Thursday, December 04, 2014

From the Guiding Principles for Business and Human Rights, Migrant Rights, ti the Reproductive Rights as Human Rights--Recent Publications From the U.N.Downloads

(Pix (c) Larry Catá Backer 2014)

 The Office of the Higher Commissioner for Human Rights Civil Society Section has just announced the availability, for download, of the following publications.
New Publications:
Frequently Asked Questions about the Guiding Principles on Business and Human Rights (HR/PUB/14/3, 52 pp.) Currently available in English and will be translated into all other official UN languages.

The Economic, Social and Cultural Rights of Migrants in an Irregular Situation (HR/PUB/14/1, 136 pp.) Currently available in English and will also be translated into French and Spanish.

Reproductive Rights are Human Rights: A Handbook for National Human Rights Institutions (HR/PUB/14/6, 226 pp.) It is published jointly with the United Nations Population Fund (UNFPA) and the Danish Institute for Human Rights. It is available online in English.

While none of these ought to be taken as definitive, they do provide insight into the thinking within the OHCHR structures in Geneva.  Each is worth serious reading and substantial critique.

Chapter 17 (The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  
Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the first chapter of Part IV (The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy ) -- Chapter 17 (The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation).

Wednesday, December 03, 2014

Moving Toward an Interpretive Mechanism for Application of Business and Human Rights Based Disputes: Is a Global Arbitration Panel a Way Forward?

For some time I have been writing on the critical need to establish an interpretive mechanism for the development of an authoritative gloss of the United Nations Guiding Principles for Business and Human Rights grounded in application of the UNGP to actual disputes.  (See, e.g., HERE and HERE). 

 (Pix (c) Larry Catá Backer 2014)

Whether binding or not, the establishment of a single interpretive source for application of business and human rights standards in actual disputes would provide a means of developing interpretive coherence (from the perspective of international law and standards that may be transposed into domestic law and that may apply in any case as social norm to the transnational operation of business) that would provide a necessary resource for helping businesses shape their behaviors and more importantly, would serve as a source, hopefully persuasive, for national courts as they seek to apply the UNGP standards through their domestic legal orders.  (See e.g., HERE)

Lawyers for Better Business (L4BB) has been working for the last year on the establishment of a global arbitration panel to serve as a coherent point of decision for claims that might arise under the principles of the UN Guiding Principles for Business and Human Rights. The case for an arbitration Tribunal was made in Claes Cronstedt, Rachel Chambers, Adrienne Margolis, David Rönnegard, Robert C. Thompson and Katherine Tyler, An International Arbitration Tribunal on Business and Human Rights (February 2014) and Version 3 HERE. Latest Version HERE. See also HERE.

This post introduces that proposal.

Tuesday, December 02, 2014

The 3rd U.N. Forum on Business and Human Rights--Streaming Live With Thoughts on the Forum as Estates General

The plenary sessions of the 2014 UN Forum on Business and Human Rights, held in Geneva on 2-3 December are being streamed live.

Webcast: Webcast of the Forum (2 and 3 December)
Documentation: Programme
Rules of Procedure
Registration and logistics

The plenary sessions offered a glimpse of the future of the business of human rights in the international arena. Some thoughts follow.

Monday, December 01, 2014

Tweeting From the 2014 UN Forum on Business and Human Rights

I have been posting about the 2014 U.N. Forum on Business and Human Rights (see HERE and HERE).

December 1, 2014 is devoted to a number of valuable side events before the more formal plenary sessions that commence on the 2nd December.
Parallel events at the Forum on Business and Human Rights. For details about parallel events (focus and speakers), please click on the respective sessions listed below. Please also refer to the Forum programme for confirmation about time and venue. For more information on parallel UN-led sessions, please click here:
For those unable to attend, there are a number of good tweets about these sessions. They may be accessed HERE.  

