THE GLOBAL IMPACT AND IMPLEMENTATION OF HUMAN RIGHTS NORMS G C

GLOBAL CENTER FOR BUSINESS & DEVELOPMENT AND
THE LEGAL INFRASTRUCTURE AND INTERNATIONAL JUSTICE
INSTITUTE
PRESENT
THE GLOBAL IMPACT AND IMPLEMENTATION
OF HUMAN RIGHTS NORMS
Friday March 11, 2011
&
Saturday March 12, 2011
SPONSORED BY:
University of the Pacific, McGeorge School of Law
World Affairs Council of Northern California, Sacramento Chapter
McGeorge International Law Society
American Branch of the International Law Association
Table of Contents
Program Schedule ........................................................................................................................................... 3
Biographical Sketches ................................................................................................................................... 8
The Relationship Between Human Rights Norms and Corporate Governance
Winfried van den Muijsenbergh ..................................................................................................... 17
Larry Backer ...................................................................................................................................... 27
The Environment and Human Rights
Svitlana Kravchenko......................................................................................................................... 45
The Impact of Human Rights Norms on the Law of Intellectual Property
Steven D. Jamar ................................................................................................................................. 56
V.K. Unni .......................................................................................................................................... 61
The Role of Tort Law in Implementing Human Rights Norms
David Partlett .................................................................................................................................... 69
International Human Rights Instruments ............................................................................................ 71
Ratification of International Human Rights Treaties – USA ......................................................... 97
The Universal Declaration of Human Rights .................................................................................... 100
International Covenant on Civil and Political Rights ....................................................................... 109
American Convention on Human Rights ............................................................................................ 141
Council of Europe Convention for the Protection of Human Rights and
Fundamental Freedoms ............................................................................................................................ 167
African Charter on Human and People’s Rights ............................................................................... 191
The Global Impact and Implementation
of Human Rights Norms
Friday and Saturday, March 11 - 12, 2011
Northwest Hall, Room S4 – S5
3200 Fifth Avenue, Sacramento CA 95817
Sponsored by: University of the Pacific, McGeorge School of Law, the World Affairs Council of Northern California,
Sacramento Chapter, the McGeorge International Law Society, and the American Branch of the
International Law Association
About the Symposium
Human rights norms are often studied as an independent body of law with tribunals dedicated to interpreting and
enforcing those norms. However, human rights norms are also increasingly incorporated into the development of
substantive law in fields as diverse as labor law, intellectual property, and armed conflict. The Pacific McGeorge
Symposium will bring together scholars in diverse areas of substantive law to discuss the impact of human rights
norms in their fields.
Some of the questions that the conference will explore include:
• Are human rights norms used to define elements of causes of action, legal responsibility, or defenses?
• How are human rights norms taken into account in law reform efforts?
• Have human rights norms been the driving force behind law reform?
• To what extent is the law of human rights balanced with another area of law in judicial decisions? How is that
balance achieved?
• What are the consequences of greater incorporation of human rights norms?
• What happens when national and international institutions adopt conflicting interpretations of human rights
norms?
• Is fragmentation necessarily problematic or can it serve useful purposes, such as facilitating experimentation
with diverse approaches or providing a check on hegemonic ambitions?
• Alternatively, if harmonization should be a priority in this field, what kinds of processes and institutions are
best positioned to advance it?
Program
Friday, March 11
8:30 a.m.
Conference Registration and Continental Breakfast
9:00 a.m.
Welcome Remarks
9:30 a.m. 10:45 a.m.
Panel 1
The Relationship Between Human Rights Norms and Corporate Governance
This panel will examine the incorporation of international human rights norms into state and national
corporate law and principles of corporate governance. The “Protect, Respect and Remedy
Framework” adopted by the U.N. Human Rights Council in 2008 renders myopic the notion that
national and sub-national laws on corporate governance and the liabilities of corporate officials can
ignore international human rights norms, since this framework invokes both the state duty to protect
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against human rights abuses by third parties, including business, through appropriate policies,
regulation, and adjudication and the corporate responsibility to respect human rights by acting with
due diligence to avoid infringing on the rights of others. The panel, however, will explore not only
human rights norms implicated when corporations act in ways that infringe human rights, but also
consider the application of such norms when governments infringe upon the human rights of
corporations and their owners.
