The Use of Human Rights Clauses by Transnational Corporations

In May 2009, Human Rights Watch published a report on the exploitation of migrant workers constructing Saadiyat Island, a massive project of the Abu Dhabi Emirate designed to turn the city into a premier tourism and cultural centre.[1] New York University (NYU), who plans to open a campus on the island, responded to the report with a pledge to incorporate a wide range of labor rights into all its contracts for the construction and operation of the campus.[2] NYU’s move drew attention to the use of human rights clauses by transnational corporations in their international contracts with contractors and suppliers (hereinafter, referred to as ‘business partners’). While we should welcome these clauses, there are multiple reasons to doubt whether they will in fact result in significant improvements in the human rights of those adversely affected by the activities of transnational corporations and their business partners.

Human rights clauses are an important and unique form of corporate self-regulation in that they represent a move away from soft law norms towards hard law.[3] Corporate self-regulation is dominated by several voluntary initiatives, such as codes of conduct or social charters, which generally involve a corporation publicly committing to uphold certain human right standards in its operations and sometimes those of its partners. Though they may lead to some indirect benefits, these initiatives are ineffective because they do not create…

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Failing International Development Energy Security Policies in Africa: Example of the USAID African Infrastructure Program

Changing conceptions of the ethics underpinning energy security strategy demonstrate how Western policies, particularly that of the World Bank and USAID, are out of lock-step with the realities faced by the citizens of African nations. Barry Barton, Catherine Redgwell and Donald Zillman define the classic conception of energy security “as a condition in which a nation and all, or most, of its citizens and businesses have access to sufficient energy resources at reasonable prices for the foreseeable future free from serious risk of major disruption of service.”[1] This is a simple ‘supply-is-greater-than-or equal-to-demand’ scenario. However, an array of emerging justice claims, from the tenets of sustainable development law and corporate social responsibility (CSR) to shifting norms in climate change law and international development practice mean that energy security is taking on a new meaning around the globe, and especially in Africa.

Internationally, the world was awakened to the relative instability of the global energy market by the 1973 OPEC oil crisis.[2] Since then, the West’s focus has been on maintaining security of supply, and increasing overall capacity across the energy sector in a state-centred, top-down fashion. Matters such as energy efficiency have largely fallen by the wayside, as the decreasingly regulated energy marketplace is centred on the production and consumption – but not saving – of energy.

A state-centred focus on ‘sustainable development’ has started to pervade some…

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Non-Governmental Organizations: some new (very muscular) kids on the block

Non-Governmental Organizations (“NGOs”)[1] play an increasingly important role in the moulding of new international policies and their influence has grown dramatically in the last couple of decades[2]. The activity of NGOs has also become ever more international in nature,[3] as globalization has both created and revealed international issues which require the attention of the international community. Increasing international awareness of fields like human rights and environment, the establishment of powerful international organizations such as the World Trade Organization (WTO) together with improvements in sectors such as telecommunication and transportation, have all joined together and have turned the activities of international NGOs into living reality. Although not yet fully recognized as subjects of international law[4], NGOs are considered today as new emerging players in the contemporary international legal system[5].

The rising influence of NGOs brings about many questions and debates, mostly concerning democracy and representation. I would however, like to focus on another problem, one which is less of legal nature and more related to narrative, power and appearance. I would like to refer in this post to the fact that NGOs reputation as objective, impartial “watchdogs” may be improperly used by political actors and other agenda driven bodies. Political agendas, in my view, are not “wrong” and should not be excluded from the activity of NGOs. Politics and agendas are a legitimate part…

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The International Trade in Policing and Security Models: Should it be Subject to Public International Law?

Private security has been a huge global business since the 1980’s. This is particularly true in South Africa, where a society traumatized by the Apartheid era is still dealing with the fallout from years of high policing and repressive governance strategies. Models of ‘policing’ have been imported into South Africa, and exported from this nation, since before the fall of Apartheid.

The term ‘policing’ here is used in a broad sense. While most people associate the term with the state police (that is, publicly funded policing bodies) the reality is that our day to day lives are made secure in a variety of different fashions: through urban architecture, private security firms, technological methods and neighbourhood watch groups, among other forms of security governance. Clifford Shearing of the University of Cape Town has written extensively on this phenomenon. He recognizes the fact that “the new players in policing are not part of formal government. As a result, governments, especially governments of nation-states, have lost their monopoly on policing.”[1] Shearing and his colleagues note that this is not necessarily a bad thing. Rather, governments should be aware of this phenomenon when drafting security regulation.