Saturday, November 29, 2014

At the 3rd U.N. Forum on Business and Human Rights--Remarks at Side Event: "Conceptual, Structural, and Operationalization Constraints on the Right to Remedy Under the Guiding Principles"

I have the delightful privilege of having helped organize one of the side events of this Forum, "Ensuring access to effective judicial & non-judicial remedies: progress, trends & recommendations" with colleagues from the International Corporate Accountability Roundtable (ICAR), Business and Human Rights Resource Center (BHRRC), Corporate Responsibility Coalition (CORE), European Coalition for Corporate Justice (ECCJ), International Federation for Human Rights, and Pennsylvania State University School of Law. The event will be held 1 December 2014 in the Palais des Nations Room XI, from 11:45 – 13:15.

This post includes the Session Concept Note and my remarks for this session, "Conceptual, Structural, and Operational Constraints on the Right to Remedy Under the Guiding Principles."

Wednesday, November 26, 2014

Daniel Ivo Odon on Privacy Rights and Search Engine Liability

Daniel Ivo Odon, my SJD student at Penn State Law and the winner of the inaugural Mauricio Correa Human Rights Award from the Brazilian Bar Association, has written about the recent Argentine Supreme Court decision in which the court rejected the effort by a prominent model,  Maria Belén Rodriguez, to hold search engines, including Google, liable for permitting the linking of her name and modeling photos to pornographic websites.  Though she had won in the inferior courts of Argentine (see HERE) the Argentine Supreme Court rejected her claim. 

This litigation is one of many that have sought to impose some sort of obligaiton on search engines to better police their spaces.  As the New Yirk Tomes noted in 2010:

Google and Yahoo won an appeal of a lawsuit brought by an Argentine entertainer, Virginia Da Cunha. Her name and some photos showed up in search results connected with sex sites. The appeals court ruled Google and Yahoo weren’t liable for defamation for third-party content.

The victory was a welcome one, but the companies face more than a hundred similar suits in Argentina. But while Internet companies struggle in authoritarian countries over what’s in search results, legal experts say that the Argentine cases are a an example of why developing countries need clear laws governing Internet content. Most of Latin America lacks legislation comparable to the United States’ Safe Harbors act that protects technology companies from liability over third-party content.. . . .
 Lawyers think it is unlikely that something similar will even be debated in Argentina. Although Google and Yahoo Argentina won the Da Cunha case and may have the momentum for change, they face many more battles from unhappy private citizens. Eric Goldman, director of the High Tech Law Center at Santa Clara University in the United States, questions that approach to regulating the Internet. “These third parties want the right to veto search results they don’t like, but it’s doubtful they will exercise that veto power in a manner that improves the information economy.” (Vinod Sreeharsha, No Safe Harbors in Argentina. The New York Times, Aug. 20, 2010)
 And indeed, this past month the Argentine Supreme Court determined that  search engines are not legally responsible for any content they index, or the consequences of that indexing. (Google victory in Argentina: search engines are not responsible for content they index, Merco Press, October 31, 2014) ("According to the justices, Google and other search engines can be taken to court if users have filed requests to remove links and have refused to comply. We praise this decision. It’s a great day for the Internet and freedom of expression,” said María Baudino, the head of Google’s Legal Department in Latin America.").  

According to this report, Ms. Rodriguez's lawyers intend to take the case next to the Inter-American Court of Human Rights. It is possible that the Inter-American Court will use the opportunity to reshape the scope of the legal obligations of search and indexing companies, especially in the context of changes in European law.

Mr. Odon's remarks are set out below.

Monday, November 24, 2014

Beth Farmer on "Resolving Competition Related Disputes Under the Anti Monopoly Law."

(Pix (c) Larry Catá Backer 2014)

I have posted the conference program of the 9th Annual Conference of the European China Law Studies Association, with its theme, “Making, Enforcing and Accessing the Law” (HERE).

My colleague Beth Farmer, Professor of Law and International Affairs, and McQuaide Blasko Faculty Scholar at the Penn State Law School delivered an excellent paper at the Conference's Panel on "Making, Enforcing and Accessing Law."

Her paper was entitled "Resolving Competition Related Disputes Under the AML." The POWERPOINT presentation may be accessed here.

A summary of the paper follows: