International Law Journal Research Articles

From its from its inception, the U.N. Guiding Principles for Business and Human Rights (GPs) have occupied a contentious and dynamic space — at once setting the framework for operationalization of regimes of business and human rights by states and enterprises, and simultaneously posing as either as a gateway or obstacle to the production of international law and national legal regulation of the activities of business enterprises. This article considers the issues emerging from the front lines of these battlegrounds: (1) the conceptualization of the state duty to protect human rights through the framing of national action plans, (2) the operationalization of the corporate responsibility to respect human rights through the framing of societally constituted reporting and assessment programs, and (3) the re-invention of the GP project as an expression of two dimensional internationalized state power and its challenge to the GP’s three dimensional project. Section II examines the way states might approach their obligations to protect human rights as elaborated most recently in the GPs. Using the framework of National Action Plans recently encouraged by the UN Working Group on the issue of human rights and transnational corporations and other business enterprises, the section suggests that these plans, and the approach undertaken by many states to implement the GPs may be misdirected. Section III turns to a consideration of the equally thorny issue of enterprise approaches to their obligations to respect human rights under the GPs. Two are examined more closely: (1) the quite promising framework, the Human Rights Reporting and Assurance Frameworks Initiative (RAFI) Project, and (2) the recent efforts of the World Federation of Exchanges’ (WFE) new sustainability working group to consider an Investor Listing Standards Proposal. Both are promising yet might be modified to better operationalize the corporate responsibility to respect human rights. Section IV turns to the effect of a move to supplement or supplant the GPs with a treaty framework. Yet, if the NAP framework and the RAFI/WFE processes can be most usefully understood as mapping projects preliminary to the hard substantive work of constructing rule of law norms in the legal and societal spheres, then the current treaty making effort represents both a culmination of the GP process and an effort to return to the state of things before the GP process started. That contradiction requires resolution. The article proposes a way in which the move toward treaty making may be integrated with the GPs state duty to protect prong and the discipline of NAPs and may help to frame interactions with the corporate responsibility. The current efforts to develop a treaty for business and human rights, then, might be most usefully understood and applied in this light — to use the treaty machinery to construct a well-integrated, long term, and ultimately comprehensive rule of law system for business and human rights, binding on all states, which can serve as a means of connection with the development of transnational business behavior norms that fall within the social (non-state) sphere. Together these three efforts suggest the current context of the project of business and human rights, a context in which the role of state, enterprise and international community remains fluid, contingent and undefined. The choices made by each of these critical players will determine the shape of business and human rights governance systems for some time to come. A later version will be published with the Fordham International Law Journal Vol. 38.

In her 2009 article in the Cornell International Law Journal, Georgette Chapman Phillips posits that in order for a debt market in any country to function, one must find the following factors underpinning such market: (ⅰ) adequate legal protections, (ⅱ) strong economic foundations and (ⅲ) a low degree of political risk. Phillips discusses general legal protections, such as strong foreclosure laws, the need for stable inflation and real estate values as underpinnings of economic stability and the need for government to respect private property and contract rights. Her three-pronged focus on legal, economic and political fundamentals serves as the basis for analyzing recent and ongoing regulatory efforts in developed countries that are struggling with the important work of re-establishing stable and useful securitization markets. Presently, the United States and the European Union (“EU”) are at the forefront of financial market re regulation in the wake of the most recent banking, financial and economic crisis. Since 2007, they, like those regulators in various other jurisdictions around the world, have instituted new regulations on asset-backed securities (“ABS”). Such regulations have been part of a comprehensive, yet fairly disjointed, re-regulation of domestic and international financial markets, including previously lightly regulated areas. While their asset backed securitization (“securitization”) regulations have had some positive impact on the functionality of the debt markets in the United States, Europe and beyond, they (1) have thus far failed to provide a coherent legal framework for market participants to rely upon and have (2) increased the political risk associated with involvement in the debt markets. The disjointed and improperly targeted nature of regulatory efforts thus far are evident in the primary areas of securitization regulation thus far, the so called “skin in the game” regulations and transparency regulations. In both areas, the United States and the EU have started with similar objectives but are in the process of instituting regulatory regimes that fail to be properly coordinated within their own jurisdictions and across jurisdictions as well. Part of the reasons for this is that regulators, in a bit of panic or maybe opportunism, started the regulatory process before they could fully understand what they were regulating or the true problems they were trying to deal with. As regulators and market participants around the world endeavor to restart ABS markets or even launch them for the first time, they need to do a better job of understanding the institutions and markets they are seeking to regulate. Additionally, they need to acknowledge that no regulations can make up for prudent underwriting and thorough due diligence. No amount of regulation can force such activities to take place.

