United Nations Working Group Research Articles

A review of the United Nations working group’s opinion on Nnamdi Kanu’s arbitrary deprivation of liberty

Human rights laws have played a significant role in protecting the human rights of extradites wanted by a requesting state to face criminal charges. However, states in their zeal to secure the presence of these individuals within their territory in order to try them under their domestic laws, tend to circumvent international extradition norms and processes, thereby placing these individuals beyond the law’s protection. Nigeria is no exception: for example, in the case of Nnamdi Kanu, the leader of a group campaigning for the independent Republic of Biafra in Nigeria’s South-Eastern region, who was allegedly forcefully abducted and detained in Kenya before his extraordinary extradition to Nigeria. The United Nations Working Group on Arbitrary Detention (WGAD is established to ensure personal liberty of persons who have been arbitrarily deprived in such circumstance. This article adopts the doctrinal methodology to examine the legal issues raised in the WGAD’s opinion which determines whether Kanu’s liberty was arbitrarily deprived by the Kenyan and Nigerian Governments.

Business and human rights in Japan: Rights holders’ perspectives

Business and human rights in Japan: Rights holders’ perspectives Emi Sugawara, Osaka University of Economics and Law, examines business and human rights issues in Japan with a focus on the priority issues from rights holders’ perspectives. The United Nations Working Group on Business and Human Rights conducted a research visit to Japan from 24 July to 4 August. Japan was the eighteenth country to be visited by the working group under its mandate to disseminate, promote and implement the United Nations Guiding Principles on Business & Human Rights. The working group is also mandated to exchange and promote good practices and lessons learned from the implementation of the guiding principles and assess and make recommendations thereon. One purpose of the working group’s visit to Japan was to examine business and human rights issues in the country. During the visit, the working group travelled all over Japan to Tokyo, Osaka, Aichi, Hokkaido and Fukushima, and engaged with the government and business sectors, civil society and various rights holders.

Gender-Transformative Remedies for Women Human Rights Defenders

Abstract In its 2019 report to the Human Rights Council, the United Nations (UN) Working Group on business and human rights emphasized that ‘gender-transformative’ remedies can bring ‘change to patriarchal norms and unequal power relations that underpin discrimination, gender-based violence and gender stereotyping’. This article aims to deepen our knowledge of such remediation for women human rights defenders who fight against corporate human rights abuses. Human rights remediation is highly fragmented. This has the advantage that remedies at one level can offer sources of learning for remedies at other levels. This article uses relevant communications that the UN Special Rapporteur on the situation of human rights defenders sent to states and corporations jointly with other Special Procedures (including the UN Special Rapporteur on violence against women and girls, its causes and consequences and the UN Working Group on discrimination against women and girls in law and practice) between 2011 and 2020 as a source of learning.

Evaluating the Polish NAPs: Lessons for the Future Implementation of the UN Guiding Principles on Business and Human Rights

Abstract Since their adoption, the UN Guiding Principles on Business and Human Rights have become crucial to intensify actions to protect human rights in the context of business conduct. Numerous countries, including Poland, have adopted National Action Plans (NAPs). Taking into account the years that have passed, it is worth assessing the implementation of their goals. Guidelines for the preparation of NAPs on business and human rights of the United Nations Working Group on Business and Human Rights (UNWG) are helpful in assessing the Polish NAPs. This Development in the Field piece concludes that every NAP should begin with an assessment that would help identify areas where there is a need to implement necessary policies. Such an assessment could be used to compare the initial stage with future achievements. It should rely on clear milestones mentioned in NAPs, and on key performance indicators to assess effectiveness while also relying on inclusive decision-making processes. Unfortunately, this was not the case with the two Polish NAPs.

