Mahdev Mohan

Business and Human Rights in Southeast Asia: Risk and the Regulatory Turn - Routledge Research in Human Rights Law Mahdev Mohan 1.º edición

Brief Description: "Today business and human rights has emerged as a distinct field within the broader corporate responsibility movement. The endorsement by the United Nations Human Rights Council of a new set of Guiding Principles for Business and Human Rights in 2011 has been welcomed as the leading global standard for corporations to respect human rights. The Guiding Principles are the culmination of a six year UN commissioned study by Harvard Universitys Professor John Ruggie, which concludes that companies should carry out human rights due diligence to identify, prevent, mitigate and account for how they address their adverse human rights impacts. The Guiding Principles reinforce the state duty to protect against human rights abuses by third parties including business; the corporate responsibility to respect human rights; and greater access by victims to effective remedy, both judicial and non-judicial. This book draws on the UN Guiding Principles to provide an overview of developments within the ASEAN region in relation to business and human rights. Bridging theory and practice, chapter authors will discuss the implications of key case-studies undertaken across the region, with a particular focus on extractive industries, migration and infrastructure projects. Topics covered include: due diligence and the role of audits; the role CSR can play in achieving sustainable socio economic development; businesses responsibilities to migrant workers; and the prevention of human rights abuses in states with weak levels of governance. The book aims to shed light on how ASEAN States currently understand and approach business and human rights challenges, and how the role played by ASEAN States may be strengthened and expanded. In doing so it clearly identifies the key themes, opportunities and challenges that lie ahead for the region in relation to business and human rights"--Biographical Note: Mahdev Mohan is Assistant Professor of law and directs the Asian Business & Rule of Law initiative at the Singapore Management University. A former Fulbright scholar, Mahdev's research and writing in the fields of international law and conflict resolution have been awarded Stanford University's Carl Mason Franklin Jr. Prize for International Law and the Richard S. Goldsmith Research Grant for International Conflict and Negotiation. He has a background in commercial & international dispute resolution, and is an Associate Member of Temple Garden Chambers public international law practice. He is also the Executive Director of the Society of International Law (Singapore). Mahdev is the editor of the Journal of East Asia and International Law and writes on international law, investment arbitration and human rights in Asia. Mahdev represents genocide victims before the UN-backed Khmer Rouge Tribunal. He is a member of the Africa/Asia coalition that has been commissioned by the United Nations Working Group on Business & Human Rights to assist with crafting a structured template for use by business, government and civil society. Cynthia Morel has been an adviser to the Asian Business & Rule of Law initiative at the Singapore Management University since 2011. In that capacity, she has contributed to submissions to various bodies, including the UN Working Group on Human Rights and Transnational Corporations. She additionally helped conceptualize and coordinate SMU s first Summer Institute on Business and Human Rights in 2012; an initiative which informed this publication. Morel has concurrently served as a consultant to ASEAN-based and international NGOs on matters relating to large-scale land acquisitions; community stakeholder engagement; and advocacy strategies for rights-based development. Prior to moving to Asia, Morel established Minority Rights Group International s strategic litigation programme in 2002. In her capacity as founding legal officer, and later as senior legal advisor, she spearheaded landmark cases before the European Court of Human Rights and the African Commission on Human and Peoples Rights. She has also litigated on behalf of the Open Society Justice Initiative."Marc Notes: Includes bibliographical references and index.; Today business and human rights has emerged as a distinct field within the broader corporate responsibility movement. The endorsement by the United Nations Human Rights Council of a new set of Guiding Principles for Business and Human Rights in 2011 has been welcomed as the leading global standard for corporations to respect human rights. The Guiding Principles are the culmination of a six year UN commissioned study by Harvard Universitys Professor John Ruggie, which concludes that companies should carry out human rights due diligence to identify, prevent, mitigate and account for how they address their adverse human rights impacts. The Guiding Principles reinforce the state duty to protect against human rights