G. mary rumsey, international human rights aspects of multinational enteprises as non-state actors




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MATERIALS ON NON-STATE ACTORS (INCLUDING BUSINESSES) AND HUMAN RIGHTS


(to be discussed October 7, 2005)


© 2005 David Weissbrodt, University of Minnesota Law School


A. QUESTIONS i


B. U.N. AND OTHER INTERNATIONAL HUMAN RIGHTS LAW

RELEVANT TO THE RESPONSIBILITIES OF BUSINESS 1


  1. COMMENTARY ON THE NORMS ON THE REPONSIBILITIES OF

TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS

ENTERPRISES WITH REGARD TO HUMAN RIGHTS 11


D. ARTICLE ABOUT THE HUMAN RIGHTS NORMS 31


E. REPORT OF THE U.N. HIGH COMMISSIONER FOR HUMAN RIGHTS 62


F. COMMISSION ON HUMAN RIGHTS RES. 2005/69 88


G. MARY RUMSEY, INTERNATIONAL HUMAN RIGHTS ASPECTS OF MULTINATIONAL ENTEPRISES AS NON-STATE ACTORS:

BIBLIOGRAPHY 90


___________________________________________________________________________

MATERIALS ON MULTINATIONALS AND

HUMAN RIGHTS


In preparation for the classes, please consider the following questions in light of the materials provided below and be prepared to refer to specific textual references in support of your responses.


A. QUESTIONS


What do provisions of international human rights and humanitarian law say about the obligations of transnational corporations and other business enterprises?


How does the Universal Declaration of Human Rights relate to business?


How does the International Covenant on Economic, Social and Cultural Rights relate to business?


How has the Committee on Economic, Social and Cultural interpreted the Covenant with regard to the responsibilities of business?


How does the International Covenant on Civil and Political Rights relate to business?


How does the International Convention on the Elimination of Racial Discrimination relate to the responsibilities of business?


How does the Convention on the Elimination of All Forms of Discrimination against Women relate to the responsibilities of business?


How does the Rome Statute of the International Criminal Court relate to the responsibilities of business?


What other provisions of international law relate to the human rights responsibilities of business?


What are the international legal obligations of such non-state actors as

businesses?


How can the international legal obligations of individuals be related to the responsibilities of businesses?


How can the international legal obligations of governments be related to the responsibilities of businesses?


What does the U.N. Secretary-General’s Global Compact contribute to the human rights and related responsibilities of business?


How has the Global Compact been received by (a) business, (b) the human rights community, (c) unions, and (d) others? How should they be received?


Are voluntary standards helpful for encouraging corporate social responsibility?


Are voluntary standards adequate for encouraging corporate social responsibility?


What does the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy contribute to the human rights and related responsibilities of business?


What contribution did the Sub-Commission and its Working Group make to the development of international human rights law as to the responsibilities of business?


Was it confusing for the Sub-Commission and its Working Group to draft further standards?


What is the relationship of the Norms of Responsibility to existing international human rights law?


Do the Human Rights Norms of Responsibility simply constitute a restatement of existing law or do they reflect a significant change? Is the change an improvement?


How do the Human Rights Norms deal with the international legal obligations of such non-state actors as businesses?


What is the relationship of the Human Rights Norms to the Global Compact and the ILO Tripartite Declaration?


How have the Human Rights Norms been received by (a) business, (b) the human rights community, (c) unions, and (d) others? How should they be received?


Do you agree that the primary objective of business is to gain profit? If not, what is the primary objective?


Do the Human Rights Norms conflict with the primary objective of business, that is, to gain profit for the owners?


What other issues have been raised with regard to the Norms?


What other criticisms would you make of the Norms?


How would you respond to the criticisms that have been or could be leveled at the Norms?


Should the Human Rights Norms apply to corporations, businesses, business enterprises, or some other formulation?


Should the Human Rights Norms apply to (a) transnational businesses only, (b) only multinational businesses, (c) only large businesses, (d) all businesses, or (e) some other formulation?


Is it realistic for the Human Rights Norms to apply to small businesses?


Commentary 4(d) provides, “Transnational corporations and other business enterprises shall ensure that guards in their employ are adequately trained and guided by the relevant international limitations and that the guards use caution with regard, for example, to the use of force and firearms.” Is that standard realistic for small companies? How could the Norms/Commentary be interpreted to make that standard realistic?


How do the Human Rights Norms handle these questions of nomenclature? Is that approach correct?


Are the definitions in the Human Rights Norms adequate to reach the

actors to which standards should apply? Do they attempt to impose a one-size-fits-all approach to a variegated reality which is not capable of such a uniform approach? How can the Norms be improved in this regard?


Are the Human Rights Norms “hard law,” “soft law,” “voluntary,” or something else? How do you know?


