In 2021, the first-ever Ukrainian business and human rights strategy and action plan were approved. Although a positive political shift, the Government-led endevour failed dismally. This piece explores the drafting process and content of the policy in question, its many shortcomings and the possible way forward as business and human rights becomes even more pressing matter in times of war and in post-conflict context.

The war in the former Yugoslavia produced many highly trained and experienced combatants, some of whom engaged not only in a variety of organized criminal activities such as the illicit trade of natural resources, trafficking and corruption, but also war crimes. In the post-war environment various criminal groups took advantage of post-conflict transition conditions which enabled them to be transformed into legitimate legal entities. The failure to investigate and hold to account those involved in criminal activity meant that demobilized soldiers turned to highly profitable, legally constituted private military and security companies (PMSCs). This is coupled with poorly designed security sector reforms that often fail to enhance effective and accountable security that is respectful of human rights. In recent years, similar transformations of many former combatants and criminal groups into legitimate PMSCs around the globe have raised new concerns about their growing activities across different sectors. This article uses the former Yugoslavia as an example from which to highlight some of the increasingly common problems posed by the creation of private military and security providers globally, as a result of the current uncoordinated processes to prevent armed conflicts. The article reflects on the need to avoid smart sanctions and use other foreign policy tools, while calling for an integrated approach to security sector reform and transitional justice that is necessary for sustainable peace.

This article utilizes a ‘rituals-ritualism’ framework to assess the perils and potentials of relying upon mandatory human rights due diligence (mHRDD) laws to regulate the behaviour of transnational corporations (TNCs). This framework offers a socio-legal perspective that seeks to show how law is both influenced by and influences the social context within which it operates, i.e., the socially embedded operation of law.1 It has been advanced as a useful rubric for assessing whether and how states comply with human rights treaties,2 but can be extended to an assessment of mHRDD laws. Ultimately, this article hypothesizes that the potential regulatory effectiveness of mHRDD laws hinges on the extent to which HRDD obligations are transformed into rituals akin to cultural norms. In the absence of such a transformation, ritualism in HRDD will only further entrench a problematic status quo that has allowed TNCs to externalize the human rights and environmental impacts of their activities.

In its 2019 report to the Human Rights Council, the United Nations (UN) Working Group on business and human rights emphasized that ‘gender-transformative’ remedies can bring ‘change to patriarchal norms and unequal power relations that underpin discrimination, gender-based violence and gender stereotyping’. This article aims to deepen our knowledge of such remediation for women human rights defenders who fight against corporate human rights abuses. Human rights remediation is highly fragmented. This has the advantage that remedies at one level can offer sources of learning for remedies at other levels. This article uses relevant communications that the UN Special Rapporteur on the situation of human rights defenders sent to states and corporations jointly with other Special Procedures (including the UN Special Rapporteur on violence against women and girls, its causes and consequences and the UN Working Group on discrimination against women and girls in law and practice) between 2011 and 2020 as a source of learning.

This article opines that corporations should utilize leverage in procurement contracts with states to prevent human rights abuses. Capitalizing on leverage over state business partners should be understood as an under-explored but intriguing dimension to the advancement of human rights. This article uses the example of the Pfizer-Israel procurement contract to provide mRNA COVID-19 vaccinations as a case study. While the Pfizer-Israel contract required Israeli governmental compliance with various laws, and referenced other legal obligations, no reference to human rights, such as the right to informed consent, was referenced in any contractual provision. The failure of Pfizer to insert contractual provisions regarding the Israeli government’s duty to obtain informed consent provides a glaring exemplar of a missed corporate opportunity to fulfil the corporate responsibility to respect human rights.

Investor–state dispute settlement (ISDS) has been heavily criticized from the perspective of human rights. However, the potential adverse human rights impacts of ISDS and the responsibilities of businesses to avoid causing or contributing to those impacts under the UN Guiding Principles on Business and Human Rights have yet to be spelled out. Although states are currently reforming ISDS, progress has been slow, and businesses have an independent responsibility to ensure that their operations do not harm human rights. Against this background, this article unpacks how businesses might contribute to three non-exhaustive examples of potential human rights impacts of ISDS: namely, the chilling effect on human rights regulation, crippling mega-awards and direct impacts on third-party rights. This article breaks new ground by exploring how human rights due diligence could be a useful tool for businesses to identify and address these impacts.

Non-judicial remedies for corporate human rights abuses have a viable and complementary role to judicial remedies in mature jurisdictions, although in Ukraine the ‘bouquet’ of effective remedies is more of a still-life. The national mediation community is gaining momentum and the authors argue that mediation may take place within state-based non-judicial remedies when institutionalized by the office of the Ombudsman. The objective of this article is to scrutinize the rule of law, access to justice, and the effectiveness criteria of the UNGPs with regard to mediation. The authors conclude that mediation can meet all of the effectiveness criteria requirements and special effort should be devoted to addressing the challenges of power imbalances between parties, the confidential nature of mediation and the public demand for transparency, to ensure that mediation outcomes are in accord with internationally recognized human rights. Based on the findings, the authors suggest that a state-based business and human rights mediation scheme, in line with the UNGPs’ effectiveness criteria, should have its own three pillars, namely, accessibility, availability and awareness, with quality assurance as its cornerstone.

