UN Working Group Research Articles

An inconvenient dissident: Human rights activism in the case of Julian Assange

The article is based on investigations by two branches of the United Nations Human Rights Council into the treatment of the whistleblower journalist, Julian Assange – the UN Working Group on Arbitrary Detention and The UN Special Rapporteur on Torture. The UN investigations analysed for this ‘Acting Up’ article show that Julian Assange is an inconvenient dissident, who has been subjected to persecution by liberal democracies rather than authoritarian regimes. Previous research into whistleblowing has highlighted the courage and risks taken by individual whistleblowers in speaking truth to power however, this case highlights a different facet of speaking truth to power which shows how lawyers, activists and other professionals often refuse to do this because of the professional costs of speaking up for an apparently toxic individual. This article argues that the UN investigations have built a ‘counter-archive’ of suppressed facts about the case, which challenges the ‘collective amnesia’ of the public discourse. This case demonstrates that speaking truth to power requires not only individual courage but the active support of inconvenient dissidents, who lack other civil society support.

Heightened Human Rights Due Diligence in Practice: Prohibiting or Facilitating Investment in Conflict Affected Areas?

Abstract Companies operating or seeking to invest in conflict-affected areas are expected to carry out a heightened human rights due diligence (HRDD) process to identify, address and mitigate their impact on human rights and the conflict. The heightened HRDD process put forward in the UN Guiding Principles on Business and Human Rights and clarified by the UN Working Group constitutes best practice but raises questions regarding implementation. This article explains what heightened HRDD in conflict means in practice. It examines how heightened HRDD expands the business responsibility from identifying and mitigating the impact of its operations on human rights to the impact on the conflict itself. This article draws on lessons from Myanmar, where a military coup in February 2021 caused prominent businesses to leave the country. Would a heightened HRDD process have identified additional risks and discouraged initial investment? Or would it have legitimized investment with a public rights-based, conflict sensitive HRDD process that included a clear exit strategy?

New Wine, Old Bottles? A Review of Gabriel Gatti’s Desaparecidos (2022)

New Wine, Old Bottles? A Review of Gabriel Gatti’s Desaparecidos (2022) Joseph Wager (bio) Gabriel Gatti, Desaparecidos: Cartografías del abandono (Turner 2022), ISBN 9788418895371, 320 pages. Latin America’s experience of terror under dictators in the second half of the twentieth century and its robust civil-society response brought enforced disappearance to international attention. This attention has been integral to advances in international human rights law, most notably in the form of the International Convention [End Page 354] for the Protection of All Persons from Enforced Disappearance (ICPPED). Entered into force in 2010, the legally binding ICPPED has triple-digit signatories and represents the first instrument of international human rights law to prohibit disappearance. The ICPPED follows the contours of the Southern Cone legacy and defines enforced disappearance as the: deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.1 How to approach disappearance today, with international law as an implicit interlocutor, is the topic of Gabriel Gatti’s newest book, Desaparecidos: Cartografías del abandono (The Disappeared: Cartographies of Abandonment). Of Uruguayan extraction, Gatti is now a sociology professor at the University of the Basque Country in Bilbao, Spain. He is a leading figure on the systematic extermination of many thousands in the Southern Cone. Disappearance has been inscribed in Gatti’s biography: his father, sister, brother-in-law, and cousin were disappeared. For decades, he has embarked upon a sociology of the “gut” and “shoes,” bringing an embodied awareness to the academic study of this family legacy in powerful works such as Surviving Forced Disappearance in Argentina and Uruguay.2 His latest study exchanges the tangible gut and shoes for the intangible rumor: “I follow the rumor, that of the desaparecido,” which implies a concomitant adjustment in method and definition of the object of study.3 In this new work, Gatti assays an accounting of the overflow of desaparecidos beyond the enforced-disappearance genealogy of those deemed political dissidents in the Southern Cone to the proliferation of the term in contemporary human-rights discourse. From missing migrants in the Sonoran desert to stateless people in the canefields of the Dominican Republic, from the growing population of unhoused people in San Francisco to babies robbed in Spanish hospitals, Gatti tracks the category desaparecidos as one articulating abandonment across far-flung locales and juridically unconnected situations. Such an embrace entails personal and intellectual conflict for Gatti, as he is quick to point out. Not only do the new ways of discussing and identifying disappearance above not conform to his biography but they also fall outside the strictures of international human rights law. In jeopardy, then, is the normative advancement enshrined in the ICPPED. Yet this advancement itself warrants interrogation. The ICPPED has not provided meaningful relief in the vast majority of cases. To give one example, between 1980 and September 2020, the UN Working Group, which helped shape the ICPPED, “has sent a total of 58,606 case files to 109 States requesting search and investigation of the enforced disappearances. The number of disappearance cases under active consideration by the Working Group stood at 46,271 in 92 States as of May 2021.”4 And this only [End Page 355] captures cases that have been accepted in international fora, which already comprise a highly filtered number of cases. To offer another example, Mexico recently crossed the threshold of 100,000 officially registered disappeared, though international mechanisms would not recognize most of these cases as enforced.5 Gatti tackles these issues, the lack of relief and the tension in classifying persons as disappeared, head on, attending to the use of desaparecidos from the ground up, as it were. At stake in the pressing debate on disappearance is the privileging and socio-juridical legitimation of enforced disappearance at the expense of other forms of disappearance; thus, Gatti takes seriously the rumor to counter the category as understood in its Southern Cone...

