Course Notes - Human Rights Law
Group Assignment - Study Group 9
- Bloc Seminar III
- Deadline for video: Monday, 30 October 2023 (noon)
- Topic: The View from Shell
Text:
While Shell’s operations in Nigeria have attracted a lot of international criticism, this does not necessarily reflect
the company’s general approach to issues of corporate social responsibility, business and human rights, and
sustainability in the nexus between human rights and environmental protection. Imagine you work for the
public relations unit of Shell and are asked to defend the company against what it considers largely unfounded
complaints. You should focus your discussion on two substantive issues: what Shell's commitments to human
rights entail for environmental harm caused by its operations in Nigeria; and how Shell's approach to access to
remedy compares with its litigation strategies in cases such as Kiobel. You can use Shell's website as a starting
point of your research, and use the excerpt from Baumann-Pauly and the short issues brief by John Ruggie as
background readings. You are expected to complement these sources with some further independent research.
Material:
- Baumann-Pauly & Nolan, 77-106 (chapter 3)
- https://www.shell.com/sustainability/communities/human-rights.html#iframe=L3dlYmFwcHMvU3V
zdGFpbmFiaWxpdHlfcmVwb3J0XzIwMTkv
- J Ruggie text (downloaded)
Week I
Baumann-Pauly & Nolan, 32-51 (Section 2.1) - notes
- 2011 UN Human Rights Council Guiding Principles
- Corporate responsibility to respect human rights
- UDHR - 30 substantive human rights
- Entitlements for individuals rather than obligation on states and other entities
- No legal obligation
- Art 29
- Art 30
- International human rights treaties
- ICCPR
, - ICESCR
- Create legal obligations, large overlap with UDHR
- Subject specific treaties
- ILO
- Size, revenue and global reach of some corporations → impact communities globally
(correspond to power of state?)
- 2014 UN Human Rights council resolution - can international human rights law framework
accommodate corporate liability
- ILO (International Labour Organisation)
- Tripartite structure
- Government + employee and employer representatives to make decisions (drafting and
implementing labour standards)
- Relies on ability of parties to effectively negotiate
- 4 core labour standards
- Freedom of association and collective bargaining
- Imitation of discrimination
- Imitation of child labour
- Elimination of forced labour
- Linked with 8 conventions → ILO’s fundamental / core conventions
- 1977: Tripartite Declaration of Principles Concerning Multinational Enterprises and Social
Policy
- National laws
- Commentary to Guiding Principles No. 2
- Territorial and jurisdictional limits
- Mandate increased transparency in global business operations
- International institutional initiatives
- Goal: harness the empower of business to positively impact human rights by providing board
frameworks (what constitutes responsible business conduct)
- The UN Draft Code of Conduct on transnational Corporations
- “Group of Eminent Persons”
- Advise on matter related to transnational corporations(TNC) and impact on
international development process
- Duties of TNCs to respect host countries’ development goals, observe their domestic
laws, respect fundamental human rights and observe consumer and environmental
protection objectives
- If binding → national and international mechanisms for implementation
- If voluntary → broad guidelines to be observed by participating parties
- The Organisation for Economic Co-operation and Development Guidelines for Multinational
Enterprises (OECD Guidelines)
, - ‘recommendations addressed by governments to multinational enterprises operating
in or from adhering countries’
- Voluntary application
- Complaint procedure
- Allows NGOs to submit complaint about alleged breaches of OECD
Guidelines
- one of the few institutional initiatives that includes a dispute resolution mechanism
- UN Global Compact
- Voluntary
- Educational initiative
- Set of 10 principles
- Human rights
- Principle 1: Businesses should support and respect the protection of
internationally proclaimed human rights
- Principle 2: make sure that they are not complicit in human rights
abuses
- Labour standards
- Principle 3: Businesses should uphold the freedom of association and
the effective recognition of the right to collective bargaining
