星期六, 九月 30, 2006

About the Exam

Two options will be provided for the course effect evaluation (that is EXAM):

I. One-day Take-home Exam:

You will have one (1) day to answer ALL four (4) questions on the exam paper, which you must pick up from the registrar during a particular period of time, and which must be submitted within 24 hours after the pick-up period expires. Questions will be provided in English, and your answer must also be in English. You can make references to any materials you have, but plagiarism in any way or excessive quotations (more than 20% of all words) will be subject to record penalties.

II. Paper Option:

You can also write a paper on a topic that is (better, closely) related to any issue we touch upon during the semester. Please restrict the length of your paper within 3,000 Chinese charaters or 2,250 English words (notes excluded), which implies, you can write your paper either in Chinese or in English. The rules of the Peking University Law School on the deadline for paper submission will be applied in this case, and plagiarism or excessive quotations will also be penalized.

There is only one simple but difficult purpose for the exam: show me what you learn, and contribute some little thing to the intellectual world.

More clarifications will come up when I receive your questions on this piece.

星期四, 九月 28, 2006

Accountability: Think about Human Rights

If we assume (or believe) that business entities can (and shall) bear human rights duties and accountabilities towards individuals, how can we justify this within the contemporary international human rights legal framework?

Please try to take into consideration of following arguments into your answer:

1. Is there any inherent difference between “(legal) rights” and “human rights”, and is there any particular implication for “human rights violations”?

2. Is “horizontal effect” doctrine an adequate justification or a persuasive explanation for the human rights accountability of business entities?

3. Can the naturl law theory (also the nature of human rights) assume human rights responsibility upon business entities, which enjoys equal legal status within national legal system?

4. Can the expanding explanation of certain provisions and terms within some international human rights instrument accommodate the theoretical needs and practical developments of human rights influences of business?

5. Shall business be conscious of the human rights obligations of a State during its operation in the State? On the other hand, shall a State implement the “rights-based approach” of development when regulating, promoting and dealing with business?

6. What if business operates in a way that is complying with the national laws and regulations of the host State but contrary to the international human rights obligations of the State? How to defined and distinguish in this case human rights responsibility of the State and that of the business? Bear in mind that, international human rights obligations can derive from certain peremptory norms, and customary rules.

星期一, 九月 18, 2006

The Human Rights Accountability of Business

How do we define the human rights accountability of business entities, especially that of transnational corporations (TNCs)?

When you frame your arguments relating to the general structure of international legal system (subjectivity, jus standi, personality etc.), think about following facts, rules and views:

1. So far, no binding international (human rights) agreement directly addressing corporations exists.

2. The early TNCs, such as the Dutch United East India Company and English East India Company, could occupy land, wage wars and conclude treaties.

3. At 17th century and even till much later, international law was concerned mainly with State issues, such as the delimitation of State jurisdictions, the immunity of States, diplomatic representatives and the law of war, etc.

4. In The Free City of Danzig case (1923), the PCIJ recognized that The Free City of Danzig had international personality; and in the Jurisdiction of the Courts of Danzig case (1928), the PCIJ affirmed that practical needs can override theoretical considerations in regard to international legal personality. States can grant entities certain rights and duties making them subjects of international law, if they feel the practical need to do so.

5. In the Reparations case (1948), the ICJ concluded that the United Nations had legal personality as “the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane”. The ICJ further held that the United Nations is a “subject of international law and capable of possessing international rights and duties, and that is has the capacity to maintain its rights by bringing international claims”. ICJ also pointed out in this case “the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and the nature depends on the needs of the community”.

6. International tribunals, such as the Nuremberg Tribunal and Tokyo Tribunal, the ICTY and ICTR, and the International Criminal Court, all have established the international responsibilities for war crimes of individuals.

7. Before the European Court of Human Rights, individuals can bring claims against States to effectuate their rights contained in the ECHR.

8. Under the Geneva Conventions of 1949 and the two additional protocols of 1977, insurgent forces as well as State armies are obliged to respect prohibitions such as those on attacking civilians, taking hostages and etc.

9. Rosalyn Higgins has considered the concept of legal personality “an intellectual prison” and “the whole notion of subjects and objects has no credible reality and…no functional purpose”, and “individuals are participants, along with states, international organizations…multinational corporations and indeed private non-governmental groups”.

10. For Brownlie, a subject of international law is “an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims”.

11. Under the North American Free Trade Agreement (NAFTA), corporations have access to a panel for dispute settlement.

12. The International Agreement Doctrine: internationalized contracts concluded between a host-state and a corporation (particularly in the filed of oil concessions and development agreements) confer rights on corporations; these agreements usually contain an “applicable law clause” stating that the contract is governed by “general principles of law” or “principles of the law of the concessionary state not inconsistent with international law”. These contracts often provide that in case of disputes, international arbitration will be used.

