A (So Far Unlikely) Day in Court: An Overview of the First Judicial Decisions under the French Duty of Vigilance Law

On 21st February 2017 numerous NGOs and other human rights organizations cheerfully welcomed a new law passed by the French Assemblée Nationale dealing with human rights obligations by (transnational) companies. The law declares parent companies to be responsible for economic operations not only of their affiliates but also of suppliers and contractors. In the future, companies with headquarters in France having at least 5.000 employees in France or with at least 10.000 employees worldwide, will have to create a »plan one vigilance« and as such perform a »human rights due diligence« aimed at assessing in which way affiliates, suppliers or contractors violated human rights within their economic operations. However, the law does not regulate in detail the content of the due diligence and therefore causes significant legal uncertainty among affected companies. The law merely states that further details of the so-called »plan de vigilance« will have to be clarified by the issuance of ordinances. Originally, in the adequately case of human rights violations, parent companies could even be obliged to make penalty payments in case the parent companies did not adequately take into consideration possible risks regarding human rights violations realized by affiliates, suppliers or contractors. On 23rd March 2017 the French Constitutional Court declared the possibility to hold parent companies responsible incompatible with the French constitution on the basis of the Laws vagueness. Apart from these constitutional aspects, the passing of the law is also interesting from the perspective of public international law. Until today the responsibility of transnational companies was primarily based on softlaw documents having no legally-binding character. The law enacted by the French legislator seems to be the first step towards holding parent companies liable, at least at the domestic level. Furthermore, as of 2014 a working group created by the Human Rights Council based on resolution number 26/9 is currently trying to prepare a multilateral treaty foreseeing clear responsibilities for contracting states to hold their (parent) companies liable for human rights violations. In this regard, the French law seems to be an important step within a greater, human rights friendly development. The question thus arises whether the law could have a role model effect for other countries, such as Germany.

What role does the Court of Justice of the EU (CJEU) and EU law play in elaborating the rights and principles embodied by the Universal Declaration of Human Rights (UDHR)? Over the last 20 years, human (or ‘fundamental’) rights have become a constant part of the way the CJEU interprets and applies EU law. In a period where fundamental rights and values are increasingly under threat both globally and in Europe, judicial institutions remain an important last bastion of protection. Commenting on Judge Rosas’ (2007) observation that the CJEU is not in fact a human rights Court, three critical questions are derived: The first question is the most related to this special issue. What does the development of the CJEU—an institution with human rights responsibilities—mean for general international human rights law? The second takes up Judge Rosas’ observation that the CJEU, unlike the Strasbourg Court, has extensive judicial responsibilities beyond human rights. What does the development of EU human rights law mean for EU law more broadly? Finally, if Judge Rosas is right that the CJEU is not a human rights Court, what does that mean for its relationship to the European Court of Human Rights (ECtHR) and the other organs of the Council of Europe? In answer to this last question, the article cautiously advances the argument that the very fact that the CJEU is not a human rights Court implies a more robust role than Judge Rosas suggests for external review of EU law by international human rights bodies.

Who can lead the world on human rights?

Since the adoption of the UN Guiding Principles on Business and Human Rights, the relationship between human rights due diligence (HRDD) and corporate liability has been a source of legal uncertainty. In order to clarify this relationship, this article compares and contrasts civil liability provisions aiming at implementing HRDD. It explains the legal liability mechanisms in the draft Treaty on Business and Human Rights and in domestic mandatory HRDD legislation and initiatives such as the French Duty of Vigilance Law and the Swiss Responsible Business Initiative. It compares these developments with the emerging case law on parent company and supply chain liability for human rights abuses. It explores the potentially perverse effects that certain civil liability provisions and court decisions might have on companies’ practices. Finally, it makes recommendations for the design of effective liability mechanisms to implement HRDD.

Oil-Exploitation in Nigeria: Procedures Addressing Human Rights Abuses

The relevance of the study, given the law enforcement practice of the courts of Ukraine and the case law of the European Court of Human Rights, based on the coverage of standard decisions, lies in identifying some errors in the pre-trial investigation. Further, the study disclosed the issues related to the observance of human and civil rights and freedoms during the surveillance. The purpose of the study is to identify the main reasons for recognising the evidence obtained during covert investigative action as inadmissible in the course of the trial. The methodological basis of the study is a comparative legal method based on the evaluation approach, a formal legal (dogmatic) method, analysis and synthesis. The study highlights individual papers in the context of the issue under consideration, which allowed disclosing the content of each of the areas and tracing their relationship. Based on the review of judicial practice and decisions of the European Court of Human Rights, the main reasons for declaring evidence inadmissible are presented and substantiated. In addition, individual court decisions on non-compliance with constitutional human rights and freedoms during such a covert investigative (search) action as surveillance are summarised and characterised. It was proved and argued that authorised bodies that have the right to authorise surveillance must comply with the norms of the European Convention on Human Rights. It is determined in which cases the court may recognise evidence obtained during surveillance as admissible. The ultima ratio principle, which guarantees the observance of constitutional human and civil rights and freedoms during pre-trial investigations, is highlighted separately. A personal opinion on each of the analysed decisions is formulated, considering national and international legislation. The practical value lies in the fact that the results of the study allow the prosecution to avoid mistakes during the collection of evidence in criminal proceedings.

