- Scholarly Articles
- Thomas Donaldson, Intrinsic Values and Human Rights: Corporate Duties Depend on Industry Values
- Melisa N Handl, Sara L Seck & Penelope Simons, Gender and Intersectionality in Business and Human Rights Scholarship
- Vivek Krishnamurthy, With Great (Computing) Power Comes Great (Human Rights) Responsibility: Cloud Computing and Human Rights
- Fiona McGaughey, Hinrich Voss, Holly Cullen & Matthew C Davis, Corporate Responses to Tackling Modern Slavery: A Comparative Analysis of Australia, France and the United Kingdom
- Andi Baaij, The Potential of Arbitration as Effective Remedy in Business and Human Rights: Will the Hague Rules be Enough?
- Developments in the Field
- Christopher Patz, The EU’s Draft Corporate Sustainability Due Diligence Directive: A First Assessment
- Shannon Marcoux, Coca-Cola’s Cape Town Crisis: Examining Companies’ Water Rights Obligations in a Changing Climate
- Chia-Yun Po, Vietnam Marine Life Disaster: A Test Case of a Home State’s Jurisdiction in Taiwan
- David Alfrey, Lucy Amis, Steve Nickelsburg & William Rook, Candidate City Human Rights Proposals for the 2026 World Cup: The Promise of a Positive Legacy
- Mustafa Qadri, Qatar Labour Reforms Ahead of the FIFA 2022 World Cup
Saturday, August 27, 2022
Friday, August 26, 2022
McIntyre, Ivanaj, & Ivanaj: The Role of Multinational Enterprises in Supporting the United Nations' SDGs
The Role of Multinational Enterprises in Supporting the United Nations’ SDGs is an exploration of the place of the private sector in implementing select Sustainable Development Goals. Beyond the abundant literature published by the United Nations and journal articles, there are few book-length treatments of the unique role that multinationals play as facilitators of goal implementation and agents of change. This volume aims to stimulate debate and research on MNEs’ best practices, fleshing out many of the seventeen goals through the lens of corporate strategic choices.
Sixteen carefully selected chapters present research advances in both study and best practices format, linking disciplines, knowledge systems, and stakeholders' perspectives to support a more sustainable business model and address the varied challenges on the road to the 2030 Agenda. They comprise a balanced mix of research methodologies: comprehensive literature reviews, theoretical frameworks, empirical studies, integrative reviews, and case studies.
- Astrid Kjeldgaard-Pedersen & Rasmus Grønved Nielsen, Case Note on the Supreme Court of Denmark’s Judgment in Green Desert
- Elena Katselli Proukaki, Forced Displacement, Prevention from Returning and the Jurisdiction of the International Criminal Court
- Bernard Ntahiraja, The Legality and Scope of Universal Jurisdiction in Criminal Matters: Is There Any Question to Answer?
- Aoife Daly, Rebecca Thorburn Stern, & Pernilla Leviner, UN Convention on the Rights of the Child, Article 2 and Discrimination on the Basis of Childhood: The CRC Paradox?
- Nicolas Ojeda-Zavala, Erring on the Side of Indigenous peoples: Traditional Knowledge, Scientific Uncertainty, and Indigenous Participation in Decision-Making
- Sebastian Machado, Towards an Aesthetic Epistemology of International Law
Thursday, August 25, 2022
- Special Issue: The United Nations War Crimes Commission (UNWCC), 1943-1948, and the Codification of International Criminal Law
- Sabina Ferhadbegović, Kerstin von Lingen, & Julia Eichenberg, The United Nations War Crimes Commission (UNWCC), 1943–1948, and the Codification of International Criminal Law: An Introduction to the Special Issue
- Kerstin von Lingen, Epistemic Communities of Exile Lawyers at the UNWCC
- Julia Eichenberg, Crossroads in London on the Road to Nuremberg: The London International Assembly, Exile Governments and War Crimes
- Valentyna Polunina, The Absent Player: The Soviet Union and the Genesis of the Allied War Crimes Trials Program, 1941–1943
- Sabina Ferhadbegović, The United Nations War Crimes Commission and the Prosecution of War Criminals in Yugoslavia
- Sara Weydner, A Lawyer in Exile: Johannes M. de Moor and the Circulation of Legal Knowledge in Wartime London
- Ann-Sophie Schoepfel, The Imperial Precipice: Jurists and Diplomats of the French Empire at the United Nations War Crimes Commission
- Narrelle Morris, Australian Representatives to the UNWCC, 1943–1948
When a leader orders a subordinate to commit a crime—to kill anything that moves, as at My Lai; to extract information no matter what it takes, as at Abu Ghraib; to execute prisoners of war, as at Biscari—how should the law and a society respond? Often we ignore the leader and blame the “bad apple” subordinate who failed to do the right thing. Or, when a leader is punished, domestic and international criminal law regard them in relation to their subordinate’s offense, either as an accomplice or perhaps a perpetrator; the order simply offers the pathway to rendering the superior a party to the crime. The law says nothing, however, about an entire dimension of wrongdoing that this Article highlights: The illegal order is an abuse of the authority the leader holds over their subordinates, a misuse of control over another, a betrayal of what was supposed to be a relationship of protection, an infliction of suffering on those who—even if they themselves become perpetrators legitimately subject to punishment—are also victims of their leaders’ violation of the duty to ask of them only what is right.
