BLAW Quiz Oone

Hard Law

legally binding agreements: treaties, conventions, covenants (like the ICCPR, ICESCR). states that ratify these are legally bound

soft law

non-binding guidelines, resolutions, or joint declarations (UDHR, UN Guiding Principles on BHR)

Customary International Law

Rules derived from consistent state practice over time, even without written agreements. (like prohibitions on slavery and genocide emerged this way)

What is the dif between ratificaiton and signing

(1) signing meaning the intent to ratify

(20 ratification is actually legally binding consent (for exame, USA signed but never ratified the ICESCR)

UNDHR

(1948) Universal Dec. of Human Rights. Adopted after WW2 by the UN General Assembly. NOT legally binding, but foundational to all subsequent IHRL.

ICCPR

(1966) International Covenant on Civil & Politicla Rights. Covers: right to life, freedom from torture/slavery, fair trial, freedom of expression, religion, etc.

ICESCR

(1966) International Covenant on Economic, Social & Cultural Rights. Covers:

-fair wages

-safe working conditions

-trade unions

-education

-health

-cultural rights

Other examples of major human rights treaties:

-Convention on the Elimination all Forms of Racial Discrimination (CERD 1965)

-Convention on the Rights of the Child (CRC, 1989(

-Convention on the Rights of persons with disabilities (CRPD, 2006)

ILO

International Labour organization. UN agency (predate the UN).

-Sets labour standards (covers discrimination, forced/child labour, and right to organize)

What are the three state duties under international human rights law?

(1) Duty to Respect

(2) Duty to Protect

(3) Duty to Fulfill

Duty to Respect

Pt. 1 of the state’s duties under intl. rights law

-State must not itself deprive individuals of their rights (so for example, states must not disconnect water supply without due process)

Duty to Protect

Pt 2. of the State’s duty under intl. human rights law.

-State must prevent private actors (including corporations) from violating rights (ex - regulate private water operators to ensue affordable pricing)

Duty to Fulfill

pt. 3 of the state’s duty under intl. human rights law

-The state must take positive steps towards progressive realization of rights (ex- ensure all persons are progressively connected to safe drinking water

Absolute vs. Restricted Rights

Absolute: freedom from torture, for example (no exceptions)

Restricted: can be limited if lawful and necessary for public order, health, or others’ rights

The Orthodox Approach to Business & International Human Rghts Law (

Only states are obligation holders under IHRL. Companies cannot directly violate human rights. Allegations against companies must be framed as a state failure to protect individuals from private actors

Why use the HRs Framework?

The only universally agreed minimum standard for human dignity provides a common benchmark across national boundaries; strengthens advocacy against objectionable practices

3 Challenged to the Orthodox View on IHRL

(1) Globalization blurs state/private roles (outsources prisons, for example)

(2) Growing argument that non-state actors have some obligations

(3) Corporate power may need direct Human Rights accountability

What are Basical Territorial Rule Domestic law and IHRL obligations typically bounded by?

A state’s territory. Article 2 of the ICCPR states obligations apply to individuals “within its territory and subject to its jurisdiction.”

General Comment 24

Issued by the CESCR (treaty body for ICESCR). States party to ICESCR must prevent companies from violating HRs overseas, especially where victims lack effective domestic remedy. NOT legally binding

UN Guiding Principles on Business and Human Rights

(UNPGs) More modest than GC 2: states are NOT generally required to regulate extraterritorial activities of businesses domiciled in their territory.

The Governance Gap

Term coined by Ruggie (2008)

Corporations operate in host states lacking capacity/will to protect rights; home states have no obligation to regulate overseas activies, leaving a protection gab

Categories of Voluntary Initiatives (Kerr)

Five Major Categories of voluntary initiatives:

(1) Government initiatives

(2) Joint government/industry initiatives

(3) Third party initiatives

(4)UN and other international voluntary initiatives

Kerr’s 3 types of voluntary Initiatives

(1) Internal (company-set)

(2) external (set by outside bodies)

(3) negotiated (joit agreement with stakeholders/unions)

5 Key arguments in favor of regulation

(1) Power must be constrained by law - law balances power through enforceable rights and duties; volunatrism cannot do this

(2) Access to remedy - victims of corporate HRs abuses need legal redress; voluntary initiatives provide no enforcement mechanism

(3) Historically, voluntarism hasn’t worked - if self-regulation were effective, abuses would have declined; experience of workers and communities shows the opposite in many regions

(4) It only applies to willing companies - voluntary codes bind only those who accept them, and genuine commitments may be overridden by commercial interests

