Binding Treaty Research Articles

Litigating the Climate between National and International Human Rights Regimes

Abstract This paper identifies the architecture of the justiciability of the right to a healthy environment, analysing the contribution of national and international regimes in climate litigation. It argues that neither the former nor the latter alone can currently offer a fully implementable set of remedies to the catastrophic consequences of environmental degradation. In all the cases, collectiveness is a parameter that needs to be taken into consideration, and which is shaping the way most of successful environmental claims are framed. This calls for a reflection on what courts can contribute, and maybe also if they should contribute at all, in the absence of explicit political will in the form of a specific binding treaty. It is concluded that through the interaction between domestic and international courts we can envisage a full coverage of the rights involved.

On the scale from ransomware to cyberterrorism: the cases of JBS USA, Colonial Pipeline and the wiperware attacks against Ukraine

ABSTRACT This research explores the conditions under which ransomware can be considered as an act of cyberterrorism and whether the cases of JBS USA, Colonial Pipeline and the wiperware attacks against Ukraine in 2022 constitute such. These theoretical and practical issues are particularly important in light of the negotiations at the United Nations level for a binding treaty on cybercrime. To achieve these goals, we have undertaken the following steps in designing a model for the analysis of ransomware events. First, we searched for an agreed-upon definition for cyberterrorism in the academic literature. To do so, we compiled a dataset of one hundred peer-reviewed articles published in scholarly journals on the topic of cyberterrorism. We reported whether authors considered factors such as inducing a sense of fear/panic, the destruction of property or the threat of such, and/or killing/violence/coercion or the threat of such as necessary conditions for the definition of cyberterrorism. Second, we complemented academic views with the definitions of practitioners and policymakers. Third, we applied the model to test whether the three ransomware case studies fit the criteria for cyberterrorism. We found that based on the proposed framework, all case studies constitute acts of cyberterrorism, albeit to a different extent.

Sovereignty, human rights and the regulation of transnational corporations: a critical spatial analysis of civil society proposals for a binding treaty

ABSTRACT This article develops a critical spatial analysis of contemporary proposals to regulate transnational corporations (TNCs). Following an analysis of the existing topology of international regulatory space, the article develops a model of alternative spatial orders which would enable TNC regulation and uses this model to critically assess the different spatial orders implicit in the major proposals being tabled by two civil society groupings in the current treaty negotiations at the UN Human Rights Council. It shows that the proposals of the Human Rights NGOs would elaborate an ‘imperial sovereignty’, with the horizontal extension of the sovereignty of Northern states into the territory of Southern states, while the proposals of the Global Campaign would elaborate a ‘global sovereignty’ through the vertical dispersal of sovereignty, both upwards and downwards, to elaborate a more emancipatory universal spatial order. Understanding these implicit spatialities enables a deeper assessment of the implications of the different proposals.

International Investment Law Reforms and the Draft Business and Human Rights Treaty: The More Things Change, the More They Remain the Same?

Abstract Foreign investors enjoy the best of both worlds, often to the detriment of local communities, indigenous groups and other rightsholders who suffer violations in their wake. Such investors operate transnationally and access vast amounts of resources in host States around the world enjoying substantial rights secured through numerous trade and investment agreements while their human rights and other obligations remain less clear and more difficult to enforce. Given the relatively undertheorized interaction between efforts to come up with a binding treaty within the regime of business and human rights (BHR) and the reforms currently underway in the regime of international investment law (IIL), this contribution argues that despite reforms in IIL and progress towards a BHR treaty, rightsholders are likely to remain under protected in reality.

A Review of International Laws and Principles Governing Business and Human Rights

Human rights are closely interlinked with business, and this relationship has extensively been of fundamental emphasis to international law. Multinational corporations (hereinafter, MNCs) and business enterprises, due to their influential nature, often escape weak domestic regulations. This article examines international law governing BHR and explores the reasons for the convergence from voluntary measures to binding law. It elaborates on the role of the International Bill of Rights in addressing human rights protection in the context of business activities. It then delves into UN non-binding measures that have been endorsed in the past, highlighting their significant standards and the ongoing relevant debate. Furthermore, the article examines the progression towards a binding treaty. While acknowledging that a binding treaty may not completely solve the complex issue of BHR violations, it argues that it can encourage states to align their national legislations and strengthen existing non-binding instruments such as ‘National Action Plans’.

