-- SAMPLE --

Law and Business, Spring 2015 Course on Business and Human Rights Prof. Michael Posner

This course will focus on human rights law and practice and how the human rights framework applies to business. This segment consists of 12 classes, 3 hours each. (Tuesdays 6:00-9:00 pm, beginning Feb 10, in Furman Hall 210) The class sessions will be divided into three parts:

(I) Foundations of human rights (II) Business and human rights (III) Implementation challenges of business and case studies of human rights issues in different industries

Assignments There will also be one course paper due at the end of the term. A short draft outline will be due in the middle of the term. The assigned readings are drawn from legal and policy writing, news articles and several business case studies. Part of your grade will be based on class participation; you will be expected to have a basic familiarity with the assigned reading and make reference to it in class discussion. There also will be several guest speakers who will present case studies and we may add a few brief readings in connection with their presentations.

Part I: FOUNDATIONS OF HUMAN RIGHTS: SETTING STANDARDS, DEVELOPING A FRAMEWORK FOR IMPLEMENTATION, ESTABLISHING REMEDIES

The first two classes focus on the origins and the substantive content of international human rights standards. It looks at how these standards were developed and how they have been interpreted and applied at a national and international level. It also outlines the types of remedies that have evolved to address violations, especially in the most serious cases involving genocide, war crimes, and crimes against humanity.

February 10th - Session 1: Setting the standard – what are human rights?

Main topics:  Pre-World War II antecedents to the concept of human rights The development of a universal standard for human rights that grew out of WWII and the UN Charter  Eleanor Roosevelt and the development of the Universal Declaration of Human Rights (UDHR)  Translation of the UDHR into international legal standards

Discussion:  Are there universal rights? Are rights a Western concept? What is the relationship between civil and political rights, and economic, social and cultural rights? Are the human rights aspirations established in 1948 still relevant today? Do new threats, technologies, or political changes call for amendments to these rights?  What happens when rights come into conflict -- SAMPLE --

Assigned readings:

 Universal Declaration of Human Rights (1948)

 International Covenant on Civil and Political Rights (1976)

 International Covenant of Economic, Social and Cultural Rights (1976)

 Posner, Michael, “The Four Freedoms Turn 70,”the American Society of International Law’s 105th Annual Meeting, March 24, 2011, Washington, D.C.

February 17th- Session 2: Implementation – Reporting on human rights by national governments and the United Nations – Access to remedies – Guest speaker: Harold Koh

Main topics:  The relationship between national systems, regional organizations, and the United Nations o UN Human Rights Council o National systems: The case of the United States and the UN Universal Periodic Review o The International Criminal Court o Extrajudicial remedies for human rights violations in US courts (Alien Tort Claims Act) o Non-judicial remedies – the evolving role of ngos, the media and legislative sanctions

Discussion:  Why do states comply with this system?  How are these different mechanisms used? Which is most effective?  How is the system responding to diminished state power and authority?  The current state of the ICC and its future prospects

Assigned readings  Universal Periodic Review of the United States of America. National Report Submitted to the Office of the UN High Commissioner for Human Rights, Feb 2015

 The World Justice Project: Rule of Law Index 2012/2013 – Introduction

 Dicker, Richard (2012): “ICC – The Court of Last Resort,” Foreign Policy .

 Laval, Pierre N. (2013): The Long Arm of International Law: Giving Victims of Human Rights Abuses Their Day in Court. Foreign Affairs 92 (2) (Mar/Apr 2013): 16-VI. -- SAMPLE --

Part II: BUSINESS AND HUMAN RIGHTS

The next three sessions will explore the effects of globalization in increasing the impact of business on human rights, especially in states with weak rule of law and a lack of capacity to protect human rights. In addressing the question of business’ responsibility to respect human rights, we will apply a framework similar to that which we discussed in Part 1 – standard-setting, implementation, and the provision of appropriate remedies.

