The EU Global Human Rights Sanctions Regime: between Self Help and Global Governance

By adopting a Global Human Rights Sanctions regime, the European Union took a new step in leveraging its power to respond to human rights violations globally. The regime has a general scope, and targets both state and non-state actors. This paper shows that this regime occupies a tension zone between two competing approaches to sanctions: a self-help approach that perceives sanctions as deriving authority from states’ sovereignty and subservient to their foreign policy, and a global governance approach that views sanctions as deriving authority from and bound by the objectives of specific international legal regimes they enforce. The tension between these approaches comes into stark view when constructing the listing criteria and policy objectives of the sanctions, which determine the scope of targets and duration of measures. Whether and how subsequent practice resolves this tension will be determined by certain legislative and interpretive moves by the EU Council and Court.

Mugemangango v. Belgium: No Exceptions for “Old Democracies”

In Mugemangango v. Belgium, the European Court of Human Rights clarified its case law regarding the right to vote and stand for election. By holding that Belgium’s longstanding tradition of allowing parliamentary review of election disputes violates guarantees of fairness and impartiality, the Court made clear that it would not interpret Article 3 of Protocol No. 1 as providing an exception for so-called “old democracies.” In doing so, the Court sent a clear message to other member states with similar systems of parliamentary review that their procedures may not be in compliance with the Convention.

Transnational Corporations and Human Rights

The problem of the different ways transnational corporations (TNCs) are held responsible for their violations of human rights standards has its own, long history. All the academic and legal efforts to date that have sought to clarify the proper grounds for effective remedies for wrongs that have been committed, have however failed to overcome the substantive obstacles and objections. Against such a complicated background the Authors present some reflections regarding the question of whether there is any possibility to take a step forward. Bearing in mind the powerful position of the TNCs, the Authors try to argue that – to some extent – mechanisms connected to State obligations in the field of human rights could be effective, if properly used, in relation to this type of corporate entity. Moreover, the absence of legally binding international rules (i.e. hard law) in the field under discussion is undoubtedly a missing factor for success. The article concludes that as long as the obligations and responsibilities of TNCs are not covered by legally binding and effectively enforced international rules, it will be impossible to cut this “Gordian knot”.

COVID-19, Business, and Human Rights

COVID-19 has affected the full range of human rights, though some rights holders have experienced a disproportionate impact. This has triggered debate about the respective obligations and responsibilities of states and business enterprises under international human rights law. Against this backdrop, this article examines critically whether the “protect, respect and remedy” framework operationalised by the UN Guiding Principles on Business and Human Rights is “fit for the purpose” to deal with the COVID-19 crisis. I argue that while the UNGPs’ framework provides a good starting point, it is inadequate to bring transformative changes to overcome deep-rooted socio-economic problems exposed by this pandemic. Realising human rights fully would not only require harnessing the potential of states’ tripartite obligations, but also move beyond limiting the responsibility of businesses to respect human rights.

Legal Position of Administrative Courts in Poland

The article concerns the administrative judiciary in Poland. Firstly, the Author discusses the legal bases (in particular, the constitutional bases) and the scope of competence of Polish administrative courts, that is to say the ‘voivodeship’ administrative courts (courts of first instance) and the Supreme Administrative Court (court of second instance). Administrative courts in Poland are, in general, the “courts of cassation”, which means they may only control the legality of administrative decisions and may not determine the state of facts, nor replace administrative decisions by their judgments. Administrative courts are vested with the competence to apply the Constitution and they actively cooperate with the Constitutional Tribunal (in particular, by addressing ‘questions of law’ to the Tribunal). Secondly, the Author presents the scope of competence of the Commercial and Financial Chambers of the Supreme Administrative Court and considers selected legal problems in the administrative courts’ jurisprudence in commercial and financial cases.

Gaps in Corporate Liability

Fact-finding is a fundamental step in providing documentation that can be used in domestic and international proceedings. The United Nations establishes commissions of inquiry to investigate international law violations, often in contexts of armed conflict, under the mandate of the Human Rights Council or other more political organs of the UN. They vary in mandate, as well as in investigative and geographic scope. However, to this day, fact-finding mechanisms or inquiry commissions have only rarely conducted investigations into corporate crimes, even in cases where the UN has explicitly recognized the part played by economic actors in armed conflicts. Because corporations are not subjects of international law, they are presumed not to have any direct obligations under international law. Moreover, the mandates of fact-finding missions de facto exclude corporations from investigations because such mandates are always designed to investigate international law violations. By voluntarily dismissing any investigation of corporate crimes, the UN is significantly limiting prospects for corporate responsibility and impeding the process of transitional justice.

Commercial Companies as Applicants before the European Court of Human Rights

The status of commercial companies in international human rights law is controversial. Despite efforts to subject them to legal obligations in this field, they still cannot be held accountable for human rights violations. Companies have a standing before a few international courts, but only one international human rights court – the European Court of Human Rights. Surprisingly though, they can be applicants but never respondents. Even though this has been the reality for several decades now, it still raises a lot of concerns among academics. The Court itself justifies its decisions very sparingly. Meanwhile the scope of protection for companies constantly increases through its jurisprudence. Some rights, originally clearly designed to protect human beings, today apply to corporations as well.

Drafting an International Legally Binding Instrument on Business and Human Rights

This article deals with the process of creating a convention in the field of human rights, the working name of which is the ‘International Legally Binding Instrument on Business and Human Rights’. The author analyses the existing legal grounds for the responsibility of business for human rights violations in international law. She has assessed non-binding instruments, leading her to draw the conclusion that mechanisms strengthening protection are required in human rights protection law. The process of the creation of a new convention itself is subjected to an in-depth review. A special place is given to the issue of the position of a victim of human rights violations committed as a result of the activity of transnational enterprises, the rights of the victims of such violations and the mechanisms of international cooperation in the combatting thereof. In the conclusion the author states that human rights require actions that move beyond existing divisions, and that the work of the intergovernmental group led by Ecuador should be seriously supported by the European Union and the United States.