Challenging Corporate 'Humanity': Legal Disembodiment, Embodiment and Human Rights

This article interrogates the corporate use of human rightsdiscourse. It does so in light of concern surrounding corporatedistortion of the Universal Declaration of Human Rights (UDHR)paradigm,¹ and in light of the fact that corporations can claimshelter under human rights documents, particularly—asrecently discussed by Emberland²—the European Conventionof Human Rights and Fundamental Freedoms (ECHR). The authoroffers a critical exploration of corporate human rights claims(and some arguments advanced in their favour), and identifiesthe phenomenon of legal disembodiment (or ‘quasi-disembodiment’),linking it to both a genealogical account of human rights andthe nature of liberal legal personality. This reading of humanrights genealogy invites the reader to focus on a series ofparadoxes surrounding human rights, including their nature asa form of sacral construct, and locates human rights at an entrenchedand challenging interface between historical and contemporarypatterns of inclusion and exclusion. Quasi-disembodiment emergesfrom the analysis as a key conceptual conduit for the legalreception of corporate human rights claims. Linking the ECHRto the liberal human rights tradition, the author suggests thatnotwithstanding judicial protection of corporations as beneficiariesof ECHR protection, it remains essential to engage in a normativecritique of the very notion of corporate human rights. Beneathhuman rights law (and the related closures of legal discourse)it is possible to trace a human rights-oriented critique thatadopts human embodiment (and its quintessential link with humanvulnerability) as the ethical foundation of human rights.³ Emphasisingembodied vulnerability as the foundation of human rights yieldsa significant and ethically relevant distinction between corporationsand human beings—a distinction with intriguing possibilitiesfor the future theorisation of human rights—and one thatarguably problematises the corporate use of human rights discourse.     

The Court of Public Opinion and the Practice of Restorative Ordeals in Pre-Modern India

According to their standardized treatment within the Indian legal tradition (Dharmaśāstra), ordeals (Sanskrit: divya) are supposed to occur, under certain circumstances, when one person formally accused another of some crime in a court of law. While not disputing the general accuracy of this standardized treatment of ordeals, this article argues for the widespread practice in pre-modern India of another—hitherto unrecognized—type of ordeal that fails to fit this basic scenario, for such ordeals would occur when someone was widely believed to have committed some wrongdoing, but was not forced to stand trial in a formal judicial court. In order to prove his innocence and, thereby, mitigate the damage caused by his suspected guilt, such an individual could—and sometimes did—arrange for himself to undergo an ordeal at his own expense and independently of any formal plaint. After establishing the practice of ordeals of this sort in pre-modern India, this article then examines some possible explanations for their development.     

Intellectual property rights on creativity and heritage: the case of the fashion industry

Recently, as different projects aiming to define and reinforce property rights in the fashion industry have been elaborated and discussed, a lot of papers have been dedicated to the question of property rights in this industry. Our paper considers the problems from a specific point of view; it focuses on the relation between property rights and creativity. If property rights allow the allocation of the majority of standard industrial goods without any special difficulty, however, when they are applied to creative goods, new problems arise. Then, for us, the persistence of a low system of IPRs in the fashion industry does not mainly derive from its efficiency but from the characteristics of the inputs that are used in the creative production process. They constitute strong constraints for defining, entitling, legitimating, enforcing, valuating and exchanging property rights. Thus, the different economic actors develop different kinds of strategic behaviour in order to obtain earnings and can try to protect copyrights, trademarks, new assets, old assets (heritage), private or collective assets, and so on. The institutional characteristics of this specific industry—such as the models of management, the type of ownership, the size of the firms, … lead to different historical models of management through IPRs. Peculiarly, the financial groups that integrate fashion into the new luxury industries currently try to implement new IPRs and to move towards a stronger system of IPRs but the management model of the street fashion puts an obstacle to this project.     

