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Human Rights Obligations of Business : Beyond the Corporate Responsibility to Respect?

By: Contributor(s): Material type: TextPublisher: New York : Cambridge University Press, 2013Copyright date: ©2013Edition: 1st edDescription: 1 online resource (452 pages)Content type:
  • text
Media type:
  • computer
Carrier type:
  • online resource
ISBN:
  • 9781107703827
Subject(s): Genre/Form: DDC classification:
  • 323
Online resources:
Contents:
Cover -- Contents -- Contributors -- Foreword: beyond the guiding principles -- Preface -- 1 The human rights obligations of business: a critical framework for the future -- Business and human rights: four key questions -- The UN's engagement with business and human rights: a historical context -- The first phase: MNCs' rights versus responsibilities -- The second phase: between voluntarism and binding obligations -- The third phase: principled pragmatism or business in the driving seat? -- Key features of the Framework and the GPs -- Process: consensus without content? -- Principled pragmatism: a flawed methodology? -- Source of corporate responsibility: social expectations? -- Pillars: an adequate response to the challenges? -- Too many bypassed questions? -- The Framework and the GPs: a critical evaluation vis-à-vis the four questions -- Process and methodology -- Source and justifications of corporate obligations -- Nature and extent of corporate obligations -- Implementation and enforcement -- The future of business and human rights: moving beyond the responsibility to respect? -- Part I Process and methodology -- 2 Navigating from 'train wreck' to being 'welcomed': negotiation strategies and argumentative patterns in the development of the UN Framework -- Introduction -- Theoretical framework and methodology: reflexive law and discourse analysis -- From the UN Norms to the SRSG mandate -- From the establishment of the mandate to the 2006 interim report -- The 2006 interim report -- From the interim report to the 2007 report -- The 2007 report -- From the 2007 report to the 2008 report -- The 2008 report -- Discussion of observations -- Conclusion -- 3 The 'Ruggie process': from legal obligations to corporate social responsibility? -- Introduction -- The 'corporate responsibility to respect': the contours of a 'social norm'.
Consensus and participation -- 'Plus ça change, plus c'est la même chose'39 (the more things change, the more they are the same)? -- Moving beyond CSR and back to legal responsibility -- Conclusion -- 4 Treating human rights lightly: a critique of the consensus rhetoric and the language employed by the Guiding Principles -- Introduction -- Piercing the façade of consensus -- Reconciling differences through consultations -- Consensus on what? -- Manufacturing consensus by managing objections -- Playing with human rights terminology casually -- All responsibilities, no duties -- Cages of 'protect' and 'respect' -- 'Violation' becomes 'impact' -- Hazards lurking in 'due diligence' -- What happened to access to remedy as a 'human right'? -- Conclusion -- Part II Source and justification of corporate obligations -- 5 A chasm between 'is' and 'ought'? A critique of the normative foundations of the SRSG's Framework and the Guiding Principles -- Introduction -- Normativity, law and morals in the work of the SRSG -- Why businesses have legally binding human rights obligations -- Human rights treaties as binding sources of normativity -- The relationship between binding and moral normativity in international law -- Social expectations as a source of binding normativity? -- Do corporations only have a responsibility to respect human rights? -- Global poverty and human rights -- The ambit of corporate human rights obligations -- Positive corporate obligations: between the state and individuals? -- The legitimacy argument -- Capacity and gaming -- Conclusion -- 6 The corporate responsibility to respect human rights: soft law or not law? -- Introduction -- Soft law or not law? -- No 'silver bullet' or single solution to curbing corporate human rights violations -- The 'binding' nature of the corporate responsibility to respect -- Conclusion.
7 Closing the governance gap in the business and human rights arena: lessons from the anti-corruption movement -- Introduction -- Business and human rights: the treaty road not (yet) travelled -- From state practice to multilateral treaty: the anti-corruption experience -- The FCPA as a catalyst for a treaty -- Anti-corruption treaties use regulatory requirements to prevent transnational harm -- The role of civil society and business as partners in the anti-corruption movement -- Business and human rights: the emergence of state practice in home state regulation -- Illegal logging -- Conflict minerals -- Liability of corporations for international crimes -- Conclusion -- Part III Nature and extent of corporate obligations -- 8 Business, human rights and gender: a legal approach to external and internal considerations -- Introduction -- Backdrop of gender's entry into the SRSG's work -- Need for integrating gender analysis into the business and human rights debate -- Women's experiences versus special consideration for children, the disabled and indigenous groups -- Scope and content of gender analysis -- Scope: internal operations, external impacts and the informal sector -- A preliminary structure of safeguards -- State duty to protect -- The corporate responsibility to respect -- The spectre of culture -- Conclusion -- 9 Due diligence and complicity: a relationship in need of clarification -- Introduction -- The definition and interaction of the concepts of complicity, the duty to respect human rights, and due diligence in the SRSG framework -- Due diligence as a tool to avoid complicity -- The scope of the due diligence responsibility to avoid complicity -- Mens rea considerations -- Due diligence as a defence against complicity charges? -- Conclusions.