What is the meaning of “hard law” or “soft law”?


How do the Human Rights Norms relate to these concepts?


What subjects should the Norms cover? Civil and political rights; economic, social and cultural rights; the right to development; humanitarian law; international labor law; environmental law; consumer protection law; anti-bribery/anti-corruption law; intellectual property law; other aspects of international law; and/or other subjects?


What subjects do the Norms cover?


Can the very comprehensive definition of human rights in the Norms be justified?


Is the name “Norms” appropriate for this document? What other name might have been better? Human Rights Principles, Principles and Responsibilities, Body of Principles, Guidelines, Universal Principles, Fundamental Principles, Standards, Code of Conduct, Body of Principles, Declaration, Rules, etc.?


Does it make a difference?


What implications do each of these names carry?


How should the Human Rights Norms handle the identification of the kinds of discrimination that should be forbidden? Compare the approach of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the ILO Tripartite Declaration, the Human Rights Norms, etc.


What is the significance of the additional kinds of discrimination listed in the Commentary?


Should the Human Rights Norms forbid all child labour?


How do the Human Rights Norms handle this subject? Is that approach correct?


How do the Human Rights Norms and Commentary handle limitations on the number of hours worked during a week? Is that approach sensible?


How do the Human Rights Norms handle differences in the wages/salaries paid to workers in different countries, in different businesses, etc.? Is that approach sensible?


How do the Human Rights Norms deal with situations in which international law is more protective of human rights than national or local law? Is there a better approach? Does the Commentary indicate a different approach?


Commentary 3(b) of the Human Rights Norms states: “Transnational corporations and other business enterprises shall not produce or sell weapons that have been declared illegal under international law. Transnational corporations and other business enterprises shall not engage in trade that is known to lead to human rights or humanitarian law violations.”


Is that provision realistic?


Should the Human Rights Norms forbid the production, marketing, etc. of tobacco products?


Does it make a difference whether the Human Rights Norms have been approved by the (a) Working Group on the Working Methods and Activities of Transnational Corporations and (b) the Sub-Commission on the Promotion and Protection of Human Rights? Should the Norms be approved by (c) the Commission on Human Rights, (d) the Economic and Social Council, and/or (e) the General Assembly of the United Nations?


Is it realistic to expect the Human Rights Norms to be adopted by each of the above U.N. organs?


How long will the process take? Will the world wait?


Will it make a difference if the Norms are adopted without the Commentary?


What is the status of the Commentary?


Are there other ways to promulgate and endorse the Human Rights Norms?


How can the Human Rights Norms be used by (a) governments, (b)

international organizations (c), businesses, (d) trade associations, (e) unions, (f) other nongovernmental organizations, (g) investors, (h) consumers, and (i) others?


What implementation procedures do the Human Rights Norms provide?


What use could courts, legislatures, and executive departments make of the Human Rights Norms?


What further implementation can you anticipate for the Human Rights Norms?


What other approach(es) to implementation would you suggest?


What more should be done to protect human rights in regard to the conduct of businesses?


What is the status of the Human Rights Norms in the U.N.?


* * * * * * * * * *

B. U.N. AND OTHER INTERNATIONAL HUMAN RIGHTS LAW

RELEVANT TO THE RESPONSIBILITIES OF BUSINESS


Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).


The General Assembly,


Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction. . . .


Article 2


Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. . . .


Article 30


Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.


* * * * * * * * *

International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21

U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976.


Article 2


1. Each State Party to the present Covenant undertakes to take steps, individually and through

international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.


2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. . . .


Article 5


1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant. . . .


Article 11


1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. . . .


Article 12


1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. . . .


2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: . . .


(b) The improvement of all aspects of environmental and industrial hygiene;


(c) The prevention, treatment and control of epidemic, endemic, occupational and other

diseases;


(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.


* * * * * * * * *


Committee on Economic, Social and Cultural Rights, General Comment 12, Right to

adequate food (Art. 11), U.N. Doc. E/C.12/1999/5 (1999) (emphasis added).

20. While only States are parties to the Covenant and are thus ultimately accountable for compliance with it, all members of society - individuals, families, local communities, non-governmental organizations, civil society organizations, as well as the private business sector - have responsibilities in the realization of the right to adequate food. The State should

provide an environment that facilitates implementation of these responsibilities. The private business sector – national and transnational - should pursue its activities within the framework of a code of conduct conducive to respect of the right to adequate food, agreed upon jointly with the Government and civil society.


* * * * * * * * *


Committee on Economic, Social and Cultural Rights, General Comment 14, The right to the highest attainable standard of health, U.N. Doc. E/C.12/2000/4 (2000) (emphasis added).