Becoming-Animal,Becoming-Detainee: Encountering Human Rights Discourse in Guantanamo

The Guantanamo detention facility, from its early days an emblem for human rights abuses, is a space where legal subjectivity of detainees is contested or even permanently suspended. This essay argues that we should look for the underlying rationale for this treatment not in the politicians who pursue intelligence, security, and strategic interest, or indeed even revenge for 9/11, but rather in the logic—or the ontology—that drives the present political and legal system. This is not to say, of course, that politicians play no role, or that they are mere ‘victims’ of social and political power relations—far from it; yet, it has to be acknowledged that the foundational assumptions on which the existing system operates create conditions of possibility for such degrading actions and exclusionary politics. This paper will first explore these philosophical foundations that enable such an understanding of exclusionary legal subjectivity as we see practiced in Guantanamo, amongst other places; secondly, it will search for an alternative logic of legal subjectivity as a ‘foundation’ for rights. Gilles Deleuze’s notion of ‘becoming’ as a potentially facilitative practice for an ‘open’ notion of legal subjectivity, as well as Alain Badiou’s account of ethics and evil, which points to a more ‘inclusive’ yet ‘situational’ understanding of human rights, will prove particularly useful here.     

Carbon tax scenarios for China and India: exploring politically feasible mitigation goals

China and India are two Asian giants and global players. They both have large populations and booming economies hungry for energy. China and India will therefore play a major role in shaping future global emissions of greenhouse gases. This paper assesses emissions reductions targets that can be realistically adopted by China and India in the following rounds of climate negotiations. The analysis is based on a business-as-usual (BaU) scenario and on four carbon tax scenarios until 2050, developed using the WITCH model. Results show that the lowest level of taxation (starting at 10$ per tonne of CO₂ in 2020) would reduce emissions in 2050 by 25% in China and by 30% in India, with respect to the BaU, at little cost. The marginal abatement cost curves are, however, steep and a higher level of taxation brings little emissions reductions at high costs. In China, only the two highest tax levels reduce emissions in 2050 below the 2005 level. In India, emissions in 2050 are higher than in 2005 even with the highest tax. Therefore, the pledge of the G8 and the MEF of reducing global emissions by 50% in 2050—with high-income countries cutting them by 80% and low-income ones by 25–30%—appears extremely costly and therefore unrealistic. A more sensible international climate architecture would push for the introduction of a moderate control of emissions in China and India and would avoid overly ambitious targets.     

An analysis of the relationship between the additionality of CDM projects and their contribution to sustainable development

The Clean Development Mechanism (CDM) allows industrialised countries to use credits from greenhouse gas abatement projects in developing countries in order to fulfil their own emission reduction commitments. There has been mounting evidence that the CDM’s ability to fulfil its goals as stipulated by the Kyoto Protocol—contributing to the sustainable development of the host countries and delivering real, measurable and additional emission reductions—is less than satisfactory. In this article, an evaluation is made of CDM projects’ likelihood of being additional by assessing the impact Certified Emission Reductions have on the Internal Rate of Return of the individual projects. In addition, the projects’ sustainable development benefits are assessed by using a multi-criteria analysis. In a final step, the relationship between the projects’ additionality and sustainability contribution is assessed and a trade-off between these two CDM goals is established, revealing a potential inherent conflict in how the current mechanism works. The analysis is based on a systematic evaluation of 40 registered CDM projects in India.     

Judicial Review Without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review

This article addresses an issue overlooked in most of the literatureon judicial review: the legitimacy of judicial review of a constitution'sfederal and structural provisions. Debates about the legitimacyof judicial review—at least as conducted throughout theCommonwealth—are usually focussed on rights. These debatesappear to assume that the power of courts like the AustralianHigh Court and the Canadian Supreme Court to interpret and enforcefederal and structural provisions is unproblematic. This articletests that assumption and concludes that those who hold democracy-basedobjections to constitutional rights should seriously reconsider,and perhaps oppose, federal and structural judicial review aswell.     

Government(ality) by Experts: Human Rights as Governance

The suggestion that the general economy of power in our societies is becoming a domain of security was made by Michel Foucault in the late 1970s. This paper takes inspiration from Foucault’s work to interpret human rights as technologies of governmentality, which make possible the safe and secure society. I examine, by way of illustration, the site of the European Union and its use of new modes of governance to regulate rights discourse—in particular via the emergence of a new Fundamental Rights Agency. ‘Governance’ in the EU is constructed in an apolitical way, as a departure from traditional legal and juridical methods of governing. I argue, however, that the features of governance represent technologies of government(ality), a new form of both being governed through rights and of governing rights. The governance feature that this article is most interested in is experts. The article aims to show, first and foremost, how rights operate as technologies of governmentality via a new relation to expertise. Second, it considers the significant implications that this reading of rights has for rights as a regulatory and normalising discourse. Finally, it highlights how the overlap between rights and governance discourses can be problematic because (as the EU model illustrates) governance conceals the power relations of governmentality, allowing, for instance, the unproblematic representation of the EU as an international human rights actor.     