10 Making noise about silent complicity: the moral inconsistency of the 'Protect, Respect and Remedy' Framework -- Introduction -- Dividing responsibility according to the 'Protect, Respect and Remedy Framework' -- Corporate complicity and the responsibility to respect in the UN Framework -- Understanding silent complicity and its implications -- Conditions for a positive duty to speak out -- First clarification: speaking out as a positive or an active negative duty? -- Second clarification: 'can implies ought' vs. 'ought implies can' -- Third clarification: morality vs. social expectations -- Conclusion -- Part IV Implementation and enforcement -- 11 When human rights 'responsibilities' become 'duties': the extra-territorial obligations of states that bind corporations -- Introduction -- From law to policy: the SRSG's extra-territoriality matrix -- From policy to law: extra-territorial jurisdiction and international human rights obligations -- Extra-territorial human rights obligations and globally operating business entities -- Conclusion -- 12 Will transnational private regulation close the governance gap? -- Introduction -- The corporate responsibility to respect and transnational private regulation -- Strengths of transnational private regulation -- Effectiveness of transnational private regulation: the critical role of information -- An illustration: transnational private regulation in the area of private security provision -- Transparency in the Guiding Principles -- The corporate responsibility to disclosure of information -- Disclosure of information according to Pillar 1 -- Towards a right to independent information? -- Access to information in international law -- Beyond the Framework and GPs: issues for the UN Working Group to consider.
13 An analysis and practical application of the Guiding Principles on providing remedies with special reference to case studies related to oil companies -- Introduction -- The Guiding Principles and the concept of effective remedies -- Case studies on remedies and human rights -- Chevron v. Ecuador -- The oil operations and the pollution -- The 1992-98 settlement and remediation programme -- Chevron and Texaco -- US and Ecuador class action litigation (1993-2010) -- Shell v. Nigeria -- Pollution impacting human rights: the UNEP Report -- Shell's oil operations in Nigeria -- Litigation in the Netherlands -- Settlement negotiations: Bodo oil spills -- BP v. The Gulf of Mexico -- Failures in safety culture -- Reponses to the incident -- US domestic law: tort and collective action -- Settlements: a commitment to 'all' legitimate claims? -- The Fund -- Filing process -- Criticism -- Parallel litigation against BP leading to a 'Settlement Program' -- Comparisons -- Implementing the Ruggie Framework: corporate legal and policy strategies -- Chevron -- Shell -- BP -- Non-judicial remedies: grievance mechanisms, settlement, local engagement -- Chevron -- Shell -- BP -- Complicated corporate structure of multinational oil companies leads to employing formal legal defences -- Chevron -- Shell -- BP -- Concluding comparative analysis of corporate remedial responses to oil pollution incidents -- 14 Access to remedy: the United Kingdom experience of MNC tort litigation for human rights violations -- Introduction -- The two key legal obstacles: jurisdiction and the 'corporate veil' -- Jurisdiction -- Corporate veil: development of English law on MNC parent company liability -- Other procedural issues -- The importance of costs, resources and financial incentives for claimants' lawyers -- Context.
The adverse effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Rome II Regulation on access to a remedy81.
Summary: This book provides a detailed critical evaluation of the Ruggie Framework and the Guiding Principles on Business and Human Rights, focusing on their non-binding character, the limited ambit and scope of corporate responsibility, the excessive focus on the role of states, and the failure to overcome obstacles in enforcing corporate obligations.
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Cover -- Contents -- Contributors -- Foreword: beyond the guiding principles -- Preface -- 1 The human rights obligations of business: a critical framework for the future -- Business and human rights: four key questions -- The UN's engagement with business and human rights: a historical context -- The first phase: MNCs' rights versus responsibilities -- The second phase: between voluntarism and binding obligations -- The third phase: principled pragmatism or business in the driving seat? -- Key features of the Framework and the GPs -- Process: consensus without content? -- Principled pragmatism: a flawed methodology? -- Source of corporate responsibility: social expectations? -- Pillars: an adequate response to the challenges? -- Too many bypassed questions? -- The Framework and the GPs: a critical evaluation vis-à-vis the four questions -- Process and methodology -- Source and justifications of corporate obligations -- Nature and extent of corporate obligations -- Implementation and enforcement -- The future of business and human rights: moving beyond the responsibility to respect? -- Part I Process and methodology -- 2 Navigating from 'train wreck' to being 'welcomed': negotiation strategies and argumentative patterns in the development of the UN Framework -- Introduction -- Theoretical framework and methodology: reflexive law and discourse analysis -- From the UN Norms to the SRSG mandate -- From the establishment of the mandate to the 2006 interim report -- The 2006 interim report -- From the interim report to the 2007 report -- The 2007 report -- From the 2007 report to the 2008 report -- The 2008 report -- Discussion of observations -- Conclusion -- 3 The 'Ruggie process': from legal obligations to corporate social responsibility? -- Introduction -- The 'corporate responsibility to respect': the contours of a 'social norm'.

