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Business & Human Rights Journal (Volume 1, 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 1, Issue 2, July 2016

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Article
12 February 2018

'Is Fox News a breach of human rights?’: The news media's immunity from the Guiding Principles on Business & Human Rights

Author: Sarah Joseph

"'Is Fox News a Breach of Human Rights?’: The News Media’s Immunity from the Guiding Principles on Business & Human Rights," 14 April 2016

The business and human rights debate has essentially bypassed the media industry. This article addresses that gap in the debate by applying the Guiding Principles on Business and Human Rights to the media. Application of human rights responsibilities to the media in accordance with the Guiding Principles is significantly complicated by the existence of media rights of freedom of expression. It is argued that the application of the Guiding Principles to the media industry leaves significant scope for it to be involved with serious and systemic human rights violations. This conclusion indicates that the Guiding Principles are an inadequately theorised tool for dealing with human rights responsibilities of the media. It may reveal deeper flaws in the Guiding Principles, which extend to industries other than the media. At the least, a dialogue between the human rights community and the media industry must commence in order to work out how human rights might apply in the context of the responsibilities of one of the world’s most important and powerful industries... [refers to Fox News] 

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Article
12 February 2018

Binding corporate human rights obligations: A few observations from the South African legal framework

Author: Lise Smit

"Binding Corporate Human Rights Obligations: A Few Observations from the South African Legal Framework," 15 April 2016

...[A] few interesting mechanisms for holding corporations legally accountable for human rights obligations have emerged in [South African] legislation and case law... Human rights are...not directly applied to companies, but instead through statutory interpretation or the development of the common law. This [article highlights] a few examples of these developments and consider[s] what options they may offer for other national jurisdictions as well as the international treaty process...

[T]he South African Bill of Rights binds private entities, where applicable. However, private entities are not ordinarily held liable directly under the Constitution. Instead, human rights are given effect against private actors indirectly through the interpretation of legislation or the development of common law... 

The constitutional requirement that all courts must consider the Bill of Rights in the interpretation of legislation and the development of the common law facilitates the application of human rights against corporate entities. Myriad examples of this are taking place in daily South African legal practice... Similarly, the constitutional requirement that international law should be taken into account when interpreting the Bill of Rights provides an avenue for the UN Guiding Principles to permeate binding case law... These developments demonstrate the ease with which human rights can be applied to companies where the legal framework encourages or even mandates it...

Currently, treaty negotiations are taking place at the United Nations around creating possible binding human rights obligations on companies. State parties may consider these South African examples of regulation...as possible models...

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Article
12 February 2018

Integrating business & human rights in the Inter-American Human Rights System

Author: Alejandra Gonza

"Integrating Business and Human Rights in the Inter-American Human Rights System," 21 April 2016

...The issue of corporate involvement in human rights abuses is not new to the Inter-American Human Rights System... However, during the last two decades increasing foreign investment, development projects, and extractive industries in the region have required the [Inter-American] Commission and the [Inter-American] Court [of Human Rights] to address the intersection of business and human rights, especially in the context of indigenous rights. This regional human rights system has begun to refine its guidance on state obligations including the duty to regulate and supervise corporations, in response to this trend. 

The Inter-American System, however, has only infrequently assigned specific obligations to corporations through its award of remedies. Civil society and victims of rights abuse have recently pushed the business and human rights agenda forward, and have sought more explicit recognition of corporate responsibilities in the work of the Court and Commission. These stakeholders have urged the Commission to further develop standards explicitly addressing corporations and to apply the UN Guiding Principles on Business and Human Rights (UN GPs).

This article explores recent initiatives and key cases that have attempted to move beyond 'corporate social responsibility' rhetoric towards a 'business and human rights' agenda in the Inter-American System. Specific case law on corporations and the UN Guiding Principles is still lacking a robust presence, but the Inter-American System's initial steps do pave the way for future developments...

[This articles concludes that] [t]he [Inter-American] System needs to better apply the UN GPs and further explore their connection with the American Convention and Declaration. Within the case system the Inter-American bodies have the opportunity to address the impunity of corporations in the region... The Inter-American System's remedial approach is already distinguished among regional human rights systems. By developing remedies to redress the harms of corporations and hold them accountable, the System could significantly impact global legislation, policies and regulatory frameworks. [refers to Compañía General de Combustibles and Petroecuador]

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Article
12 February 2018

Mapping recent developments in transparency of extractive industries

Author: Zorka Milin

"Mapping Recent Developments in Transparency of Extractive Industries," 2 May 2016

Secrecy and poor human rights often go hand in hand with each other, especially in developing countries that are rich in natural resources. This is part of the phenomenon known as the “resource curse” - the paradox that many resource-rich countries tend to be even worse off than otherwise similarly situated countries: more impoverished, more unequal, more authoritarian and more conflict-prone.

