Saturday, February 22, 2014

Report on the Workshop: "Business and Human Rights - Networks of Transnational Governance” Hebrew University, Israel

The Hebrew University of Jerusalem hosted the recently concluded International Workshop--"Business and Human Rights - Networks of Transnational Governance” 19-20 February 2014.  It was organized by Dr. Guy Harpaz (Hebrew University), Prof. Sascha-Dominik Bachmann (Bournemouth), and Pini Miretski (Hebrew University), with the financial and logistical support of The Leonard Davis Institute of International Relations.  For the Call for Papers, see Call For Papers: "Workshop on Business and Human Rights – Networks of Transnational Governance" at Hebrew University.

(Pix (c) Larry Catá Backer 2014)

The workshop brought together scholars and practitioners, to examine the various interfaces among networks of transnational regulation designed to regulate the respect of businesses for human rights. One object was to understand the interfaces and linkages between the various regulative initiatives in this developing field.  Questions were considered touching on whether emerging networks are replacing the roles previously taken by the state, whether the privatization of regulation  is supplied by transnational networks and orchestrated by states, or whether an evolution of polycentric governance is complementing an entrapped and perhaps less centrally relevant international legal order. 

I have included here the program and program participants, and a short description of each paper. Please contact the authors for their papers.

Business and Human Rights -Networks of Transnational Governance” International Workshop
19 - 20 February 2014

Day 1 - 19/2/2014

9:30 Greetings and Introduction
Prof. Yuval Shany, Dean, Hebrew University Law Faculty
Larry Catá Backer (USA)
Sascha-Dominik Bachmann (UK)
Pini Miretski (Israel)

10:30 Panel 1: From International Relations to Transnational Polycentric Governance: Politics, Law and Business
Chair and Discussant – Larry Catá Backer (USA)
Tomer Shadmy (Israel)
"The Transnational Challenge: Why the Human Rights Paradigm Can Not Save the World (Or Even Itself)."  The paper interrogates the relationship of the law-state system to the enterprise of human rights positing a gap between the fundamental paradigm of the law system and the world it wishes to regulate.  It first considers the relationship between the emerging traditions of human rights and the state.  It then examined the state of the gap between state action and the realities of emerging human rights structures.  Lastly the paper considers the analytical and practical difficulties that follow from the emergence of this gap, seeking ways to bridge it.
Rotem Giladi (Israel)
"Towards an International Legal History of Regulation of Corporate Warfare."  The paper considered the neglected role of corporations in war and the long tradition of legal-normative regulation of the enterprise in war.  t first sought to show that the efforts to create a legal structure around and to constrain war was a product of the 19th century project of state building.  It then demonstrated the prominence of corporate war rights in Grotius' first engagement in international law theory and practice in De Jure Praedrae. Drawing on the past regulation of the wartime activities of the Dutch East India company, the paper offers a preliminary assessment of past international regulation for the 21st century enterprise.
Pini Miretski (Israel)
"The Changing Regulative Structure: From International Legal Order to Transnational Polycentric Governance."  The paper considers the nature of the governance gap between state and global enterprise within the logic of globalization.  It first examined the weaknesses in the traditional international law framework for filling the gap in global enterprise governance--the focus of international law as a vehicle for reinforcing the role of the state in the international system; enterprise regulation is distracted by the false issue of corporate personality; the group action problem makes concerted state action unlikely; and there are good reasons to avoid de-centering the state within international law systems.  Parallel or polycentric governance then provides an elegant approach to the issue of governance gaps and the preservation fo the viability of a now mature state system. 