However, many dangers lurk when wading into this subject. Do international security firms subvert state security by threatening the development of state structures that can more adequately take into account overall economic and social development goals? Furthermore,…

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The ideological battle between Google and the People’s Republic of China

Two weeks ago, Google publicly opposed the Chinese government by declaring that it would no longer censor its online services in China. It made this announcement shortly after a cyber-attack targeted the Google email accounts of Chinese dissidents, an attack which reports suggest may have originated from the Chinese government. Google went so far as to threaten to leave China if the government does not relax its internet censorship laws, sparking an angry response.

This latest crisis in Sino-Google relations has taken on international significance beyond just the opening of another front in the ongoing trade disputes between China and the United States, and it represents more than just the latest development in the long-lasting ideological clash between the Chinese government and western internet service providers Google, Yahoo, and Microsoft. And while this isn’t the first time an American corporation has sought to impose its will on a foreign government, this may be the first such standoff that has an ideological or public international law dimension to it. Among other things, it prompted US Secretary of State Hillary Clinton to declare last week that the United States intends to advance “internet freedom” at the United Nations.

One interesting question that comes out of this is whether corporations of Google’s stature will be able to shape the policies of state actors in much the same manner as they can those…

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Who needs a written constitution?

We in Canada tend to think of our Constitution, most notably the 1982 Canadian Charter of Rights and Freedoms, as a distinct source of national pride. Indeed, the importance of the Charter cannot be overstated – it has had far-reaching international influence as a model of constitutional reform, for example helping to shape the post-Apartheid South African constitution, the New Zealand Bill of Rights Act, and the UK Human Rights Act;[1] moreover Canadian Charter cases are “routinely referred to in most of the Commonwealth.”[2]

One of the most important functions of a written constitution is the entrenchment of certain human rights which are recognized as universal and not subject to the whims of the legislature; as such, the Canadian Charter was also an important step, as it broke with the British tradition of parliamentary supremacy by giving broad powers of judicial review to the courts, and granted even broader rights than did the US Bill of Rights (though this is partly balanced by the fact that Charter rights are subject to the notwithstanding clause).

One might worry, then, about the protection of human rights in countries that do not have written constitutions. Most notably, the UK has no formal written constitution, but instead relies on conventions and common law principles to fill in the gaps of statute law. Many such principles, written…

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Bil’in (Village Council) c. Green Park International Inc: an Overeaching Assertion of Jurisdiction?

In his detailed analysis of Bil’in (Village Council) c. Green Park International Inc, James Yap argues that the plaintiffs will have a great chance of overturning Cullen J.’s decision to decline jurisdiction. Since our own Alexandra Dodger introduces this intricate case very well, I direct those who are unfamiliar with it to her entry. While I welcome the decision for its potential to end the impunity with which Canadian corporations operate overseas, I believe that the Court of Appeal would not overturn Cullen J.’s decision if it did hear the matter. I agree with the outcome because the connection between the dispute and Québec is far too superficial for a Québec court to legitimately claim jurisdiction over the action. However, the issues raised by the application of forum non conveniens to this case should make us think twice before dismissing the plaintiffs’ action as an abusive or exaggerated assertion of jurisdiction.

The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later…

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Bill C-300 – A National Law with International Ramifications

Scarborough-Guildwood Liberal MP John McKay has introduced a private members bill to Parliament that has been stirring up controversy in the global mining and natural resource sector. Bill C-300 asks mining companies that seek financing from Canadian markets to disclose to Export Development Canada (EDC) a wide array of information having to do with their human rights practices, labour standards, and environmental policies. If they fail to meet this requirement, or if their standards do not conform with pre-established norms, these companies will not be eligible to receive public pension plan investment dollars and other public monies from EDC. Perhaps this does not sound like a major deal, but 85% of international extractive projects seek financing at the Vancouver and Toronto stock exchanges. This is a case where a domestic law could have a very international reach.

McKay has brought the bill forward in the hopes that it will alter what he sees as an inexcusable state of affairs concerning the global mining industry’s effects on the populations of developing nations.[1] Detractors of the bill note that the extractive sector of Canada has already enacted very stringent Corporate Social Responsibility (CSR) guidelines after the National Roundtables on Corporate Social Responsibility of 2006. For them, more regulation simply re-invents the wheel.[2]…

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