abuses by third parties including business;the corporate responsibility to respect human rights;and greater access by victims to effective remedy, both judicial and non-judicial. This book draws on the UN Guiding Principles to provide an overview of developments within the ASEAN region in relation to business and human rights. Bridging theory and practice, chapter authors will discuss the implications of key case-studies undertaken across the region, with a particular focus on extractive industries, migration and infrastructure projects. Topics covered include: due diligence and the role of audits;the role CSR can play in achieving sustainable socio economic development;businesses responsibilities to migrant workers;and the prevention of human rights abuses in states with weak levels of governance. The book aims to shed light on how ASEAN States currently understand and approach business and human rights challenges, and how the role played by ASEAN States may be strengthened and expanded. In doing so it clearly identifies the key themes, opportunities and challenges that lie ahead for the region in relation to business and human rights--; Provided by publisher.; This book draws on the UN Guiding Principles for Business and Human Rights to provide an overview of developments within the ASEAN region in relation to business and human rights. Bridging theory and practice, chapter authors will discuss the implications of key case-studies undertaken across the region. The book aims to shed light on how ASEAN States currently understand and approach business and human rights challenges, and how the role played by ASEAN States may be strengthened and expanded. In doing so it clearly identifies the key themes, opportunities and challenges that lie ahead for the region in relation to business and human rights--; Provided by publisher. Table of Contents: Acknowledgements -- Table of cases -- Table of legislation -- Introduction -- Part I. Concepts -- 1. The Council of Europe, transitional justice and the universality of human rights -- 1.1. The Council of Europe -- 1.1.1. The Council of Europe, human rights and democracy -- 1.1.2. The Genesis of the European Convention on Human Rights -- 1.1.3. Enlargement of the Council of Europe -- 1.1.4. Implications of enlargement -- 1.2. Transitional justice -- 1.2.1. The Council of Europe and dismantling communism -- 1.2.2. Transitional justice -- 1.2.3. Transitional justice in the Council of Europe -- 1.2.4. Transitional justice and human rights: the odd couple -- 1.3. The universality of human rights and transitional relativism -- 1.3.1. The universality debate -- 1.3.2. The universality debate at the ECHR: the margin of appreciation -- 1.3.3. Transitional justice and universality -- 1.4. Conclusion -- Part II. Cases -- Section A. The ECHR and transitional policies -- A.1. Introduction -- 2. Transitional criminal justice: prosecution and amnesty -- 2.1. Introduction -- 2.2. Successor trials and retroactivity -- 2.2.1. Setting the tone: the Berlin Wall cases -- 2.3. Dealing with the communist past -- 2.3.1. The developing orthodoxy -- 2.3.2. Korbely v Hungary -- 2.4. Dealing with the pre-Communist past: the Kononov case and 'historical truth' -- 2.5. Conclusion -- 3. Openness, secrecy and historical justice -- 3.1. Introduction -- 3.2. The right to truth -- 3.3. PACE Resolution 1096 and historical justice -- 3.4. The Convention as a foundation for access to secret information -- 3.4.1. Access to secret information during lustration proceedings -- 3.4.2. Openness and historical research -- 3.5. Historical justice, memorialisation and matters of 'purely historical fact' -- 3.6. Conclusion -- 4. Reparatory justice and the restitution of property -- 4.1. Introduction -- 4.1.1. International human rights law as a basis for reparatory justice -- 4.1.2. PACE and reparatory justice -- 4.2. The European Convention as a foundation for restitution claims -- 4.2.1. Temporal scope of the Convention -- 4.2.2. Material scope of the Convention -- 4.3. The European Convention and the supervision of restitution schemes -- 4.3.1. The 'legitimacy' of restitution schemes -- 4.3.2. The scope of restitution policies -- 4.3.3. Proportionality and a fair balance': reparatory justice for victims of communism -- 4.3.4. Proportionality and a fair balance': effecting constitutional and economic reforms -- 4.4. Procedural justice and restitution -- 4.4.1. Positive obligations -- 4.4.2. The applicability of Article 6 ECHR to restitution proceedings -- 4.4.3. The effect of Article 6 ECHR on restitution proceedings -- 4.4.4. Reparatory justice and 'pilot judgments' -- 4.5. Conclusion -- 5. Lustration -- 5.1. Introduction -- 5.1.1. The European Court's early approach to lustration: pre-PACE Resolution 1096 -- 5.1.2. PACE Resolution 1096 and lustration -- 5.2. The European Convention and the 'legitimacy' of lustration processes -- 5.3. Proportionality in the lustration process -- 5.4. Procedural justice and lustration -- 5.4.1. The applicability of Article 6 ECHR to lustration processes -- 5.4.2. The effect of Article 6 on lustration processes -- 5.5. Conclusion -- Section B. Democratic rights in the transitional context -- B.1. Introduction -- B.2. The centrality of democracy in the ECHR -- B.3. Democratic rights in the European Convention -- B.4. Article 17 and 'gatekeepers' of the democratic rights -- 6. Freedom of expression -- 6.1. Introduction -- 6.1.1. The media and political speech: a recipe for' reservations? -- 6.2. Freedom of expression: 'transitional' arguments by the Respondent State -- 6.3. Freedom of expression: 'echoes' of totalitarianism and systemic problems -- 6.3.1. Press intimidation and censorship -- 6.3.2. Political expression about the transition itself -- 6.3.3. 