Moderator:
Franklin Gevurtz, Distinguished Professor and Scholar and Director, Global Center for Business &
Development, University of the Pacific, McGeorge School of Law
Panelists:
Winfried van den Muijsenbergh, Partner, Loyens & Loeff, Rotterdam, The Netherlands
Larry Catá Backer, Professor of Law, Pennsylvania State University, The Dickinson School of Law
David Millon, J.B. Stombock Professor of Law, Washington and Lee University School of Law
11:00 a.m. 12:15 p.m.
Panel 2
Human Rights and Labor Law
For at least the last two decades, Latin American nations have grappled with whether and how to
reform their labor codes as a response to liberalizing policies promoted by international financial
institutions and-or multilateral and more recently regional trade agreements. The debate has rightly
encountered tensions around several competing goals, including ones for global economic
integration, the individual and collective rights of workers, and demands from employers from
greater flexibilization of laws in developing nations. As well, deep disagreements have surfaced
around the value or harm of traditionally highly worker protective labor codes in Latin America when
such laws are commonly under-complied, under-enforced, or are inapplicable to the majority of
workers. This panel brings together scholars examining the issues from the experiences of several
Latin American nations, some which have already experimented with greater labor laws flexibilization
with mixed results and others that are barely beginning to consider similar reforms.
Moderator and Panelist:
Raquel Aldana, Professor of Law and Director, Inter-American Program, University of the Pacific,
McGeorge School of Law
Panelists:
Jorge L. Esquirol, Professor of Law, Florida International University College of Law
Ranko Shiraki Oliver, Associate Professor of Law, University of Arkansas at Little Rock, William
H. Bowen School of Law
12 :15 p.m.
Lunch
1:15 p.m. 2:30 p.m.
Panel 3
Distinguished Jurist Panel
The extensive experience of the distinguished international jurists on this panel with human rights
law and related fields will form the basis for insights and perspectives into the history and
development of human rights norms. The panelists will examine the current importation of human
rights norms into other areas of law and predictions for future development.
Moderator:
Linda Carter, Professor of Law and Director, Legal Infrastructure and International Justice
Institute, University of the Pacific, McGeorge School of Law
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Panelists:
Richard Goldstone, Visiting Professor of Law, Stanford Law School Spring 2011; former Justice of
the Constitutional Court of South Africa; former Prosecutor at the International Criminal Tribunals
for the former Yugoslavia and Rwanda
Fausto Pocar, Judge in the Appeals Chamber of the International Criminal Tribunals for the former
Yugoslavia and Rwanda; Professor of Law at the University of Milan; former member of the United
Nations Human Rights Committee
2:45 p.m. 4:00 p.m.
Panel 4
The Environment and Human Rights
The Stockholm Declaration, adopted at the 1972 United Nations Conference on the Human
Environment, explicitly recognized the link between human rights and protection of the
environment, proclaiming that “Both aspects of man’s environment, the natural and the man-made,
are essential to his well-being and to the enjoyment of basic human rights—even the right to life
itself.” More recent international developments point to the potential utility of using human rights
norms as a catalyst for actions to protect the environment at the state level. Indeed, many countries
enshrine environmental rights in their constitutions. This panel addresses the application of human
rights norms to particular environmental protection issues such as climate change and freshwater,
and also identifies and explores the challenges of implementing human rights norms for the
protection of the environment within existing legal structures and jurisprudence.
Moderator:
Rachael Salcido, Professor of Law, University of the Pacific, McGeorge School of Law
Panelists:
John G. Sprankling, Distinguished Professor and Scholar, University of the Pacific, McGeorge
School of Law
Stephen C. McCaffrey, Distinguished Professor and Scholar; Counselor, Institute for Sustainable
Development, University of the Pacific, McGeorge School of Law
Svitlana Kravchenko, Professor of Law and L.L.M. Program Director, Environmental and Natural
Resources Law, University of Oregon School of Law, Vice-Chair, Aarhus Convention Compliance
Committee
John Bonine, B.B. Kliks Professor of Law, University of Oregon Law School
4:15 p.m. 5:30 p.m.
Panel 5
The Impact of Human Rights Norms on the Law of Intellectual Property
This panel will examine the impact of human rights norms on substantive intellectual property law.
The focus of the panel is whether intellectual property law is adequately flexible to provide access to
knowledge, in the form of primary and secondary materials as well as scientific materials, access to
medicines, and access to food, such as seeds. The panel will further explore whether any flexibilities
incorporated into intellectual property law harm the incentives provided by that law, including an
analysis of parallel importation.
