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.

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.

BH in the UK Supreme Court: Weighing the best interests of the child

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.