Business, Children and Human Rights

By Olga Martin-Ortega and Rebecca M.M.Wallace

The concern over the role of the private business sector with regards to the fulfilment of children’s rights is relatively recent. International attention on the effects business activities have on children has been fragmented until now, focussing on specific sectors, mainly child labour and economic exploitation. Recent international developments in the area of business and human rights have brought a more specific focus to the impact that corporate activities have on children and how to address them. Business activities can have a significant impact on the human rights of children, both positive and adverse. International investment and commercial activities are important for economic development and to guarantee that children have better opportunities. However on many occasions such growth does not have a positive impact on children’s lives. On other occasions, they may be exposed to situations of corporate abuse experienced by them, their parents or carers or damage to the environment and communities in which they live. Moreover business activities can also affect children’s health and wellbeing, for example when children are the consumers of products and services provided by businesses.

Disappointed in justice

By Iva Vukusic, researcher, Sense Agency, the Hague

As teams of forensic experts and investigators near Prijedor dig through what is claimed to be the biggest mass grave in Bosnia and the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague slowly progresses towards closure, a sense of disappointment spreads among many victim communities and long term court supporters.

At a recent Tribunal legacy conference in Sarajevo, as the ICTY president and former NYU School of Law professor Judge Theodor Meron spoke, many victims turned their heads away in protest of the recent acquittals in important leadership cases and what they see as a change of course at the Tribunal. The next day, the ICTY press release didn’t even mention this act of dissatisfaction and that is a shame.

The Tribunal apparently declines the opportunity to hear out those it allegedly serves – among them victims and witnesses, survivors of what was the worse carnage in Europe after the Second World War. Human rights activists, academics, researchers and journalists who have for years been the greatest champions of the need to fight impunity are now being shun by the institution they supported, often in difficult circumstances in the societies of the former Yugoslavia.

Why is this happening? Why have the biggest supporters of the Tribunal, and among them many victim associations, decided to become much more vocal about what they see as significant damage to seeking accountability, providing a measure of justice to victims and developing law and jurisprudence which will influence cases at other international tribunals for years to come?

The problems emerged after a few recent cases, primarily Gotovina and Perisic, in which high ranking officials from Croatia and Serbia were acquitted on appeal for crimes they were previously sentenced for, often with long term prison terms. A lot of the criticism is aimed at judge Meron because he heads the Tribunal but more importantly, he presided over the appeals chambers that acquitted those individuals. One acquittal was controversial because of dissents being worded in exceptionally strong language.

However, it’s not only about these cases. Clearly, not all trials can and should end with a conviction – the fact that acquittals happen can be understood to prove the fairness of the system. Individuals should be acquitted or convicted based on the strength of evidence and arguments and not by outside considerations such as the impact this might have on victims or the societies concerned. Crucially though, sometimes there is no agreement at all and judges on the same panel view the evidence and the arguments in a completely different manner. This leads to judgments that are often not understood by the victims or the public.

Occasionally, judges at other courts reject the standards used to acquit at the ICTY (as was the case recently in the Charles Taylor judgment) and there is no explanation – the victims and the public in the former Yugoslavia are left to try and figure it out on their own.

As a rule, judges never comment on their decisions stressing that ‘they speak through their judgments’. But law is complicated and ordinary citizens often don’t understand the details that led to the acquittal of someone who was previously sentenced to twenty or more years in prison. No one engages with them and hears them out when they object. Law is not always clearly set and many issues are being defined and there should be a greater sense of responsibility at international tribunals towards the public they were designed to serve. If the Tribunal is being criticized, the least it can do is hear the people out, respect their views and not treat them as only passive receivers of justice that have to be grateful for whatever they get.

Many questions remain unanswered at the ICTY: why weren’t the concerns the Danish judge Frederik Harhoff expressed in his letter that was leaked to the press about possible irregularities in the decision making process at the Tribunal addressed properly? Why are the defendants almost always released after serving 2/3 of the sentence? The victims, the survivors and the hundreds of individuals that testified in those cases have a right to know.

Things are gloomy these days in the fight for accountability in the former Yugoslavia. The Seselj case where the accused is a Serbian nationalist and political leader and where Harhoff was serving as a judge before being disqualified for bias after the letter leaked is in danger of not coming to an end with a judgment. The European Court of Human Rights ruled that the Bosnian State court, for years hailed as a good example in domestic war crimes prosecution applied the wrong criminal code, violating the rights of the accused. As a consequence, individuals convicted for genocide have been released and new trials must take place. This has a potential of slowing down the already slow process of rendering a measure of justice to victims.