Climate agreements and India: aligning options and opportunities on a new track

The Climate negotiations in Copenhagen in December 2009 witnessed the emerging power of Brazil, South Africa, India, and China (BASIC). Although still focussed on domestic development goals, BASIC countries have made important steps toward a greater engagement in the global climate agenda. For India, the shift was marked by a voluntary, but conditional, target of reducing emission intensity, away from the past normative position based on “equal per capita,” emissions entitlements. The new track aims at finding cost-effective mitigation strategies that align national development goals and climate actions. This paper examines the mitigation potential of a domestic sustainable development policy using a suite of integrated assessment models. The long-term goal is to keep temperature increase below 2°C. This article shows that it is possible to match domestic development goals and climate mitigation. Win–win options exist and side benefits—in terms of energy security and local pollution—are important. However, development policies are not sufficient to achieve the desired emissions reductions. We find that it is necessary to introduce a constraint on the carbon budget. The price of carbon that emerges is however much lower than in a conventional mitigation scenario. Finally, this paper proposes to shift the negotiations away from the current climate-centric focus toward “development,” in order to reduce conflicts and deliver greater global and national benefits.     

Taking Care of Strasbourg: The Status of the European Convention on Human Rights and the Case-Law of the European Court of Human Rights in Kosovo’s Domestic Legal System

This paper addresses the position of the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) case-law in Kosovo’s domestic legal order. To begin with, it reviews the background of the issue of human rights in Kosovo highlighting its distinct position and perspective. This article then analyses the position held by the European Convention on Human Rights and its protocols in Kosovo’s legal order while also addressing the ECHR’s constitutionalization, its direct effect and the constitutional review on basis of it. The paper then examines whether the case-law of the ECtHR is binding in Kosovo, whether it is directly effective, and whether Kosovo’s Constitutional Court can use it as a ground in the conduct of constitutional reviews. This paper argues that the ECHR and the case-law of the ECtHR both hold a privileged status under Kosovo’s constitutional law, despite Kosovo not being a party to the ECHR and, therefore, having no international liability to implement the ECHR. In addition, the paper offers certain arguments regarding the relative positions of the ECHR and the case-law of the ECtHR within the current practice of Kosovo’s judicial system. This paper concludes with the argument that the ECHR and the case-law of the ECtHR hold a privileged status in the context of Kosovo’s domestic legal order—one which could serve as a precedent in respecting human rights and freedoms.     

Academic Capitalism and University Incentives for Faculty Entrepreneurship

Entrepreneurial behavior by professors—including decisions about collaboration with industry, patenting and spinning off companies—can affect the productivity of top universities’ technology transfer efforts. Interviews with 98 professors at 12 southeastern universities showed that the most significant influence on these aspects of entrepreneurial behavior is the beliefs of professors about the proper role of universities in the dissemination of knowledge. Some institutional policies, notably revenue splits with inventors, can affect aspects of this behavior. These findings suggest that both university incentive policies and ethical concerns about academic capitalism, by limiting the productivity of technology transfer efforts, have an effect on regional economic development.     

Superfilling technology: transferring knowledge to industry from the National Institute of Standards and Technology

In the mid-1990s, the semiconductor industry manufactured devices with critical circuit dimensions of between 0.35 and 0.25 μ, and it used aluminum or an aluminum copper alloy to interconnect device components. However, the critical dimension needed to be reduced so that devices could become faster and more efficient. At circuits dimensions of 0.18 μ or less, aluminum no longer conducts electricity well enough to maintain the circuit’s efficiency; thus, the industry determined that copper—a superior conducting material—would be needed to help the industry produce smaller and faster semiconductor devices. Still, technical barriers existed, preventing a seamless transition from aluminum to copper. Thus, in the 1990s, the National Institute of Standards and Technology (NIST) began focused research on superfilling aimed at assisting the semiconductor industry during this period. In this paper, we document the net economic benefits (private and social) accruing from NIST’s core research investments in superfilling during the late 1990s and early 2000s. Using traditional evaluation methodology and metrics, we calculated economic impact estimates, and the results suggest that NIST’s public resources were, from a social perspective, used efficiently.     