Moderator:
Michael Mireles, Associate Professor of Law, University of the Pacific, McGeorge School of Law
Panelists:
Steven D. Jamar, Professor of Law, Associate Director of the Institute of Intellectual Property and
Social Justice, Howard University School of Law
Kristen Jakobsen Osenga, Professor of Law, University of Richmond School of Law
Unni V.K., Professor, Indian Institute of Management, Calcutta
5:30 p.m.
Closing Remarks
5
Saturday, March 12
8:15 a.m.
Conference Registration and Continental Breakfast
8:45 a.m. 10:00 a.m.
Panel 6
The Role of Tort Law in Implementing Human Rights Norms
This panel explores the impact of human rights norms on the law of defamation and privacy. To
varying degrees, both civil and common law jurisdictions protect interests in privacy and reputation.
The constitutionalization of U.S. defamation and privacy law has changed American tort law
dramatically, while the European Convention on Human Rights has influenced the domestic law of
many parties to the Convention. This panel will consider human rights norms from theoretical and
comparative perspectives by examining their application to defamation and privacy issues.
Moderator:
Julie Davies, Associate Dean for Academic Affairs and Professor of Law, University of the Pacific,
McGeorge School of Law
Panelists:
Ronald Krotoszynski, John S. Stone Chairholder of Law and Director of Faculty Research, The
University of Alabama School of Law
Adrienne Stone, Professor of Law and Director, Centre for Comparative Constitutional Studies,
The University of Melbourne Law School
David Partlett, Dean and Asa Griggs Candler Professor of Law, Emory University School of Law
10:15 a.m. 11:30 a.m.
Panel 7
Human Rights Norms in the Context of an Armed Conflict and Security Issues
This panel will focus on the bearing of human rights norms on the use of unmanned aerial vehicles
(UAVs) in armed conflict situations. The ongoing and rapidly increasing development and
deployment of UAVs in situations of armed conflict have arguably outpaced the law in that they are
not adequately supported by a dedicated and enforceable regime of international and (trans)national
rules, regulations, and standards, including relevant human rights norms. In addressing this issue, the
panel will explore the role human rights norms play or should play in guiding and regulating the use
of UAVs for military purposes, both with respect to surveillance operations and attacks.
More
specifically, the panel will consider the issue in relation to (1) the law of armed conflict; (2) other
bodies of international law, including that under the U.N. Charter; and (3) U.S. constitutional law,
especially with respect to separation of powers and due process.
Moderator:
John Sims, Professor of Law, University of the Pacific, McGeorge School of Law
Panelists:
David Kaye, Executive Director, International Human Rights Program, University of California, Los
Angeles, School of Law
Wayne McCormack, E.W. Thode Professor of Law, University of Utah S.J. Quinney College of
Law
11 :30 a.m.
Lunch
12:30 p.m. 1:45 p.m.
Panel 8
The Impact of a Wider Dissemination of Human Rights Norms: Fragmentation or Unity?
This panel will explore the systemic implications of wider dissemination of human rights norms.
One positive consequence is increased attention to – and, perhaps also, protection of – human rights
in a range of forums. A negative consequence, however, may be fragmentation in the meaning of
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human rights norms. What happens when national and international institutions adopt conflicting
interpretations of human rights norms? Is fragmentation necessarily problematic or can it serve
useful purposes, such as facilitating experimentation with diverse approaches or providing a check on
hegemonic ambitions? Alternatively, if harmonization should be a priority in this field, what kinds of
processes and institutions are best positioned to advance it?
Moderator:
Omar Dajani, Professor of Law, University of the Pacific, McGeorge School of Law
Panelists:
Harlan Cohen, Assistant Professor of Law, University of Georgia School of Law
Kristen E. Boon, Associate Professor of Law and Director of International Programs, Seton Hall
University School of Law
Sabine Schlemmer-Schulte, Associate Professor of Law, University of the Pacific, McGeorge
School of Law
Cost
Judges/Faculty/Students
World Affairs Council Members
FREE
General Admission
MCLE Credit- McGeorge Alumni
MCLE Credit- Non-Alumni
$40
$100
$200
Breakfast & Lunch Included
MCLE Credit
This program has been approved for MCLE credit by The State Bar of California for 6.25 hours for Friday and 3.75
hours for Saturday. Pacific McGeorge School of Law certifies that this activity conforms to the standards for
approved educational activities prescribed by the rules and regulations of The State Bar of California governing
minimum continuing legal education.
