The Right of Victims for Access to Remedy: An Analysis of Second Revised Draft on Business and Human Rights

                                                                                                                                          Source: Marquise Kamanke

 

Nidhi Singh

Trade Policy Division, Department of Commerce, Government of India*

nidhisingh13apr@gmail.com

*The views and opinions expressed in this article are those of the author.

The Vedanta case and the Nigeria Shell case are some of the most celebrated cases where victims have exercised their right of access to remedy by approaching the appropriate forum to prevent, investigate, punish and redress business-related human rights abuses such as causing injuries, death, environmental damages, etc. The right of victims to have access to remedy is one of the central notions for establishing corporate accountability and is also widely acknowledged under the UN Guiding Principles on Business and Human Rights. The open-ended UN intergovernmental working group (OEIGWG) that is entrusted with the task to elaborate an international legally binding instrument on Business and Human Rights,  released a Second Revised Draft legally binding instrument on business activities and human rights on 6th August 2020 (Second Revised Draft). The Second Revised Draft has incorporated the concept of ‘access to remedy’ under its several operative clauses laying down substantial and procedural requirements for State Parties and corporations to ensure effective access to remedy for victims.

This contribution addresses this concept of access to remedy from the perspective of the individual victim’s rights. The article first examines who can exercise this right to access to remedy and secondly, it looks into the provision of the Second Revised Draft which lays down the specific rights of victims to get remedy. The article is limited to the analysis of the right of the victim for accessing remedy and not on the corresponding obligations of State Parties to provide access to remedy.

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Blog Series - Human Rights and Vulnerability - NNHRR 2020 Annual Research Day (Toogdag)

Dear Reader of Human Rights Here,

We are delighted to announce and introduce our first blog series with posts from the organisers and presenters of the 2020 Annual Research day of the Netherlands Network of Human Rights Research (NNHRR Toogdag 2020). The theme of this Research Day, which was an online event that took place on 30 June and 1 July, was Human Rights and Vulnerability. Our first two blog posts from this series are now online simultaneously.

The first piece, authored by Tihomir Sabchev, a PhD researcher from the Cities of Refuge Project of Utrecht University, is based on the panel he organized with Lynn Hillary and the NNHRR Migration and Borders Working Group. His contribution focusses on alternatives to the State-centric and exclusion-based migration policies of the EU and their underlying philosophies of deterrence and pushback. These alternatives are projects of “Humanitarian Corridors” developed by religious institutions and “University Corridors” set up by universities.

The second contribution, by members of the NNHRR Business and Human Rights Working Group Benjamin Grama (PhD researcher at Tilburg University) and Lottie Lane (Assistant Professor of Public International Law at Groningen University) focusses on mandatory EU due diligence trends. The piece discusses the potential, the pitfalls and the way forward on trends, particularly at the EU level and in Switzerland, in developing legislation for mandatory due diligence (a legal standard of care) as opposed to the previous incentive-based and private-led initiatives.

We will be publishing further contributions in this Blog Series, including a post by keynote speaker of the NNHRR Annual Research Day 2020 Israel Butler, on Values-Based Human Rights Communication.

We hope you will enjoy the series!

Keep the Human Rights fire burning!

Editors of Human Rights Here.

Mandatory Due Diligence Trends in Europe: Promises, Possibilities and Pitfalls

                                                                                                                                                                            Source: Rock Cohen, Flickr

Benjamin Grama

Tilburg University

B.J.Grama@tilburguniversity.edu

Lottie Lane

University of Groningen

c.l.lane@rug.nl

 

Following the endorsement of the UN Guiding Principles on Business and Human Rights (UNGPs), human rights due diligence (HRDD) was established as the preeminent standard by which companies approach adverse human rights impacts resulting from their activities. Until recently companies that carry out HRDD have done so voluntarily against the backdrop of non-legal, incentive-based initiatives which promote HRDD. Now, there is a growing push towards legal measures, at various levels, to make HRDD mandatory. Mandatory due diligence (mHRDD) refers to a legal mechanism which imposes a “legal standard of care” where businesses would be legally mandated to take reasonable action [due diligence] to prevent adverse impacts on human rights and the environment.

On 1 July 2020, as part of the Netherlands Network for Human Rights Research (NNHRR) Annual Toogdag, the Business and Human Rights Working Group arranged an online event with a panel of academic experts to discuss the growing trend towards mHRDD. In particular, the panel discussed two legislative initiatives currently underway in Europe, at the EU level and Swiss level. The panel consisted of Ms Lise Smit (Senior Research Fellow, British Institute of International and Comparative Law), Dr Ekaterina Aristova (Postdoctoral Fellow, Bonavero Institute of Human Rights, University of Oxford) and Dr Nicolas Bueno (Senior lecturer and Postdoctoral Researcher, University of Zurich), moderated by Dr Chiara Macchi (Postdoctoral Researcher, Wageningen University; Co-Chair, NNHRR Business and Human Rights Working Group). This blog will discuss several takeaways from the three presentations and the Q & A session with the audience from the authors’ perspectives.