A Cross-Cultural View of Adults’ Perceptions of Children’s Rights

This study examined how the need for autonomy may be coexisting with current cultural norms. A total of 264 U.S., 76 Swiss, and 51 British adults completed two perceptions of children’s rights surveys. The results showed that Swiss and British participants were significantly more likely to advocate for autonomy or self-determination rights than same-aged U.S. adults. British participants were also more likely to advocate for children’s self-determination rights than U.S. and Swiss participants, whereas Swiss adults were more likely to grant children nurturance rights than British and US adults. Generally, parents were less likely to advocate for autonomy than non-parents. The results are discussed in terms of individualism—collectivism, self-determination theories, and parentalism.     

Legal moralism and retribution revisited

This is a slightly revised text of Jeffrie G. Murphy’s Presidential Address delivered to the American Philosophical Association, Pacific Division, in March 2006. In the essay the author reconsiders two positions he had previously defended—the liberal attack on legal moralism and robust versions of the retributive theory of punishment—and now finds these positions much more vulnerable to legitimate attack than he had previously realized. In the first part of the essay, he argues that the use of Mill’s liberal harm principle against legal moralism cannot be cabined in such a way as to leave intact other positions that many liberals want to defend—in particular, certain fundamental constitutional rights and character retributivism in criminal sentencing. In the second part of the essay, he expresses serious doubts—some inspired by Nietzsche—about the versions of character retributivism that he had once enthusiastically defended and now describes himself as no more than a “reluctant retributivist.”

The case against lawyers’ contingent fees and the misapplication of principal-agent models

In this paper the case against the principal-agent modeling of most economic transactions is made about liberalizations of professional services that introduced in many European countries schemes of professionals’ remuneration contingent on outcomes—i.e. “contingent fees” for lawyers. If the relationship between the professional and clients is seen according to the principal-agent model, contingency fees can be economically justified. The case is quite different, however, if the situation is seen as one of authority under bounded rationality and unforeseen/asymmetrically gathered events. A game theoretical thought experiment aimed at checking the case for or against using agency models is carried out. It shows that (i) in the case of a self-interested professional, notwithstanding that overall utilitarian efficiency may be safeguarded, contingent fees leads to not respecting the fiduciary obligations (to detriment of Pareto optimality, impartial and loyal treatment of all clients, and the obligation to promote all the clients’ welfare). (ii) In the case of the professional’s willingness to comply with deontology standards—requiring impartial protection of all the clients’ rights and welfare, under a condition of minimal individual rationality—contingent fees lead nevertheless to making useless deontological motivations and to a loss of efficiency in utilitarian sense. A Pareto optimal, impartial, as well as efficient, arrangement aimed at maximizing the total volume of damage compensation is then considered. Nevertheless the main result is that, even if motivations to conform to such principles were available, under a contingent fee contract the professional could not carry out them because of the logic of the incentive contract. Thus, notwithstanding its widespread acceptance in the law and economics literature, agency theory seems not suitable in general for designing efficient and fair contracts and economic institutions.     

A Capture–Recapture Model to Estimate the Size of Criminal Populations and the Risks of Detection in a Marijuana Cultivation Industry

Originally developed in biology, capture-recapture methodologies have increasingly been integrated into the study of human populations to provide estimates of the size of “hidden populations.” This paper explores the validity of one capture-recapture model—Zelterman’s (1988) truncated Poisson estimator—used to estimate the size of the marijuana cultivation industry in Quebec, Canada. The capture–recapture analysis draws on arrest data to estimate the number of marijuana growers “at risk of being arrested” for a period of five years (1998–2002). Estimates are provided for growers involved in two different techniques: (1) soil-based growing, and (2) hydroponics. In addition, the study develops an original method to estimate the prevalence of cultivation sites “at risk of detection.” A first set of findings shows that the cultivation industry is substantial; the estimated prevalence of growers compares to estimates of marijuana dealers in the province. Capture–recapture estimates are also used to compare the risks of being arrested for different types of offenders. Results indicate that hydroponic growers—those involved in large scale and sophisticated sites—face lower enforcement-related risks than growers involved in smaller enterprises. The significance of these findings is discussed in the context of the widespread development, both in Europe and in North America, of a successful domestic production-driven, rather than importation-driven, marijuana trade.