- Principle 4: the elimination of all forms of forced and compulsory
labour
- Principle 5: the effective abolition of child labour
- Principle 6: the elimination of discrimination in respect of
employment and occupation
- Environment
- Principle 7: Businesses should support a precautionary approach to
environmental challenges
- Principle 8: undertake initiatives to promote greater environmental
responsibility
- Principle 9: encourage the development and diffusion of
environmentally friendly technologies
- Anti-Corruption
- Principle 10: Businesses should work against corruption in all its
forms, including extortion and bribery
- The UN Norms on the Responsibilities of Transnational Corporations and other Business
Enterprises with Regard to Human Rights
- Norms on the responsibilities of transnational corporations and other business
enterprises with regard to human rights
- No legal standing
, - Failed
- Identified specific human rights relevant to the activities of business
- UN ‘Protect, Respect, Remedy’ framework and the Guiding Principles
- 3 core pillars
- the state’s duty to protect against human rights abuses by third parties,
including business
- the corporate responsibility to respect human rights
- the need for more effective access to remedies
- Criticism of Guiding Principles
- Extraterritorial protection of human rights
- Flexibility and ambiguity around the commitment for companies to respect human
rights
- Access to remedy must be mandated
Week II – The Substance of International Human Rights Law
- Statute of ICJ art. 38(1)
- International convention
- International customs
- General principle of law
- Sources of human rights: state/positivism, human dignity/naturalist, cultural relativism/critical
- Human dignity
- Autonomy (Western Tradition)
- Individualism
- Ubuntu (African Tradition)
- Empathy
- Community
- Solidarity
- Henkin: Critiques of Human Rights as a Western Project
- Limited reach of human rights treaties
- Regional treaties - human rights differ between between different places and cultures
- European Convention on Human Rights
- American Convention on Human Rights
- African Charter on Human and Peoples’ rights
- Fragmentation of human rights between regions and different topics - different legislation
interpreting human rights for different aspects of human rights
- UN human rights covenant and treaty bodies
- Human rights are applicable only against States
- responsibility of non-state actors?
Group Assignment - Study Group 9
- Bloc Seminar III
- Deadline for video: Monday, 30 October 2023 (noon)
- Topic: The View from Shell
Text:
While Shell’s operations in Nigeria have attracted a lot of international criticism, this does not necessarily reflect
the company’s general approach to issues of corporate social responsibility, business and human rights, and
sustainability in the nexus between human rights and environmental protection. Imagine you work for the
public relations unit of Shell and are asked to defend the company against what it considers largely unfounded
complaints. You should focus your discussion on two substantive issues: what Shell's commitments to human
rights entail for environmental harm caused by its operations in Nigeria; and how Shell's approach to access to
remedy compares with its litigation strategies in cases such as Kiobel. You can use Shell's website as a starting
point of your research, and use the excerpt from Baumann-Pauly and the short issues brief by John Ruggie as
background readings. You are expected to complement these sources with some further independent research.
Material:
- Baumann-Pauly & Nolan, 77-106 (chapter 3)
- https://www.shell.com/sustainability/communities/human-rights.html#iframe=L3dlYmFwcHMvU3V
zdGFpbmFiaWxpdHlfcmVwb3J0XzIwMTkv
- J Ruggie text (downloaded)
Week I
Baumann-Pauly & Nolan, 32-51 (Section 2.1) - notes
- 2011 UN Human Rights Council Guiding Principles
- Corporate responsibility to respect human rights
- UDHR - 30 substantive human rights
- Entitlements for individuals rather than obligation on states and other entities
- No legal obligation
- Art 29
- Art 30
- International human rights treaties
- ICCPR
, - ICESCR
- Create legal obligations, large overlap with UDHR
- Subject specific treaties
- ILO
- Size, revenue and global reach of some corporations → impact communities globally
(correspond to power of state?)