13:00 Lunch for Workshop Participants

14:00 Panel 2: Transnational Business Governance Interactions
Chair and Discussant - Sascha-Dominik Bachmann (UK)
Yossi Dahan (Israel) and Hanna Lerner (Israel)
"The Corporation’s Responsibility to Respect Human Rights: A Critical Analysis from a Labor Perspective." This paper focused on the UN Guiding Principle's Corporate responsibility to respect human rights as it applies to labor rights violations, especially in situations of production via global supply chains. The paper considers  a conceptual gap in human rights due diligence, arguing that HRDD lacks  a normative theory to explain why supply chain responsibility is vested at the TNC level.  The paper proposes a theory of shared responsibility and principles of responsibility allocation compatible with the Guiding Principles.  For this purpose the paper draws on theories of global labor justice and a labor connection approach.  The paper describes four principles under which responsibility should be allocated among supply chain companies: contribution, capacity, benefit and connectedness. The paper also considers a basis for state cooperation and collaboration in enforcing the state duty to protect human rights.  This would require not just cooperation among states but also between private and public entities.
Anke Hassel (Germany)
"Business and Transnational Social and Labour Rights Standards."  In the last two decades a new and lively concept of global justice has evolved that has changed the traditional understanding of social justice being bound to local space and the nation-state. Under a variety of approaches this concept suggests that consumers and firms in the developed North bear some responsibility for labor standards in the global South. This becomes more difficult in the area of transnational governance of social and labor conditions.  This paper examined the process of institutional change for global justice through private and public regulation.  Based on the analysis , the paper assesses the extent incorporation global labor and social standards in domestic policy tools are an effective way to overcome the weaknesses of transnational voluntary standards.  The paper focused on two policy fields in which transnational voluntary standards are increasingly used in European states: public procurement and export credit guarantees. The approach is situated within the emerging field of transnational business governance, which provides a theoretical toolbox for understanding institutional change in a transnational stetting.    
David Levi-Faur (Israel)
"Transnational Politics and Policy: From Two-Way to Three-Way Interactions."  The aim of this paper was to present ans extend the regulatory governance approach for transnational politics and policy.  The paper discussed the advantages and challenges of this approach in relation to the meaning of regulatory governance and in relation to what the approach should strive to highlight and capture beyond what it does now. The paper seeks to develop a three way framework of regulatory interactions.  Thsi framework shifts the focus of transnational politics and policy analysis from rule makers to rule takers and rule intermediaries. The tragic fire at a Karachi garment factory as an illustrative case of the relevance, failure and importance of this three way framework. The object ultimately is to integrate the literature on private governance more closely with the regulation literature, reveal the complexity of regulatory architectures; allow the more effective assignment of responsibility and demand for accountability, and shed more light on the nature of regulatory system interaction.  
Karin Buhmann (Denmark)
"The OECD Guidelines for Multinational Enterprise, the UN Guiding Principles and the National Contact Points."  The presentation provided an assessment of the OECD framework for business and human rights.  It centered on the Guidelines for Multinational Enterprises and the operation fo the OECD National Contact Points within structures of human rights governance systems. 

16:30 Panel 3: Challenges of Compliance in a Polycentric World
Chair and Discussant – Tomer Broude (Israel)
Frances Raday (Israel)
"Women, Business and Human Rights."  The paper presents a report on the status of women within business hierarchies and touching on lending from a global context.  The continued and sometimes increasing disparities based on gender is highlighted.
Daphné Richemond Barak (Israel)
"Assessing Transnational Regulation: Lessons from the Private Security and Military Industry."  The paper considered emerging transnational regulation aimed at enhancing respect of basic human rights and humanitarian norms by private security and military companies.  These include stakeholder initiatives and codes of conduct.  The paper considers whether any of these have succeeded in enhancing compliance with law, the nature of the perception of these private efforts by major industry players, and the role of th state within this governance complex. The paper identified three indicators of successful transnational regulatory schemes: transparency, participation and accountability. The paper proposes the adoption of an OECD type model of governance to overcome current remaining deficiencies.  The model would combine the use of regional bodies at the monitoring level with an international supervisory body at the sanctioning level.
Yaël Ronen (Israel)
"Big Brother's Little Helpers: Corporate Accountability and Intelligence Gathering."  The paper considers the accountability under international human rights law of internet and communications companies involved int he disclosure of personal information to government authorities. The paper considers the way that these activities change the corporate government relationship.  First it suggests that the standard premise that governments are in a weak position in enforcing standards are turned upside down in this context through the use of the government's enforcement and extraterritoriality powers. Second, corporations are in a unique position to protect the rights of individuals.   Usually in this context it is only the company that has access to information useful for rights protecting action by individuals.  Finally, rights infringing conduct is not incentivized by profit; yet to minimize vulnerability to government edicts, corporations would have to compromise on profit.  Combined, these factors call into question established principles of accountability.  These are then examined in the light of the UN Guiding Principles. 
Day 2 - 20/2/2014
9:30 Panel 4: Business and Human Rights in Regional Frameworks
Chair and Discussant– Arie Kacowicz (Israel)
Larry Catá Backer (USA)
"Privatization of Social, Cultural and Economic Rights in Asia: Comparing China and India." The early fracture of the unity of human rights in the Universal Declaration of Human Rights into a focus on social economic and cultural rights on the one hand, and on political and civil rights on the other has deep implications for the focus and practice of human rights in context, especially within home states in multinational enterprise supply chain systems. These differences are more pronounced where the political context of home states may be different from accepted forms common in developed states.  This is particularly the case with two of the most important emerging states--India and China. India provides an example of the approach to human rights protection in which economic and social rights are vindicated through the application of political and civil rights within a state in which individual rights are understood as constraints against state power and courts serve a critical mediating role. In China, on the other hand, civil and political rights are vindicated through the state and its role in ensuring the provision of social, economic and cultural rights through the administrative apparatus of the state, within a state in which individual welfare is understood as a core obligation fo the state to be vindicated through governmental action. These differences have important ramification for the way in which international human rights frameworks, like the UN Guiding Principles, may be successfully transposed in context.  These are explored in the paper through examples from both states.  The paper may be accessed HERE. The PowerPoint may be accessed HERE.
Guy Harpaz (Israel)
"Exports of Goods Produced in the Territories to the EU."  The paper considered the legality of the European Union's sanctions against goods and investment in the territories occupied by the State of Israel.  It focused on the novelty of the state to business aspects, a significant departure from the traditional state to state approach.  It then suggested that while there might be a legal basis and political rationality to the European Union's policy, it was less successfully defended on moral and functional grounds. These were explored in detail in the paper presentation.
Ariadna Anamaria Petri (Spain)
 "Business on Second Track: Israeli-Palestinian Business Relations and Negotiations."   Even as the BDS movement acquires national support in Palestine, there is a sharp increase int he number and importance of institutions and instruments meant to facilitate business relations between the two national groups. The later is evidenced by the history of second track negotiations between Israeli and Palestinian parties. The paper considers the way in which, despite potential negative effects it might have on national cohesion, Israeli-Palestinian transnational business relationships have helped improve the track record on human rights violations, improved confidence, empathy and contributed to  maintaining the economy afloat, thus avoiding humanitarian and economic disasters and social unrest. The paper also suggests weaknesses in the current situation, including trade asymmetries, trade restrictions, and political constraints on economic development.

