and non-governmental organizations (NGOs)…

This piece suggests that company and communities work together, when possible, in a hybrid approach to assess human rights in order to create a shared understanding of impacts, solutions and remedies…The Brazil land conflict provides a unique look at a community-based HRIA process that ran in parallel with two company-led HRIAs... [refers to: Coca-Cola, PepsiCo, Usine Trapiche] 

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Article
23 November 2017

On the division of moral labour for human rights between states & corporations: A reply to Hsieh

Author: Denis G. Arnold

"On the Division of Moral Labour for Human Rights Between States and Corporations: A Reply to Hsieh," 1 August 2017

In a series of previous articles [the author] defended the claim that there are robust, theoretical justifications for concluding that corporations have human rights obligations and that those obligations are distinct from the larger set of human rights obligations that are properly attributed to states. Hsieh claims that corporations do not have human rights obligations. In this reply it is argued that even if one takes what Hsieh refers to as an ‘institutional approach’ to understanding the human rights obligations of states, corporations are nonetheless properly understood to have human rights obligations regarding those with whom they interact, such as workers, customers and community members. 

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Article
23 November 2017

Struggling to take off?: The 2nd session of intergovernmental negotiations on a treaty on business & human rights

Author: Carlos Lopez

"Struggling to Take Off?: The Second Session of Intergovernmental Negotiations on a Treaty on Business and Human Rights," 14 June 2017

...The second session of the Open-Ended Working Group on the elaboration of a legally binding instrument on Transnational Corporations and other business enterprises with respect to human rights (OEIGWG) was mandated by Resolution 26/9 of the Human Rights Council...met in Geneva on 24–28 October 2017. According to the Resolution 26/9 the first two sessions were to be dedicated to constructive deliberationson the content, scope, nature and formof the future legally binding instrument... The meeting...was generally well attended by a growing number of states and an impressive and growing group of diverse civil society organizations, failed, however, in breaking through key political impasses in the ongoing negotiations. 

... [F]ew of the most salient and recurring debates throughout the session: (1) the interface of the binding instrument with trade and investment agreements, (2) extraterritorial obligations and jurisdiction, and (3) whether a treaty would be compatible with the UNGPs...

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Article
23 November 2017

UN Guiding Principles & the legal profession: Quo vadis?

Author: Stefanie Lemke

"UN Guiding Principles & the Legal Profession: Quo Vadis?," 17 May 2017

This piece explores the critical role played by lawyers in promoting the UN Guiding Principles on Business and Human Rights (UNGPs)… Lawyers can play an important role in addressing corporate responsibility to respect human rights...A law firm’s advice can…have a critical impact on a client’s appropriate business operations, which, in turn, might also mean that a (corporate) client’s human rights abuse could be directly linked to the law firm’s services through its relationship with the client...[therefore] law firms too have a responsibility to respect human rights, as providers of legal services to corporate clients and business enterprises themselves.

... This piece looks at the possible conflicts lawyers may face when applying the UNGPs, discusses latest debates and trends in this area, and explores how lawyers can discharge their dual responsibility... [refers to: Chevron]

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