In an effort to alleviate the resource curse, a number of transparency initiatives and laws have emerged in recent years, seeking to ensure that natural resource wealth will benefit the people of resource-rich developing countries, rather than perpetuate corruption, conflict and poverty. This includes a variety of legal mandates and quasi-voluntary commitments to: disclose revenues paid by companies to resource-rich countries; fully disclose terms of natural resource contracts; report on the presence of conflict minerals in corporate supply chains; and make public who benefits from anonymous companies that are involved in natural resource extraction.

The aim here is to survey and map this landscape, with a particular focus on revenue transparency, and with an eye to outlining the emerging global transparency standard and reflecting on some challenges that lie ahead and the broader significance of natural resource revenue transparency, in particular linkages with human rights issues...

 

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Article
12 February 2018

Respecting human rights in the on-demand economy: Closing the new governance gap

Author: Faris Natour

"Respecting Human Rights in the On-Demand Economy: Closing the New Governance Gap," 11 April 2016

We are in the midst of a dramatic economic revolution...[which is] changing attitudes towards both employment and services. This new economy...is often referred to as the sharing economy...the "gig", or on-demand economy... This article seeks to apply a business and human rights lens to these new economic models. It explores potential human rights impacts associated with the shift to the on-demand economy, reviews recent efforts in business and public policy to begin to address these impacts, and points to the UN Guiding Principles on Business and Human Rights...as a useful framework to define responsibility and guide action by both business and government...

There are several risks to human rights resulting from [the so-called governance] gaps [e.g., related to the workers' rights to protection against unemployment, and to the right to security in the event of sickness]... 

[Though] [c]ompanies have a responsibility to respect...independently of the state's duty to protect, human rights..., we have yet to see a company in the on-demand economy that has adopted a comprehensive [and proactive] human rights approach, and no government has formally launched a broad public policy approach to address human rights in the on-demand economy. However, a growing number of new ideas and initiatives in the public policy sphere, as well as key steps taken by companies seek to address the most widely discussed risks to worker's rights... [refers to AirBnB, Marriott, Starwood, Lyft, Uber]

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Article
12 February 2018

The record of intl. financial institutions on business & human rights

Author: Jessica Evans

"The Record of International Financial Institutions on Business and Human Rights," 2 May 2016

As lenders to both governments and corporations, International Financial Institutions (IFIs) have the sway and responsibility to prevent and address human rights abuses perpetrated by businesses... This article...describes how IFIs do very little to encourage or support governments to protect their people from corporate abuse, shy away from human rights due diligence, and, with the exception of their independent accountability mechanisms which capture a tiny fraction of their mistakes, fail to ensure remedy for abuse...

To date, no IFIs ensure that the environmental and social due diligence of companies that they finance encompasses human rights due diligence to identify, prevent, and mitigate potential adverse rights impacts of their activities... Alongside this, the IFIs themselves do not comprehensively and continually analyze social risks... The World Bank, which lends more than other IFIs to governments...is [for example] more often associated with deregulation than supporting governments to properly regulate business conduct...

With the institutions themselves claiming immunity from suit in almost all jurisdictions, and with the local justice systems in many of the places where IFIs invest being inaccessible or ineffective...accountability mechanisms are often the only place to which communities can turn to seek redress beyond appealing to the company directly... [However] the outcome rarely provides adequate remedy or results in systemic changes within the company responsible or the financing IFI...

Now is the time for the World Bank to lead on human rights...by integrating human rights due diligence into its policies and practices, embedding it in its technical advice as well as its budget support and project lending. Both existing and emerging IFIs...can then follow suit. [refers to Nicaragua Sugar Estates and Dinant]

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Article
11 February 2018

Extraterritorial detention contracting in Australia & the UN Guiding Principles on Business & Human Rights

Author: Brynn O'Brien

"Extraterritorial Detention Contracting in Australia and the UN Guiding Principles on Business and Human Rights," 21 April 2016

...Under the Australian Migration Act 1958, [asylum seekers entering its territory]...by boat are...subject to removal to two extraterritorial detention centres (EDCs)...[where] people...have been detained...for years with no real possibility of challenging their detention in a court of law...

These centres are run by companies to which Australia outsources its operational responsibility... Broadspectrum Limited [formerly Transfield]...is presently contracted by the Australian Government to run the EDCs... Broadspectrum makes decisions about detainee welfare, movement, communication, behaviour, accommodation, food, clothing, water, security and general conditions... 

[According to No Business in Abuse (NBIA), a collective of Australian lawyers, researchers and human rights activists] Broadspectrum's involvement in operations at the EDCs is a textbook case of 'contribution to' adverse human rights impacts under UNGP 13(a)... Given the predictable nature of the abuses that have occurred, and the clear foreseeability of serious harm at the time of Broadspectrum's engagement with the extraterritorial detention regime, it seems implausible that any adequate due diligence...regarding the operation of an EDC would have failed to identify adverse human rights impacts...