Through all this, almost no one from these institutions engages with the victims and the broader public about these events; no one asks for their opinion and there is nothing they can do but threaten not to testify in upcoming cases, as some of them have done. At institutions that exist for seeking accountability – there is almost no accountability. Justice is being rendered far from those it was supposed to serve without ever giving them the right to even the minimum – to get their questions answered.

First Spanish judicial decision on universal jurisdiction for Female Genital Mutilation committed abroad

By Professo Nicolás Zambrana-Tévar, Study Group of Private International Law and Human Rights, University of Navarra

The first Spanish judicial decision sentencing a person for the crime of Genital Mutilation carried out outside Spain was issued last 4 April, 2013 by the Spanish Audiencia Nacional of Madrid.

The Spanish Criminal Code was amended in 2003 (art. 149.2) and a new offense was introduced, namely genital mutilation (male and female). Furthermore, the Spanish jurisdiction statute was amended in 2005 in order to give Spanish courts extraterritorial jurisdiction to allow them to hear cases on Female Genital Mutilation (article 23.4). So far, several cases of FGM have already been heard in Spain but only one has reached the stage of oral proceedings, finishing with a sentence of six years for the father and two years for the mother of the mutilated girl. In December, 2012, the Spanish Supreme Court confirmed the latter sentence issued by the Teruel Court of First Instance. In May, 2013, another couple from Gambia who lived in Vilanova i la Geltrú (Catalonia) was also sentenced to 12 years in prison for having performed FGM or allowed FGM to have been performed upon her two daughters.

Made in Bangladesh: corporations and the common good

By Nicolás Zambrana-Tévar, Professor (Private International Law), University of Navarra

The recent death of over a thousand workers in a textile factory in Bangladesh necessarily poses again the question of the responsibility of multinational businesses, not for the harm they cause –which may indeed be big, in some cases- but because of what they do not do. Delocalization of production, taking it from North-America or Western Europe to developing countries, has ethical implications, for several reasons: in the first place, there are job losses in the “first world” (and also jobs created outside that world); in the second place, one must take into account that that delocalization is made, many times, not by locating factories outside the country of origin of the multinational, where the production is still under the business control of the aforementioned multinational, but by making a commercial agreement with local providers who will manufacture the products or their parts, so they can afterwards be distributed under a Western brand and the well known “Made in Thailand” trademark. This second option is much more profitable sometimes.

The problem lies in the fact that manufacturers-providers, in this case from Bangladesh, are only bound by Bangladeshi laws, which are much less protective of workers or the environment than, for instance, the laws of Canada, France or Germany.

The Arctic Council: Transformation and Expansion

By Edward Phillips, Principal Lecturer, Law School, University of Greenwich

The Arctic Council was set up in 1996, following on from the Ottawa Declaration, and compromises the States who border the Arctic Circle: Canada, Denmark (Faroe Islands and Greenland), Finland, Iceland, Norway, Russia, Sweden and the USA. In addition, there are also a number of so-called Permanent Participants (representing the Arctic Indigenous Peoples i.e. the communities with a vested stake), including: the Arctic Athabaskan Council, the Aleut International Association, the Inuit Circumpolar Council, the Russian Arctic Indigenous Peoples of the North and the Saami Council. There are also a number of non-member States, who enjoy observer status, including: France, Germany, the Netherlands and the UK.

At stake

The particular interests of these States / Participants are obvious, including environmental protection, resource exploitation and the concomitant advantages following on from the utilisation of the Arctic Sea routes. As far as the latter is concerned, the opportunities are manifest. The savings in costs and time to commercial shipping have been well documented[1]. Moreover, maritime security is a further factor of concern and this has been a cause of concern for NATO and its often troubled relationship with Russia.

All the factors above have led to a growing interest from those States whose Arctic Circle connections may not, at first sight be obvious. An obvious example is China, with its increased maritime role in both commerce as well as the maritime security. Similarly, States such as Singapore and India have long agitated for their interests to be represented.

ICSID v. UNASUR: same game, new rules?

By Dr Antoine P. Martin

Attempts to limit the jurisdiction and reach of ICSID seem to be progressing as South American states’ efforts to foster regional cooperation through a new regional organisation (regrouping Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay and Venezuela) gain in precision.

Given the numerous investment claims brought by foreign investors against South American States lately, governments have thought about setting rules for an alternative investment protection and dispute settlement mechanism in which greater consideration would be given to sovereign and regulatory needs (see our previous post on Venezuela’s withdrawal from ICSID), and where appeal and precedents mechanisms would be put in place. Following the entry into force of the ‘Unión de Naciones Suramericanas’ (UNASUR) constitutional statutes in 2011 (for a chronology, see this very informative piece by the IIS), the famous EFE Press Agency indicated in Mid April that efforts towards the creation of a dispute settlement centre are becoming more concrete.