'Wild' lustration and the relationship between Articles 8 and 10 ECHR -- 6.4. Conclusion -- 7. Freedom of assembly and (religious) association -- 7.1. Introduction -- 7.2. Freedom of peaceful assembly -- 7.2.1. Freedom of assembly: 'transitional' arguments by the Respondent State -- 7.2.1.1. Clarifying 'peaceful' assembly in transition -- 7.2.2. Freedom of assembly: 'echoes' of totalitarianism and systemic problems -- 7.2.2.1. A culture of popular protest -- 7.2.2.2. A culture of popular protest and content-based restrictions -- 7.2.2.3. Notification regimes and spontaneous assemblies -- 7.2.2.4. The quality of domestic law and freedom of peaceful assembly -- 7.2.2.5. Procedural justice and freedom of peaceful assembly -- 7.2.2.6. Freedom of peaceful assembly and emergency situations -- 7.2.3. Conclusions on freedom of assembly -- 7.3. Freedom of association -- 7.3.1. 'Transitional' arguments by the Respondent State -- 7.3.1.1. Communist parties, extremism and separatism: 'self-defending' democracy -- 7.3.1.1.1. The 'classic' law: the German post-war Basic Law and 'wehrhafte Demokratie' -- 7.3.1.1.2. Building on the 'classic1 law: events in Turkey -- 7.3.1.1.3. The post-Cold War era -- 7.3.1.1.4. Self-defending democracy: ethnic and national tensions in transition -- 7.3.1.1.4.1. Macedonians in Bulgaria -- 7.3.1.1.4.2. Bulgarians in Macedonia -- 7.3.1.1.5. Reflections on communist parties, extremism and separatism: 'self-defending' democracy -- 7.3.1.2. Decontaminating the state apparatus -- 7.3.1.3. Religion as a stabilising factor -- 7.4. Freedom of association: 'echoes' of totalitarianism and systemic problems -- 7.4.1. Conclusions on freedom of association -- 8. Free elections -- 8.1. Introduction -- 8.2. 'Transitional' arguments by the Respondent State -- 8.2.1. The legacy of Zdanoka: 'self-consolidating' democracies, transitional relativism and the question of timing -- 8.3. Free elections: 'echoes' of totalitarianism and systemic problems -- 8.3.1. Loyalty and fitness to stand for election -- 8.3.2. Ethnicity and nationality-based restrictions: the question of timing revisited -- 8.4. Conclusion -- Part III. Conclusions -- 9. Universality in transition -- 9.1. Does the European Court of Human Rights 'do' transitional justice? -- 9.1.1. The first level of interaction -- 9.1.2. The second level of interaction -- 9.1.2.1. Collaborators and communists -- 9.1.2.2. The use and abuse of legitimate aims -- 9.1.2.3. Precision of the restrictive measure/proximity to the transition -- 9.1.2.4. Self-consolidating democracy -- 9.1.3. Fashioning a transitional jurisprudence -- 9.1.4. Applying the transitional jurisprudence -- 9.2. Universality in transition: implications of transitional relativism -- Index. Publisher Marketing: Business and human rights has emerged as a distinct field within the corporate governance movement. The endorsement by the United Nations Human Rights Council of a new set of Guiding Principles for Business and Human Rights in 2011 reinforces the State's duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights; and greater access by victims to effective remedy, both judicial and non-judicial. This book draws on the UN Guiding Principles and recent national plans of action, to provide an overview of relevant developments within the ASEAN region. Bridging theory and practice, the editors have positioned this book at the intersection of human rights risk and its regulation. Chapter authors discuss the implications of key case-studies undertaken across the region and various sectors, with a particular focus on extractive industries, the environment, and infrastructure projects. Topics covered include: due diligence and the role of audits; businesses' responsibilities to women and children; and the mitigation of human rights risks in the region's emerging markets. The book sheds light on how stakeholders currently approach business and human rights, and explores how the role of ASEAN States, and that of the institution itself, may be strengthened. In doing so, the book identifies critical challenges and opportunities that lie ahead for the region in relation to business and human rights. This book will be of excellent use and interest to scholars, practitioners and students of human rights, business and company law, international law, and corporate governance.