The relevance of the study, given the law enforcement practice of the courts of Ukraine and the case law of the European Court of Human Rights, based on the coverage of standard decisions, lies in identifying some errors in the pre-trial investigation. Further, the study disclosed the issues related to the observance of human and civil rights and freedoms during the surveillance. The purpose of the study is to identify the main reasons for recognising the evidence obtained during covert investigative action as inadmissible in the course of the trial. The methodological basis of the study is a comparative legal method based on the evaluation approach, a formal legal (dogmatic) method, analysis and synthesis. The study highlights individual papers in the context of the issue under consideration, which allowed disclosing the content of each of the areas and tracing their relationship. Based on the review of judicial practice and decisions of the European Court of Human Rights, the main reasons for declaring evidence inadmissible are presented and substantiated. In addition, individual court decisions on non-compliance with constitutional human rights and freedoms during such a covert investigative (search) action as surveillance are summarised and characterised. It was proved and argued that authorised bodies that have the right to authorise surveillance must comply with the norms of the European Convention on Human Rights. It is determined in which cases the court may recognise evidence obtained during surveillance as admissible. The ultima ratio principle, which guarantees the observance of constitutional human and civil rights and freedoms during pre-trial investigations, is highlighted separately. A personal opinion on each of the analysed decisions is formulated, considering national and international legislation. The practical value lies in the fact that the results of the study allow the prosecution to avoid mistakes during the collection of evidence in criminal proceedings.

The vertical nature of international human rights norms presupposes states to be the addressee of human rights obligations. Therefore, there is no corporate liability for human rights abuses under international law. National legislation also does not contain any explicit rule that would allow to hold a parent company liable for human rights violations committed by its subsidiary or supplier abroad. Nevertheless, even in the absence of a clear legal basis, the national courts of Canada, France, the UK and the Netherlands, express their willingness to recognise the existence of responsibility to respect human rights on the part of corporations. Furthermore, modern case law of the aforementioned states represents possibilities to actually hold corporations liable under tort and criminal law for violations of this obligation. The reason for these “bottom — up” developments appears to be the shift of focus from corporate to victims protection. Corporate legal autonomy originated from strict corporate separation principle, as it becomes questionable nowadays. The need for the developments was born from a laissez-faire approach applied to corporations over the years that gave them the possibility to become invisible in their home states and therefore insulate liability for wrongdoings abroad. National courts of Canada, France, the UK and the Netherlands in course of their judicial practice invoke a great variety of possible causes of action to be the ground of imposing the responsibility to respect human rights on corporations and consequently holding them liable for violation of that obligation. Causes of action encompass international human rights law provisions, invocation of duty of care concept, human rights due diligence framework and criminal law provisions. However, the question whether any cause of action invoked by national courts in order to hold parent companies liable for human rights abuses committed by their subsidiaries or suppliers abroad meets the criteria of universality and applicability at the international level.

In order to provide access to remedy for victims of human rights impacts and encourage parent companies to prevent future impacts by their foreign subsidiaries, there is a need for national courts to apply tort law duty of care obligations to parent companies. This paper argues that parent companies with high levels of control or supervision of their subsidiaries owe a direct duty of care to those whose risk of injury is foreseeable. When these parents act negligently – failing to meet this duty of care or exercise due diligence – in controlling the actions of their subsidiaries, they should be held directly liable. The paper aims to clarify why and how parent companies can be held liable for failing to exercise a requisite duty of care in controlling the acts of their subsidiaries when human rights impacts result. First, the need to turn to conventional tort litigation of human rights impacts in the wake of Kiobel is discussed. Next, the paper discusses the normative justifications for holding parent companies accountable and gives a short overview of alternative approaches to doing so. The paper then turns to two recent decisions that have opened up the ability to bring direct parental negligence claims and that should serve as examples for other courts, especially those operating under common law tort principles. In the U.K., the court in Chandler v. Cape held a parent company owed a direct duty of care to the employees of its subsidiary and that that duty was breached. In Canada, the Choc v. Hudbay court found that a parent company may owe a direct duty of care to a Guatemalan indigenous community whose rights were violated by a subsidiary of a Canadian parent company. Finally, the conformity of these decisions with international human rights law principles will be considered.