Expressions of speciesism: the effects of keeping companion animals on animal abuse,animal trafficking and species decline

Humans’ contact with other animals is chiefly organised around humans’ own consumption and ‘needs’. This article begins with an aspect of the human—non-human animal relationship that is connected to animals as social, not material beings -‘pet-keeping’. Over the past few years the pet industry has expanded enormously. I discuss how the keeping of companion animals can be understood, and the consequences for the animals involved; this practice leaves an increasing number vulnerable to abuse and exploitation, not the least dogs—the most common companion animal. The market for companion animals worldwide is fed by breeding, but also by the abduction of animals and birds from their habitats. Keeping companion animals contributes greatly to the endangerment of many species, parrots in particular. Therefore the focus of this paper especially concerns parrots and the consequences they and their species suffer from being abducted, trafficked and traded, whether the trade is criminalized or not. I will discuss implications of the CITES convention, whether it serves to legitimate rather than protect animals from trade, trafficking and suffering.     

The Morals and Order Exceptions in WTO Law: Balancing the Toothless Tiger and the Undermining Mole

On 10 April 2007, the United States requested consultationswith China regarding trading rights for publications and audiovisualproducts. Following US—Gambling, this case is likely toprovoke the next clash between free trade and public morals.This article takes an abstract approach to the scope and contentof the public morals and public order exceptions in the GATSand the GATT and, given the absence of a public order exceptionunder the GATT, analyzes how these two concepts interrelatewith one another. In this regard, the finding in US—Gamblingthat Members should individually define the scope of ArticleXIV(a) GATS is critically examined, but the article suggeststhat it deserves support based on an interpretation in accordancewith general principles of the law of treaties. Following theidentification of instruments that limit the risk for abuseof the morals and order exceptions, the article will turn tothe scope-related aspect regarding the justifiability of ‘extraterritorial’measures.     

Retrieving the Hidden Meaning: Jain Commentarial Techniques and the Art of Memory

One of the peculiar characteristics of the vast body of Jain commentarial literature is the primacy given to artha, meaning, over sūtra, the root text itself. It is the task of the commentator—or, in a pedagogical context, the teacher—to retrieve and explain a text’s true, hidden meaning, which often appears to stretch and even contradict its apparent meaning. This article examines the interpretive processes in one of the most important Jain commentaries on monastic discipline, the Bṛhatkalpabhāṣya attributed to the sixth-century CE Śvetāmbara Jain exegete Saṅghadāsa. An examination of passages where the commentator claims to uncover the real—but sometimes less-than-apparent—meaning of monastic rules enables us to detect the interpretive moves involved and the underlying assumptions about the nature of text and the work of commentary. I argue that this commentarial tradition presupposes particular practices of memory, and a degree of internalizing the traditional hermeneutical methods, on the part of a monastic practitioner who wants to understand the text correctly and live according to its true meaning.     

Specifying Rights Out of Necessity

It is the purpose of this article to make the positive casefor an under-appreciated conception of rights: specified rights.In contrast to rights conceived generally, a specified rightcan stand against different behaviour in different circumstances,so that what conflicts with a right in one context may not conflictwith it in another. The specified conception of rights thuscombines into a single inquiry the two questions that must beanswered in invoking the general conception of rights, identifyingthe content of a right in light of what is justifiable to dounder the circumstances. I present the case for specificationismin four sections, focusing on property rights. First, I arguethat rights are based upon more fundamental reasons, and thatthis instrumentalism is compatible only with specificationism—afact necessity cases illuminate. Next, I explain how specificationismembodies a fully moralized understanding of rights, and pointto a dilemma that one faces in denying this. Third, I arguethat the gap in property rights exposed in necessity cases entailsthat there is no right-based duty to compensate in such cases.Finally, I offer an error theory to explain the (false) attractionof the general conception of property rights.