This article argues for a fundamental raison d’être reconceptualization of international investment law (IIL) through Martha Fineman’s ‘vulnerability theory’. The theory helps identify the structural sources of IIL’s shortcomings, whilst philosophically challenging the one-sided view that foreign investors are entitled to protections, but are free from obligations vis-à-vis the communities affected by their undertakings. Emphasizing the productive power of the state to take positive action that acknowledges ordinary citizens’ embeddedness within, and dependence upon, surrounding structures, the vulnerability theory challenges the hegemonic perception of the state as a source of danger – a view which has hitherto undermined both the potency and the enforceability of investor obligations. Used as a heuristic device in studying both IIL’s existing structures and the potential avenues for reimagining it, Fineman’s theory not only shines a novel light on the foundational premises of IIL, but also grants theoretical traction to existing ideas about improving the system.

This piece recounts the efforts by NGO Sign of Hope (SoH) to rectify human rights violations in South Sudan, which manifested themselves as drinking water pollution by the oil industry. Committed to exposing and remediating this water contamination, SoH was able to prompt the automobile company Daimler’s CSR to engage in extended dialogue with the oil industry stakeholders in Unity State. Despite a tactful use of various methods ranging from cooperation to confrontation, SoH’s campaign did not lead the oil producers to reverse the harm inflicted on the people of Unity State. When SoH tried to hold these companies accountable, SoH had the impression that it was hitting an elastic wall. This piece identifies lessons which may help to counter corporate human rights violations and compensate for the weakness of CSR in fragile states and in the face of corporate irresponsibility.

The scale and scope of the climate crisis and its drastically worsening impacts means that even as a ‘climate due diligence’ obligation is increasingly taking shape as a dimension of human rights due diligence, there is also growing evidence of the limitations of this emerging norm. This article provides four critiques of climate due diligence based on its insufficiency, its conceptual ambiguity, its operational limitations, and its structural limitations. It argues that these critiques could be addressed by regulatory reform that draw clear ‘red lines’ based on the need to prevent the development of any new fossil fuel and address the ‘corporate capture’ of regulatory institutions by the fossil fuel industry. Additionally, it calls for reparations to ensure effective access to a remedy for existing and potential future climate-related human rights impacts that business has caused or contributed to.

The take-up of mandatory human rights due diligence (HRDD) initiatives by states is continuously gaining momentum. There are now numerous states adopting some form of HRDD laws. While corporations being duly diligent in respecting human rights is a positive step towards addressing problems of business and human rights, these HRDD initiatives on their own may only be a form of window-dressing, that is, enabling states to put a smart spin on their efforts to address business and human rights issues without addressing some of the root causes of that predicament. As a result, HRDD laws are likely to be a helpful, but insufficient tool for addressing corporate abuse of human rights. One reason for this is because the root cause of many business and human rights problems is the structural elements and goals of corporate law facilitates corporate violations of human rights. So long as states fail to transform the way in which corporations operate – in part, by reconceptualizing corporate law – even the best drafted HRDD laws will be inadequate to halt corporate harms.

There is currently disagreement in the international sports world about whether Russian and Belarusian athletes should be admitted to international competitions. While initially proposing to ban these athletes, the International Olympic Committee (IOC) is now recommending that sports federations readmit Russian and Belarusian athletes under certain conditions. The IOC believes that this is unavoidable in order to respect human rights. Sports federations are invoking their autonomy on this issue, with some following the IOC’s advice, some maintaining a ban, and others allowing unconditional participation. This piece seeks to correct the IOC’s interpretation of the applicable human rights standard. It asserts that sporting bodies must respect human rights, and that the principles of autonomy and neutrality of sport must be considered in light of internationally recognised human rights standards. If these are used as a yardstick, it becomes clear that collective exclusion can be justified in the extreme case of a war of aggression.

This article analyses a domestic litigation matter seeking to establish accountability for air pollution-related human rights violations. It examines how the judiciary applied national and international law to dismiss the case on procedural grounds. It argues that the domestic case deserves careful reading for a number of reasons that can be distilled into two premises. Firstly, the national legal framework and its respective judicial interpretation impede access to justice for victims of state and/or corporate human rights violations. Secondly, it is essential that the state develops laws and policies in line with the United Nations Guiding Principles on Business and Human Rights, which would allow claimants to focus their argumentation on material, rather than procedural issues relevant to proving the merits of the case.