In 2017, France established a due diligence statutory obligation for French parent companies to monitor extraterritorial human rights and environmental abuses committed by their off-shore affiliates. Switzerland is also considering adopting a similar law for Swiss parent companies. These obligations are comparable to the duty of care that, according to recent case law, British parent companies owe towards their subsidiaries’ neighbours. This article compares and contrasts the newly introduced French due diligence statutory obligation, the UK precedents, and two alternative Swiss legislative proposals on the due diligence and duty of care of parent companies.

Since the adoption of the UN Guiding Principles on Business and Human Rights the relationship between human rights due diligence (HRDD) and corporate liability has been a source of legal uncertainty. In order to clarify this relationship, this article compares and contrasts civil liability provisions aiming at implementing HRDD. It explains the legal liability mechanisms in the draft Treaty on Business and Human Rights and in domestic mandatory HRDD legislation and initiatives such as the French Duty of Vigilance Law and the Swiss Responsible Business Initiative. It compares these developments with the emerging case law on parent company and supply chain liability for human rights abuses. It explores the potentially perverse effects that certain civil liability provisions and court decisions might have on companies’ practices. Finally, it makes recommendations for the design of effective liability mechanisms to implement HRDD.

Many studies suggest that courts fail to protect individual rights since they support and uphold state repressive practices during periods of emergency or confrontation. Previous studies focused on judicial policies as reflected injudicial declarations and decisions that were fully disposed by judges and officially published. I argue that the study of out-of-court settlements and the comparison between the outcomes of settlements and the judicial rhetoric are key to understanding the behavior of courts in times of national crisis. At such times, courts may hesitate to openly confront the government on the issue of minority rights, but they may strive to protect minorities by exerting pressure on the governmental legal apparatus and by effecting out-of-court settlements more favorable to minorities than official decisions. Thus, courts influence social practices while avoiding government or public opinion counterreactions that would impair their institutional autonomy. This argument is demonstrated in a case study of the Israeli High Court of Justice during the Palestinian Intifada.

The subject of research are conceptual, theoretical, methodological and applied bases of legal and economic nature concerning the execution of judgments of the European Court of Human Rights in Ukraine. Methodology. General scientific and special legal methods were used in the process of research. Quantitative and qualitative parameters of organizational, legal and economic measures on execution of judgments, including judgments of the European Court of Human Rights in Ukraine were determined by means of the analysis. The synthesis provided the formation of common features of negative and positive factors that hinder and promote, respectively, the execution of judgments. The comparative legal method allowed to identify characteristic common and distinctive features in the execution of judgments of the European Court of Human Rights in Ukraine at different times (2016 and 2021), taking into account legal and economic prerequisites. The formal-legal method created prerequisites for the formulation of conclusions regarding the effectiveness of individual and general measures taken to implement judgments. The purpose of the article is to establish the status and outline the prospects for the implementation of the decisions of the European Court of Human Rights through the study of the legal and economic foundations of the relevant national and international legal regime of this process, as well as the jurisdictional activities of the subjects of control and supervision over its course. The results of the research showed that the state of implementation of the decisions of the European Court of Human Rights in Ukraine is directly related to a number of measures of various origins, including economic ones, which are based on strict compliance with the requirements of the ratified Convention on Human Rights and Fundamental Freedoms. Conclusion. Legal and economic basis for the implementation of the content of the Strasbourg Court judgments on the territory of Ukraine is covered by international and national legal regime, with priority given to the first. Procedures for execution of the said judicial decision are determined, where two groups are distinguished in the plane of national legal regime: those that are aimed primarily at ensuring a private interest; those that create conditions for satisfaction of a public interest. Characteristic features in the execution of court decisions compared to 2016 and 2021 were revealed: an increase in the number of appeals of Ukrainians for the protection of rights and fundamental freedoms; an increase in the number of satisfied compensation claims; the presence of homogeneous problems contributing to the violation of human rights and interests in Ukraine; a decrease in the level of implementation of compensation solutions, which is associated with certain negative aspects of social life of an economic nature; expansion of the scope of consideration on the merits and related judicial decisions, taking into account the list of rights defined by the Convention for the Protection of Human Rights and Fundamental Freedoms; improvement and implementation of a strategic approach in implementing the content of general measures for the execution of judgments, in particular this international instance; implementation of the legal, economic, cultural and informational framework at the level of educational standards, which will contribute to the implementation of the content of judgments of the European Court of Human Rights. The following directions have been identified as priorities for the near future in terms of legal and economic execution of judgments of the European Court of Human Rights: creation of a systematic mechanism for implementing the content of judgments, including those of the Strasbourg Court; maximum differentiation of general measures within the framework of the implementation of the content of such decisions; priority of measures of organizational, legal, economic, informational and educational nature; emphasis in the relevant measures on the issue of balancing public and private interests, but by no means to the detriment of the former.