Petition to the United Nations Working Group on Arbitrary Detention (WGAD): A Case Study

Petition to the United Nations Working Group on Arbitrary Detention (WGAD): A Case Study

The Anti-Mercenary Norm and United Nations’ Use of Private Military and Security Companies: From Norm Entrepreneurship to Organized Hypocrisy

ABSTRACT A prominent anti-mercenary norm entrepreneur in the second half of the twentieth century, the United Nations (UN) has become an equally prominent user of Private Military and Security Companies (PMSCs) services in the twenty-first century. In this article, we explain the gap between UN talk and action on private providers of security as a form of organized hypocrisy. To map the mismatch between UN rhetoric and behaviour in a measurable fashion, we combined official data on the use of PMSCs with an in-depth content analysis of the reports written by the UN Working Group on Mercenaries and an examination of the UN Department of Safety and Security (UNDSS) contracting policy. The Working Group’s very negative portrayal of PMSCs and the UNDSS caveat that armed contractors should only be used as a last resort and stands in stark contrast with UN agencies’ widespread use of private security providers. Although a decoupling between talk and action is often inevitable for complex organizations simultaneously pursuing contradictory objectives like the UN, our findings have important implications for peacekeeping. Most notably, organized hypocrisy is in danger of challenging the UN’s credibility as a norm entrepreneur, hindering the effectiveness of its agencies’ outsourcing practices and delaying the reform of UN peacekeeping and crisis management at large.

National implementation processes for the United Nations Guiding Principles on Business and Human Rights: towards gender-responsive approaches

ABSTRACT Women are disproportionately and differently affected by adverse business-related human rights impacts. Despite this, to date there has arguably been too little attention to the rights of women and girls in processes to implement the United Nations Guiding Principles on Business and Human Rights (UNGPs), including National Action Plans on Business and Human Rights (NAPs). This poses a problem for states and other actors involved in such processes, as inadequate attention to the rights of women and girls risks perpetuating and normalising the systemic discrimination faced by women and girls in societies. This article identifies gaps in gender analysis of five select business and human rights topics (labour; land; essential services; trade and investment; and remedy) and provides suggestions as to how states might strengthen their gender focus when addressing these topics in their NAPs. We argue that UNGPs national implementation processes must be gender responsive if they are to make a meaningful contribution to addressing gender discrimination and bringing about substantive equality. To conclude, we examine the 2019 Gender Guidance from the United Nations Working Group on Business and Human Rights, which provides a useful framework for how this may be achieved in practice, and suggest that it should be utilised by states in UNGPs implementation processes going forward.

The Right to Conscientious Objection to Military Service: Recent Jurisprudence of the United Nations Working Group on Arbitrary Detention

The Right to Conscientious Objection to Military Service: Recent Jurisprudence of the United Nations Working Group on Arbitrary Detention

The Mexican General Law on the Forced Disappearance of Persons, Disappearances Committed by Individuals and the National Missing Persons System: How Many Steps Forward?

In 2017, more than 40 years after some of the first documented cases of forced disappearance in Mexico, the General Law on the Forced Disappearance of Persons, Disappearances Committed by Individuals and the National Missing Persons System was published. The approval and enactment of the General Law constitutes a step toward ensuring the free and full enjoyment of human rights of victims of forced disappearance and their next of kin, in accordance with the international human rights standards concerning forced disappearances established by international human rights treaties, the Inter- American Court of Human Rights case law, the recommendations issued by the United Nations Committee and Working Group on Forced or Involuntary Disappearances, and the Inter-American Commission on Human Rights. The General Law introduces and modifies institutions, procedures and guidelines that contribute to ensuring the rights to justice, truth and reparation. However, the General Law does not fully comply with international human rights standards regarding military jurisdiction and criminal responsibility within the chain of command. Also, the proper and effective implementation of the General Law requires strong political will and sufficient material and human resources from the three levels of government. Otherwise, the General Law will simply be regarded as a piece of paper.