Violations of the obligation to respect


50. Violations of the obligation to respect are those State actions, policies or laws that contravene the standards set out in article 12 of the Covenant and are likely to result in bodily harm, unnecessary morbidity and preventable mortality. Examples include the denial of access to health facilities, goods and services to particular individuals or groups as a result of de jure or de facto discrimination; the deliberate withholding or misrepresentation of information vital to health protection or treatment; the suspension of legislation or the adoption of laws or policies that interfere with the enjoyment of any of the components of the right to health; and the failure of the State to take into account its legal obligations regarding the right to health when entering into bilateral or multilateral agreements with other States, international organizations and other entities, such as multinational corporations.


Violations of the obligation to protect


51. Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to health by third parties. This category includes such omissions as the failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to health of others; the failure to protect consumers and workers from practices detrimental to health, e.g. by employers and manufacturers of medicines or food; the failure to discourage production, marketing and consumption of tobacco, narcotics and other harmful substances; the failure to protect women against violence or to prosecute perpetrators; the failure to discourage the continued observance of harmful traditional medical or cultural practices; and the failure to enact or enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries.


* * * * * * * * *


International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR. Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.


Article 2


1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. . . .


Article 5


1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant. . . .


Article 17


1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. . . .


* * * * * * * * *


Human Rights Committee, General Comment 16 (Twenty-third session, 1988), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 21 (1994) (emphasis added).


1. Article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home or correspondence as well as against unlawful attacks on his honour and reputation. In the view of the Committee this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right.


* * * * * * * * *


International Convention on the Elimination of All Forms of Racial Discrimination, 660

U.N.T.S. 195, entered into force Jan. 4, 1969.


Article 2


1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: . . .


(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; . . ..


Article 5


In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:


(e) Economic, social and cultural rights, in particular:


(i) The rights to work, to free choice of employment, to just and favourable

conditions of work, to protection against unemployment, to equal pay for equal

work, to just and favourable remuneration;


(ii) The right to form and join trade unions;


(iii) The right to housing;


(iv) The right to public health, medical care, social security and social services;


(v) The right to education and training; (vi) The right to equal participation in

cultural activities;


(f) The right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafés, theatres and parks. . . .


* * * * * * * * *


Committee on the Elimination of Racial Discrimination, General Recommendation XX (48) on Article 5, U.N. Doc. CERD/48/Misc. 6/Rev. 2 (1996).


5. . . . To the extent that private institutions influence the exercise of rights or the availability of opportunities, the State party must ensure that the result has neither the purpose nor the effect of creating or perpetuating racial discrimination.


* * * * * * * * *


Convention on the Elimination of All Forms of Discrimination against Women, G.A. res.

34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981.


Article 2


States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: . . .


(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; . . .


Article 11


1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:


(a) The right to work as an inalienable right of all human beings;


(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;


(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;


(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;


(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;


(f) The right to protection of health and to safety in working conditions, including the

safeguarding of the function of reproduction. . . .


Article 13


States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: . . .


(b) The right to bank loans, mortgages and other forms of financial credit; . . .


Article 15


1. States Parties shall accord to women equality with men before the law.


2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.


3. States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void. . . .


* * * * * * * * *


Committee on the Elimination of Discrimination against Women, General Recommendation 19, Violence against women, (Eleventh session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 84 (1994).


9. . . . Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.


* * * * * * * * *

Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, adopted July 17, 1998, as corrected by the procés-verbaux of November 10, 1998, July 12, 1999, and May 8, 2000, entered into force July 1, 2002.


Article 5

Crimes within the jurisdiction of the Court


1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:


(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression. . . .


Article 6

Genocide


For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:


(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.


Article 7

Crimes against humanity


1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:


(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. . . .


Article 8

War crimes


1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. . . .


Article 25


Individual criminal responsibility


1. The Court shall have jurisdiction over natural persons pursuant to this Statute.

2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.

3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime;

(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.

4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.


* * * * * * * * *

The Global Compact's Ten Principles

At the World Economic Forum in Davos on 31 January 1999, UN Secretary-General Kofi A. Annan challenged world business leaders to “embrace and enact” a set of universal principles within their sphere of influence in the areas of human rights, labour standards and the environment.

Human Rights

Principle 1

Support and respect the protection of internationally proclaimed human rights.

Principle 2

Business should make sure not to be complicit in human rights abuses.

Labour Standards

Principle 3

Business 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

eliminate discrimination in respect of employment and occupation.

Environment

Principle 7

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.


In 2004 the Secretary-General added


Principle 10


Businesses should work against all forms of corruption, including extortion and bribery.


* * * * * * * * *

International Labour Organization, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, OB Vol. LXXXIII, 2000, Series A, No. 3)

(adopted by the Governing Body of the International Labour Office at its 204th Session (Geneva, November 1977), 17 I.L.M. 422, as amended at its 279th Session (Geneva, November 2000), ILO Doc. GB.277/MNE/3 (2000).

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