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Another difference between ISPs and the corporations whose activities generated the international debate leading to the Guiding Principles is the significance of transnational activity. Extraterritoriality has thus permitted evasion of the applicability of stringent human rights standards. In the case of ISPs, transnational activity plays an entirely different role.
It does not relocate production activity, but increases the market for the services and products that ISPs sell. Thus, relocation abroad may be a means for ISPs to shield clients from invasion of their privacy rather than to expose them to violation of their rights. In both cases, extraterritorial activity evades governmental control.
The difference is that in the latter case the control is perceived as rights-protecting, while in the former it is rights-infringing. Adherence to human rights standards may therefore be a rational economic choice for corporations and not only a moral choice. At the same time, in order to minimize vulnerability to executive orders, ISPs would have to compromise profit in the immediate term for example by refusing to comply with executive orders under pain of contempt of court, or by refraining from the collection of data at the risk of losing advertising income which builds on the use of that data.
The profit-compliance calculus therefore takes on new dimensions. Combined, these factors call into question the suitability of the accepted framework for corporate responsibility as developed so far to ISPs involved in data disclosure. Analysis of the obstacles in this context can serve to illustrate a wider issue, namely the limitations of the Protect, Respect and Remedy Framework in co-opting corporations into human rights compliance. It considers how such measures correspond to the underlying premises of the Framework. These provisions cover a wide array of manners in which corporations may undesirably become involved in the perpetration of human rights abuses by other actors.
That is nonetheless difficult when domestic law imposes an obligation to collaborate with the government. Under international law, domestic legal constraints are no excuse for non-compliance with international law.
The same cannot be said with respect to corporations. This difference may bear on the responsibility of corporations. For example, under international criminal law, a legal obligation to obey orders may relieve a person from criminal responsibility, provided that the person did not know that the order was unlawful, and the order was not manifestly unlawful, 41 or mitigate the severity of the punishment.
The former concerns criminal conduct, while the latter concerns conduct that aside from being regulated by non-binding norms, is not necessarily criminal in nature. One argument may be that if concessions are made for the benefit of criminals, they surely must be made for the benefit of less serious violators.
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On the other hand, the consequences of compliance with unlawful orders under criminal law, namely criminal sanctions, are potentially harsher than the consequences of compliance by a legal person with unlawful non-criminal domestic law, and therefore concessions are more called for in the former case. Another matter is the fact that the illegal character of a norm violating international criminal law is likely to be discernible even if not manifest , while compliance or violation of human rights standards are ultimately dependent on value judgments; if a defence of compliance is available in the former case, to a person who committed an international crime, a fortiori it should be available in the latter case, to a legal person which violated human rights standards.
On the other hand, the nature of corporate activity is such that corporations are more likely than individuals to be involved in repeat conduct that may amount to violation of rights. This may impact on the credibility of a claim of good faith by the corporation.
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In conclusion, it is difficult to argue that corporate responsibility for violations of international human rights law should be necessarily stricter or more lenient than the individual responsibility for violations of international criminal law. One might suggest that the introduction of non-state actors into the world of human rights obligations justifies an entirely different approach, namely the revision of the human rights interest-balancing process, to accommodate the different functions of the various types of actors.
This proposition is objectionable on a number of grounds. Second, it is questionable whether such a ground responds to the difficulty described above, given that the ability of corporations to rely on it is limited. This is related to the fact that corporations are in a vertical relationship with the state, and suffer from lack of information.
The examples offered by the UN Guiding Principles drawing on the Global Compact are such where the existence of the violation is quite evident: the forced relocation of peoples in circumstances related to business activity, suppression of a peaceful protest against business activities or the use of repressive measures while guarding company facilities, systematic discrimination in employment law against particular groups on the grounds of ethnicity or gender.
The primary difficulty for the corporation to evaluate the legality of disclosure is not the legitimacy of the purpose of the surveillance national security but its proportionality to the injury that is caused. For an ISP to determine whether disclosure of information to the government would be in line with its human rights responsibilities, it must know the purpose of the governmental demand, the potential benefit which can accrue to the government from the disclosure, and the harm that is likely to be caused to the client whose data is disclosed.
Consequently, ISPs cannot evaluate whether their own conduct would be in compliance with human rights standards or not.
Again, guidance might be sought from other situations in which one actor may incur responsibility through its cooperation with another actor, whose conduct it cannot control. For example states that extradite or deport individuals may be exposing those individuals to risk of rights violation by the states of destination. However, the relationship between the sending state and the state of destination is horizontal.
Corporations do not have the same luxury, since they operate within a vertical relationship, under a domestic legal regime, which they are not empowered to modify.
Hikvision and Dahua: The Case for Divestment
They should therefore not be encumbered with the responsibility for the conduct of the state. Resolving the quandary of corporations being simultaneously bound in opposite directions is not a matter merely of a policy choice. If the responsibility of corporations is to be made legally binding, it would require a restructuring of international human rights law to accommodate a new level in the hierarchy of relationships: 48 still inferior to the state but no longer on par with individuals who are potential victims.
The presently non-binding character of the Framework enables this matter to remain unaddressed. However, the practical challenges to the Framework will have to be addressed if the coherence of the international human rights legal regime is to be preserved. So long as the standards are not binding, it is only natural that domestic norms, which are binding, would take priority; should the UN Guiding Principles or other standards develop into binding law, the point of balance may change.