Signing CEDAW and Women’s Rights: Human Rights Treaty Signature and Legal Mobilization

Can commitment to international human rights law promote human rights when the commitment is not yet legally binding? I argue that treaty signature can be used by non-governmental organizations and other rights actors to mobilize around rights standards and hold states accountable in the lead up to binding treaty ratification. Using the United Nations Convention on the Elimination of All Forms of Discrimination (CEDAW) as a case, I argue that CEDAW signature can have a positive impact on women’s rights. I find overall support for the argument that, following signature, states are significantly and positively associated with higher women’s rights. The findings hold across numerous robustness checks. Using an illustrative case of CEDAW signature and mobilization in the United States, I demonstrate that activists drew on the treaty following signature in the absence of ratification. The argument and results contribute to the study of international law and women’s rights mobilization, highlighting the importance of signature commitment as a tool for advancing women’s rights in advance of treaty ratification.

Building the Inter-American Convention against Racism: between Antiracist Pride and Racism Denial

Abstract This article examines the main controversies throughout the negotiation of a regional binding instrument to fight racism that led to the approval of the ‘Inter-American Convention against Racism, Racial Discrimination, and Related Forms of Intolerance’ in 2013. In order to identify the regimes of racism denial that shaped the process, the article explores the major controversies in terms of language, concepts, and the need for a more targeted binding treaty on racism, focusing on the leading role of Brazil. The analysis considers the links between scales; from the regional debate to States’ national discourse and practices, within the context of global efforts to advance standards to fight racism, particularly those established at the third World Conference against Racism, Racial Discrimination, in Durban. By reviewing country reports, drafts of the convention, and analysing interviews with some participants of the debates at the Organization of the American States (OAS), this study assesses how the different strategies deployed served to perpetuate regimes of denial of racism, strongly present in the official discourse and challenged in the building of a binding instrument to fight racism in the Americas. Analysis revealed the deep challenges associated with combating racism as a systemic form of oppression historically linked to the region’s colonial past and legacy of the transatlantic slave trade. Finally, consensus was only reached by moving away from the ‘Durban language’, showing how disputed concepts and remedies highlight that racism remains a politically sensitive issue in the region.

Global perceptions of plastic pollution: The contours and limits of debate

AbstractPlastic pollution is central to policy and public debates about anthropogenic damage to the environment. Negotiations for an international binding treaty to end plastic pollution provide a timely opportunity to analyse peer-reviewed papers concerning public perceptions of plastic pollution (n = 39). These focused on the impact of plastic pollution solely on the marine ecosystem, single-use plastics, barriers to recycling and risks of microplastics. Research studies explored public perceptions of ‘plastic pollution’, ‘marine plastic litter’, ‘marine plastic pollution’ and ‘plastic marine debris’. These terms are not interchangeable and frame the problem. Awareness links to media representations and personal ‘choices’ are limited by lack of options (extended producer responsibility schemes). There was limited discussion of reducing the aggregate global volume of plastics produced. Future research could explore perceptions of risk (toxic chemicals, bioplastics) plastics and climate change or plastics and global biodiversity loss (beyond turtles). The social meaning of plastics, the heterogeneity of audiences and the role of media in framing risks can help inform plastics-related policy. Social Sciences and media scholars are well placed to unpack the socio-cultural context in which plastics are intertwined in people’s everyday lives and how social meanings of plastics may change in response to global crises.

The Constitutional Obstacles before the Promulgation of the Rome Statute

July 17, 1998, can be considered as one of the most important milestones of the international judicial structure: it is the day when the Rome Statute of the International Criminal Court was adopted by 120 states out of 148. Article 86 of Statute explicitly states that „States Parties shall […] cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” As in the case of every international treaty, the principle of pacta sunt servanda enshrined in Article 26 of the 1969 Vienna Convention on the Law of the Treaties states applies, which explicitly states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” As has been pointed out by the Permanent Court of International Justice, contracting states must make all the necessary internal measures which are required to fulfil its international obligations rising from a binding treaty. One could ask, why is this quite obvious argument important in the case of Hungary? Well, Hungary has ratified the Statute but still has not implemented it in its internal legislation. This can be considered as a serious constitutional omission, since if the Court would require the cooperation of Hungary – e.g. in the case of an arrest warrant – and it would not be able to fulfil it because of the lack of the internal legal norms, it would be considered as international legal responsibility of Hungary. In this article, I try to explore the reasons behind this omission and outline the possible solutions.