Досліджено міжнародно-правові механізми моніторингу та підзвітності суб’єктів, які надають послуги з водопостачання і санітарії. Проведено аналіз міжнародно-правових норм у галузі прав людини, а також вивчено особливості діяльності міжнародних інституцій та громадських організацій, які здійснюють контроль за реалізацією прав людини. Описано особливості моніторингу на міжнародному, регіональному та національному рівнях. Ключові слова: право на воду, санітарія, моніторинг, підзвітність, договірні органи, омбудсмен, неурядові громадські організації. The article examines the international legal mechanisms for monitoring and accountability of entities providing water and sanitation services. International instruments on human rights, the national legislation of number of countries, judicial decisions, investigated the features of the activities of international institutions and civil society organizations that monitor the implementation of human rights are analyzed. The features of monitoring at the international, regional and national levels are described. Important role in monitoring at the international level belongs to the United Nations, namely the treaty bodies, the Universal Periodic Review and Special Procedures. Treaty bodies (or committees) consider complaints regarding violations of human rights. A number of committees may also conduct an investigation if they receive information containing data on breach of treaty in the State party. “Special Procedures” – a term that means the mechanisms of United Nations Human Rights Council, designed to solve the problems. As a part of the special procedures monitoring and publication of reports on the situation of human rights in specific countries or on major thematic issues are carried out. Universal Periodic Review of Human Rights is an intergovernmental mechanism of cooperation. This mechanism allows each State to declare what had been made to improve the country’s human rights situation. Every four and a half years all UN member states are required present a report to the Human Rights Council on the situation of human rights in their countries. The article highlights the features of accountability at the regional level. The activities of the regional treaty bodies responsible for supervising the observance of human rights by their Member States are described. The Inter-American Commission on Human Rights, for example, has a mandate to monitor the situation of human rights in member countries as well as to visit the country for in-depth analysis of the overall situation in the field of implementation of human rights. The article explores that at the regional level judicial or quasi- judicial mechanisms in the field of human rights are functioning. They develop the principles of judicial practice related to the support and protection of the right to water. Regional organizations improve accountability among States by identifying common objectives and exchange of information. At the national level monitoring of human rights to safe drinking water has its own characteristics. Important role in monitoring at the national level belongs to the national human rights institutions. They advise the government and give recommendations, examine complaints, conduct investigations, provide information to the public etc. Sometimes national human rights institutions have quasi-judicial functions and are involved in the legislation drafting. Often these institutions are called commissions or ombudsman offices. At the local level, civil society organizations also monitor how States and private companies implement the right to water and sanitation. The article gives examples of activity of some of these organizations, describes the features of the application of “citizen report cards” in India and Uganda. Key words: right to water, sanitation, monitoring, accountability, treaty bodies, ombudsman, non-governmental organizations.

Over the last decade, many scholars have argued for the enforcement of international human rights norms by the domestic courts. Those claims are largely normative and there are hardly any empirical arguments advanced in support of the normative arguments. This paper presents an empirical study which examines the enforcement of international human rights norms by the Indian Supreme Court between 1997 and 2008; based on the content analysis of its judicial decisions. With specific focus on the Indian Supreme Court, it examines the reasons, justifications and means for referral to international human rights norms between 1997 and 2008. Firstly, it examines the human rights cases in which the Supreme Court refers to international human rights norms. Then, human rights cases are divided into three categories; those involving: 1. Civil and political rights, 2. Economic, social and cultural Rights and 3. Both. Secondly, techniques developed by the Supreme Court of India for the enforcement of international human rights norms in these three categories of cases are explained. The methodology deployed codes the variables aimed at ascertaining the frequency of the enforcement of international human rights norms by the Supreme Court of India, using different techniques between 1997 and 2008. The study finds that the Supreme Court’s jurisprudence during the years 1997-2008 can be defined as a transitional period, at least when it comes to the enforcement of international human rights norms. The Court has used international human rights norms largely as an interpretative tool, where international human rights norms were taken as a ‘given’ under the international human rights instruments. There are only a few instances where the Court has ‘defined’ what constitute international human rights norms by reading them into customary international law.This paper concludes by suggesting that the Supreme Court of India should take an ‘active,’ informed approach, while referring to international human rights norms, and should enforce international human rights norms by reading them into customary international law where needed; rather than its ‘passive’ approach of referring to international human rights norms for statutory interpretations. The Supreme Court should look at the relationship between international and domestic legal norms as a “co-constitutive, or synergistic,” and should utilize these norms actively as a participant in the dynamic process of developing international law. The Supreme Court must be able to apply customary law on human rights exhaustively and in a fully independent way, in particular, it must be able to verify that the violations of human rights recognized by customary international law are not committed by the executive. While the Supreme Court has been known for its judicial activism, it is time that it is also known for its informed approach and respect towards international human rights norms.