RSVP
go.mcgeorge.edu/humanrights
Contact Us
Phone: 916.739.7316
Email: [email protected]
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Biographical Sketches
“The Global Impact and Implementation of Human Rights Norms”
March 11-12, 2011
Raquel Aldana, Professor of Law, University of the Pacific, McGeorge School of Law
Professor Raquel Aldana is a prolific scholar who is an internationally recognized expert on matters
of immigration law and human rights in the Americas. She is the founder and director of the Pacific
McGeorge Inter-American Program, an innovative project committed to educating bilingual and
bicultural lawyers who wish to pursue a domestic or transnational career with a focus on Latinos or
U.S.-Latin American relations. Professor Aldana is the co-president of the Society of American Law
Teachers (SALT).
Larry Catá Backer, W. Richard and Mary Eshelman Faculty Scholar, Professor of Law,
Pennsylvania State University
Larry Catá Backer is the W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, and is
also Professor of International Affairs at the Pennsylvania State University (B.A. 1977 Brandeis
University; M.P.P. 1979 Harvard University Kennedy School of Government; J.D. 1982 Columbia
University). Professor Backer is a member of the American Law Institute (ALI), the European
Corporate Governance Institute (ECGI), and a founding director of the Consortium for Peace and
Ethics, a policy NGO. His research focuses on issues of globalization and governance issues where
public and private law systems converge. He is particularly interested in issues of corporate social
responsibility and the relationship between state-based regulation and transnational systems of
“soft” regulation. He has published a casebook, "Comparative Corporate Law," an edited collection
of essays, "Harmonizing Law in an Era of Globalization," and a number of articles on transnational
corporate governance and public law. He is completing a book, “Corporate Governance, Financial
Markets And Development” and a casebook, “Transnational Law and Legal Issues.” Additionally,
shorter essays on various aspects of globalization and governance, and Cuba’s role therein, appear
on his essay site, “Law at the End of the Day,” http://lcbackerblog.blogspot.com. He teaches
courses in corporate lawand transnational law at the Law School, and Actors, Institutions and Legal
Frameworks in International Affairs in the School of International Affairs. Professor Backer’s CV
may be accessed at http://web.mac.com/lcb911/iWeb/Larry%20Cata%20Backer/CV.html.
John Bonine, B.B. Kliks Professor of Law, University of Oregon School of Law
John Bonine is the B.B. Kliks Professor of Law at the University of Oregon School of Law. He has
taught environmental law, constitutional law, and administrative law for 33 years. He co-founded
the world’s first Environmental Law Clinic, the renowned Public Interest Environmental Law
Conferences (PIELC), and the Environmental Law Alliance Worldwide (ELAW). He has coauthored two casebooks: The Law of Environmental Protection and Human Rights and the
Environment. He has successfully litigated dozens of federal cases, primarily in the U.S. Courts of
Appeals, for both the U.S. Environmental Protection Agency and for citizen groups challenging
government decisions. His passion is building and supporting the public interest bar, particularly
lawyers who undertake “private public interest” environmental law. Before joining academia he
served the U.S. EPA for six years, including as Associate General Counsel for Air, Noise, and Solid
Waste in Washington, D.C.
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Kristen E. Boon, Associate Professor of Law and Director, International Programs, Seton
Hall University Law School
Dr. Kristen E. Boon is an Associate Professor of Law at Seton Hall University Law School &
Director of International Programs. She specializes in public international law and international
organizations. Professor Boon teaches courses in international law and contracts. She has authored
and co-authored articles on such topics as the future of the law of occupation, legislative reform in
post-conflict zones, and International Criminal Courts. Dr. Boon is a member of the bar of New
York (2002), the Law Society of Upper Canada (2003) and the US Supreme Court Bar (2008). She
has a BA from McGill University, a JD from NYU School of Law, and a JSD from Columbia
School of Law. She was a law clerk to Justice Ian Binnie, Supreme Court of Canada, in 2002-2003.
Linda Carter, Professor of Law and Director, Legal Infrastructure and International Justice
Institute, University of the Pacific, McGeorge School of Law
Linda Carter was a trial attorney in the honors program of the Civil Rights Division of the U.S.