UN Treaty on Business and Human Rights or Investor-State Arbitration? A Sober Answer for the Better Protection of Human Rights

Summary The concept of legal personality has been and is currently the object of studies. The doctrine is vast and made of many convincing interpretations. For this reason, an excursus of the main theories will be outlined in the light of recent events which support a specific theoretical orientation. The study will give a clear understanding of how international legal personality applies to Non-State Actors. After removing minor doctrines from the equation, those that remain will be highlighted, and compared with how the same matter is de facto faced in international investment law. The relationship between international investment law and international human rights law with regards to the role played by investors will be scrutinised. In investment arbitration, the position of the State and the investor is equal. This leads to the impression that international investment law is the realm in which to ensure more protection for the victims of human rights violations by business enterprises. So, if respect for international human rights is incorporated into the investment arbitral dispute procedures it could protect and or prevent human rights abuses. The opposite approach is to view business activities as objects. In this case, the role to regulate companies and protect stakeholders will be only on the state, and companies will be indirectly obliged to respect human rights. Therefore, the current draft of the binding treaty on business and human rights will be taken into consideration. The analysis of the two approaches will highlight which represents the more stable option for preventing, protecting and remedying human rights abuses by business enterprises. Specifically, the main questions to be answered are: is the international investment law’s field the future for more effective protection of human rights violations coming from business activities? Or is it a states’ prerogative to set and impose rules to prevent and protect such violations?

Three Arguments to Support International Binding Treaty on Business and Human Rights

The development of the promotion and protection of human rights, in general, has been gladdening. However, in instances where human rights are affected by business activity, efforts to uphold them meet certain obstacles. This is exacerbated when the business activity involves a complex and international dimension in it—i.e., in the case of multinational enterprises. This paper provides three arguments to support the establishment of international binding treaty on business and human rights. It examines the current Corporate Social Responsibility platform, state responsibility to protect human rights, and also the importance and benefits of legally binding treaty. This research found that the implementation of the current CSR platform fails to prevent business harm to human rights. Therefore, state responsibility is fundamental in this matter and should be enhanced by the duty to establish an international treaty. A legally binding treaty is important to protect human rights from irresponsible business activity and can be beneficial and relevant to the interest of parties involved in business and human rights.

Opportunities to Foster Conservation and Sustainable Use of Biodiversity Beyond National Jurisdiction: A Role for Scientists

AbstractCountries are currently negotiating a comprehensive global binding treaty at the United Nations to better protect biodiversity in the high seas (referred to from here as “the Treaty”). Developing a governance framework for the sharing of benefits from marine genetic resources (MGRs) of the high seas (or areas beyond national jurisdiction, referred to from here as “ABNJ”) is a crucial element of the proposed treaty. Negotiating countries' positions on MGRs vary widely, ranging from no regulation to the establishment of a new global regulatory mechanism. For the scientists who may be involved with collecting MGRs in ABNJ, the Treaty could impact their research activities, including mandatory precollection notification. There could also be new requirements for daily research activities associated with utilizing physical materials collected in ABNJ or data generated from such materials. For indigenous peoples and local communities (IPLC) that may hold relevant traditional knowledge, the Treaty could ensure their rights to prior, free, and informed consent and the use of mutually agreed terms. The scientific community and IPLC have an opportunity to engage with key stakeholders to increase the chances that any new requirements will be practical, remain relevant in decades to come, and provide a platform that will foster research, collaboration, and marine biological diversity conservation.