11:30 Panel 5: International Human Rights Litigation and Transnational Corporations
Chair and discussant– Guy Harpaz
Sascha-Dominik Bachmann (UK)
"Business, Human Rights and Corporate Transnational Human Rights Torts: The Impact of Kiobel on Transnational Human Rights Litigation." This paper develops and builds upon the emerging concept of CHRR in the context of Multinationality in emerging markets, by proposing that MNCs be more proactive in taking on board CHRR within their corporate governance and CSR agendas, so as to avoid future risks of being sued and taken to court. This ‘perspective’ paper highlights the evolving concept and idea of Corporate Human Rights Responsibility (CHRR) under international law.  It also identifies the accountability gap and highlights the consequences for ‘governance’ not being proactively involved and engaged in this area. In conclusion, CHRR is understood as an evolving nonbinding notion which does not follow clear legal and management parameters as such. However it is submitted that MNCs could be more proactive in taking on board CHRR within their corporate governance and CSR agendas, so as to avoid future risks of being sued and taken to court.The paper then considered the effect of decisions like Kiobel on the CHRR project.
Joaquin Zuckerberg (Israel)
"Transnational Civil Litigation and Corporate Responsibility for the Gassing of Iraqi Kurds."  From 1987-88 the government of Iraq embarked on a genocidal campaign against its Kurdish population, killing about 180,000 civilians and destroying 4000 villages using chemical weapons. Iraq's chemical weapons program was developed with the assistance of foreign companies.  This paper examined the potential civil liability of these companies and discussed some of the main legal impediments and practical difficulties in finding corporate responsibility. The paper suggested the ways in which the case fo the Kurds evidences the shortcomings of the current framework under the UN Guiding Principles, as state regulation and business self regulation are insufficient to ensure that business practices are concomitant with human rights norms and expectations. As a consequence transnational civil litigation remains an essential element in efforts to improve the current framework set up through the Guiding Principles. In spite of recent legal setbacks, transnational civil litigation is here to stay, as domestic and international judicial decisions continue to redefine its contours and potential for holding businesses accountable for their acts. 
Anne Herzberg (Israel)
"The Limits of Corporate Complicity Litigation."  This paper considers the repercussions of the use of litigation by civil society as a means of regulating human rights by business. Emerging jurisprudence, however, suggests the growing reluctance of courts and prosecutors to proceed with litigation  in cases where a corporation is alleged to have aided and abetted human rights abuses by a foreign state abroad. The most recent of these decisions, Kiobel v. Royal Dutch Petroleum Co., points to future trends.  The paper and presentation analyzes civil cases filed in the United States, Canada and France.  It also examines two prosecutorial decisions on criminal complaints filed by activists in the Netherlands and Switzerland.  In each of these examples, claims of corporate complicity in human rights abuses have not bee allowed to proceed. The paper suggests a taxonomy of the basis of prosecutorial and judicial reluctance to move these cases forward, dismissing in many cases on procedural, justiciability and other non-merits grounds.Most significantly, it appears that courts continue to be reluctant to become embroiled in complex disputes that could have far reaching political and policy consequences.

13:15 Lunch for Workshop Participants

14:30 Round Table – “What should be the Next Step in Regulating Business and Human Rights?”
Larry Catá Backer, Anke Hassel, Karin Buhmann, Sascha-Dominik Bachmann and Pini Miretski

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