Country Visits: Report on a Visit to the Ainu and Lessons for the Arctic

A delegation from the UN Working Group on Indigenous Populations (WGIP) visited the Ainu of Japan in 1991. After describing the activities undertaken by the WGIP-team and the issues and people encountered, the article goes on to argue in favour of such visits by delegations of intergovernmental and non-governmental organisations and academic institutions, as well as the active use of available fact-finding and monitoring procedures. It is important that such visits result in official reports that receive the widest possible distribution; they should not least reach senior politicians and officials who are often uninformed about the situations facing indigenous peoples in their countries. The report from the WGIP visit to the Ainu in 1991 is annexed to the present article.

Supporting the sovereignty of families and cultures

The UN International Day of the World's Indigenous Peoples is observed annually on August 9th. According to the UN website (un.org) “the date marks the day of the first meeting, in 1982, of the UN Working Group on Indigenous Populations of the Sub-Commission on the Promotion and Protection of Human Rights.” Promoting and protecting human rights is increasingly urgent. For example, the Supreme Court's attack on human rights in the US has led to the fall of Roe v Wade, and “the consequences of making abortion illegal will disproportionately affect people in already vulnerable groups, such as people from Black, Hispanic, immigrant, low-income, and non-English speaking communities.” This year, the Supreme Court is also hearing the case Brackeen v Haaland, which will allegedly review the Indian Children Welfare Act, established in 1978.

Elements for FIFA’s feminist transformation: The case for indicators on football and women’s rights

Abstract In 2015, the Fédération Internationale de Football Association (FIFA) commissioned John Ruggie, the architect of the United Nations Guiding Principles on Business and Human Rights (UNGPs), to help FIFA embed human rights into its operations, taking the UNGPs as the “authoritative standard.” In the following years, FIFA made a number of human rights-related commitments and policy changes. However, progress has been more limited in relation to women’s rights. Cases of women’s rights abuses related to football occur regularly and remain unresolved. In this article we explore key elements for a feminist transformation of FIFA’s policies and practices based on the gender framework developed by the UN Working Group on Business and Human Rights in 2019. We consider the use of indicators as one way to achieve this transformation. Overall, we aim to answer the following research question: how can the 2019 UNGP gender framework help FIFA engage in a feminist transformation of their human rights policies and practices in a way that includes FIFA’s confederations and member associations?

An Intersectional Approach to Interrogating Rights

Abstract The United States does not meet global human rights standards regarding economic, social, and cultural rights. In 1994 the United States ratified the United Nations core anti-racism treaty, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). However, the United States still does not fully comply with the multilateral agreement. Malia Lee Womack explores the United States’ poor compliance with the treaty’s protections concerning 1) Black women’s economic, social, and cultural rights (regarding housing, education, and health) and 2) concerning the U.S. prison industrial complex (its “school to prison pipeline,” discriminatory sentencing practices, as well as police and prison workers’ violence against women). The author applies intersectional theory developed by Black feminists to UN Working Group reports, ICERD’s shadow reports, and ICERD’s monitoring body’s reports to reveal how Black women experience racism differently than men and other racial groups. ICERD implementation strategies must include Black women’s intersectional needs which are often marginalized in anti-racism strategies. This article documents how Black women experience compounded and interrelated forms of oppression due to their intersectional identities. Homogenizing people of color cannot effectively address each group’s specific needs concerning U.S. lack of compliance with ICERD (despite some similarities in their experiences). Therefore, the author focuses on one collective identity (Black women) yet also recognizes that other collective identities deserve attention.