13. However, is the recognition of the personality of a corporation by one single state enough to elevate the corporation to a subject of international law? What if the state unilaterally withdraws such legal personality?

14. Corporations are organizations which have no inherent ability to suffer from human rights violations. On the other hand, corporations do enjoy the benefit of a number of human rights such as, for example, the right to own property, the right to freedom of expression and the right to a fair trail.

15. Article 34 of the European Convention on Human Rights states “the Court may receive applications from any person, non-governmental organizations or group of individuals claiming to be victims…” In the case Autronic v. Switzerland the Court held that “Article [10] applies to ‘everyone’, whether natural or legal persons’. Moreover, Article 1 of Protocol 1 to ECHR states “Every natural or legal person is entitled to the peaceful enjoyment of his possessions”.

16. Proceedings: Before the Iran-United States Claims Tribunal, corporations have legal standing under certain conditions. In the procedure before the United Nations Compensation Commission set up after the defeat of Iraq in 1991, corporations can bring claims for compensation against Iraq. The ‘Seabed Disputes Chamber’ under the United Nations Convention on the Law of the Sea has jurisdiction relating to disputes between parties to a contract, which can be states, natural or legal persons. Article 25(1) of the Conventions establishing the International Center for the Settlement of Investment Disputes states “the jurisdiction of the Center shall extend to any legal dispute arising directly out of an investment between a Contracting State…and a national”.

17. Duties: In the field of environmental protection several treaties contain binding duties for corporations, for example, under the International Convention on Civil Liability for Oil Pollution Damage, direct liability for oil pollution is placed on the owner of a ship. UN General Assembly resolutions concerning the apartheid system in South Africa during the 1980s mentioned corporations as the addressees of international duties.

18. Responsibilities: Article 2 of the OECD Convention on the Combat of Foreign Public Officials in International Business Transactions states that “Each Party shall take such measures…to establish the liability of legal persons for the bribery of a foreign official’. The Global Convention on the Control of Transboundary Movements of Hazardous Wastes requires State Parties to outlaw such “legal traffic” by legal persons in its national laws.

星期二, 九月 12, 2006

The Syllabus

Peking University Law School: Fall Semester, 2006
Lecturer: LIANG Xiaohui
LL.M. Harvard, LL.M. Peking University, M.A. University of Oslo
Course Material Pick-up Email: biziri@gmail.com

This course will be given in 16 weeks (September 2006-January 2007):

Part I: The Corporate Social Responsibility Movement

Introduction: Everybody's Business (week 1)
Human Rights Accountability of Business Entities: Theories and Practice (week 2-3)
Norms, Standards and Codes of Conduct (week 4)
The Implementation Mechanisms: Making Human Rights a Business? (week 4-5)

Part II: The Idealism and the Realism
Non-discrimination: Equal Rights to Be Exploited? (week 6)
Health and Safety: the Depreciation of Labor? (week 7)
Freedom of Association: United We Work (week 8)
Forced and Compulsory Labor: All Labor is Forced Labor? (week 9)
Child Labor: Toy Player or Toy Maker (week 10)
Ethical Business Practices: Deal!? (week 11)
Business and Collective Rights: Oil and Soil (week 12)
Environmental Influences: a Counterfeited Earth? (week 13)
Responsible Investments: Right Seeds for Good Harvest (week 14)

Part III. The Practice
A Factory Visit (TBD): Field Study
The Draft and Announcement of "The Students' Declaration of Responsible Business"


REFERENCES TO START WITH

RECOMMENDED BOOKS:

袁家方主编 企业社会责任 海洋出版社 1990
李政义 企业社会责任论 台北巨流图书公司 1990
张向前 和谐社会的企业责任 中国文史出版社 2005
李立清、李燕凌 企业社会责任研究 人民出版社 2005
Asbjorn Eide, Economic, Social, and Cultural Rights: a Textbook (2nd ed.), M. Nijhoff Publishers, 2001
Michael K. Addo, Human Rights Standards and the Responsibility of Transnational Corporations, Kluwer Law International, 1999
Nicola Jagers, Corporate Human Rights Obligations: in Search of Accountability, Intersentia, 2003
Lawrence E. Mitchell, Corporate Irresponsibility: America's Newest Export, Yale University Press, 2001
Neil H. Jacoby, Corporate Power and Social Responsibility: a Blueprint for the Future, Macmillan, 1977
David Sciulli, Corporate Power in Civil Society: an Application of Societal Constitutionalism, New York University Press, 2001
Alison Brysk, Globalization and Human Rights, University of California Press, 2002
Michael A. Santoro, Profits and Principles: Global Captalism and Human Rights in China, Cornell University Press, 2000
Anthony Woodiwiss, Globalisation, Human Rights and Labour Law in Pacific Asia, Cambridge University Press, 1998
S. Prakash Sethi, Setting Global Standards: Guidelines for Creating Codes of Conduct in Multinational Corporations, Hoboken, N.J., 2003
Stephen Tully, International Documents on Corporate Responsibility, Edward Elgar, 2005