The UN GPs clearly require a company engaged in an 'adverse human rights impact' to end its contribution to the abuse. NBIA's recommendations to the company, therefore, as set out in the NBIA Report, are: (1) End its operations at the EDCs; and (2) Remedy the historial abuses in which it has been complicit.

Continuing to contract for EDC work with the full knowledge that it will be required to breach its responsibility to respect human rights in its business activities is, in NBIA's assessment, simply not a tenable position... [also refers to Ferrovial]

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Article
11 February 2018

Business ethics & human rights: An overview

Author: George G. Brenkert

"Business Ethics and Human Rights: An Overview," 7 April 2016

In the last several decades a diverse movement has emerged that seeks to extend the accountability for human rights beyond governments and states, to businesses. Though the view that business has human rights responsibilities has attracted a great deal of positive attention, this view continues to face many reservations and unresolved questions.

Business ethicists have responded in a twofold manner. First, they have tried to formulate...general terms or frameworks [for businesses so they might recognize and address the human rights challenges they face]... Second, they have sought to answer several questions that these different frameworks pose [for example]: 

a.  What are human rights and how justify one's defence of them?...

b.  Who is responsible for human rights? What justifies their extension to business?...

c.  What are the general features of business's human rights responsibilities? Are they mandatory of voluntary? How are the specific human rights responsibilities of business to be determined?

...[T]his article seeks to critically examine where the discussion of these issues presently stands and what has been the contribution of business ethicists...

The moral, social and political movement that maintains that business has responsibilities for human rights is a complex, expanding, and diffuse movement. It has made significant progress and yet has far to go. It suffers from the different views people have of human rights, the reluctance of most businesses to engage human rights, and from the many challenges that businesses have to take up human rights responsibilities... [refers to Shell]

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Article
11 February 2018

Corporations & human rights obligations

Author: Denis G. Arnold

"Corporations and Human Rights Obligations," 21 April 2016

The claim that corporations have human rights obligations remains contentious and can be fraught with confusion. This article synthesizes existing corporate human rights theory and responds to objections to the idea that transnational corporations (TNCs) have human rights obligations...

[This article argues that] TNCs have the kind of ontological status necessary for moral agency and moral responsibility and that they are capable of ignoring human rights obligations or of integrating human rights protections into their international operations. It has been argued that there are compelling reasons to believe that TNCs have agentically grounded moral obligations to respect basic human rights and that there are also sound social contract based reasons for concluding that businesses have human rights obligations. The international legal system of human rights includes explicit expectations for TNCs to respect the international human rights regime, an obligation endorsed by mainstream business organizations as well as individual companies and by most national governments. Arguments against corporate human rights obligations have been shown to be unsupportable in the case of the shareholder primacy ideology [the proponents of which are committed to the view that TNCs should meet human rights standards only when doing so generates more revenue than not meeting human rights standards], and obscure and inconsistent in the post-Westphalian era in the case of the status egalitarian objection [which contends that corporations, as private actors, are not the proper type of institution to protect status egalitarianism in society].

[Altogether] [t]he arguments of this article are intended to facilitate movement away from a debate about whether TNCs have human rights obligations, so that attention might be focused on management strategies for implementing human rights standards and political and legal strategies for holding firms accountable for the violation of human rights obligations in their global operations. [refers to Walmart]

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Article
11 February 2018

Outlining the case for a common law duty of care of business to exercise human rights due diligence

Author: Doug Cassel

"Outlining the Case for a Common Law Duty of Care of Business to Exercise Human Rights Due Diligence," 21 April 2016

...In the light of international standards that are now widely accepted, this article makes a case for judicial recognition of a common law duty of care of business to exercise due diligence with regard to the potential human rights impacts of business activity. In the case of parent companies, this common law duty of care would include due diligence with respect to the human rights impacts of activities by all entities in an enterprise, including subsidiaries. Consistent with international standards obligating states to ensure effective remedies for business-related human rights violations, the duty would be enforceable in a tort action for negligence brought by victims whose injuries were of the kind reasonably foreseeable by the exercise of due diligence. A company would not be liable for breach of the duty of care if it proved that it reasonably exercised due diligence as set forth in the...Guiding Principles on Business and Human Rights... On the other hand, a company's failure to exercise due diligence...would create a rebuttable presumption of causation and hence liability... [A] company could then avoid liability...only by carrying its burden to prove that the risk of the human rights violations was not reasonably foreseeable, or that the damages would have resulted even if the company had exercised due diligence.

So far as [the] writer is aware, this duty of care has yet to be recognized definitively by any court. However, common law tort actions for damages, including judicial recognition of new duties of care in negligence cases, evolve with societal needs and expectations, in response to what common law courts view as just, equitable and reasonable in changing circumstances. The time is ripe for common law court to enforce the now widely recognized human rights responsibilities of business enterprises to exercise human rights due diligence... [refers to Hudbay Minerals and Shell]

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