Law

The case of Afghanistan is emblematic of countries in the throes of armed conflict, in which both human rights and investment present significant protection challenges. Lack of resources and government capacity, fluctuating commitment of the international community, and collapse of the policing and judicial systems are but some of the challenging characteristics of the volatile Afghan context. As outlined in this snapshot, as much as investment is needed in Afghanistan to restore and improve peoples’ access to basic services and improve standards of living, investment can also pose significant risks to people. At the same time, the country’s extreme context presents some significant challenges to the protection of foreign investments.

(2012) 12 Human Rights Law Review 421
At a time when the legitimacy and suitability of international standards for both human rights and investment protection are called into question, I argue that the two legal projects can be reclaimed as spaces for transformative change. Specifically, I suggest that common elements can be identified in both protection discourses. These can then be revisited in light of alternative roles that international investment law and international human rights law may take on. I nominate the due diligence principle as one such element since it enables a repositioning of the fair and equitable treatment standard of investment protection as a standard of mutual conduct adopted by states towards investment. The due diligence principle also opens up an alternative reading of the state duty to protect within the United Nations Framework for Business and Human Rights, thus enabling a focus on home-state extraterritorial obligations.

This chapter focuses on the work of the UN Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, in order to understand how the UN Special Procedures system engages with this sui generis thematic issue. More importantly, with the on-going negotiations for a binding treaty on business and human rights and increased efforts towards the operationalisation of the Guiding Principles on Business and Human Rights, it is important to reflect on broader questions which are particularly pertinent to this area of international law. Do UN Special Procedures have a role in shaping the way in which changes occur in international human rights law? Can they support the creation of effective remedies for victims of human rights abuse, or can they actually unwillingly hinder or delay potential processes of change?

This article analyses the way in which the European Agenda links development aid to the externalisation of migration control, assesses
whether such policies breach international law and whether the EU and its member states can be held liable for aiding or assisting such breaches. More broadly, the article also reflects on the longer-term implications that the incorrect classification and distorted use of aid within the European Agenda may have on aid practice. It argues that the absence of regulation over what aid is and how it should be allocated
fuels the many problems surrounding aid, thus enabling its (mis)use within the European Agenda for migration control.

On the same day that a top UN official bravely called on Australia to end the harmful practice of processing asylum applications offshore in Papua New Guinea and Nauru, one of his colleagues announced his support for another proposed offshoring system – this time to prevent migrants reaching the EU. Journey stops here: African migrants rescued by the Libyan coastguard.

This article examines the involvement of Private Military and Security Companies (PMSC) in both shaping and implementing the European Agenda on Migration (European Agenda), launched by the European Union in May 2015. The migration policies which have since been adopted have increasingly enabled the outsourcing to private security contractors of various border control operations, including those related to forced returns, administrative detention and security services for the Italian and Greek ‘hotspots’. The article argues that PMSC frame, shape and entrench militarised responses in the European Agenda. It also contends that the current context of the European refugee ‘crisis’ meets the conditions of a high-risk context, as understood within the United Nations Guiding Principles on Business and Human Rights (UNGP). This re-definition of the refugee ‘crisis’ as a high-risk context, in turn, enables the identification of heightened human rights obligations of home states and responsibilities of companies when implementing the UNGP.

The 70th anniversary of the 1948 Universal Declaration of Human Rights (UDHR) is an appropriate time to reflect on the present-day significance of the UDHR and, for the purposes of this chapter, of the prohibition against slavery enshrined in its Article 4. This chapter embarks in this reflection by focusing specifically on contemporary slavery  in company operations and supply chains, as they offer an emblematic example not only of the way in which the forms of exploitation prohibited by Article 4 continue to this day, but also of how these abuses both enable and maintain a lucrative and long-standing business model which remains largely unchallenged. To better understand the persistence of slavery in company operations and supply chains, this contribution examines current attempts by the Business and Human Rights (BHR) movement to tackle this specific aspect of slavery. In doing so the chapter encourages a broader critical reflection on the apolitical positioning of the BHR discourse and its implications in reproducing an enabling environment in which slavery thrives, despite the numerous rhetorical commitments to combat it. This chapter posits that one of the reasons why contemporary slavery remains so pervasive and resilient across company operations and supply chains is precisely the political ‘neutrality’  which envelops the contextual analyses and solutions offered to tackle it, not least within the BHR movement.