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Local remedies for the EU’s protracted migration policy crisis

Painting by the children of the 13th Primary School in Trikala (Greece), which won the 1st prize in the contest 'Opening hearts and minds to refugees' organised by UNESCO Associated Schools Network. Source: Municipality of Trikala

 

Tihomir Sabchev

Utrecht University/University College Roosevelt

t.y.sabchev@uu.nl

In the context of recent failures to protect refugees’ human rights, how can EU Member States develop a more effective approach to manage the consequences of forced migration?

In the very beginning of his book ‘The Global Migration Crisis: Challenge to States and Human Rights’, the political scientist Myron Weiner notes that “the number of people fleeing to escape violence or persecution, to find employment, or to improve their own lives and those of their family members is greater than it has ever been” (pp. 1-2). The author describes some of the major migration policy changes in Europe in light of the “recent massive influx of migrants and refugees from the east” (p. 47). More concretely, he argues that “with the rise of antimigrant right-wing parties […], European governments have virtually halted migration and made entry difficult for refugees from Third World countries” (p. 145).

According to Weiner, the reluctance of EU Member States to accept refugees is expressed through a combination of actions that aim to deter exodus and facilitate repatriation, such as bi-lateral agreements with third countries, conditionality of development aid, introduction of the ‘safe country’ concept, and various efforts to discourage unfounded claims for international protection (p. 160-161). He notes that international organisations like the UN High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) are encouraged by EU governments to assist displaced people in their regions of origin, and to promote non-exodus policies that limit irregular emigration (p. 161). Persuading people to remain where they are, however, may well mean putting at risk their lives (p. 156).

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Tightrope dancing: Judicial attitudes towards Dublin transfers to Greece. A study of Dutch and Belgian case law

Photo credits: Krzysztof Hepner on Unsplash

Lynn Hillary

Open University of the Netherlands

lynn.hillary@ou.nl

Introduction

Alongside the current discussion on the relocation of unaccompanied minor migrants from Greece to other EU Member States, another dialogue is ongoing: restarting ‘Dublin transfers’ from the other Member States to Greece.

In principle, the Dublin Regulation (No. 604/2013) would require the first Member State where someone submits an application for international protection to be responsible for that application, based on the principle of mutual trust. The principle of mutual trust between the EU Member States requires them to trust one another in complying with EU law and recognizing decisions made in their civil and criminal justice systems, asylum law and family law. However, Dublin transfers to Greece had been suspended since 2011 because of possible violations of Article 4 of the EU Charter of Fundamental Rights, i.e. the prohibition of torture and inhuman or degrading treatment or punishment. In practice, this meant that the Member State in which someone submitted an asylum application was responsible for that application instead of Greece, even if the person had previously applied for asylum in Greece.

However, in 2016, the European Commission recommended that the Member States consider resuming Dublin transfers to Greece. The Commission Recommendation formulated modalities for the resumption of transfers, such as individual assurances concerning the circumstances the asylum seeker would find herself in and advice against transferring vulnerable asylum seekers. Based on this Recommendation, some Member States attempted restarting Dublin transfers to Greece, which in turn led to appeals by asylum seekers and thus domestic case law.

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Contact tracing application vis à vis digital rights in a COVID-19 India


Source: iXimus - Pixabay

Ritwik Prakash Srivastava

National Law Institute University, Bhopal, India

ritwiksrivastava.ug@nliu.ac.in

In the wake of COVID-19, the Indian government launched and mandated the use of a contact-tracing application, Aarogya Setu (smart phone application). The Indian Prime Minister, Narendra Modi, in his address to the nation on 14 April 2020, urged the citizens to download the application to supplement the State’s struggle against the contagion. What started as a voluntary step, was first made mandatory for employees of the public and even the private sector, and then for entire districts. Failure to do so gives rise to a criminal penalty.

This brings to the forefront the conflict between public health and the right to privacy of individuals. While contact-tracing has been effective, it is also pertinent that such a mechanism is developed within the frameworks of existing laws, and with a due regard for human and constitutional rights. Interestingly enough, the Supreme Court of India, in its landmark judgment of K.S. Puttaswamy v. Union of India in 2017, declared the right to privacy a fundamental right in India. It stated that “if the State preserves the anonymity of the individual it could legitimately assert a valid state interest in the preservation of public health (…)”.

