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. Read the rest of this entry »

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.

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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. Read the rest of this entry »

By Francisco J. ZAMORA CABOT, Professor of Private International Law at the University Jaume I, Castellon, Spain.

The issue of extraterritoriality is currently envisaged as one of the keys to the resolution of the well-known and crucial Kiobel case, before the Supreme Court of the United States, which we are expecting any time now. However, the Alien Tort Claims Act (ATCA) has nothing to do with extraterritoriality. That legislative text and its judicial practice must be maintained in the field of international torts on human rights, they are special illegal acts that have to be solved through the interplay of the Conflicts of Laws and Public international law. In no way, that legal text and its practice portray an imperialistic position on the part of the United States in front of other States, or an excess of jurisdiction vis-a-vis the Law of Nations. Quite simply, the attempt to place ATCA out of its scope should be rejected, and has to be considered as mischievous and/or arbitrary.

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By Rebecca M.M. Wallace (Professor of International Human Rights and Justice, Robert Gordon University, Aberdeen, UK) and Karen Wylie (Research Assistant, Robert Gordon University, Aberdeen, UK)

The principle of the best interests of the child is enshrined in international law by Article 3 of the 1989 UN Convention on the Rights of the Child (UNCRC). Similarly the right to family life is protected by Article 8 of the European Convention on Human Rights (ECHR). In June 2012, in the case of BH (AP) (Appellant) and another v The Lord Advocate and another (Respondents) (Scotland) KAS or H (AP) (Appellant) v The Lord Advocate and another (Respondents) (Scotland) Trinity Term [2012] UKSC 24, On appeal from: [2011] HCJAC 77 (hereafter referred to as BH), the UK Supreme Court had to consider the weight to be given to these principles in the context of the extradition of a couple to the US and the effect this would have on their children.

Very briefly, the charges against the couple, Mr and Mrs H, were conspiracy and unlawful importation into the US of chemicals used to manufacture methamphetamine in the knowledge of, or having even cause to believe, that they would be used for that purpose. Mrs H is the mother of six children whose ages ranged, at the time of the case, from 14 to one year. Mr H is the father of the four youngest children. The Supreme Court acknowledged that the children’s interests would be interfered with, at least to some degree, by the extradition of either parent, and if both parents were to be extradited the effect on the family life of the children would be “huge”. The issue confronting the Supreme Court was the weight to be given to the children’s best interests, and whether on considering these best interests, the extradition of both parents, or either of them, would be proportionate. In assessing the parents’ case the Court relied heavily on a previous case, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011), in which the weight to be given to the best interests of a child who faced the removal of one of his parents from the UK, was discussed at length.

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By Iva Vukusic, The Hague

 

The Appeals Judgment

 

‘I fundamentally dissent from the entire Appeal Judgment, which contradicts any sense of justice’# is what judge Fausto Pocar, one of the five appellate judges in the Gotovina and Markac trial at the International Criminal Tribunal for the former Yugoslavia (ICTY), states in his Dissenting opinion (paragraph 39). That harsh statement, along with others in the Opinion, indicates just how significant the differences were between the judges’ interpretations during the deliberations on the responsibility of Croatian generals Ante Gotovina and Mladen Markac, sentenced by the Trial Chamber in April 2011 to 24 and 18 years of imprisonment, respectively, for taking part in a joint criminal enterprise the objective of which was the permanent removal of the Serb population from the Krajina region #. The events took place during and after Operation Storm conducted by the Croatian Military and Police forces in August 1995.

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ImageThe full extent of the 1789 Alien Tort Claims Act (ATCA) which allows non-U.S. citizens to file suits in the U.S. for international human rights violations has been the subject of many debates in recent U.S. cases (Sosa v. Alvarez-Machain,KiobelBoimah Flomo I and IIExxon). This comment looks at the key points relied upon in recent decisions to reject the existence of a corporate liability principle under customary international law. The concurring observations of Judge Leval, who argued that the Kiobel decision might have kept the door open to major corporate abuses and created a precedent of corporate impunity, are especially relevant because they have been confirmed by more recent decisions. This comment also considers the arguments presented in the Kiobel re-hearing rejection regarding the policy impact of the decision and the policy-making role of U.S. tribunals. Finally, this comment questions whether U.S. courts should be expected to get involved in international justice, thereby risking being characterized as imperialist, self-appointed world judges.

The paper is availble here, and as a pdf version

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