Decriminalisation of Adultery: A Step Towards Rights Based Social Relations

Whether adultery should be considered as an offence against public morality or left to the operation of the civil laws has been the subject of much discussion. Adultery as a crime can be constituted by even a single act of sexual intercourse of a married woman with a married man other than her husband, if it is by consent and does not come within the category of rape. The explanation seems simple but there are several issues debatable connected with it and the problem is much bigger than a sexual act. First of all the said law of adultery was enacted way back in 1860 during the British rule of India. What is most significant is that even at that time the law criminalizing adultery did not exist at all. The main person involved in drafting the said law himself was not in a favour of criminalizing the act. However the law was still enacted and enforced taking into regard the unequal and pitiable position of woman in India at that time when they were considered as a property of man. The said provision has been challenged before the courts and criticized widely on several occasions but the Courts in India have let the provision stand in total disregard of the fact that the position of woman has drastically changed with time in the country and now woman are not only considered socially equal to men but even in some instances above them. Secondly the language of the Section 497 of IPC, 1860 or Section 198 (2) of Cr, P. C., 1973 and its applicability itself spells gender inequality and prejudice and seems to be against the fundamental rights guaranteed under the Constitution of India. Theprovision calls for prosecution of only the adulterer man and not the adulteress wife. All these factors definitely render the relevant provisions under Indian Penal Code and Criminal Procedure Code as unconstitutional discriminatory to men and women both and themselves promote gender inequality. It is significant and noteworthy that while in Britain itself the law on adultery has been abolished even as a tort way back in 1857, the law was also abolished in Japan in 1947, in South Korea in 2015 and by most of the countries except countries like Philippines, United States and Islamic States like Pakistan, Saudi Arabia and Iraq etc. Most of the European countries like Malta, Italy, France, Spain, Portugal, Greece, Switzerland, Turkey, Romania etc., and the earlier laws of adultery as a crime have been abolished long back. Even some states of US like West Virginia, Colorado and New Hampshire have abolished the law. Even the United Nations Entity for Gender Equality and the Empowerment of Women and the United Nations Working Group on Discrimination Against Women in Law and Practice have called for abolition of criminalization of adultery saying it leads to discrimination and violence against women. In some Islamic countries punishments like stoning and flogging have been assigned for adultery and many cases of honour killing have been noticed. The issue of adultery and the act is more or less a moral crime and an issue to be decided between the families themselves rather than making it public and thereby making the whole issue more complex to resolve between a husband and wife within their four walls.

Integration of Indigenous Knowledge Systems in Natural Resources Management in Hurungwe District, Zimbabwe

The study explores the Korekore culture in a bid to show its relevance to modern society's natural resources management in Zimbabwe. The main argument of the article is that the Korekore people have indigenous knowledge systems (IKS) that need to be tapped and integrated in modern-day natural resources management in Zimbabwe and elsewhere. The article argues that if blended with modern technologies, IKS can serve as effective intervention strategies that can mitigate the challenges faced in natural resources management. Adopting a qualitative research design in a case study approach, purposive sampling and snowballing techniques were used to select participants with in-depth knowledge on traditional beliefs and practices in natural resources management. The data collection tools included interviews, questionnaires, and peer-reviewed journal articles analysis. The study observed that the Korekore cultural beliefs and practices are not only relevant at local level, but are consistent with the principles of the United Nations Working Group on Indigenous Populations and United Nations Working Group on Traditional Resources Rights.

Mexico: A Failed State or a Criminal State? The Nestora Salgado Case

For decades, the people in the Mexican state of Guerrero have been immersed in poverty, insecurity, and militarization. Accordingly in 1995, almost a year after the Zapatista National Liberation Army (EZLN) uprising, a community police corporation was formed with members of indigenous communities, in order not only to protect the population against organized and regular crime but also to administer justice with the legal grounds provided by the International Labour Organization Convention 169. Since then, many members of the Guerrero community police have been incarcerated for political reasons. One of them is Nestora Salgado, who was illegally detained by the Mexican army and incarcerated in a high security prison in Nayarit for almost 20 months. In December 2015, the United Nations Working Group on Arbitrary Detention deemed the detention of Nestora Salgado as illegal and arbitrary, and requested her immediate release.