The first binding treaty on business and human rights: a deconstruction of the EU’s negotiating experience along the lines of institutional incoherence and legal theories

ABSTRACT When the UN Human Rights Council initiated negotiations towards the first international legally binding instrument for the accountability of transnational business activities, EU Member States opposed it, and EU institutions themselves endeavoured to obstruct it by making it conditional upon the widening of its scope, as to cover all domestic companies, too. This move, phrased in human-rights terms, might rather account for the EU's reluctance to have its subsidiaries in developing countries compete with domestic businesses subject to less rigorous due-diligence standards (and thus, lower labour costs). Developing countries replicated that human dignity resides in countries not being imposed harmful developmental trajectories for market-competition purposes, and in indigent workers not being prevented from seeking survival means in domestic employment. Mentioned stalemate exposed frictions between different EU institutions, and evoked issues of both EU law and public international law, including: competence demarcation between Brussels and Member States; 'extraterritoriality' of EU obligations in (negotiating) foreign policy; responsibility of non-state actors. Furthermore, these negotiations unearthed the problematic 'identity' of human-rights policymaking, in its intersection with the concrete needs of its addressees. The EU has risked to either disrupt the initiative, or lose sight of the stances of this project's actual stakeholders: the poorer.

An International Agreement on Pandemic Prevention and Preparedness

During late 2021, national delegations are, or have, met at the United Nations General Assembly, the G20, and, most importantly, the Special Session of the World Health Assembly in November to determine whether the world needs a new international agreement to address pandemic prevention, preparedness, and response. The current international agreement, the International Health Regulations (2005), failed to work effectively – SARS-CoV-2 was not detected sufficiently early, relevant information was not shared efficiently, and the global response has not been coordinated. Even the most basic investigations were inadequate such as to discover the origins of SARS-CoV-2. Current proposals focus on the possibility of a soft law international instrument adopted through the World Health Organization, or a binding treaty formed under the United Nations or WHO. One bold possibility is to negotiate a pandemic treaty.This article analyzes the failures in international agreements and international institutions leading up to the declaration of a global pandemic by WHO on March 11, 2020, and the declaration, nearly a year later, about the need for a new international agreement. It analyzes the possible legal routes that such a new agreement may navigate, and, regardless of form, articulates the most important components of a new international agreement or treaty.

Namibia and Blanket Amnesties: Challenging the Namibian Blanket Amnesties on the basis of International Law in the Namibian Courts

Amnesty laws issued by Administrator General Pienaar in 1989 and 1990 still show their effect by preventing prosecutions and investigations of situations that occurred before Namibia’s independence. Unlike South Africa, Namibia did not establish a truth-finding body such as the Truth and Reconciliation Commission. The result is a situation of silence, oblivion and impunity without any kind of accountability. On this basis, crimes such as international crimes or serious human rights violations have never been prosecuted or even investigated. As this article argues, the amnesty laws from 1989 and 1990 qualify as blanket amnesties. Up until today, Namibians as well as the members of the South African Defence Force benefit from those amnesties. Against this backdrop, the question of whether the Namibian blanket amnesties apply in relation to international crimes and grave human rights violations will be addressed. This article argues that based on international law, the application of the Namibian blanket amnesties can be challenged in a potential criminal case that deals with international crimes or grave human rights violations in the Namibian courts. Therefore, this article illustrates how international law applies in the Namibian legal system. In this context, Namibia follows a monist approach which makes it quite receptive of international law and international standards. On this basis, this article points out binding international law at the time before and after Namibia’s independence as well as examining Namibia’s binding treaty obligations which arise under the Geneva Conventions, Torture Convention and the International Covenant on Civil and Political Rights. In the next section, an examination of domestic and international jurisprudence lays the foundation for the argument that the Namibian blanket amnesties can be challenged in a Namibian court when the crimes in question constitute international crimes, such as crimes against humanity or war crimes.

El papel de las instituciones nacionales de derechos humanos en el ámbito de la responsabilidad empresarial

Un actor fundamental en la discusión sobre la responsabilidad de las empresas, en materia de derechos humanos, son las instituciones nacionales de derechos humanos. A través de distintas competencias, tienen la capacidad de contribuir al desarrollo de capacidades tanto en el sector público como en el privado, lo cual les permite participar directamente en la difusión e implementación de los Principios Rectores sobre las Empresas y los Derechos Humanos de la ONU. Aún más, en el marco de las negociaciones sobre la posibilidad de adoptar un tratado en la materia, será importante considerar el papel que dichas instituciones pueden desempeñar, a fin de colaborar activamente en la construcción de una cultura empresarial de derechos humanos.

