Business, the International Rule of Law and Human Rights British Institute of International and Comparative Law 50 th Anniversary Series

The Rule of Law Meaning –common law and civil law traditions –meaningless legal chatter? Tom Bingham: ‘core of the existing principle [of the rule of law] is… that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’ (Cambridge LJ 2007)

Purpose of an International Rule of Law Arthur Watts: The protection of the interests of all states and the creation of international stability requires that state-to-state relations be subject to a long-term framework, which ensures that international law is applied in conformity with principles of justice (German Yearbook of International Law 1992) Requirements of an International Rule of Law –Assists international order and stability; international peace and security –Applies to all states and all participants in the international legal system –Supports daily life and certainty in all types of relationships –Must be consistent with justice for all, including respect for human rights –Enable settlement of disputes in accessible and effective manner beforre independent legal bodies Not Rule by Law or Rule by Power but Rule of Law

International Rule of Law Problems Lack of institutions, accountability and enforcement Sovereignty and political context of law-making –Philip Allott: ‘[states generate] an international rule of law, whilst still conceiving themselves as masters of the rule of power’ (Eunomia 1990). Problem of translating national system principles to an international system International system can support and assist rule of law in national systems –UN Secretary General Report on the Rule of Law (2004): [The rule of law is] a concept at the very heart of the [UN] Organization’s mission. It refers to the principle of governance to which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency’.

International Rule of Law in Action Evidence of rule of law in the international order –United Nations Millennium Declaration 2000: ‘[urges member states to] strengthen respect for the rule of law in international and in national affairs’ –Mutual interests in cooperation, order and certainty – pacta sunt servanda Operation of the international rule of law –Francis Jacobs: European Union created ‘new order of international law’, where states have stability, economic benefits and judicial review (Journal of International Economic Law 2008) –Travel, trade, human rights Tom Bingham: ‘if the daunting challenges now facing the world are to be overcome, it must be through the medium of rules, internationally agreed, internationally implemented and, if necessary, internationally enforced’ (BIICL 2008)

Business and the International Rule of Law

Certainty in relationships with states and other participants, including contractual relationships Transparency, responsibility and accountability by states and by business Discretionary decisions subject to judicial review Disputes settled independently and efficiently by law Compliance with international obligations by states and business

Business and Human Rights State’s international human rights responsibilities –Extend to actions by non-state actors, including corporations –Extend to actions extra-territorially, including where corporations under direction of state –Include obligation to regulate all activity (including commercial) within its jurisdiction so as to protect human rights Business international human rights responsibilities –No direct international responsibilities –Some responsibilities enforced by national courts –John Ruggie (UN Special Rapporteur) report: responsibility to respect Business does acknowledge that they have corporate social responsibilities to respect human rights –Global Compact, self-regulation, voluntary codes, Corporate Social Responsibility policies

Business, International Rule of Law and Human Rights Difference between Corporate Social Responsibility (CSR) and human rights responsibilities –CSR is management-driven, usually related to civil society and voluntary –Human rights is person-centred, all rights are indivisible and provides a legitimate compliance framework – rule of law Examples –Investment: resource use and environmental damage –Bilateral Investment Treaties: stabilisation clauses and labour rights –TRIPS Doha Declaration: commercial interests and public health –Anti-terrorism sanctions: international organisations and access to justice

Business, International Rule of Law and Human Rights Some ways forward : –International economic law facilitates corporate activity and creates very robust rights, protections and enforcement mechanisms for business: can insert clauses in bilateral investment treaties and contracts to recognise and apply human rights expressly –Current international human rights system could be extended to corporate activity directly if states wish it to do so –Developing soft law compliance mechanisms for current business voluntary codes

Conclusions Universal Declaration of Human Rights 1948: ‘it is essential if [humans are] not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’ Eleanor Roosevelt: ‘Where after all, do universal human rights begin? In small places, close to home - so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person: the neighborhood he [or she] lives in; the school or college he [or she] attends; the factory, farms or office where he [or she] works. Such are the places where every man, woman, or child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.’