This piece analyses the recent judgment from the Makhanda High Court in Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy setting aside the decision to grant Shell and Impact Africa an exploratory right. Shell and Impact Africa intended to conduct a seismic survey along South Africa’s Wild Coast. Such a survey stood to have a substantial impact on the rights and interests of several local communities residing along the coastline. Because Shell, Impact Africa and the Director-General of the Department of Mineral Resources and Energy failed to consider these rights and interests, the court decided to overturn the decision granting the companies their exploratory right. To this end, the judgment provides a powerful vindication of the rights of local communities, illustrating what is possible when regulatory schemes are applied purposively and not as a mere box-ticking exercise.

Since 2017, the government of the People’s Republic of China has heightened repression of Uyghur and other minorities in the Xinjiang Uyghur Autonomous Region (XUAR). Repressive tactics involve family separations, mass incarceration, forced labour and cultural indoctrination. This has been accompanied, in recent years, with an aggressive industrialization of the area which relies heavily on the forced labour of Uyghur and other minorities. The automotive industry, in particular, has expanded into the region. This piece describes China’s push of heavy industry into XUAR and recent findings by Sheffield Hallam University and NomoGaia of abuses against Uyghurs and their links to the global automotive sector. It then explains the methodology employed by NomoGaia in its co-authored report with scholars from Sheffield Hallam University for linking abuses in the XUAR to global brands, and proposes a way forward for the industry.

The United Nations Guiding Principles on Business and Human Rights conceive of human rights due diligence (HRDD) as covering potential impacts across value chains, including downstream. The proposed EU Corporate Sustainability Due Diligence Directive and the revision process of the OECD Guidelines for Multinational Enterprises have sparked renewed discussion on how and whether companies should conduct HRDD downstream to identify and prevent or mitigate adverse human rights impacts. Whilst some debate has occurred previously on downstream HRDD, this has predominantly centred on specific sectors, products and services where the links to egregious human rights harms may be more readily identifiable. This piece seeks to inform the current debate by broadening the examples of sectors, products and services and current business practice which demonstrate the critical need for, and ability of, companies to consider human rights risks downstream.

This DiF paper analyses the 2021 Consultations for Central & Eastern Europe and Central Asia, conducted as part of the process underlying the United Nations Working Group ‘Report on human rights-compatible international investment agreements’. These consultations led to three unique conclusions concerning International Investment Agreements (‘IIAs’), which were absent in other consultations: (i) the ‘regulatory chill’ caused by IIAs with respect to human rights regulations is moot in authoritarian and ‘hybrid’ regimes in this region, (ii) IIAs tend to be perceived in this region as tools to protect human rights, which can spill over to other areas of socio-economic life, and as a source of inspiration and a model for building similar protections in such other areas, and with the potential to (iii) have a positive impact on the development of domestic laws (and their relationship with the rule of law and good governance reforms in developing host states).

This article examines the under-researched, inter-connected issues of substantive remedy and a role for Organization for Economic Cooperation and Development (OECD) National Contact Points (NCPs) to complement judicial remedy regimes involving civil liability for companies in home-state jurisdictions. Even where access to judicial procedural remedy exists, it need not ensure substantive remedy. Legal and economic resource-based power-disparities between parties can reduce victims’ opportunities to present and argue their case; and courts offer limited substantive remedy options compared with the types listed by the United Nations Guiding Principles on Business and Human Rights. The article argues that combining access to NCPs and judicial remedy offers important opportunities to address well-recognized challenges for victims’ access to substantive remedy, especially with strong NCPs. NCPs can operate in ways that courts normally cannot, to help give victims voice and a choice of substantive outcome. The European Union’s Corporate Sustainability Due Diligence Directive (CSDDD) proposal serves as a cue for the analysis. However, the issue is relevant for any OECD member or the OECD Guidelines adherent state.

Governments sometimes adopt policies that are not aligned with their preferences or have not come onto their agendas when doing so is linked to a reward. International organizations can therefore set conditions for coveted membership that include adopting new human rights and regulatory policies. As international organizations increasingly converge around the UN Guiding Principles on Business and Human Rights, how might they promote national uptake of these guidelines? This article considers the prospects of accession conditionality in answering this question. The focus of the article is on European Union and Organization for Economic Cooperation and Development (OECD) expansion in Central and Eastern Europe, where uptake of business and human rights policies remains comparatively low. The article argues that while these organizations increasingly include business and human rights conditionalities in accession negotiations, there remains significantly greater scope for promoting the Guiding Principles.

This paper analyses five constitutional developments in Central and Eastern Europe that can impact the domestic implementation of the UN Guiding Principles on Business and Human Rights (UNGPs). Using Czechia, Poland and Slovenia as examples, the paper highlights four potential drivers, namely: (1) the process of constitutionalizing human rights; (2) the proliferation of the doctrine of horizontal effect of constitutional rights; (3) the constitutional legitimacy of state intervention in the free market economy; and (4) the mechanism of judicial review. Furthermore, the author underlines the most significant challenge, which is increasing resistance to international norms in some countries, e.g., Poland. The paper concludes that the jurisprudence of the constitutional courts can facilitate the domestic implementation of the UNGPs, particularly Pillars I (State duty to protect human rights) and III (access to remedy).