The Implementation of the Guiding Principles on Business and Human Rights in Brazil: A Critical Perspective

Thispaperanalysestheprocess ofimplementing the UN framework of “Protect, Respect and Remedy”. First, itpresentsa historical overview of the UN Guiding Principles on Business and Human Rights, and then it reflectson the repercussions in Brazil, based on the recommendations made after the visit of the UN Working Group in 2015. In 2018, the Brazilian government published a series of regulations, among them,a National Guideline on Human Rights and Business. Unfortunately, theadvances contained in the documentendup overshadowed by the fact that it was notcreatedin a participatory and transparent way, and by adopting an optional framework when dealing with corporate human rights responsibility, thus mitigating the obligations of respect for human rights by the companies.

Addressing the Situation of Women Deprived of Liberty: Recent Practice of the UN Working Group on Arbitrary Detention

Abstract: The arbitrary deprivation of liberty of women is a global problem. Women continue to be deprived of their liberty on discriminatory grounds in proceedings that do not meet basic standards of due process, both in the criminal justice and administrative detention contexts. Despite the development of standards to address this phenomenon and greater recognition by international human rights mechanisms of the challenges faced by female detainees, governments and private actors repeatedly exercise control over women by depriving them of their liberty, often for prolonged periods. This not only violates the right to liberty, but may in some circumstances prevent women from enjoying other fundamental human rights to equality, dignity, fair trial, privacy and family life, health, housing, education, work, as well as freedom from torture and ill-treatment, freedom of movement, religion or belief, expression, peaceful assembly and association. In this practice note, I consider five recent cases encountered by the UN Working Group on Arbitrary Detention involving women deprived of their liberty in different detention settings and countries. I argue that the increasing focus on gendered detention practices by the Working Group, which has a worldwide mandate from the Human Rights Council to investigate cases of arbitrary deprivation of liberty, may offer opportunities for change.

Deaths and Disappearances in Migration to Europe: Exploring the Uses of a Transnationalized Category

The high number of persons lost, missing, or dead without confirmation of decease in the Euro-Mediterranean in the context of migration and seek of asylum pose a challenge to the technical and conceptual tools available in order to account for their lives. This article explores the reach and possible uses of the category of enforced disappearance. The genealogy of enforced disappearance in Latin America in the 1970s is presented and discussed in terms of its legacies and teachings, like the importance of distinguishing disappearances from deaths. The recent incorporation of “disappearances in context of migration” as a matter of concern in explorative studies of the UN Working Group on Enforced or Involuntary Disappearances is subsequently exposed and analyzed. Indirect, outsourced, or externalized state agency, creation of spaces of abandonment from the states, and emergence of spaces of indeterminacy between life and death are some of the aspects related to migratory routes to Europe tackled by the recommendations of the Working Group. Finally, the text explores the affinity between migrants’ disappearances and other contemporary forms of exclusion or expulsion which may be subsumed under the category of “social disappearances.”

유엔 자의적 구금 실무그룹(UN WGAD)의 준사법적 개인진정 절차를 통한 보편적 인권침해 구제

유엔 자의적 구금 실무그룹(UN WGAD)의 준사법적 개인진정 절차를 통한 보편적 인권침해 구제

What Good is a NAP for Developing Countries? A Preliminary Assessment of Achievements and Prospects for National Action Plans on Business and Human Rights in the Global South