WEB RESOURCES:
http://www.unglobalcompact.org/index.html (UN Global Compact Official Site)
http://www.business-humanrights.org/ (with rich up-to-date information)
http://www.csr-asia.com/ (Asia focused)
http://www.bsr.org/ (has some good issue briefs)
http://www.csreurope.org/ (the European perspectives)
http://www.ohchr.org/english/issues/globalization/index.htm (the Globalization Section of the UN High Commissioner for Human Rights Site)
http://www1.umn.edu/humanrts/links/business.html
(University of Minnesota Human Rights Library)
http://www.humanrightsbusiness.org/ (the Danish Institute for Human Rights)
http://www.syntao.com/ (最丰富的企业社会责任中文信息网)
http://www.csrchina.com.cn/ (中国企业社会责任调查官方网站)
http://www.sa8000.org.cn/ (SA8000中文网站)

星期三, 九月 06, 2006

About the Course: to the Students

"Business and Human Rights" is a new course brought by the human rights master program of Peking University Law School to the curriculum of Chinese law students. It was first introduced to Chinese students in 2004 and was conducted by Professor Dennis Driscoll, former Dean of the Law Faculty National University of Ireland (Galway) and Legal Adviser to the Irish Foreign Ministry, who also first taught this subject in Europe. This semester marks the history in that it is the first time that such course is given by a Chinese lecturer at Chinese law schools.

The subject matter of this course is seemingly clear and straightforward: the operation of business and its influence on various human rights. Yet it embraces a wide range of disciplines, from legal study, economics and sociology to management, international relations, and even technologies. The specific topics will include non-discrimination in business practice, child labor, forced and compulsory work, freedom of association, environmental concerns, health and safety issues, business ethics and the influence of business to collective human rights etc. Students will also be exposed to different styles of implementation or enforcement mechanisms of corporate social responsibilities. Through all these topics, the course will explore into the comprehensive and complex social dimensions of business entities and the internal and external efforts to ensure the healthy operation of business in terms of respecting, protecting and promoting human rights.

Because it is a totally new area, there is no such thing as “textbooks” for this course. This does not follow, however, that you will have little to read. Instead, piles of essays, books and reports will come to you as we go along. Please try your best to cover them all. Plenty of internet resources will be used throughout the semester (for instance, this BLOG will be a platform for information, discussions and reflections), and ACTIVE participation of class discussions is strongly advised, as we will employ intensive case study. Heuristic questions (why is this…?) are welcome in any form, but do keep common questions (what is what…?) to yourselves, for you are supposed to be researchers in nature. In and outside the classroom, an array of practical "multi-stakeholders" experiences will be introduced to students, which may include CEO talks and interviews, CSR seminars, factory visits and internship or summer job opportunities.

Since I am not a full-time lecturer, I may not be able to show up at Room 118 of the Science Building at the preset time for this course (7:10-9:10pm, Monday) some Mondays. But first, this will not happen very often, and second, I will make sure that you are notified of any changes one week before the class. Thirdly, I will always secure patch-up arrangement if anything does happen. By the way, I am sorry for any inconvenience.

I am sure I did not get to all the questions you may raise, but please be patient enough to see that we will share four months ahead. Just one last thing for this moment: please do not ask me now about the exam, something that I have too much experience in the past but no idea for now.

星期一, 九月 04, 2006

The Global Compact-Ten Principles

The Ten Principles
The Global Compact's ten principles in the areas of human rights, labour, the environment and anti-corruption enjoy universal consensus and are derived from:
The Universal Declaration of Human Rights
The International Labour Organization's Declaration on Fundamental Principles and Rights at Work
The Rio Declaration on Environment and Development
The United Nations Convention Against Corruption

The Global Compact asks companies to embrace, support and enact, within their sphere of influence, a set of core values in the areas of human rights, labour standards, the environment, and anti-corruption:
Human Rights
Principle 1: Businesses should support and respect the protection of internationally proclaimed human rights; and
Principle 2: make sure that they are not complicit in human rights abuses.
Labour Standards
Principle 3: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining;
Principle 4: the elimination of all forms of forced and compulsory labour;
Principle 5: the effective abolition of child labour; and
Principle 6: the elimination of discrimination in respect of employment and occupation.
Environment
Principle 7: Businesses should support a precautionary approach to environmental challenges;
Principle 8: undertake initiatives to promote greater environmental responsibility; and
Principle 9: encourage the development and diffusion of environmentally friendly technologies
Anti-Corruption
Principle 10: Businesses should work against all forms of corruption, including extortion and bribery.

More information about the Global Compact can be found at: http://www.unglobalcompact.org/index.html