International Law Journal Research Articles

Articles published on International Law Journal

RETRACTED ARTICLE: Muslim women between secular state and religion

International Economic Law in Transition from Trade Liberalization to Trade Regulation

The Guiding Principles of Business and Human Rights at a Crossroads: The State, the Enterprise, and the Spectre of a Treaty to Bind them All

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Islamic Finance and the Shari'Ah: The Dow Jones Fatwa and Permissible Variance as Studies in Letheanism and Legal Change

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The Crisis of a Definition: Human Trafficking in Bulgarian Law

The Global Financial Crisis & Asset-Backed Securitization Regulatory Responses Thereto in the EU and the United States

Civil War in Syria and the 'New Wars' Debate

Between Law and Reality: ‘New Wars’ and Internationalised Armed Conflict

Conflicting Priorities? Issues of Gender Equality in South Africa’s Customary Law

2013 Amsterdam Law Forum Conference - Begging the Question

Editorial: Winter Issue

Why It Wasn’t a Great Victory After All

Personal Responsibility Under Totalitarian Regimes: An Analysis of Hannah Arendt’s Philosophy on the Prevention of Evildoing and Criminal Liability for International Crimes

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Defining Beneficiaries of Collective Reparations: The experience of the IACtHR

Summary of G. Van Harten, 'The Use of Quantitative Methods to Examine Possible Bias in Investment Arbitration' and 'Reply' [to Franck, Garbin, and Perkins] in the Yearbook on International Investment Law & Policy (2011)

Achieving Milestones

TV Cannibalism, Body Worlds and Trade in Human Body Parts: Legal-Philosophical Reflections on the Rise of Late Modern Cannibalism

Lead the way for us

Editage

Paperpal

R Discovery

Mind the Graph

International Law Journal Research Articles

Articles published on International Law Journal

RETRACTED ARTICLE: Muslim women between secular state and religion

International Economic Law in Transition from Trade Liberalization to Trade Regulation

The Guiding Principles of Business and Human Rights at a Crossroads: The State, the Enterprise, and the Spectre of a Treaty to Bind them All

How safe are we?

Islamic Finance and the Shari'Ah: The Dow Jones Fatwa and Permissible Variance as Studies in Letheanism and Legal Change

Conference Planning and New Edition

The Crisis of a Definition: Human Trafficking in Bulgarian Law

The Global Financial Crisis &amp; Asset-Backed Securitization Regulatory Responses Thereto in the EU and the United States

Civil War in Syria and the 'New Wars' Debate

Between Law and Reality: ‘New Wars’ and Internationalised Armed Conflict

Conflicting Priorities? Issues of Gender Equality in South Africa’s Customary Law

2013 Amsterdam Law Forum Conference - Begging the Question

Editorial: Winter Issue

Why It Wasn’t a Great Victory After All

Personal Responsibility Under Totalitarian Regimes: An Analysis of Hannah Arendt’s Philosophy on the Prevention of Evildoing and Criminal Liability for International Crimes

Moving on

Defining Beneficiaries of Collective Reparations: The experience of the IACtHR

Summary of G. Van Harten, 'The Use of Quantitative Methods to Examine Possible Bias in Investment Arbitration' and 'Reply' [to Franck, Garbin, and Perkins] in the Yearbook on International Investment Law &amp; Policy (2011)

Achieving Milestones

TV Cannibalism, Body Worlds and Trade in Human Body Parts: Legal-Philosophical Reflections on the Rise of Late Modern Cannibalism

The Global Financial Crisis & Asset-Backed Securitization Regulatory Responses Thereto in the EU and the United States

Summary of G. Van Harten, 'The Use of Quantitative Methods to Examine Possible Bias in Investment Arbitration' and 'Reply' [to Franck, Garbin, and Perkins] in the Yearbook on International Investment Law & Policy (2011)