- 2014 UN Human Rights council resolution - can international human rights law framework
accommodate corporate liability
- ILO (International Labour Organisation)
- Tripartite structure
- Government + employee and employer representatives to make decisions (drafting and
implementing labour standards)
- Relies on ability of parties to effectively negotiate
- 4 core labour standards
- Freedom of association and collective bargaining
- Imitation of discrimination
- Imitation of child labour
- Elimination of forced labour
- Linked with 8 conventions → ILO’s fundamental / core conventions
- 1977: Tripartite Declaration of Principles Concerning Multinational Enterprises and Social
Policy
- National laws
- Commentary to Guiding Principles No. 2
- Territorial and jurisdictional limits
- Mandate increased transparency in global business operations
- International institutional initiatives
- Goal: harness the empower of business to positively impact human rights by providing board
frameworks (what constitutes responsible business conduct)
- The UN Draft Code of Conduct on transnational Corporations
- “Group of Eminent Persons”
- Advise on matter related to transnational corporations(TNC) and impact on
international development process
- Duties of TNCs to respect host countries’ development goals, observe their domestic
laws, respect fundamental human rights and observe consumer and environmental
protection objectives
- If binding → national and international mechanisms for implementation
- If voluntary → broad guidelines to be observed by participating parties
- The Organisation for Economic Co-operation and Development Guidelines for Multinational
Enterprises (OECD Guidelines)
, - ‘recommendations addressed by governments to multinational enterprises operating
in or from adhering countries’
- Voluntary application
- Complaint procedure
- Allows NGOs to submit complaint about alleged breaches of OECD
Guidelines
- one of the few institutional initiatives that includes a dispute resolution mechanism
- UN Global Compact
- Voluntary
- Educational initiative
- Set of 10 principles
- Human rights
- Principle 1: Businesses should support and respect the protection of
internationally proclaimed human rights
- Principle 2: make sure that they are not complicit in human rights
abuses
- Labour standards
- Principle 3: Businesses should uphold the freedom of association and
the effective recognition of the right to collective bargaining
- Principle 4: the elimination of all forms of forced and compulsory
labour
- Principle 5: the effective abolition of child labour
- Principle 6: the elimination of discrimination in respect of
employment and occupation
- Environment
- Principle 7: Businesses should support a precautionary approach to
environmental challenges
- Principle 8: undertake initiatives to promote greater environmental
responsibility
- Principle 9: encourage the development and diffusion of
environmentally friendly technologies
- Anti-Corruption
- Principle 10: Businesses should work against corruption in all its
forms, including extortion and bribery
- The UN Norms on the Responsibilities of Transnational Corporations and other Business
Enterprises with Regard to Human Rights
- Norms on the responsibilities of transnational corporations and other business
enterprises with regard to human rights
- No legal standing
, - Failed
- Identified specific human rights relevant to the activities of business
- UN ‘Protect, Respect, Remedy’ framework and the Guiding Principles
- 3 core pillars
- the state’s duty to protect against human rights abuses by third parties,
including business
- the corporate responsibility to respect human rights
- the need for more effective access to remedies
- Criticism of Guiding Principles
- Extraterritorial protection of human rights
- Flexibility and ambiguity around the commitment for companies to respect human
rights
- Access to remedy must be mandated
Week II – The Substance of International Human Rights Law
- Statute of ICJ art. 38(1)
- International convention
- International customs
- General principle of law
- Sources of human rights: state/positivism, human dignity/naturalist, cultural relativism/critical
- Human dignity
- Autonomy (Western Tradition)
- Individualism
- Ubuntu (African Tradition)
- Empathy
- Community
- Solidarity
- Henkin: Critiques of Human Rights as a Western Project
- Limited reach of human rights treaties
- Regional treaties - human rights differ between between different places and cultures
- European Convention on Human Rights
- American Convention on Human Rights
- African Charter on Human and Peoples’ rights
- Fragmentation of human rights between regions and different topics - different legislation
interpreting human rights for different aspects of human rights
- UN human rights covenant and treaty bodies
- Human rights are applicable only against States
- responsibility of non-state actors?