Department of Justice from 1978 to 1981. She worked on voting, housing, and education
discrimination cases. She then spent four years as a criminal defense attorney with the Salt Lake City
Legal Defender Association, where she tried cases ranging from DUI to murder. In 1984, Professor
Carter served as an adjunct professor at the University of Utah, teaching Trial Advocacy. She joined
the Pacific McGeorge faculty the following fall. She has written on death penalty, evidence, and
international treaty issues. She is the co-author of a treatise on Capital Punishment Law and a book
on Global Issues in Criminal Law. Her current area of interest is international criminal law, with a
focus on war crimes tribunals. She conducted a research project in Rwanda on the "Gacaca" trials in
2005. In the spring of 2007, Professor Carter was a Visiting Professional at the International
Criminal Court in The Hague for three months.
Harlan Cohen, Assistant Professor of Law, University of Georgia School of Law
Harlan Cohen is an Assistant Professor of Law at the University of Georgia School of Law. His
scholarship focuses on international legal theory, foreign affairs law, and legal history. Immediately
prior to joining the Georgia faculty, he served as a Furman Fellow at New York University School
of Law. He has also served as an attorney at Cleary Gottlieb Steen & Hamilton and as a judicial
clerk for Judge Wilfred Feinberg of the U.S. Court of Appeals for the 2nd Circuit. Before attending
law school, Prof. Cohen worked at the Washington Institute for Near East Policy and at the journal
Foreign Affairs.
Omar Dajani, Professor of Law, University of the Pacific, McGeorge School of Law
Professor Omar Dajani is one of the nation's foremost experts on the legal aspects of the conflict in
the Middle East. His scholarly work explores the links between international law, legal and political
history, and contract and negotiation theory. He also has considerable experience advising
governments and development organizations in the Middle East and elsewhere.
Julie Davies, Associate Dean for Academic Affairs, Professor of Law, University of the
Pacific, McGeorge School of Law
Professor Julie Davies is a torts and civil rights scholar. Her most recent torts scholarship focuses on
comparative torts issues. Her civil rights scholarship has focused on the legal obstacles to private
and government enforcement of civil rights legislation and suggests ways to surmount these
problems. She is the co-author of Global Issues in Tort Law, which has been adopted in numerous
9
other law schools. In addition, her scholarship has been published in many prominent law reviews.
She is an elected member of the American Law Institute and is very active in a number of civic
organizations. Professor Davies is also the Associate Dean for Academic Affairs.
Jorge L. Esquirol, Professor of Law, Florida International University
Before joining the FIU College of Law, Professor Esquirol was a professor of law at the
Northeastern University School of Law from 1997-2002 and Director of Academic Affairs at the
Harvard Law School Graduate Program from 1992-1997. He has been a resident scholar at the
Université de Paris X (Nanterre), France, a visiting professor at the University of Miami School of
Law, and a visiting researcher at the Constitutional Court of Colombia. As Director of Academic
Affairs, he had administrative responsibility for the Harvard Law Graduate Programs; taught LL.M.
students; administered the International Legal Studies Program and related conferences, lectures and
workshops; and planned several international law conferences. Professor Esquirol earned his B.A. in
Finance summa cum laude from Georgetown University. After earning his J.D. degree at Harvard,
he clerked on the United States District Court for the Southern District of Florida, and was an
associate attorney at the Wall Street firm of Shearman and Sterling. He has a doctoral degree in law
(S.J.D.) from Harvard Law School, focusing on Latin American legal systems. Professor Esquirol is
fluent in English, French, Portuguese, and Spanish. He teaches international law, comparative law
and commercial law at FIU.
Franklin Gevurtz, Distinguished Professor and Scholar, Director, Pacific McGeorge Global
Center for Business and Development, University of the Pacific, McGeorge School of Law
Franklin Gevurtz is a Distinguished Professor and Scholar. Among Professor Gevurtz’ widely cited
scholarship is the treatise, Corporation Law, published by Thomson-West as part of its Hornbook
Series, and the casebook, Business Planning, published by Foundation. Most recently, Professor
Gevurtz authored the book, Global Issues in Corporate Law, and served as editor for the other 16
books in that series. His scholarship, which includes a number of impressive articles, is frequently
cited not only by other scholars, but also by courts. Professor Gevurtz is the Director of the Center
for Global Business and Development.