A Global Legal Instrument for Alcohol Control: Options, Prospects and Challenges

Alcohol is the sole major psychoactive substance with a huge negative public health and social impact without some form of international control grounded in a binding treaty. While existing rules of international law, in particular in the economic field, favour liberalisation and may hinder strong national alcohol control measures, we may be witnessing a turning of the tide due to the growing mobilisation against non-communicable diseases. The Framework Convention on Tobacco Control has been a ground-breaking development in this sense, and has led policymakers and advocates in a number of countries to raise the possibility of a similar convention on alcohol control. The present contribution compares tobacco and alcohol from this perspective and considers the feasibility of a dedicated international convention. It concludes that the political prospects of a movement in this direction are very dim at the present time; however, policy developments on other health problems and theoretical models emerging from constructivist international relations scholarship may open up promising perspectives for considering normative and institutional approaches that could strengthen the existing legal framework and facilitate political processes towards stronger forms of legalisation of global alcohol control.

Financial Institutions and Social Rights: From Foes to Friends?

This paper sets out the social rights obligations of both public financial institutions like the World Bank and the IMF, and of private financial institutions like banks. Moving beyond doctrinal analysis, it traces how the World Bank and the IMF have in practice over time considerably improved their compliance with social rights in respect of structural adjustment policies, in particular since the Great Financial Crisis. But social rights still need to become an integral part of their decision-making. By contrast, the private sector has made little progress. Initiatives like the Equator Principles turned out to be underwhelming, and the project of a binding treaty might yield modest results only. Nevertheless, there are inherent limitations to the effectiveness of social rights in relation to financial institutions. Judicial review faces structural constraints and may only filter the most egregious cases. It is therefore necessary to include social risks in the calculation of regulatory capital for private financial institutions. These proposals might prepare financial institutions for the possible transition to a post-growth society.

Business and Human Rights: Towards a Binding Treaty on the Activities of Transnational Corporations

It is an inescapable fact that the relationship between business and human rights is inseparable especially in the current wave of globalization. The impacts of business activities on human rights cannot be understated just as is the importance of human rights to businesses. This relationship informs the need to regulate the impacts of business activities on human rights. While various attempts have been made under the UN level, all these have not recorded considerable success and there are presently no binding obligations on transnational corporation to respects human rights. Calls have been made however for the establishment of a binding treaty on business and human rights. There is established a working group tasked with the development of the treaty. A lot of questions are however still at fore on the viability of such a treaty, its nature it scope as well as it successes among others. This research therefore draws from these unanswered questions and seeks to give proposals on the way forward for this highly anticipated treaty. The research discusses the relationship between business and human rights, traces the journey in the regulations of activities of transnational corporations, evaluate the prospects for the anticipated treaty and gives recommendations and proposals on inter alia the nature, architecture as well as the design of this anticipated treaty.

“BRICS LAW”: AN OXYMORON , OR FROM COO PERATION , VIA CON SOLIDATION , TO CODIFICATION?

In the global arena, the cooperation between the BRICS countries – Brazil, Russia, India, China and South Africa – covers around 42% of the world’s population and some of the world’s most dynamic emerging economies. Initially, the BRICS cooperation was suggested as an idea, and it was later welcomed as a new addition to the global governance debate about the future. The BRICS countries have already held ten consecutive summits of heads of state plus a large number of meetings at the ministerial level. The cooperation describes itself as a “cooperation and dialogue” platform, but it has nonetheless signed a number of binding treaties and, notably, established the New Development Bank (NDB) as a permanent institution headquartered in Shanghai (China).The cooperation has also met with resistance, criticism and problems caused by the overall complexity of global affairs in a rapidly changing world. The diversity and remote locations of the BRICS countries have also been thought of as an obstacle to their successful cooperation and their ability to play an active part in global governance in the twentyfirst century. The main challenge thus lies in their ability to overcome their differences and to make a difference in designing the future global political and economic world order. Against the backdrop of the global governance debate, the present paper therefore asks whether the BRICS cooperation constitutes a novel model of regionalism with multilateral aspirations, and what role law and, notably, the “rule of law” can play in this important task. The paper includes a discussion of the extent to which the BRICS cooperation needs to be upgraded in legal and institutional terms, and possibly to proceed from cooperation via consolidation to the codification of its most important sources of global law.