Consensus and participation -- 'Plus ça change, plus c'est la même chose'39 (the more things change, the more they are the same)? -- Moving beyond CSR and back to legal responsibility -- Conclusion -- 4 Treating human rights lightly: a critique of the consensus rhetoric and the language employed by the Guiding Principles -- Introduction -- Piercing the façade of consensus -- Reconciling differences through consultations -- Consensus on what? -- Manufacturing consensus by managing objections -- Playing with human rights terminology casually -- All responsibilities, no duties -- Cages of 'protect' and 'respect' -- 'Violation' becomes 'impact' -- Hazards lurking in 'due diligence' -- What happened to access to remedy as a 'human right'? -- Conclusion -- Part II Source and justification of corporate obligations -- 5 A chasm between 'is' and 'ought'? A critique of the normative foundations of the SRSG's Framework and the Guiding Principles -- Introduction -- Normativity, law and morals in the work of the SRSG -- Why businesses have legally binding human rights obligations -- Human rights treaties as binding sources of normativity -- The relationship between binding and moral normativity in international law -- Social expectations as a source of binding normativity? -- Do corporations only have a responsibility to respect human rights? -- Global poverty and human rights -- The ambit of corporate human rights obligations -- Positive corporate obligations: between the state and individuals? -- The legitimacy argument -- Capacity and gaming -- Conclusion -- 6 The corporate responsibility to respect human rights: soft law or not law? -- Introduction -- Soft law or not law? -- No 'silver bullet' or single solution to curbing corporate human rights violations -- The 'binding' nature of the corporate responsibility to respect -- Conclusion.

7 Closing the governance gap in the business and human rights arena: lessons from the anti-corruption movement -- Introduction -- Business and human rights: the treaty road not (yet) travelled -- From state practice to multilateral treaty: the anti-corruption experience -- The FCPA as a catalyst for a treaty -- Anti-corruption treaties use regulatory requirements to prevent transnational harm -- The role of civil society and business as partners in the anti-corruption movement -- Business and human rights: the emergence of state practice in home state regulation -- Illegal logging -- Conflict minerals -- Liability of corporations for international crimes -- Conclusion -- Part III Nature and extent of corporate obligations -- 8 Business, human rights and gender: a legal approach to external and internal considerations -- Introduction -- Backdrop of gender's entry into the SRSG's work -- Need for integrating gender analysis into the business and human rights debate -- Women's experiences versus special consideration for children, the disabled and indigenous groups -- Scope and content of gender analysis -- Scope: internal operations, external impacts and the informal sector -- A preliminary structure of safeguards -- State duty to protect -- The corporate responsibility to respect -- The spectre of culture -- Conclusion -- 9 Due diligence and complicity: a relationship in need of clarification -- Introduction -- The definition and interaction of the concepts of complicity, the duty to respect human rights, and due diligence in the SRSG framework -- Due diligence as a tool to avoid complicity -- The scope of the due diligence responsibility to avoid complicity -- Mens rea considerations -- Due diligence as a defence against complicity charges? -- Conclusions.