Aarogya Setu and India’s Domestic Law

Justice Kishan Kaul, one of the judges of the bench adjudging the above-mentioned case, in his opinion at paragraph 62, recognised every individual’s right to decide for themselves the extent of information about them that could be shared with others. However, every fundamental right in India comes with its reasonable restrictions. As per paragraph 180 of the section of the judgement authored by the then Chief Justice of India, Justice Khehar, Justice R.K. Agrawal and Justice Dr D.Y. Chandrachud, before such restrictions on the right to privacy can be placed, five criteria needs to be met: (1) The State must show the existence of valid legislation which permits the restriction; (2) the restriction must be in pursuit of a legitimate aim; (3) have a rational nexus with such aim (4) be the least restrictive method to achieve such aim, and (5) be proportionate to the aim.

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The Feminization of Human Rights?

Felisa Tibbitts

Netherlands Institute of Human Rights (SIM), Utrecht University, The Netherlands

f.l.tibbitts@uu.nl

Some years ago, when teaching a human rights course at Harvard’s Kennedy School of Government, I noticed that the composition of my students was overwhelmingly female. I made a mental note of this and began asking colleagues who were teaching human rights in other higher education institutions about the gender balance in their classrooms. It was the same story: mostly women.

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Tackling violence against women in the Netherlands: some thoughts on the GREVIO baseline report on the Netherlands


Photo credits: Anthony Tran - Unsplash

Adriana van Dooijeweert

President, Netherlands Institute for Human Rights

Introduction

Just like everywhere in the world, also in the Netherlands violence against women is a widespread and serious problem. The Netherlands Institute for Human Rights (the Dutch national human rights institution) has had this issue on the agenda since its establishment. It has, for example, encouraged the Netherlands to ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) and discussed with Dutch government officials and professionals, on various occasions, the human rights aspects of violence against women.

National human rights institutions fulfil an important role in promoting and protecting international human rights standards. It does so, among others, by monitoring the implementation of the recommendations of regional and international monitoring bodies. The Netherlands Institute for Human Rights (“the Institute”) therefore takes due note of the comprehensive report of the Group of Experts on Violence Against Women (GREVIO) on the Netherlands situation, published on 20 January 2020. GREVIO monitors the implementation of the Istanbul Convention. GREVIO based its findings on the report submitted by the Dutch government, reports submitted by the Institute and by many non-governmental organisations, in addition to information obtained during a five-day evaluation visit to the Netherlands. All reports, as well as the government response to GREVIO’s report, can be found on the country page on the Netherlands. In this blog, I discuss key recommendations from GREVIO’s Baseline report addressed to the government.

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Youth and the Right to be Elected: Are We Beginning to Explore an Uncharted Frontier?

Daniella Zlotnik Raz

University of Haifa, Israel

daniella.zlotnik@gmail.com

Introduction

Youth political rights and political participation is (still) evolving in academia as a new frontier of children's rights. To date, much of the changes and discussions 'on the ground' concern lowering the voting age, developing mechanisms to enable youth participation in government, and acknowledging youth' role in political and social protest.

While the attention is focused on youth' right to vote and political participation, the closely linked right to be elected remains overlooked. This commentary will briefly explore what, if at all, the UN Convention on the Rights of the Child (CRC) can contribute to the discussion on youth and the right to be elected, by considering the CRC provisions themselves, as well as relevant views of the CRC Committee on this theme. Based on a children's rights perspective, the commentary will also review a recent decision by the Israeli High Court of Justice on youth' right to be elected, and consider what can be learned from this case example in relation to litigating youth' political rights in the future.

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Promoting health and environmental rights through participatory noise mapping in the city


Photo credits: https://scistarter.org/noisetube

Anna Berti Suman*

Tilburg Institute for Law Technology and Society, Tilburg University, Tilburg, The Netherlands

*Telephone: +31134668403; E-mail: a.bertisuman@uvt.nl.

Postal address: Prof. Cobbenhagenlaan 221, 5037 DE Tilburg, The Netherlands.

Excessive noise levels represent a pressing issue seriously affecting people’s health and wellbeing in contemporary cities. High levels of noise can threaten both mental and physical health, causing persistent stress and impinging over environmental rights such as the right to a healthy environment. The European Court of Human Rights (ECtHR) has often reflected on the connection between environmental protection and human health. In a number of cases, some expressly dealing with noise-associated nuisances, the ECtHR has been lenient in identifying causal links between environmental harm and resulting health effects. In the Dubetska case, for example, the Court found a breach of Article 8 of the European Convention on Human Rights (ECHR) enshrining the respect for private and family life because of severe water pollution. The Court noted that it is “often impossible to quantify [pollution] effects in each individual case” (para 106) but it suffices that pollution is “in clear excess of applicable safety standards [creating an] elevated risk to health” (para 111) to determine a breach of Article 8 ECHR. Specifically addressing noise-induced pollution, in the Deés case, the Court again affirmed that the mere fact that the noise exceeded substantially statutory norms was sufficient to constitute a violation of Article 8 ECHR. This open interpretation may allow citizens monitoring their environment to stand in court for violation of their right to health or to a healthy environment whenever they can demonstrate a substantial exceeding of (national or international) environmental standards.

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