Whistleblowers and the Mainstreaming of a Protection within the United Nations Guiding Principles on Business and Human Rights

This legal paper is a submission to the United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises.The issue of the protection of whistleblowers has recently generated greater attention from the international community, especially in relation with serious threats to the human right to privacy entailed by the intelligence operations of certain States or the business activity of Internet and information technology companies. The United Nations High Commissioner for Human Rights has expressed concerns on this issue in 2013.There is a deep rationale today to strengthen international and domestic safeguards concerning whistleblowers which currently suffer from many gaps and loopholes. One priority for the Office of the High Commissioner for Human Rights and the Human Rights Committee would be to settle a comprehensive and universal protection of whistleblowers. Another efficient tool would be to incorporate a dedicated protection within the United Nations Guiding Principles on Business and Human Rights (UNGP). In this respect, whistleblowing channels, incentives and safeguards would represent a relevant alternative to an all-audit approach of due diligence processes applied to the value chain of businesses.This legal study was prepared with the support of Aix-Marseille Universite Master of Laws students Khady BÂ, Annie LAGUEUX, Sarah DJABRI, Priscille AGABALIAN, Amandine VOLE, Margaux PAGNI and Sitdhichai CHINTAKANONT in collaboration with the Institut Pluridisciplinaire de l'Eau et de l'Environnement (IPEE).

Business and Human Rights in the UN Special Procedures System

This chapter analyses the way in which the thematic issue of business and human rights is addressed within the United Nations (UN) Special Procedures system, focussing in particular on the work of the UN Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (WG). With an increase in human rights violations committed by non-state actors and a persistent gap in achieving redress for such violations, the business and human rights debate is gaining a new momentum and there are clear signs that we might be at a turning point. Negotiations for a binding treaty on business and human rights started in July 2015 and consolidated efforts towards the operationalisation of the Guiding Principles on Business and Human Rights (GPs) have taken place at various levels and in an increasing number of States. UN Special Procedures often refer to the impacts of business activities on the realisation of human rights and are more vocal in criticising the way in which private non-state actors ensure the protection of international law, yet remain capable of avoiding direct accountability. Crucially, the negotiations of transnational international investment treaties, such as the Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union, have also recently encountered significant resistance from civil society and the wider public. As discussed in this chapter, this resistance has been often framed as a substantive part of the business and human rights debate, and as a call for social and environmental justice. It is thus important to understand how the Special Procedures system engages with this sui generis thematic issue at a crucial point in time. More importantly, this chapter reflects on broader questions which are particularly pertinent to the context of business and human rights. Do UN Special Procedures have a role in shaping the way in which changes occur in international human rights law? Can they support the creation of effective remedies for victims of human rights abuse, or can they actually unwillingly hinder or delay potential processes of change?

Regionalism and the Caribbean Internet Governance Forum

One important issue that has gained prominence in academic and public policy communities in recent years is that of Internet Governance. As defined by the United Nations Working Group on Internet Governance (WGIG), “Internet governance is the development and application by Governments, the private sector, and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.”In order to articulate such shared principles, rules, etc., starting in 2006 there have been a series of annual UN sponsored global conferences called the Internet Governance Forum (IGF). The IGF has become one of the main international spaces for deliberation on global Internet Governance issues.

United Nations Basic Principles and Guidelines on the Right of Anyone Deprived of their Liberty to Bring Proceedings Before a Court

On April 29, 2015, the United Nations Working Group on Arbitrary Detention (WGAD) adopted the United Nations Basic Principles and Guidelines on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court (BPGs). This comprehensive and practical document is based on an extensive range of international law sources, standards, and good practice. It provides states with specific and specialized guidance on how to fulfill their international obligations to protect against the arbitrary deprivation of liberty.

The United Nations Working Group on Arbitrary Detention: Procedures and Summary of Jurisprudence

For nearly twenty-five years, the United Nations Working Group on Arbitrary Detention has provided a well-respected jurisprudence on fundamental human rights, such as: freedom of expression and religion; limits on administrative detention; restrictions on discrimination in detention; and violations of the right to fair trial. The Working Group has amassed a unique collection of legal principles applicable to individuals detained by the United States, including asylum seekers, immigrants, and refugees. The decisions of the Working Group have also applied to non-state actors.