10 Making noise about silent complicity: the moral inconsistency of the 'Protect, Respect and Remedy' Framework -- Introduction -- Dividing responsibility according to the 'Protect, Respect and Remedy Framework' -- Corporate complicity and the responsibility to respect in the UN Framework -- Understanding silent complicity and its implications -- Conditions for a positive duty to speak out -- First clarification: speaking out as a positive or an active negative duty? -- Second clarification: 'can implies ought' vs. 'ought implies can' -- Third clarification: morality vs. social expectations -- Conclusion -- Part IV Implementation and enforcement -- 11 When human rights 'responsibilities' become 'duties': the extra-territorial obligations of states that bind corporations -- Introduction -- From law to policy: the SRSG's extra-territoriality matrix -- From policy to law: extra-territorial jurisdiction and international human rights obligations -- Extra-territorial human rights obligations and globally operating business entities -- Conclusion -- 12 Will transnational private regulation close the governance gap? -- Introduction -- The corporate responsibility to respect and transnational private regulation -- Strengths of transnational private regulation -- Effectiveness of transnational private regulation: the critical role of information -- An illustration: transnational private regulation in the area of private security provision -- Transparency in the Guiding Principles -- The corporate responsibility to disclosure of information -- Disclosure of information according to Pillar 1 -- Towards a right to independent information? -- Access to information in international law -- Beyond the Framework and GPs: issues for the UN Working Group to consider.

13 An analysis and practical application of the Guiding Principles on providing remedies with special reference to case studies related to oil companies -- Introduction -- The Guiding Principles and the concept of effective remedies -- Case studies on remedies and human rights -- Chevron v. Ecuador -- The oil operations and the pollution -- The 1992-98 settlement and remediation programme -- Chevron and Texaco -- US and Ecuador class action litigation (1993-2010) -- Shell v. Nigeria -- Pollution impacting human rights: the UNEP Report -- Shell's oil operations in Nigeria -- Litigation in the Netherlands -- Settlement negotiations: Bodo oil spills -- BP v. The Gulf of Mexico -- Failures in safety culture -- Reponses to the incident -- US domestic law: tort and collective action -- Settlements: a commitment to 'all' legitimate claims? -- The Fund -- Filing process -- Criticism -- Parallel litigation against BP leading to a 'Settlement Program' -- Comparisons -- Implementing the Ruggie Framework: corporate legal and policy strategies -- Chevron -- Shell -- BP -- Non-judicial remedies: grievance mechanisms, settlement, local engagement -- Chevron -- Shell -- BP -- Complicated corporate structure of multinational oil companies leads to employing formal legal defences -- Chevron -- Shell -- BP -- Concluding comparative analysis of corporate remedial responses to oil pollution incidents -- 14 Access to remedy: the United Kingdom experience of MNC tort litigation for human rights violations -- Introduction -- The two key legal obstacles: jurisdiction and the 'corporate veil' -- Jurisdiction -- Corporate veil: development of English law on MNC parent company liability -- Other procedural issues -- The importance of costs, resources and financial incentives for claimants' lawyers -- Context.

The adverse effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Rome II Regulation on access to a remedy81.

This book provides a detailed critical evaluation of the Ruggie Framework and the Guiding Principles on Business and Human Rights, focusing on their non-binding character, the limited ambit and scope of corporate responsibility, the excessive focus on the role of states, and the failure to overcome obstacles in enforcing corporate obligations.

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