This Article urges a new framing of the illegal order as a wrong by the superior against the subordinate. Focusing on the military, and drawing on fields of knowledge within the law and beyond it, the Article argues that international and domestic law should acknowledge the superior’s order not only as a link to the crimes of the subordinate, but also as an abuse of the superior’s relationship of authority over the subordinate. Explaining that the military obligation of the superior toward the subordinate is both legally founded and legally protected, the Article exposes the legal and cultural obsession with the subordinate’s ostensible autonomy as but a convenient distraction, one that relies on traditional (and contested) criminal-law assumptions of individual choice and insistence that no person has obligations to another. Further, scholars’ and practitioners’ accounts of the law of war increasingly acknowledge that soldiers are not mere instruments, but individuals, separate from the state and the superiors they serve. This shift opens the door to this Article’s proposed recognition of the harms subordinates experience when they are ordered to commit a crime.
Global in its reach and immediate in its application, this Article aims to reorient conceptions of the relationship between superior and subordinate, to elucidate how perpetrators of crimes can also suffer injuries by those who exert control over them, and to excavate and upend conventional assumptions about authority and autonomy.
- Lynda Goldsworthy, Consensus decision-making in CCAMLR: Achilles’ heel or fundamental to its success?
- Miguel Borrero & Santiago J. Rubio, An adaptation-mitigation game: does adaptation promote participation in international environmental agreements?
- Linda Mederake, Barbara Saerbeck, & Nina Kolleck, Cultivated ties and strategic communication: do international environmental secretariats tailor information to increase their bureaucratic reputation?
- Tobias Böhmelt, Environmental-agreement design and political ideology in democracies
- Chaewoon Oh, Evaluation of the UNFCCC Technology Mechanism’s contribution to an international climate policy framework
- Richard Meissner, eThekwini’s green and ecological infrastructure policy landscape: research paradigms, theories and epistocrats
- Jenna Dodson, Patricia Dérer, Philip Cafaro & Frank Götmark, Population growth, family planning and the Paris Agreement: an assessment of the nationally determined contributions (NDCs)
- Kirsten Davies, Michelle Lim, Tianbao Qin & Philip Riordan, CHANS-Law: preventing the next pandemic through the integration of social and environmental law
- Olusola Joshua Olujobi, Daniel E. Ufua, Uchechukwu Emena Okorie & Mercy E. Ogbari , Carbon emission, solid waste management, and electricity generation: a legal and empirical perspective for renewable energy in Nigeria
- Gulnara Balgimbekova, Roza Zhamiyeva, Abzal Serikbayev, Bulatbek Shnarbayev & Amanbek Mashabayev , International legal aspects of countering environmental terrorism in the context of modern trends in radical environmentalism
Wednesday, August 24, 2022
Lott: Hybrid Threats and the Law of the Sea: Use of Force and Discriminatory Navigational Restrictions in Straits
Hybrid Threats and the Law of the Sea debates the practice of states that have resorted to discriminatory navigational restrictions or aggression against foreign ships and aircraft in densely navigated straits. The book explores both widely acknowledged and lesser-known maritime incidents that meet the characteristics of hybrid warfare or hybrid conflict. This research approaches hybrid threats from the perspective of the interrelationship between navigational restrictions, law enforcement, armed attack, and the legal regime of straits. It provides guidance for determining whether the rules of armed conflict or law enforcement are applicable to various naval incidents.
The global movement towards the adoption of human rights due diligence laws is gaining momentum. Starting in France, moving to Germany, and now at the European Union level, lawmakers are heeding the call to mandate that companies conduct human rights due diligence throughout their global operations. The situation in the United States is very different: although ESG (environmental, social, and governance) has received increasing national attention, there is currently no law that mandates corporate human rights due diligence.
Recognizing this disparity and acknowledging the specific context for ESG-related issues in the United States, we consider how the United States could provide clarity and direction to corporate America and global leadership on business and human rights. Our assessment reveals that while due diligence models have rapidly become the global standard for increasing corporate human rights accountability, there is concern that the legislative frameworks being adopted in Europe fail to live up to their promise.
