Foreign corporate accountability: The contested institutionalization of mandatory due diligence in France and Germany

In the recent past, European states have adopted mandatory due diligence (MDD) laws for holding companies accountable for the environmental and human rights impacts of their supply chains. The institutionalization of the international due diligence norm into domestic legislation has, however, been highly contested. Our contribution analyzes the discursive struggles about the meaning of due diligence that have accompanied the institutionalization of MDD in Germany and France. Based on document analysis and legal analysis of laws and law proposals, we identify a state-centric, a market-based, and a polycentric-governance discourse. These discourses are based on fundamentally different understandings of how the United Nations Guiding Principles on Business and Human Rights should be translated into hard law. By outlining these discourses and comparing the related policy preferences, we contribute with a better understanding of different ways in which MDD is institutionalized, with important consequences for the possibilities to enhance corporate accountability in global supply chains.     

From voluntary to mandatory corporate accountability: The politics of the German Supply Chain Due Diligence Act

Following a long-standing and highly contested policy debate, in June 2021, the German parliament passed the Supply Chain Due Diligence Act requiring mandatory due diligence (MDD) of large companies, holding them accountable for the impacts of their supply chain operations abroad. Applying the discursive agency approach and using evidence from policy documents and 21 interviews with key stakeholders, we analyze the political strategies that paved the way toward MDD in Germany. The decisive strategy was an innovative benchmarking and monitoring mechanism that provided the legitimacy for a law and opened a window of opportunity for MDD supporters. Civil society and supportive politicians used this window of opportunity to build broad political coalitions that included the support of some companies. We discuss the ramifications of these findings for understanding the domestic politics behind the newly emerging norm of foreign corporate accountability.     

Mandatory due diligence laws and climate change litigation: Bridging the corporate climate accountability gap?

The debate on corporate climate accountability has become increasingly prominent in recent years. Several countries, particularly in the Global North, have adopted mandatory human rights and/or environmental due diligence legislation. At the same time, judicial and quasi-judicial proceedings are helping to shape the contours of corporate climate accountability. This article considers how litigation against corporations and due diligence legislation interact, and thereby help develop and strengthen corporate climate accountability. While the practice in this area is still limited, there is scope to reflect on early developments and how they may influence both future climate litigation as well as ongoing and future law-making on due diligence. We first review recent developments in climate litigation against corporations, focusing on the extent to which they rely on climate due diligence obligations. We then survey existing and proposed due diligence legislation, examining the extent to which it addresses corporate climate accountability. Finally, we identify scenarios of how due diligence legislation and climate litigation may interact and possibly converge to strengthen corporate climate accountability. We furthermore identify knowledge gaps and areas for further research.     

What Role for Human Rights in Business?

The Guiding Principles on Business and Human Rights (UNGPs) were endorsed by the United Nations Human Rights Council in June 2011, following the six‐year mandate of the Special Representative to the Secretary General (SRSG) on the issue of human rights and transnational corporations and other business enterprises. The SRSG developed a framework comprised of three pillars: (1) States have a duty to protect against human rights abuses committed by third parties, including business enterprises; (2) business enterprises have a responsibility to respect human rights; and (3) victims of business‐related human rights abuses need access to effective remedies. In particular, guiding principle (GP) 11 provides that business enterprises should respect human rights, that is, they should avoid infringing on the human rights of others and address adverse human rights impacts with which they are involved. This article considers the implications of the Guiding Principles' framework for business; the continuing role of conventional accountability mechanisms in providing access to remedy for victims under the third pillar of the framework; and developments in ‘hard law', with a particular focus on the approach by the UK, since the introduction of the UNGPs, before turning, briefly, to the future for business and human rights.     