Richard J. Goldstone, Justice
Richard J. Goldstone was a judge in South Africa for 23 years, the last nine as a Justice of the
Constitutional Court. Since retiring from the bench he has taught as a visiting professor in a number
of United States Law Schools. From 1994 to September he was the chief prosecutor of the United
Nations International Criminal Tribunals for the former Yugoslavia and Rwanda. He was a member
of the committee, chaired by Paul Volcker, appointed by the Secretary-General of the United
Nations to investigate allegations regarding the Iraq Oil for Food Program. He recently led the UN
Fact Finding Mission on Gaza. In May 2009, he received the John D. and Catherine T. MacArthur
Award for International Justice.
Steven D. Jamar, Professor of Law, Associate Director, Institute for Intellectual Property
and Social Justice, Howard University School of Law
Professor Jamar is the Associate Director of the Institute for Intellectual Property and Social Justice
at Howard University School of Law. IIPSJ was created by Prof. Mtima and Prof. Jamar in 2002 to
address the relationship between intellectual property and social justice.
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Prof. Jamar’s scholarly work is wide ranging. He has published articles on law and development,
Aristotle’s Rhetoric applied to the law, the International Human Right to Health, the human right to
access information, and a number of copyright articles concerning copyright and social justice,
copyright issues for online social networking sites, and copyright issues for religious works and
religious use of copyrighted works.
Prof. Jamar earned his JD from Hamline University School of Law in 1979 and his LLM in
International and Comparative Law from Georgetown University Law Center in 1994. He joined the
Howard University School of Law faculty as the director of the Legal Reasoning, Research and
Writing Program in 1990, a position he held until 2002. He taught at William Mitchell College of
Law in St. Paul, Minnesota and the University of Baltimore School of Law in Baltimore, Maryland
before coming to Howard.
At Howard Prof. Jamar has taught a variety of courses including International Law of Human
Rights, Constitutional Law, Copyrights, and Law and Religion.
David Kaye, Executive Director, International Human Rights Program, Director,
International Justice Clinic, University of California, Los Angeles
David Kaye has written widely on international humanitarian law and the use of force, and has
published essays and op-eds in such publications as The New York Times, The Los Angeles Times,
International Herald Tribune, and Foreign Policy. David is a member of the Council on Foreign Relations,
the Executive Council of the American Society of International Law, the Pacific Council on
International Policy, the California South Committee of Human Rights Watch and the Board of
Directors of the Democracy Council of California. Before joining UCLA, David served as an
international lawyer with the U.S. State Department. He was a legal adviser to the American
Embassy in The Hague, where he worked with the international criminal tribunals and acted as
counsel to the United States in several cases before the International Court of Justice and the IranU.S. Claims Tribunal. From 1999 to 2002 he was the State Department’s principal staff attorney on
humanitarian law, handling issues such as the application of international and domestic law to
detainees in Guantanamo Bay and serving on several U.S. delegations to international negotiations
and conferences.
Svitlana Kravchenko, Professor of Law, LL.M. Program Director, University of Oregon
School of Law, Vice-Chair, Aarhus Convention Compliance Committee
Professor Kravchenko is the Director of the LL.M. program at the School of Law. She teaches
Human Rights and the Environment, International Environmental Law, and Climate Change in
International Law. She has taught environmental law for twenty five years at Lviv National
University, Ukraine. Professor Kravchenko founded in 1994 Ukraine’s first public interest
environmental law firm and serves as its President.
Professor Kravchenko served as an adviser to the Parliament and the Ministry of Environment of
Ukraine and as a Vice-Chair of the Commission of Environmental Law of the World Conservation
Union (IUCN). She is currently the Vice-Chair of the Compliance Committee of the Aarhus
Convention on Public Participation in Environmental Decision-Making, and she is Regional
Governor of the International Council of Environmental Law. Professor Kravchenko has 184
publications in the field of international environmental law, including twelve books and book
chapters in English, Ukrainian, and Russian.
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Ronald Krotoszynski, John S. Stone Chairholder of Law, Director of Faculty Research, The
University of Alabama School of Law
Professor Krotoszynski earned his B.A. and M.A. (Philosophy) from Emory University and J.D. and
LL.M. (Int'l & Comp. Law) from Duke University, where he served as an articles editor for the
Duke Law Journal, and was selected for Order of the Coif. He clerked for the Honorable Frank M.
Johnson, Jr, of the United States Court of Appeals for the Eleventh Circuit and was an associate
with Covington & Burling, D.C. Prior to joining the faculty at the University of Alabama School of
Law, Professor Krotoszynski served on the law faculty at Washington and Lee University and, prior
to that, on the law faculty of the Indiana University School of LawIndianapolis. He also has taught as a visiting professor at the Washington and Lee University School
of Law, the Marshall-Wythe School of Law at the College of William and Mary, at the Florida State
University College of Law, at Brooklyn Law School, and at the Seattle University School of Law.