Corporate and State Responsibilities in Conflict-Affected Areas

Some of the emblematic cases of corporate-related infringements of human rights have appeared in unstable and violence-ridden zones, including armed conflict and other contexts with lower levels of conflict, internal disturbances, widespread violence and latent tensions. Businesses have been involved in different ways, as direct perpetrators, accomplices or mere trading partners. This article tracks the issue of conflict-affected areas as elaborated in the United Nations (UN) Guiding Principles on Business and Human Rights during the Special Representative’s mandate (2005–2011) and the post-mandate period of 2011–2014, especially by looking at the UN Working Group on business and human rights and the emerging National Action Plans. Conflict was a theme of high priority during John Ruggie’s UN mandate but lost visibility in the post-2011 period. What could explain this change? This article analyses in depth the relevant provisions in the UN Guiding Principles, particularly Principle 7, and how stakeholders have responded to the Special Representative’s policy recommendations. The results of this analysis indicate that, contrary to appearances, Principle 7 is not merely an operational, context-specific principle limited to conflict-affected zones where the host state is incapacitated by conflict; rather Principle 7 should be seen as a foundational principle about gross abuses, about the responsibilities of home states to act preventively and reactively when ‘their’ companies are involved in gross abuses in conflict-affected areas and beyond.

Corporate and State Responsibilities in Conflict-Affected Areas

Some of the emblematic cases of corporate-related infringements of human rights have appeared in unstable and violence-ridden zones, including armed conflict and other contexts with lower levels of conflict, internal disturbances, widespread violence and latent tensions. Businesses have been involved in different ways, as direct perpetrators, accomplices or mere trading partners. This article tracks the issue of conflict-affected areas as elaborated in the United Nations (UN) Guiding Principles on Business and Human Rights during the Special Representative’s mandate (2005–2011) and the post-mandate period of 2011–2014, especially by looking at the UN Working Group on business and human rights and the emerging National Action Plans. Conflict was a theme of high priority during John Ruggie’s UN mandate but lost visibility in the post- 2011 period. What could explain this change? This article analyses in depth the relevant provisions in the UN Guiding Principles, particularly Principle 7, and how stakeholders have responded to the Special Representative’s policy recommendations. The results of this analysis indicate that, contrary to appearances, Principle 7 is not merely an operational, context-specific principle limited to conflict-affected zones where the host state is incapacitated by conflict; rather Principle 7 should be seen as a foundational principle about gross abuses, about the responsibilities of home states to act preventively and reactively when ‘their’ companies are involved in gross abuses in conflict-affected areas and beyond.

Germany's genocide of the Herero: Kaiser Wilhelm II, his general, his settlers, his soldiers

In 1904, the indigenous Herero people of German South West Africa (now Namibia) rebelled against their German occupiers. In the following four years, the German army retaliated, killing between 60,000 and 100,000 Herero people, one of the worst atrocities ever. The history of the Herero genocide remains a key issue for many around the world partly because the German policy not to pay reparations for the Namibian genocide contrasts with its long-standing Holocaust reparations policy. The Herero case bears not only on transitional justice issues throughout Africa, but also on legal issues elsewhere in the world where reparations for colonial injustices have been called for. This book explores the events within the context of German South West Africa (GSWA) as the only German colony where settlement was actually attempted. The study contends that the genocide was not the work of one rogue general or the practices of the military, but that it was inexorably propelled by Germany's national goals at the time. The book argues that the Herero genocide was linked to Germany's late entry into the colonial race, which led it frenetically and ruthlessly to acquire multiple colonies all over the world within a very short period, using any means available. Jeremy Sarkin is Chairperson-Rapporteur of the United Nations Working Group on Enforced or Involuntary Disappearances, and is at present Distinguished Visiting Professor of Law at Hofstra University in Hempstead, New York. He is also an Attorney of the High Court of South Africa and of the State of New York. A graduate of the University of the Western Cape and of Harvard Law School he has been visiting professor at several US universities where he has taught Comparative Law, International Human Rights Law, International Criminal Law and Transitional Justice Southern Africa rights (South Africa, Botswana, Lesotho, Swaziland, Namibia and Zimbabwe): University of Cape Town Press/Juta