(5) Not always “good for business” - HRs compliance (fair wages, safe conditions) cost money, so the business case argument is not always convincing

5 key arguments in favor of VOLUNTARISM

(1) culture of leadership and innovation - voluntary iniatives embed responsible behavior into corporate decision making , fostering genuine cultural change

(2) flexibility - voluntary codes are highly adaptable to specific industries and firm circumstances

(3) law is a floor, not a ceiling - voluntary codes can exceed minimum HRs standards; binding law may encourage only tick-box compliance

(4) International law evolves slowly - drafting a treaty may take years of negotiation with no guarantee of rapid entry into force. Even making domestic law takes time and compromise

(5) codes build consensus- voluntary initiatives build understanding and expertise that will be essential when binding regulations eventually arrived

Complementarity Thesis:

Neither legal nor voluntary approaches should substitute for the other. Both are needed. Voluntary codes build consensus and business expertise that supports future binding regulation

CSR vs. BHR

(1) CSR grew from business scholarship - focuses on voluntarism and corporate citizenship

(2) BHR grew from legal/HRs advocacy 0 focuses on accountability and specfic legal obligations

INTL Council on Hrs Policy

NGO research body. Key argument: international law has a role - voluntarism and market forces are insufficient to protect rights. Victims need access to redress

Latham and Watkins LLP

Law firm memo (commissioned by UNGC) Key argument: voluntary initiatives create value for corporations and society; most effective when complementary to regulation

Kerr et al reading

academic text providing categories and types of voluntary initiatives; discusses regulatory capture risk. key resource for classifying voluntary mechanisms

UN engagement timeline

-1970s: Code of conduct for transnational corporations (TNCs)

-1977: EEC Code on South Africa

-1997-2003: The Norms

-2000-present : UN Global Compact

2005-2011- SRSG Mandate

2014- Present: Ongoing Treaty discussions

Code of Conduct for Transnational corporations (1970s)

(TNCs) - Response to G-77 demands for a New International Economic Order (NIEO). Group eminent persons reprt (1974) led to UNCTC drafting a code but abadoned in 1994 due to ideological divisions

(1977) EEC Code on South Africa

European Economic Community Code for Companies Operating under apartheid. Arguable the first intergovernmental document addressing companies’ HRs responsibilities

The Norms (1997-2003)

UN Sub-commissions working group. Norms text of 2003: placed direct HRs obligations on corporations. Met w/ corporate hostilitity; effectively rejected by HR Commission (2004)

UN Global Compact (2000-Present)

Kofi Annan proposed a “global compact” at WEF 1999. Voluntary, multi-stakeholder learning platform built around 10 Principles covering HRs, Labor, environment, and anti-corruption

SRSG Mandate

John Ruggie appointed Special Rep. Produced “Protect, Respect, Remedy” framework (2008) and the UN Guiding Principles on BHR, gained widespread consciousness

Ongoing treaty discussion (2014-present)

ongoing intergovernmental process to develop a legally binding international instrument on business and human rights.

Content of the Norms

covered: equal opp./non-discrimination, security of persons (ban on intl crimes), workers rights (no forced child labor, safe conditions, fair pay, etc), national sovereignty, consumer protection, environmental protection

legal status of the Norms

NOT legally binding

-”soft law” and a potential basis for eventually drafting a binding treaty on corporate social responsibility

4 Main Arguments against The Norms

(1) Went beyond standards agreed even for states

(2) Shifted obligations from states to companies

(3) non-state actors cannot hold HRs obligations

(4) Corporate sector would accept nothing beyond voluntary guidelines

2004 Compromise Resolution at the UN HRs Commission/Council

UK-sponsored: norms have “no legal standing” were not requested by the Commission, Sub-commission cannot monitor them. But issue kept on agenda and OHCHR asked to compile a report on existing standards

Ruggies Critique of the Norms;

Saw it as an overreach; unclear/state corporate responsibility demarcation; included rights states hadn’t reached consensus on (consumer protection, precautionary principle, FPIC for indigenous peoples)

10 Principles of UN Global Compact

Covers human rights, labor standards, environment, and anti-corruption. Has a deliberately broad “low precision score” to maximize corporate participation

How to join the UN Global Compact?

Letter of commitment from highest exec, pledge to implement 10 principles, support to SDGs and submit annual COP (communication on progress)

What does the UNGC NOT do?

Does not “police, enforce, or measure behavior or actions” of companies. Relies on public accountability, transparency and enlightened self-interest

“Blue Washing”

blue washing companies gain reputational credibility without meaningful accountability or genuine change in behavior