By Tara Van Ho
This is my final post on last week’s Jesner v Arab Bank decision from the US Supreme Court. Earlier posts can be found here (where I critique the Court’s confusion over international criminal law versus international human rights law) and on Nadia Bernaz’s Rights as Usual blog here (where I argue that the law and policy makers need to recognize that corporations are not simply tools for evil, but that their structure can encourage evil).
My final criticism of the Jesner decision is that the Court, and Justice Kennedy in particular, do not evidence a clear understanding of customary international law, how it develops or how it binds states. Kennedy repeatedly suggests that recognizing corporate accountability for breaches of customary international law would be a ‘judicial invention’ that usurps the role of the legislative and executive branches in developing foreign policy. There are reasons particular to US law that may have led Kennedy to suggest that the recognition of existing customary international law standards would still be a ‘judicial invention’ for the purpose of the Alien Tort Statute (ATS) . Those reasons are much more persuasively set out in the Court’s 2004 Sosa v. Alvarez-Machain decision (start reading from Section IV.C) than they are in Jesner. Kennedy’s approach, however, raises questions about how he understands customary international law and its development.
By Tara Van Ho
Last week, the US Supreme Court issued its highly anticipated decision in Jesner v. Arab Bank. The Court came to the conclusion that corporations cannot be sued under the US’s anomalous Alien Tort Statute (ATS), which allows for foreign citizens to sue in US federal courts “for a tort only, committed in violation of the law of nations or a treaty of customary international law.” The decision is rife with problems and a misapplication of international law.
By Tara Van Ho
This week, US courts issued two important cases for international law, in the areas of business and human rights and the laws of armed conflict. First, the US Supreme Court’s Jesner v. Arab Bank decision foreclosed the use of the Alien Tort Statute to hold corporations accountable for their role in violations of human rights. Then, the US military commission at Guantanamo Bay found it had personal jurisdiction over the 9/11 defendant in US v Mohammad, et al. To do this, the commission had to determine an armed conflict existed between the US and Al Qaeda on 9/11.
Both cases significantly warped international law.
I’ll address both cases through a series of posts here, at Nadia Bernaz’s Rights as Usual, and on my own blog. In this post, I’ll address issues with the most significant decision of the Mohammad judgment: the finding of the commission that on 9/11 the US was engaged in an armed conflict.
By Vivian Ng
Communities used to gather on street corners, sidewalks, parks and public squares. Today, social media platforms are increasingly the forum of choice for individuals seeking to express themselves, communicate, interact, organise, and even mobilise. These online platforms are today’s public square, where free exchange and development of opinions and ideas can happen. However, there are concerns that social media has also become a forum for terrorists, racists, misogynists, or child abusers to thrive. As a result, and particularly in light of recent terror attacks, there is pressure on social media companies to be more proactive in preventing their platforms from being used to radicalise and incite violence. In response, social media companies are investing in more resources to moderate content on their platforms, particularly by expanding teams of content moderators. A critical reflection of the human rights implications engaged by this evolving role and the responsibility of technology companies is necessary. This post will focus on one specific element of the wider debate: an interrogation of the duty of care owed to the so-called ‘private counter-terror workforce’.
By Tara Van Ho
This year’s UN Forum on Business and Human Rights took place last week. Repeatedly, speakers raised the significance of #brexiTrump (the combination of the #brexit and Trump votes) while questioning its impact for the field. This post attempts to respond to questions from colleagues in the field about where we go from here and how we support students who want to pursue B&HR.
For those unfamiliar with business and human rights, it’s the subfield that focuses on how businesses negatively impact human rights and how we should best respond to those impacts. The focus is on the negative impacts because while we recognize that businesses – all businesses – can have positive impacts on human rights, businesses are not allowed to “offset” their negative human rights impacts by providing positive ones elsewhere. Instead, businesses are expected, at a minimum, to respect the range of human rights for all people, to mitigate any threats they can identify in advance, and to remedy any impacts that are unavoidable. Businesses are to take responsibility for their impacts across the range of human rights (the leading document calls for them to consider the rights present in the UDHR, ICCPR, ICESCR, and the ILO’s fundamental Conventions) and for all individuals they impact.
So in light of #brexiTrump, where should the field go? I have three “takeaways” for the field of B&HR. Continue reading
Disclaimer: The views expressed herein are the author(s) alone.
By Anil Yilmaz Vastardis
In the wake of the UK’s EU membership referendum result, people from all walks of life are wondering what will happen next. While a big uncertainty looms over the political questions surrounding the process of the UK’s exit from the EU, the repercussions go far beyond the UK – and some of those wondering “what next” are likely overseas victims of human rights abuses by British corporations. The question remains as to what happens to all the EU law that either the UK has transposed into its legal order via acts of parliament, or that have direct application in the UK, such as EU Regulations.
Brussels I Regulation (Recast) is one of many such EU law instruments. It prescribes the rules on jurisdiction of member state courts, as well as the rules on the recognition and enforcement of judgments in civil and commercial matters within the EU. It has been predicted that the UK’s adherence to the Brussels I regime “is likely to be significantly modified, if not entirely replaced, in the event of Brexit.” The authors of that piece outline the different scenarios on the fate of the English rules on civil jurisdiction post-Brexit. The course chosen may have an impact on the ability of human rights victims overseas to bring suit against multinational enterprises (MNEs) in UK courts. Continue reading
By Dr. Anil Yilmaz Vastardis
On 16-17 May 2016, I participated in a multi-disciplinary workshop on ‘Law, neoliberalism and social protest: lessons from TTIP’ at the University of Brighton. This workshop was co- organized by myself and Prof Marie-Bénédicte Dembour, and it was followed by a public debate on TTIP as part of the Brighton Fringe Festival. The workshop benefited from the participation of Prof Diamond Ashiagbor, Dr Lucy Finchett-Maddock, Paul Gilbert, John Hilary, Prof Sheldon Leader, Sam Lowe, Prof David Schneiderman, Dr Gabriel Siles-Brugge, Prof M. Sornarajah, Dr Neil Stammers and Ntina Tzouvala.
TTIP is a comprehensive trade and investment partnership currently being negotiated by the US and the EU. The negotiations are led by the EU Commission on behalf of the EU and the USTR on behalf of the US Government. Agreements like TTIP aim at increased integration of markets, by removing tariff and non-tariff barriers to trade, as well as by providing guarantees for the protection of foreign investment. This of course is a means to an end, i.e. it is predicted that integration will lead to growth of the economy and the creation of jobs which will then lead to increased welfare.
If TTIP is predicted to have such positive effects on society, why all the controversy? Critics of TTIP have a number of concerns. A common worry is that the negotiators are not taking fundamental rights of the public seriously. Among the major criticisms are: (1) the harmonization of standards through a ‘race to the bottom’; (2) lack of appropriate levels of transparency and inclusiveness of all stakeholders in the drafting process; (3) limitation of the regulatory space of states to take measures in the public interest via the investor protection rules that give investors rights (applied by investment tribunals outside the domestic legal system), but no obligations. The participants of the workshop discussed critically the process of negotiation and drafting of the TTIP, and certain controversial aspects of its proposed content. Continue reading
On 5 November, States Parties finally released the actual text of the Transpacific Partnership (the TPP), a “next-generation” trade and investment agreement that will bind together 12 countries. The agreement primarily lowers trade barriers, but it also regulates the relationship between the state and foreign businesses from the other states parties.
By Dr. Tara Van Ho. You can follow Tara on twitter: @TaraVanHo