The global effort to compel states to meet their duty to protect in the business and human rights context is centered on the project of developing National Action Plans on business and human rights (NAPs) for implementing the UNGPs. This project has been central to the agenda of the UN Working Group on Business and Human Rights (Working Group) over the past few years. To date NAPs production has been concentrated in Europe. A looming question for the business and human rights movement and proponents of the UNGPs, therefore, is to what extent Global South countries will undertake a NAP process. The development of NAPs only in the Global North, which are in general aimed at curbing harmful corporate conduct by multinationals in the Global South without corresponding action in the Global South, is a clear impediment to the development of a global governance system that can avert corporate human rights violations, the very objective of the NAPs project. Equally necessary is the strengthening of institutions – local legislative frameworks, judicial systems, and law enforcement - in developing country host states. In this way, the production of NAPs in the Global South, particularly in conflict and post-conflict societies, can be seen as a guard against neo-colonialism by providing a critical opportunity for developing countries to systematically address the governance gaps rooted in their own institutions. At the same time, it is important to acknowledge that Global South countries – China, South Africa, Thailand, India, and many others -- are the home states of multinationals that operate internationally both within their regions and in other regions of the Global South. These countries share responsibilities to strengthen their legal and regulatory institutions so that companies domiciled within their borders operating internationally know that they will be held to account for their human rights impacts. This paper aims to shed light on Global South perspectives on NAPs in an effort to understand the prospects for UNGP diffusion in Africa, Asia and Latin America through them. The emphasis is therefore on a locally-grounded conception of NAPs that meets the needs of Africans, Asians, and Latin Americans. The first section is a review of reports of regional workshops and other published analysis on the potential role of NAPs in implementing human rights norms for business within the Global South and identify several key needs that NAPs can serve. Next we examine the impetus of Global South states to develop NAPs by reviewing the political, economic and social underpinnings of NAPs commitments in two countries, Kenya and Chile, where the governments have committed to a NAP and at the time of this writing the processes are underway. We conclude with reflections on the prospects for the continued evolution and generation of NAPs in the Global South.

Julian Assange, the UN and the limits of Detention

The idea of arbitrary detention and how it violates various international protocols is a pressing theme of international juridical and philosophical opinion. Such conduct is an expression of unjustified political control by States over citizens, and speaks to the ever present dangers of power unwatched and unregulated. The political prisoner remains the classic figure of this enterprise, both a target and a threat. What is less examined in this regard is how that control manifests itself, a matter that has proven to be a far more complex affair. This paper examines that debate by looking at the case of Julian Assange and his claim that he is being arbitrarily detained in the Ecuadorean embassy in London. The legal claim that he is not is critiqued as being unduly positivist and in need of correction, referring to the findings of the UN Working Group on Arbitrary Detention in February 2015.

The politics of international law: the life cycle of emerging norms on the use and regulation of private military and security companies

ABSTRACTThe burgeoning use of private military and security company (PMSC) contractors in the wake of the 2003 Iraq War years has given rise to calls for regulation and oversight of PMSCs. The UN Working Group on the Use of Mercenaries advocates a convention that bans states from outsourcing ‘inherently State functions’, including ‘direct participation in hostilities’, to PMSCs. Others, especially Western states and others behind the boom of the PMSC industry after the 2003 Iraq War, argue that codes of conduct and self-regulation are sufficient to regulate PMSCs. Treaty, principle and policy norms all encompass shared expectations about proper conduct, but treaty norms take form in hard law whereas principle norms are evinced in customary or soft law (or both) and policy norms are evinced in policy statements issued by international organisations and industry bodies. This article hypothesises that norms on PMSCs that are neither puritanical nor overly strong and yet appear to be both normative and concrete are the most likely to be institutionalised by a critical mass of state actors and by the PMSC industry.

Respecting Human Rights in Conflict Regions: How to Avoid the ‘Conflict Spiral’

AbstractThis article introduces a novel way in which human rights due diligence can be ‘enhanced’ to respond to business and human rights challenges specific to conflict affected areas. It makes two key arguments. First, it claims that a crucial and often neglected factor for understanding human rights risks in conflict affected areas is that businesses face escalating and largely unpredictable human rights risks once they become involved in conflict. Second, the article shows how integrating aspects of the well-established method of conflict sensitive business practice into human rights due diligence can help companies address this challenge. For instance, companies should include a conflict analysis in human rights impact assessments and systematically identify and address their actual or potential impacts on conflict. This article provides support to a UN Working Group proposal for the integration of conflict sensitive business practices into human rights due diligence.