We assess a bold and novel legislative proposition for the United States: a human rights due diligence law that is patterned after the influential anti-bribery statute, the Foreign Corrupt Practices Act. The proposal—which we coin as the due diligence + model—provides a unique response to corporate human rights abuses by combining an outright prohibition on certain serious human rights violations with due diligence and record-keeping obligations. We offer a first-of-its-kind analysis that provides crucial insight to lawmakers in the United States and around the world as they seek to craft new regulatory regimes for corporate accountability.
- Special Issue: Judicial Activism in an Age of Populism
- Zoltán Szente & Fruzsina Gárdos-Orosz, The impact of populism on constitutional interpretation in the EU Member States
- Michal Kovalčík, The instrumental abuse of constitutional courts: how populists can use constitutional courts against the opposition
- Jan Petrov, (De-)judicialization of politics in the era of populism: lessons from Central and Eastern Europe
- Max Steuer, Authoritarian populism, conceptions of democracy, and the Hungarian Constitutional Court: the case of political participation
- Hubert Smekal, Jaroslav Benák & Ladislav Vyhnánek, Through selective activism towards greater resilience: the Czech Constitutional Court's interventions into high politics in the age of populism
- Oscar Gakuo Mwangi, Judicial activism, populism and counterterrorism legislation in Kenya: coalition for Reform and democracy (CORD) & 2 others v Republic of Kenya & 10; others 
- Tarun Arora, Pandemic and community’s sense of justice through suo motu in India
- Victor Molina, Abortion, same-sex marriage, and gender identity during the Pink Tide: Venezuela compared to Latin American trends
- Kirstin Wagner, Susan A. Bartels, Sanne Weber & Sabine Lee, UNsupported: The Needs and Rights of Children Fathered by UN Peacekeepers in the Democratic Republic of Congo
- Evan W. Sandlin, The Trump Administration Versus Human Rights: Executive Agency or Policy Inertia?
- Madeline Baer, Beyond Consensus: Contesting the Human Rights to Water and Sanitation at the United Nations
- Alexander Zahar, Human Rights Law and the Obligation to Reduce Greenhouse Gas Emissions
- Armando Aliu & Dorian Aliu, The EU’s Hospitality and Welcome Culture: Conceiving the “No Human Being Is Illegal” Principle in the EU Fundamental Freedoms and Migration Governance
Tuesday, August 23, 2022
The International Law Commission recently adopted a set of draft conclusions and commentaries on peremptory norms of general international law (jus cogens). It’s quite likely that the ILC’s work will be widely viewed as a definitive restatement of the law in this area. But the conclusions are at best ambiguous about what holds this area of law together. And, on balance, the commentaries tend to favor the view that non-derogability lies at the center of it all, explaining characteristics like hierarchical superiority and universal applicability, as well as consequences like the invalidity of conflicting rules. That’s the view I will reject.
My basic claim will be that peremptory norms—their characteristics, their consequences, and their content—are best explained by their moral function of reflecting and protecting the fundamental values of the international community. In contrast, the formal characteristic of non-derogability is a consequence of this moral function, rather than a basic or fundamental feature. This understanding makes us better positivists, because we better understand what this human artifact is for, how its various features enable it to perform its function, and why the dynamic process through which international law navigates its own uncertainties invites normative argument into legal reasoning. Since peremptory norms underwrite the unity of the international legal order, this understanding places consensus and contestation over fundamental values at the very heart of international law.
Responses to the new Oversight Board created by Facebook (now Meta) have run the gamut from enthusiastic to overtly suspicious. Many observers are highly skeptical of the Board’s ability to hold Meta accountable or protect the rights of the platform’s users because of its narrow jurisdiction and nonexistent enforcement power. We argue that the skeptics incorrectly compare the Board to a domestic court. The central dilemmas and challenges that the Oversight Board faces—as a body of consent-based jurisdiction and constrained authority—are similar to those confronted by international human rights tribunals.
Viewing the Oversight Board as a de facto human rights tribunal sheds light on the strengths and weaknesses of the Board’s structure, decision-making, and potential future trajectory. Key design features that observers have criticized are, we argue, strengths the Board can use to expand its authority over time, develop human rights norms, and influence other efforts to regulate social media platforms. In fact, when compared to human rights tribunals, the Board’s achievements are impressive. In just two years, it has issued decisions on issues ranging from hate speech to misinformation, pushed Meta to give more consideration to the context of speech, and obtained important concessions from the company regarding transparency, government take-down requests, and the impact of content moderation on marginalized communities.
This Article is the first to examine the human rights origins of the Oversight Board, its strategies for pressuring Meta to improve its content moderation policies, and how it is extending human rights norms to private social media companies. We complement this analysis with a range of recommendations for the Board to be even more effective, as well as explore possible risks and challenges, including backlash, whitewashing, and negative spillover. Our sanguine vision of the Board’s future is thus by no means assured. Nonetheless, when viewed in light of the experience of international human rights tribunals, the Board has the potential to serve as an important check on Meta and to significantly advance the promotion and protection of human rights online.