Credits: Antenor Hallo de Wolf

By Antenor Hallo de Wolf; Melanie Schneider; Beatriz Gomes Batista; and Aila Naysmith

Introduction

The Toogdag 2023 second session focused on ‘The Present Impact of the UDHR and Challenges in Realising its Aspirations in Today’s World’. To this end three parallel panels were organised, two of which were led by members of the working groups of the NNHRR. These panels separately discussed the impact of the UDHR on current developments in the field of business and human rights, migration, public health & climate change, freedom of speech, and the rights of indigenous peoples.

Business and Human Rights

The panel of the NNHRR Working Group on Business & Human Rights was chaired by Debadatta Bose (University of Amsterdam). The first speaker, Abdurrahman Erol (Erasmus University Rotterdam) centred his presentation around a computational analysis of human rights-related investor obligations in recent international investment agreements (IIAs). Specifically, he examined the human rights-related obligations on foreign investors, who have unprecedented rights, which positions them in a privileged position over any other stakeholder. He concluded that, while more provisions related to human rights-related investor obligations have been adopted in newer IIAs, currently it is difficult to say that they introduce novel types of obligations on foreign investors. The second speaker, Jindan-Karena (“Nina”) Mann (University of Amsterdam) examined the question of whether the US has influenced the discussion on due diligence in business and human rights, if at all. Mann remarked that US laws do not really address HR due diligence and fall short of focusing on a victim centred approach. Notable shortcomings in the US system are compliance issues, the contextual specificness of the US laws, and the fact that they do not have an accountability mechanism built into the legislation. For human rights due diligence laws to be effective, Mann posits we need to start out by thinking of what right of that individual person is being violated. The third speaker, Sarah Vandenbrouke (Leiden University), questioned the place of codes of conduct as a pillar of the due diligence process, included in the EU’s Corporate Sustainability Due Diligence Directive. She highlighted noteworthy risks of the Directive such as a lack of obligations on policy formulations, an absence of obligations for stakeholder consultations, and issues with implementation and monitoring mechanisms. She concluded that using corporate social responsibility practices might create potential for window dressing and that the EU’s Directive is operating under a mechanism “proven ineffective and dangerous in the reproduction of power disbalances”. Finally, Gustavo Becker (Max Planck Institute Luxembourg & University of Amsterdam) examined the rise of private dispute resolution in transnational business and human rights and focused on access to remedies for victims of the Mariana Dam disaster in Brazil. The problem, according to Becker, is that the increasing practice of private dispute resolution these decisions is growing without clear grounds on how human rights law and practice should be applied to these cases. He concluded that, in the absence of clear grounds, corporate parties could “enjoy significant discretion to select standards that better suit their interest”. He also found that it has proven profitable to offer post-harm financial compensation rather than to prevent abuses. 

Migration and Human Rights 

The second panel of the day was organised by the NNHRR Working Group on Migration and Borders, chaired by Imen Al Amouri (Tilburg University). Lynn Hillary (University of Amsterdam) and Mirjam van Schaik (Open University) opened the discussion with their presentation on ‘Apostasy-based refugee claims: conceptualisation shapes practice’. Their presentation highlighted the conceptual ambiguity of apostasy and protection gaps that exist in international human rights law, and how refugee law fills in the gaps that human rights leaves. They propose an improved conceptualization of the right to apostasy in international human rights law and in national refugee law. Annick Pijnenburg (Radboud University Nijmegen) then presented her research, focusing on ‘Moving beyond refugees and migrants: reconceptualising the rights of people on the move’. The presentation highlighted the difficulty of distinguishing between refugees and migrants in practice and how the refugee definition must be expanded to account for people falling through its narrow cracks. Pijnenburg noted that in this regard, it is perhaps better to talk about ‘people on the move’ to cover both refugees and migrants. She observed that both groups are protected by human rights even though they are governed by separate legal frameworks. The panel’s final presentation by Amy Weatherburn (Université Libre de Bruxelles) discussed migrant workers, labour exploitation, and access to a remedy. She emphasised the importance of an inclusive approach to the protection of migrant workers, as well as an improved access to a remedy, and called for an increased recognition of the role and contributions of migrant workers from all skill levels. She also found that it is important to ensure coherence with other areas of law, such as labour migration law and business and human rights. 

Climate change, freedom of speech, sustainability & the rights of indigenous peoples

The third panel of the day, chaired by Maria Lorena Flórez Rojas (University of Groningen), focused on climate change, freedom of speech, and sustainability and the rights of indigenous peoples. David Patterson (University of Groningen) opened the panel with his presentation on ‘The right to health, climate change, the UDHR and the indivisibility of human rights’. Patterson observed that the UDHR doesn’t mention the right to a healthy environment but does refer to a right to a standard of living adequate for the health and well-being. He noted how the right to health is impacted by and related to, inter alia, climate change.  Patterson referred to the recent case submitted by senior women against Switzerland providing the ECtHR with the opportunity to address the issue of climate change in the context of civil and political rights. However, he argued about the need to clarify how civil and political rights are relevant to health impacts of climate change, calling for the inclusion of climate change as a cross-cutting theme in all human rights research and teachings. Medes Malaihollo (University of Groningen) addressed the UDHR, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and the rights of indigenous peoples. His presentation called for an increased focus, not just on the UNDRIP, but also on the UDHR when concerning the rights of indigenous peoples. This entails among other things adopting a participatory engagement of indigenous peoples, which operates on a sliding-scale under the UNDRIP. This practice has been already adopted by various international and regional human rights bodies, showing that legal developments have not stood still since the adoption of the UNDRIP. This focus, however, shouldn’t be Eurocentric in its application, meaning that the legal framework must be adapted to a culturally appropriate application. The final presentation of this panel was given by Audrey Fino (University of Groningen) reflecting on gendered hate speech and incitement against women in international human rights and criminal law. Fino posits that the UDHR isn’t as specific as the International Covenant on Civil and Political Rights (ICCPR) in limiting freedom of expression generally. Even the ICCPR nor the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) address this issue specifically. While international human rights law has, to some extent, been interpreted in an evolutive manner to address this problem, international criminal law, which is interpreted and applied in light of human rights law, lags behind. The harm caused by gendered hate speech and gender-based incitement targeted at women in situations of mass violence is often overlooked or marginalised. It must be better recognised and countered in international criminal law. To do this, the law must, among others, be identified and clarified. 

Concluding remarks

After the parallel sessions, the participants gathered again for a short summary of the various presentations provided in the parallel sessions that was prepared by the student assistants helping with the Toogdag 2023. The closing remarks were then followed by a special PhD Toogdag 2023 event, where the NNHRR PhD candidates had the possibility of talking to and sharing experiences with Prof. Cees Flinterman and Prof. Theresia Degener (Protestant University for Applied Sciences of the Rheinland-Westfalen-Lippe), who themselves shared their career trajectory and practical knowledge in the field of human rights academia and practice. This concluded the first day of the Toogdag 2023. The second and final day is discussed in the third part of this report.