Browsing by Subject "human rights"

In the past few decades the intersection of business and human rights has drawn the attention of regulators at the United Nations, within national legal systems and of the European Union. A significant turning point in this development was the United Nations Guiding Principles on Business and Human Rights (UNGPs) developed by John Ruggie, the former UN Secretary-General's Special Representative on human rights and transnational corporations and other business enterprises. The second pillar of these principles, the corporate responsibility to respect human rights, is built around the concept of human rights due diligence (HRDD). Since the adoption of the UNGPs, HRDD has come to define the discussion in the field of business and human rights, and it has been the basis for legislative initiatives in countries like France, Norway, and Germany, with the EU following suit. Indeed, corporations’ adverse human rights impacts in value chains is to a large extent going to be regulated through the process of HRDD. The widespread adoption of this concept calls for research into its theoretical foundations, content, and its effects. The research question is as follows: ‘Is the human rights due diligence process fit for purpose in preventing and mitigating corporate human rights abuses?’ The thesis delves into John Ruggie's theoretical assumptions on global governance and the theoretical and practical challenges related to HRDD. The findings are then mirrored against the adopted laws in Europe that set out mandatory HRDD obligations. The conclusion of the thesis is that there are significant ambiguities and structural weaknesses in the HRDD process, both as envisioned in the guiding principles and in the assessed European legislations. The process gives corporations powers traditionally vested to states and international organizations regarding the monitoring, enforcement and communication of human rights. The vague rules on the other hand leave corporations to operate in the confines of the so-called ‘business case’. Further, because HRDD regulates the process itself instead of mandating results, it allows for superficial or creative compliance. Common amongst the assessed Europeans legislations is that they do little to meaningfully engage affected stakeholders, which is crucial in designing an effective HRDD process. In the coming years the case law of courts and the practice of competent authorities will mend some of these weaknesses and clarify the ‘due’ in due diligence. However, HRDD obligations by themselves will not suffice. Indeed, the UNGPs call for a ‘smart mix of measures’ to tackle adverse human rights impacts resulting from corporate activity. Accordingly, a mix of regulatory initiatives has been attempted in the EU. One future solution could be addressing corporate human rights abuses through company law by changing the purpose of the corporation to one that encourages sustainable business.

Due to the accelerating environmental crisis and the frequency of environmentally harmful activities having negative extraterritorial impacts, the traditional notions of state responsibility and jurisdiction are being tested. Restrictive interpretation of jurisdiction within international environmental law and human rights results in gaps in protection, with respect to both individuals and the environment. A significant gap, particularly evident in relation to climate change, also remains between the aspirational promises and agreed targets, on the one hand, and the level of implementation and action, on the other. Climate change does not adhere to political boundaries, thus requiring a transnational approach in relation to the establishment of accountability for environmental damage and resulting human rights violations. This thesis explores the scope of due diligence obligations of states in the interplay of human rights and international environmental law as well as the notions of jurisdiction and control influencing the territorial reach of responsibility. The research is conducted by investigating the environmental due diligence standard under the human rights, international environmental law and climate law regimes. Despite its wide acknowledgement, the concept of due diligence has been relatively understudied in international law. The increasing incidence of transboundary and global environmental harm as well as phenomena such as relocation of harmful activities and carbon leakage prompt the question of the scope of existing due diligence obligations of states – both within and outside territorial boundaries. International environmental law is based on guiding principles, such as prevention and precaution, having the ability to create obligations of customary international law character. It is argued that the standard of due diligence provides a promising way to hold states accountable for environmental harm – even beyond territorial limits. By combining the ambitious environmental policies, often lacking in bindingness, and the effective human rights systems through the standard of due diligence, it is concluded that the already existing legal frameworks may be utilized for environmental protection objectives. Furthermore, the mutually reinforcing relationship between international environmental law and human rights has contributed to the emergence and development of environmental due diligence standard of extraterritorial nature. Instead of a vague 'buzzword', absent of identifiable obligations and enabling the evasion of responsibility in relation to environmental harm and ensuing human rights violations, the case law in relation to the due diligence obligations of states presents evidence that such evasion of accountability is no longer acceptable nor possible. As human rights regimes should not be interpreted in a vacuum, consideration must be given to developments within international environmental law. The Paris Agreement is founded on the highest possible ambition of the member states. It is this due diligence standard against which the actions of the state are evaluated. The known and/or admitted risks of environmental harm, coupled with inconsistent measures against non-state actors’ activities, could establish state responsibility before such risks materialize. Of relevance is the actual ability to regulate or influence over the harmful activities, which may result in a jurisdictional link and individual responsibility.

The thesis is a study of the communicated case ‘S.S. and the Others v. Italy’ (application no. 21660/80) of the European Court of Human Rights (ECtHR). The application is on behalf of the victims of an incident in which a migrant boat found itself in distress after having left Libya for Europe. The Libyan Coast Guard failed to rescue all of the migrants and allegedly acted negligently, mistreating those they took onboard, and returned them to Libya, exposing them to continued ill-treatment and some of them also to forced return (refoulement) to their countries of origin. Italy is a State Party to the European Convention on Human Rights (ECHR), and has a bilateral agreement, ‘Memorandum of Understanding’ (MoU), with Libya (a non-ECHR State). On the basis of the MoU, Italy funds and equips the Libyan Coast Guard. The agreement can be seen as a means to ‘outsource’ border control and to instruct Libya to intercept migrants before they reach Italy and the European Union (EU), thus effectively circumventing the obligations of the ECHR. The research question is in two parts. First, I ask whether Italy had extraterritorial jurisdiction as stated in Article 1 ECHR, and second, if it had, has Italy violated its positive obligations to secure the applicants’ rights. Jurisdiction is a ‘threshold criterium’ for the Court to study the merits of an application. As for the violations, the thesis focuses on Article 2 (right to life) and Article 3 (prohibition of torture; includes also the prohibition of forced return, or refoulement). The methodology is doctrinal in that the thesis aims to examine critically the central features of the relevant legislation and case law in order to create an arguably correct and sufficiently complete statement on the Court’s reasoning and outcome. The main sources are the provisions of the ECHR itself and the relevant previous case law of the Court, together with a literature review. Additionally, there are third-party interveners’ statements and a video reconstruction of the events. The Court’s questions and information requests to the parties, as attached to the application, are used as a starting point. Besides a hypothesis of the argumentation and the decision of the Court, some estimations are made about what could be the consequences of the decision to such bilateral pacts as the MoU between Italy and Libya, and, in general, to ‘deals’ between the EU Member States and third or transit countries. Finally, the thesis reflects on the eventual repercussions on the topical issue of the EU Commission’s 23.9.2020 proposal for the New Pact on Migration and Asylum, which appears to encourage the Member States to maintain and develop outsourcing practices.