February 24th Session 3: The changing face of human rights – the role of business in the age of globalization/ The UN Debate on business and human rights: the UN Norms, Guiding Principles and a proposed new treaty

Main topics:  Overview of changes in the global regulatory environment for companies, shifts in the relative power between states and other actors since the end of the Cold War (1990 – present), and the consequences of these changes for multinational companies: o Expansion of market economies and expanded influence of multinational companies o Relative decline in state power o Increased information flows in the digital era o Development of civil society  The governance gap: juxtaposition of strong global companies and poor, weak governments  Various efforts to define business responsibility with respect to human rights o Self–regulation by companies (1990s) o The UN Norms on Business and Human Rights (2003) o The UN Guiding Principles on Business and Human Rights (2011) o The Ecuadoran proposal to create a binding UN treaty (2014)

Discussion:  Are companies political actors? If so, what are the limits of their political influence? What should those limits be? How are companies different/similar from states?  How does the increase in the global power of corporations change their role in addressing political, social and economic issues?  How do companies protect their interests in countries that have weak rule of law (e.g. intellectual property, data security, integrity of contracts, human rights)?  The Guiding Principles call for companies to accept a “responsibility to respect” human rights. What does this mean? What should it mean?  How do companies engage with other stakeholders – home and host governments, their own employees (as well as people working for the company indirectly through the supply chain), consumers, NGOs, unions, the media, investors, and the broader public?  Business and human rights (BHR) vs. corporate social responsibility (CSR)  What is the business case for promoting and protecting human rights?

-- SAMPLE --

Assigned Readings:

 Friedman, Milton (1970 ): “The Social Responsibility of Business is to Increase its Profits,” New York Times Magazine, September 13, 1970.  “Embedding Human Rights into Business Practice II” (December 2007). ABB and Sudan: The Value of Stakeholder Engagement (p.26-30). Joint Report of the UN Global Compact and the Office of the High Commissioner for Business and Human Rights.

Optional readings/weblinks

 Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003)

 UN Guiding Principles on Business and Human Rights. Implementing the United Nations “ Protect , Respect and Remedy” Framework

March 3rd Session 4: Standard-setting challenge: The development and implementation of standards & the emerging multi-stakeholder initiative (MSI) model

Major topics:  Developing industry standards and metrics in six sectors: o Manufacturing: labor and workplace safety issues in the supply chain o Extractive industries: keeping people and assets secure, especially in conflict zones o Private security contractors: Developing securing practices that respect rights o Information and communication technology: privacy and Internet freedom o Construction: Recruitment of migrant workers o Agriculture: child and forced labor; land tenure issues

Discussion:  How multi-stakeholder initiatives evolved in the 1990s to fill governance gaps  The role of companies working with civil society, academia, and governments  How do human rights play into notions of business sustainability?  What are the strengths and limitations of voluntary codes and MSIs? What pressures or levers exist that make MSIs an attractive option for companies? What is the difference between industry-only standard-setting bodies and MSIs? What are the risks? What has been the role of organized labor and unions in MSIs relating to global working conditions?  What are the elements of credibility for an MSI? What are the current gaps?

Assigned Readings:  Vogel, David(2008 ): “Private Global Business Regulation.” Annual Review of Political Science, 11: pp. 261– 82

 Posner, Michael: “Examining Human Rights & Global Business – A New Frontier” . 4th Annual Louis Henkin Lecture on Human Rights, University of Miami Speech: 2014 -- SAMPLE --

Optional Readings/weblinks:

 Fair Labor Association

 Voluntary Principles on Security and Human Rights

 US Department of Agriculture - Regulations of the Department of Agriculture

 ICOC

March 10th Session 5: Home country oversight of business and human rights conduct: reporting and beyond Guest speaker: Melike Yetkin

Major Topics:  Federal and state regulation: o Foreign Corrupt Practices Act o GHRAVITY Executive Order: targeted sanctions on tech companies doing business in Iran and Syria o California Anti-Trafficking Act  Reporting requirements: o Dodd-Frank Section 1502: Conflict minerals in the Democratic Republic of Congo o Burma Responsible Investment Reporting  Judicial sanctions: o Alien Tort Claims Act o Torture Victims Protection Act  National Action Plans

Discussion:

 What is the potential for home country regulation?  Are reporting standards an effective remedy?  What is the trade-off between greater reporting and transparency and legal remedy? What should it be?  What is the future of extra-territorial litigation in the U.S. after the Supreme Court’s June 2013 decision in the Kiobel case? In other countries?  What can /should US government include in its National Action Plan?

Assigned Readings:

 Dahlia Lithwick (2012): “Supreme Court Says Corporations have a right to free speech. But do they get away with murder? Justice on the High Seas, February 28, 2012.

 Oona Hathaway ( 20 13 ): “ Kiobel Commentary : The door remains open to ‘foreign squared’ cases”  NYU Stern letter to President Obama on National Action Plan (2014)

-- SAMPLE --

Optional Readings/ weblinks:

 ‘‘Dodd-Frank Wall Street Reform and Consumer Protection Act’’ (2010)

 California Anti-trafficking legislation (2011)

 Burma responsible investment reporting requirements (2013)

 GHRAVITY executive order targeting human rights abuse via information technology (2012)

 Enough Project/Intel on Conflict Free Products

Part III – CASE STUDIES IN IMPLEMENTATION: BUSINESS AND HUMAN RIGHTS IN SIX INDUSTRIES

These sessions examine how business and human rights issues manifest themselves in different industries: global manufacturing, extractives, information and communication technology, agriculture (food & beverage), construction, and socially responsible investing. The last session provides a summary of what we have discussed and a look forward.