A feminist challenge to the gendered politics of the public/private divide: on due diligence,domestic violence,and citizenship

This article examines the feminist appropriation of the legal principle of due diligence to politicize acts of violence at the hands of private actors within the private sphere. This move expanded traditional notions of state responsibility for violence against women under international human rights law. Using frame analysis, we focus on the institutionalization of this feminist understanding of due diligence through its discursive incorporation in international human rights policy documents and its mobilization in cases of domestic violence litigated within the UN and the Inter-American and European human rights systems. Through this discursive framing work and its institutionalization, feminists have challenged the gendered politics of the public/private divide to change the terms on which differently positioned women can engage with the state and global governance institutions. We argue that this change can potentially reconfigure women's state-bounded and transnational citizenship. The implications of due diligence as a political and sociological concept require more careful consideration by citizenship and human rights scholars.     

The unbearable rightfulness of being human: citizenship,displacement, and the right to not have rights

Claims to human rights protection made by displaced persons are displaced from the universe of humanity and rendered ineffective by the geopolitical character of modern international human rights law, in favour of the protection of citizens' rights claims. In response, there is increasing interest in leveraging respect for and protection of the rights of displaced persons through extension of the rights enjoyed and supposedly borne by emplaced citizens. However, it is a mistake to assume that humans as citizens bear human rights or that the freedoms that they may be able to extend beyond state boundaries are universalisable. The extension of the right to citizenship functions to displace questions of human rights themselves. The question of the human in rights is in fact always displaced, as long as the human subject is acted upon as if it could possess rights. In paying attention to the critical perspectives with which displaced persons confront the citizen, she or he may come to appreciate the fact that the universality of human rights is served where one does not claim to have rights but, rather, actively engages, without limits, with others in the struggle for rights and their respect.     

Regulating political advertising in the EU and USA: a human rights perspective

Underlying the American model of political campaign communication are the US Constitutional guarantees of free speech, which secure the rights of citizens to support political candidates of their choosing and express that support in various forms, from bumper stickers to television advertising. Courts have at times struck down measures regulating political advertising, including limits on the amounts of such advertising and the amounts of funds which candidates, parties and individuals may spend on election‐related speeches and advertising as infringements of these rights. With few exceptions, in the USA, government may not limit the number of spots a candidate airs in an election. In Europe, international norms concerning free expression and fair elections appear in a number of legal instruments, including, most recently, the UK's Human Rights Act 1998 and the EU's Charter of Fundamental Rights. This paper compares the role and development of American First Amendment doctrines in limiting restrictions on political advertising in the USA with the development of comparable norms of free expression under the European Convention on Human Rights, European Union treaties and legislation and national laws of the member states and accession countries. In particular, this paper addresses the validity and enforceability of European legal limits on number, timing, placement, quantity and content of political advertisements under applicable human rights rules and similar regulations. The paper concludes that (1) a combination of European legal instruments, including the European Convention on Human Rights, the European Community Treaty, the European Community's ‘Television Without Frontiers’ Directives and the Council of Europe's Convention on Transfrontier Television offer protections of a kind and type which broadly track the protections of the USA's First Amendment; that (2) it seems that governmental justifications for restricting these freedoms are more readily accepted in Europe than they might be in courts in the USA; and that (3) certain restrictions on political advertising identified in previous studies as existing throughout Europe will face increased judicial scrutiny and some of them are probably illegal under European Human Rights principles. Copyright © 2004 Henry Stewart Publications     

The human rights and 'Asian values' debate in Southeast Asia: Trying to clarify the key issues

This article investigates the validity of the concept of 'Asian values' in Southeast Asia, and attempts to explain and reconcile where possible some of the key differences between the position on human rights of ASEAN, which has remained semi-united despite internal tensions, and 'the West', particularly the US, and the non-governmental organizations' (NGOs) in the ongoing 'Asian values' debate. The article explores differences over the issues of the changeability of values and hence rights as these affect the 'universality' argument, the relevance of timing and sequence, the omission of crime by agencies other than the state as a source of human rights violations, and the controversial issue of the use of conditionality by the West. It is argued that, in fact, the debate principally concerns the question of what constitutes 'good government' and the 'good society', and takes the position that the question of how to achieve these is significantly influenced by the values of a government and a society.     

