Statehood, Power, and the New Face of Consent

Individuals and groups are often subjected to power, both public and private, by eliciting their consent. Debate usually focuses on whether or not that consent is freely given or is vitiated by imbalances of strength between the bargaining parties. This essay focuses on a different issue, one that is largely passed over in legal and moral analyses: how far does and should consent bind one to accepting in advance changes in the future? There are signs of a fundamental shift in answering this question-a shift that particularly concerns the control of power in the economy. Industrial democracies may be abandoning a conception of consent rooted in the model of the social contract. They may be moving toward a conception that requires the consenting parties to take on risks about the future that are more thoroughgoing and potentially damaging than would be allowed under the earlier model. Examples of this phenomenon will be drawn primarily from two domains in which issues of consent to economic power are central: employment law and international investment law. The evolution of legal principles of consent at work here will be critically evaluated with the help of the tools of political theory. It is an analysis that deliberately selects examples in order to illustrate positions rather than to provide an exhaustive account of the prevalence in different countries and sectors of the problems highlighted. The latter is a task for follow-up empirical investigation

Coherence, Mutual Assurance, and a Treaty on Business and Human Rights

My aim here is to explore the links between two leading reasons for having a binding treaty on business and human rights: the goal of achieving policy coherence and the goal of achieving mutual assurance between states. These two objectives can interact with one another, and their interaction is not usually investigated. Doing so can help shape the design of a treaty in a more promising direction than it might otherwise take. It will also reveal how a treaty is a more urgent need than is often acknowledged. The text is followed by proposed sections in a treaty that reflect the argument

Supply chain liability: pushing the boundaries of the common law?

On 29 August 2016, in a claim by Pakistani survivors and legal heirs against German retailer KiK for injuries and deaths during a fire at a factory supplying jeans in Karachi, German judges accepted jurisdiction and granted legal aid to the Pakistani claimants to cover the legal fees. The case pending before the German court thus poses the question of supply chain liability. Taking the lawsuit by the Pakistani plaintiffs against KiK in Germany as a case study, this article provides an analysis of the available legal grounds for such liability. Economic changes have ushered in linkages between purchasers and suppliers that call for strong principles of liability – principles that are already embedded in the law but which need fresh articulation and application. English courts have only recently recognised that under certain circumstances, liability might attach to a parent company under the tort of negligence for damage to third parties ostensibly caused by its subsidiary. The KiK case is testing the extension of such liability to certain supply chain relationships. Beyond that, the case is also testing the application of the rules on non-delegable duties and vicarious liability in the supply chain context. Even if the court disagrees with the claimants’ position, the novel arguments advanced in this case are likely to be the starting point for an important debate about the proper fit between traditional tort law and the fast changing commercial and employment relationships of the 21st century

O paradoxo da precisão: trajetórias futuras para a ligação entre empresas e direitos humanos

We are coming to a crossroads in the on-going project of linking human rights standards to business activity. The project can move along one of two different paths. One is to keep the commitment to human rights protection relatively general and programmatic. It calls for broad adherence to the standards but only enters into specifics reluctantly. The details of what is required of a business on any given occasion are often left to ordinary principles of management. On this first path, human rights principles open a door to victims, but do not guide them after they go through the door so that they can raise concrete objections to a piece of behaviour. Sometimes human rights law does regulate business actions at the required level of detail, but on this first strategic path these occasions will be rare. On the second, alternative, strategic path human rights play a far more detailed role in dealing with particular situations. This essay indicates several examples of such a role. It argues that the first path promises impasse between business and human rights advocates, and a severe loss of enthusiasm for the project on both sides.  The second path is the one that will make a future for the linkage between business and human rights a viable one, ultimately capable of generating support from all who wish the project to move forward and to gain the momentum it needs.Estamos chegando a uma encruzilhada no projeto, em andamento, de ligação de direitos humanos à atividade comercial. O projeto pode mover-se em um dos dois caminhos diferentes. Um deles é manter o compromisso de proteção dos direitos humanos relativamente geral e programático, que exige ampla aderência aos padrões, mas entra em detalhes apenas com relutância. Os detalhes do que é demandado das empresas em dada ocasião são normalmente deixadas aos princípios habituais de gestão. Nesse primeiro caminho, princípios de direitos humanos abrem uma porta às vítimas, mas não as guiam após cruzarem a porta de maneira que possam levantar objeções concretas a determinado comportamento. Algumas vezes, leis de direitos humanos regulam atividade empresarial no nível exigido de detalhe, mas nesse primeiro caminho estratégico essas ocasiões serão raras. Na segunda, estratégia, alternativa, os direitos humanos cumprem um papel bem mais detalhado ao lidar com situações particulares. Este ensaio indica vários exemplos de tal papel. Argumenta-se que o primeiro caminho prenuncia um impasse entre empresas e defensores de direitos humanos, bem como uma perda severa de entusiasmo pelo projeto em ambos os lados. O segundo caminho é o que torna viável uma futura ligação entre empresas e direitos humanos, capaz de gerar apoio de todos que desejam que o projeto avance e ganhe o impulso que precisa

Project Finance and Human Rights

As sovereign states seek to accomplish public purposes while drawing on private finance, they often use the methods of project finance (PF). This collaboration takes various forms, under the generic label of public-private partnerships. These partnerships have in common the fact that governments aim to avoid some of the expense, risk and administrative headache involved in building and operating projects themselves, as happens in the complex infrastructure development that is often a feature of road systems, oil and gas pipelines, health care facilities and many other examples. Project Finance helps governments to reduce direct use of taxpayers’ funds and also narrows and focuses the risks they face. As a lending technique designed to achieve these objectives, PF is both praised and feared. It is seen by some as an excellent tool for encouraging investment, since it provides a set of refined methods for the spreading and mitigating of risks between corporations, host governments, lenders and those contractors involved in building and operating a project

THE PARADOX OF PRECISION FUTURE TRAJECTORIES FOR THE LINKAGE BETWEEN BUSINESS AND HUMAN RIGHTS

We are coming to a crossroads in the on-going project of linking human rights standards to business activity. The project can move along one of two different paths. One is to keep the commitment to human rights protection relatively general and programmatic. It calls for broad adherence to the standards but only enters into specifics reluctantly. The details of what is required of a business on any given occasion are often left to ordinary principles of management. On this first path, human rights principles open a door to victims, but do not guide them after they go through the door so that they can raise concrete objections to a piece of behaviour. Sometimes human rights law does regulate business actions at the required level of detail, but on this first strategic path these occasions will be rare. On the second, alternative, strategic path human rights play a far more detailed role in dealing with particular situations. This essay indicates several examples of such a role. It argues that the first path promises impasse between business and human rights advocates, and a severe loss of enthusiasm for the project on both sides. The second path is the one that will make a future for the linkage between business and human rights a viable one, ultimately capable of generating support from all who wish the project to move forward and to gain the momentum it needs