March 24th Session 6: The manufacturing supply chain – case study of workplace safety in Bangladesh Guest speaker: Sarah Labowitz

Major Topics:  Evolution of a global apparel sourcing model and the diffusion of centralized control  Bangladesh’s rise as a global exporter of garments  The collapse of Rana Plaza in April 2013 and its aftermath

Discussion:  Mapping exercise: Who controls the supply chain? How long does brand responsibility extend?  What is the role of each of the key actors: global brands, local factory owners, the manufacturers’ trade associations, the government of Bangladesh, Western governments, unions and workers’ organizations, international organizations, and consumers?  Discussion of the Accord on Fire and Building Safety in Bangladesh and the Alliance for Bangladesh Worker Safety. What are the pros and cons of each?  Where do we go from here of Bangladesh?  What needs to change in the global sourcing model to enhance working conditions and workplace safety? What does this mean for global brands and consumers?

Assigned readings:

 Locke, Richard (2002): The Promise and Perils of Globalization: The Case of Nike. MIT Working Paper Series IPC 02-007

 Labowitz and Baumann Pauly, “Business as Usual is not an Option” Center for Business and Human Rights, April 2014 – Intro and recommendations

-- SAMPLE --

 Labowitz, Sarah, “Bangladesh Can Look to this Unlikely Place to Fix Its Garment Sector,” Quartz Magazine, July 2014.

Optional Reading/Weblinks

 Accord on Fire and Building Safety in Bangladesh

 Alliance for Bangladesh Worker Safety

 Fair Labor Association

March 31st Session 7: Human rights and security – The Extractive Industries Guest Speakers: Sasha Lezhnev, Enough Project, Jason Pielemeier, State Dept.

Major Topics:

 Security of assets and people in the oil, gas, and mining sectors. Examining the oil industry in the Niger Delta and gold mining in Papua New Guinea.  Multi-stakeholder response: the formation of the Voluntary Principles on Security and Human Rights (VPs).  Private security contractors: o Key human rights issues resulting from reliance on private security contractors to supplement traditional military operations and provide security to diplomatic and humanitarian missions. o The development of the Swiss Initiated Code of Conduct for Private Security Contractors. Discussion:  Home and host country governments – what is the role for governments and how should companies relate to them?  When should companies decide not to invest in a failed or rights-violating state? Using what criteria?  How does international human rights and humanitarian law apply to private security contractors? What rules should contractors follow?  How can the international community engage outliers, those companies that decline to participate in multi-stakeholder initiatives that set industry-wide human rights standards? What about state-owned enterprises in places like China and Russia?

Assigned reading:

 Hennchen, E. and Lozano, L. M. (2011): “Mind the Gap: Royal Dutch Shell’s sustainability agenda in Nigeria” (2011). ESADE -CA- 001113-ENG.

 Kaeb, C. (2008 ): “Emerging Issues of Human Rights Responsibility in the Extractive and Manufacturing Industries: Patterns and Liability Risks”. Northwestern Journal of International Human Rights 6/2: 327- 353.

-- SAMPLE --

 Epstein, M. J., and K. Yuthas. 2011. Conflict minerals: Managing an emerging supply- chain problem. Environmental Quality Management, 21(2): 13–25.

 “Private Security Contractors at War. Ending the Culture of Impunity ” . Hum an Rights First Report 2008 – Introduction and Summary of Conclusions

Optional readings/weblinks:

 Voluntary Principles on Security and Human Rights (KPs)

 International Code of Conduct for Private Security Service Providers

April 7th Session 8: Information and communication technology – Free Expression and privacy in the digital age Guest speakers: Gordon Goldstein, Silverlake and Matt Perault, Facebook

 Internet freedom: online freedoms of expression and privacy  The role of companies in the multi-stakeholder model of Internet governance  The role of companies in addressing privacy rights in the face of large-scale surveillance in both repressive states (China, Iran, and Syria) and democracies (U.S. NSA surveillance programs)  How companies monetize personal information

Discussion:  How do advances in technology change the application of human rights principles in practice?  Is there a tradeoff between security and personal privacy? Should there be?  How do companies serve as mediators between governments and citizens when it comes to privacy? What should companies do to protect their users’ privacy? Should we expect different actions from companies in democracies versus in repressive states?  What are the constraints against complicity by technology companies with repressive governments? What should they be?  What are the challenges to the multi-stakeholder model of Internet governance today? Why do some governments want to assert greater state control over the Internet? Assigned reading:

 Clinton, Hillary “ Internet Rights and W ro ngs: Cho ices & Challenges in a Networked World,” George Washington University, Washington, D.C., February 15, 2011.