구금의 자의성에 관한 연구 - 유엔 자의적 구금 실무그룹의 줄리안 아싼지 사례를 중심으로 -

구금의 자의성에 관한 연구 - 유엔 자의적 구금 실무그룹의 줄리안 아싼지 사례를 중심으로 -

Julian’s Golden Cage: Julian Assange, the UN Working Group on Arbitrary Detention and the Quest for Scholarly Diligence – A Case Study

On 4 December 2015, the UN Working Group on Arbitrary Detention adopted its Opinion No. 54/2015 concerning a communication made on behalf of Julian Assange. The Assange case poses challenging questions regarding human rights in the context of criminal prosecution of individuals and their detention. In this regard, Opinion No. 54/2015 extensively discusses the legal arguments of both Assange’s lawyers and the states involved, however the legal and factual reasoning of the Working Group itself is rather cursory. In large parts, the Working Group followed the arguments made by Assange’s lawyers and found that he was subject to arbitrary detention. The Working Group’s findings have been met with both praise and criticism by scholars. Most notably the question whether Assange’s stay in the Ecuadorian Embassy can be deemed as (arbitrary) detention has attracted debate. This article sets out to provide a critical examination of the legal reasoning contained in the Working Group’s Opinion by comparing it with the jurisprudence of the Human Rights Committee and, where appropriate, the European Court of Human Rights (ECtHR). The article will conclude with observations on possible ramifications of the Working Group’s approach, not only with regard to the unsurprising lack of voluntary compliance in the present case, but also its potential to bear detrimental effects for international human rights mechanisms in general.

New Challenges Facing States within the Field of Human Rights and Business

This article focuses on the state duty to protect human rights and to remedy violations, ie the so-called Pillar 1 and Pillar 3 of the United Nations Guiding Principles on Business and Human Rights (UNGPs). The state duty consists of a ‘smart mix’ of legally binding obligations and soft law commitments. Taking as its starting point the extensive research undertaken in relation to developing a country visit template for the UN Working Group on human rights and business, this article provides a detailed account of the contents of the state’s regulatory and policy functions to which the UNGPs refer and attempts to untangle extraterritorial issues. The article broaches on points of misperception of the actual human rights obligations at stake and the weakness of international human rights law in this field. It also identifies the important roles and functions of the UN Working Group as well as proposing a number of prospective reflections on recent developments, inter alia, the first steps taken to create legally binding standards, in the field of human rights and business.

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

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.

An Institutional Role for Civil Society within the U.N. Guiding Principles?: Comments on CCsar Rodrrguez-Garavito and Tatiana Andia 'Business and Human Rights: Beyond the End of the Beginning'

Global human rights NGOs evidence the power and temptations of the great normative institutional forces that affect the governance projects of transnational society in the early 21st century. These forces — (1) the drive for order and rationality even within emerging polycentric orders beyond the state, and (2) the transformation of the individual within this polycentric universe from singular being to disembodied abstraction made flesh in the body of civil society — are irresistible. The first would transform global NGOs into the incarnation of individuals whose human rights are adversely affected by state and multi-national enterprises. The second would suggest the necessity of a unifying order to harmonize the state duty to protect and the corporate responsibility to respect human rights under the framework of the U.N. Guiding Principles of Business and Human Rights. Both are problematic. But the NGOs critique of the current movement toward development of the GPs through the UN Working Group is well grounded. This paper considers both the challenges of the arguments for the institutionalization of NGOs within the normative framework of the UNGP and the strengths of their critique of the WG for missed opportunities. Two of these opportunities, to date ignored, are worthy of serious development. The first is a facility for delivering interpretations of the GPs whether or not deemed binding by state or enterprise instrumentalities. The second draws from the first. That application-interpretation facility might also include the creation of an institutional framework for providing a means of hearing specific complaints brought from individuals through representative civil society for determination of the application of the GPs in context. Another is worth considering for its dynamic effect on GP development — the strengthening of the remedial pillar to deepen it’s interpretation as an autonomous source of process and governance inclusion power of individuals, now represented by a civil society sector that is neither dependent on state and enterprises, as a subject rather than as an object of GP governance. The way to that goal requires substantial development, but its value appears clear.