公正审判基本人权视野下的司法独立与司法受制

公正审判基本人权视野下的司法独立，其全部目的是为了公正审判。为防止绝对的权力导致绝对的腐败，司法权本身也需要约束，因而司法独立也不是绝对的，存在公正审判的诉讼机制下司法受制的必要性，印司法要接受司法内监督和司法外监督。司法内的监督包括审级监督和再审监督，司法外监督包括媒体监督、权力机关监督和社会其他监督等，而司法外监督以不代替司法审判、不构成对司法权的不正当干涉为底限。司法独立与司法受制共同统一于公正审判。     

The psychiatric power of neo-liberal citizenship: the North Korean human rights crisis,North Korean settlers,and incompetent citizens

This essay discusses how North Korean settlers in South Korea are engaged in the rubric of neo-liberal citizenship to program the idea of an enterprise of free and autonomous selves. I call into question the psychiatric intervention in the North Korean population deprived of psychological capacities to be autonomous and responsible for their social life. My argument is that the psychiatric diagnosis of strange mental properties presents the criteria of successful assimilation as an antidote to the psychological oppression that North Korean settlers must have experienced, encouraging the South Korean public to tolerate the social deviance of these settlers.     

An integrated perspective on the three potential sources of partisan bias: Malapportionment, turnout differences, and the geographic distribution of party vote shares

Partisan bias refers to an asymmetry in the way party vote share is translated into seats, i.e., a situation where some parties are able to win a given share of seats with a lesser (share of the) vote than is true for other parties. Any districted system is potentially subject to partisan biases. We show that there are three potential sources of partisan bias: (1) differences in the nature of the vote shares of the winning candidates of different parties that give rise to differences in the proportion of each party's votes that come to be ‘wasted’—differences which arise because of the nature of the geographic distribution of partisan support; (2) turnout rate differences across districts that are linked to the partisan vote shares in those districts, such that certain parties are more likely to have ‘cheap seats’ vis-à-vis turnout; and (3) malapportionment. In the context of two-party competition over single-member districts we provide a simple formulation to calculate the independent effect of each of these three factors. We illustrate our analysis with a calculation of the magnitude and direction of effects of the three determinants of partisan bias in elections to the US House and the US Senate in 1984, 1986 and 1988; then we consider how to extend the approach to a system with a mix of single- and multi-member districts or to a weighted voting system such as the US electoral college. We then apply the method to calculate the nature and sources of partisan bias in the 1984 and 1988 US presidential elections.     

电子商务法中删除权的法经济学分析

大数据时代的到来使得企业、团体、个人都可能获取他人信息,而当代互联网的特性——海量的数据信息、快捷的计算速度以及巨大的储存空间使大数据时代的个人信息保护问题尤为重要。国内外关于删除权的相关法律文本和司法实践已经有较多讨论展开,而从大国博弈、消费者选择和厂商行为三个视角对2019年电子商务法中有关删除权的合理性和前沿性做进一步探讨后,可开启另一认知路径。以法经济学理论和经济学原理进行论证分析后发现,我国需要专门的“个人信息保护法”以确立删除权,而鉴于立法成本和紧迫性,可暂通过完善司法的方式,实现保护公民个人信息的目的。     

Applying rapid results approach to local service delivery: issues,lessons and challenges from Nairobi City Council

Over the years, the Kenyan Government has pursued wide‐ranging public sector reforms to improve local service delivery, but little has been achieved due to lack of a wide‐ranging decentralisation policy and institutional framework. To precipitate the reform process, the rapid results approach (RRA), commonly applied in private sector organisations, was recently introduced thorough out the public sector, including local authorities (LAs). This article assesses the efficacy of the rapid results approach (RRA) methodology in local service delivery using Nairobi City Council as a prototype; highlighting the success stories, pitfalls and challenges. The analyses are based on the findings obtained using current literature on the subject matter and the author's interactions with the council staff, councillors and other stakeholders. On the basis of the analysis, the article draws the main conclusions and policy advice on what could be considered critical for further debate, highlighting issues, lessons and challenges that could be raised to improve the practice of RRI. The key messages presented here will help policy makers, scholars and practitioners of reform to re‐think the envisaged countrywide replication of RRI to the rest of LAs. Copyright © 2008 John Wiley & Sons, Ltd.