 Downes, Larry, “Requiem for Failed UN Telecom Treaty : No One Mourns the WCIT,” Forbes, December 17, 2012.

 Labowitz, Sarah, “ Tech companies must push back on NSA snooping,” San Francisco Chronicle, July 3, 2013.

-- SAMPLE --

 Angwin, Julia, “A Quest for Privacy, Security, and Freedom in a World of Relentless Surveillance” Times Books, February 25, 2014 (excerpt)

Optional reading/weblinks:  The Global Network Initiative

 Internet Governance Forum

April 14th Session 9: Socially responsible investing – defining “social ”

Major Topics:

• Influencing company behavior through divestment: Northern Ireland and South Africa • ESG investing: environmental, social, and governance metrics for assessing companies • The role of shareholders and shareholder activism • Moving from short-term to long-term investing • Comparing the US and European models of investing

Discussion: • What leverage do investors have to change company behavior? • What is the responsibility of investors to assess the human rights impacts of the companies in which they invest? What should it be? • How do investors know if a company is socially responsible? What would it take to develop practical metrics for the social component of ESG? • Is socially responsible investment profitable? • Are shareholder resolutions effective?

Assigned readings: • “Investing the Rights Way : A Guide for Investors on Business and Humann Rights,” Institute for Human Rights and Business, 2013

• Posner, Michael: “ Universities Not Making Enough Progress to Protect Human Rights In Supply Chain, Spending or Investments,” University of Michigan, October 2014

• Plender, John: Trustees of the Non-Financial Revolution,” Financial Times, October 2014

• Schwartz, John: “Rockefellers, Heirs to an Oil Fortune, Will Divest Charity of Fossil Fuels,” New York Times, September 2014

• Smyth, Jamie: “ Australian Pension Fund LGS Drops Co al Assets,” The Financial Times, October 2011

• 'Mandery , Evan: “The Missing Cam pus Climate Debate,” The New York Times, November 2014

• “Stanford to Divest from Coal Companies,” Stanford News, M ay 20 14

-- SAMPLE --

Optional readings/weblinks:

• MacBride Principles

• Sullivan Principles

April 21st Session 10: Human Rights Issues in Construction Guest Speaker: Bronwyn Wex, Visiting Research Fellow, School of International Relations at USC

Major Issues:

• Recruitment practices (South Asia and elsewhere) • Other challenges facing migrant workers

Discussion:

•Gulf Construction as a case study •Proposals for reform

Assigned Readings:

• ILO: “Protocol of 2014 to the Forced Labor Convention 29, 1930,” www.ilo .org, June 2 01 4

• Jureidini, Ray: “Migrant Labor Recruitment “Migrant,” Report for Qatar Foundation MigrantWorker Welfare Initiative, 2014

• “Supplier Responsibility 2014 Progress Report,” Apple, 20 14

• “HP Supply Chain Foreign Migrant Worker Standard,” Hewlitt Packard, Nov 2014

• “UAE: Abuses at NYU, Louvre, Guggenheim Project,” Human Rights Watch, Feb 2015

May 5th Session 12: Where do we go from here?

Major Topics:

• Assessing the current state of business and human rights • Identifying current challenge and ways to overcome these challenges • Exploring potential future directions for this field

Discussion:

• What are the next steps in further defining the “responsibility to respect” under the UN

-- SAMPLE --

Guiding Principles framework? What are the challenges and opportunities in this area?

• What are the key issues that need to be addressed in specific industries? In the field more broadly?

• What does it look like to work in a company on issues of business and human rights?

• What are the obligations of lawyers representing companies with respect to these issues? What should they be?

• The role of consumers and consumer indexes

Optional reading/weblinks: (available on classes)

• de-Felice, Damiano: “Challenges & Opportunities in the production of business and human rights indicators to measure the corporate responsibility to respect,” The Johns Hopkins University Press, May 2015 (available on classes)

• Nolan, Justine: “Refining the Rules of the Game: The Corporate Responsibility to Respect Human Rights,” Utrecht Journal of International