For example, in light of the difficulties facing corporations, it is arguable that the obligation to comply with domestic law should be given some significance in assessing their conduct in terms of international human rights standards.
It is not proposed that a domestic legal obligation be viewed as permitting a violation of rights, but it may excuse it to borrow a term from criminal law. Furthermore, it may be that where the violation is egregious and manifest, the corporation too would not be exempt from responsibility, in the same manner as an individual is not exempt from criminal liability in the case complying with manifestly unlawful orders.
Secondly, these formulations suggest that a corporation might be required to take positive steps to ensure the privacy of its clients. The appropriateness of measures would depend on the specific circumstances, including their relevance to the particular state environment, and to the capacity of the ISP. The following is a discussion of some such measures. It has been noted above that ISPs do not have the capacity to evaluate the lawfulness of demands made upon them in terms of their necessity and proportionality.
But they do have the capacity to evaluate the compliance of demands with procedural requirements. At times, this is a sufficient measure to thwart demands, since those are not always made in full compliance with formalities. At a minimum, ISPs should practice strict adherence to the procedures provided by the law authorising the executive demand. Both the Global Compact 57 and the GNI Implementation Guidance call on corporations to request clear communications, in writing, that explains the legal basis for government demands for personal data including the name of the requesting government entity and the name, title and signature of the authorized official.
China it China only provided information as legally required and construed demands as narrowly as possible. Information demands that did not comply with this process were refused. What the law requires may be controversial. While, as discussed below, ISPs may not always be in a position to challenge the validity of a disclosure order, they may have a choice of adopting a more restrictive interpretation of the law than the government has adopted.
Unless they are gagged by law or a court order, ISPs should inform clients of government orders relating to them personally. Giving notice does not require the ISP to take a side or to engage in significant expenditure, merely to pass on important information to the client. A related practice is the publication of law enforcement guidelines for requests for client data. These might provide clients with insight into issues such as whether the ISP requires a warrant for content; what types of data it retains, and what kind of legal process the ISP requires for law enforcement to obtain various kinds of data; how long data is generally held by the ISP, and how long will it be held in response to a retention request; whether the ISP has an exception for emergency or other kinds of disclosures; under what conditions data may be shared with governments or other third parties; 64 whether the ISP asks for or receives reimbursement for the costs incurred in complying with a request for data.
This practice has been advocated by the European Commission, 65 and has been adopted more widely. Of course, unlike other policies that corporations may advertise, law enforcement practices are difficult to monitor, and there are no means of verifying whether the ISPs actually comply with the guidelines that they advertise. Other measures may be more difficult to demand of ISPs. For example, an ISP can institute legal process to challenge the content of a demand.
Such a measure would be particularly appropriate where a demand appears on its face to be excessively intrusive, for example when it covers a non-specific period of electronic activity, or a large group of unspecified clients. In other cases, however, the ISP could not easily evaluate the justification for the order, since it is privy to the knowledge of neither the government nor the person in question, and therefore it cannot estimate the prospects of its challenge.
Moreover, challenging demands for disclosure through legal process is action that requires investment of resources. The feasibility of a legal process depends, inter alia, on the financial capacity of the ISP.
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The responsibility to challenge orders through legal process should therefore be restricted to what is reasonable in the specific circumstances. First, broadly stated, international law leaves states a wide margin of discretion in determining their budgetary priorities.
This renders positive measures as instituting legal process would be almost outside the realm of obligation. There is an exception to this broad financial discretion of states in the form of core obligations within specific rights, compliance with which is not subject to financial constraints. This exception reflects the fact that governments are established, mandated and obligated under international law to fulfil certain social and other functions.
The role which economic constraints may play in their decision making is therefore circumscribed. Constraining their financial discretion would limit their operation fundamentally. In conclusion, ISPs should not be encumbered with the same level of demand as that which may be imposed on states. They should be burdened with positive obligations that require investment of resources only in exceptional circumstances, when the conduct at stake goes to the very core of the right, or where the financial investment is indisputably minimal, and thus does not adversely affect the corporation, regardless of its financial situation.
This can be done by giving clients the option of choosing from a range of privacy setting and helping them understand the implication of their choice. Relatedly, ISPs can limit the period of time during which data is retained.
This applied to all European citizens, including those not suspected or convicted of any crime. The highly controversial Directive has received mixed reactions in member states, with the constitutional courts in some states having issued decisions striking down data retention laws for violating human rights.
UNGP 19, on the operationalization of the responsibility, 78 requires the following:. Where a corporation causes or may cause an adverse human rights impact, it should take the necessary steps to cease or prevent the impact, and use its leverage to mitigate any remaining impact to the greatest extent possible.
Leverage is the ability to effect change in the wrongful practices of an entity that causes harm if it is directly linked to their activity. Leverage might exist when a corporation collaborates with other actors. When the corporation lacks the leverage to prevent or mitigate adverse impacts, it should consider ending the relationship.
Among the factors that will enter into the determination of the appropriate action in such situations are how crucial the relationship is to the corporation and the severity of the abuse: the more severe the abuse, the more quickly the corporation will need to see change before it takes a decision on whether it should end the relationship. The distinction between the responsibility not to contribute to a violation and the responsibility to prevent it may not always be clear cut, but for convenience, it is useful to distinguish between measures which ISPs can and ought to take to avoid contributing or facilitating the violation of identifiable clients, and those which they can and should take to impact on government policy, thereby affecting the general population of clients.
We can choose to wear a kippah regularly, as both of us have at times.