Krotoszynski has held appointments as a visiting scholar in residence at the University of
Washington-Seattle School of Law, the Seattle University School of Law, and the Lewis and Clark
School of Law. He has published "The First Amendment in Cross-Cultural Perspective" (New York
University Press 2006 & 2009); and his new book, "Reclaiming the
Petition Clause" is forthcoming from Yale University Press in 2012. Krotoszynski is the co-author
of two casebooks published by Aspen Publishers and also has authored over three dozen law review
articles and essays.
Stephen C. McCaffrey, Distinguished Professor and Scholar, Counselor, Institute for
Sustainable Development, University of the Pacific, McGeorge School of Law
Stephen C. McCaffrey is a Distinguished Professor and Scholar. One of the world’s foremost
authorities on international water law, he served as special rapporteur for the commission’s draft
articles on the law of the non-navigational uses of international watercourses, which formed the
basis of the 1997 U.N. Convention on the subject. Professor McCaffrey was Counselor on
International Law in the State Department in 1984-85 and represents countries in disputes before
the International Court of Justice and other fora. He also advises the Palestinians in connection with
the Permanent Status talks with Israel and is Legal Adviser to the Nile River Basin Negotiation
Committee.
Wayne McCormack, E.W. Thode Professor of Law, S.J. Quinney College of Law, The
University of Utah
Professor McCormack received a B.A. from Stanford University and a J.D. from the University of
Texas, where he graduated Order of the Coif and was associate editor of the Texas Law Review.
After graduation he clerked for Judge Walter Ely of the U.S. Court of Appeals for the Ninth Circuit
and then taught at the University of Georgia School of Law. He also served as Associate Director of
the Association of American Law Schools from 1975-78. Professor McCormack joined the faculty at
the University of Utah S.J. Quinney College of Law in 1978 and served as Associate Dean for
Academic Affairs from 1978-82, 1984-87, and 1993-94. From 1997-2002 he coordinated the
University of Utah's involvement with the 2002 Olympic Winter Games, and that experience led to
security planning for major events and interest in international legal issues, including the law related
to terrorism. Professor McCormack teaches constitutional law, counter-terrorism and the
international law of crimes, and civil procedure.
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David Millon, J.B. Stombock Professor of Law, Washington and Lee University School of
Law
David Millon is the J.B. Stombock Professor of Law at Washington and Lee University. Professor
Millon has published numerous articles on corporate governance, corporate theory, and corporate
social responsibility. Current research includes the relationship between U.S. corporate law and
international human rights controversies. He teaches contracts and business organizations.
Michael Mireles, Associate Professor of Law, University of the Pacific, McGeorge School of
Law
Professor Michael Mireles teaches and writes in the intellectual property law field. He also teaches
Property Law, and Wills and Trusts. His scholarship has appeared in many law reviews and he has
taught a number of different intellectual property law courses. He is a graduate of Pacific
McGeorge, and has an LL.M. in intellectual property from the George Washington University Law
School. He also clerked for the U.S. Court of Appeals for the Federal Circuit, practiced law at the
Downey Brand law firm, and taught at the University of Denver Sturm College of Law and in
Germany. He has served on the board of directors of several professional and community
organizations.
Ranko Shiraki Oliver, Associate Professor of Law, University of Arkansas at Little Rock
William H. Bowen School of Law
Ranko Shiraki Oliver is Associate Professor of Law at the University of Arkansas at Little Rock
William H. Bowen School of Law, where she has taught since 1987. She teaches Immigration Law,
Disability Law, Administrative Law, and taught Legal Writing for twenty-three years. Professor
Oliver has had a personal and professional interest in immigration issues for more than four
decades. She is a native of Mexico City, Mexico; her parents immigrated to Mexico from Japan and
Spain; her work at the United States Embassy in Mexico City was related to immigration law; and
she immigrated to the United States in 1974. Professor Oliver has taught immigration law since
1989, and is the author of a comprehensive analyssis of the North American Free Trade Agreement
entitled In the Twelve Years of NAFTA, the Treaty Ge to Me…What Exactly?: An Assessment of Economic,
Social, and Political Developments in Mexico Since 1994 and Their Impact on Mexican Immigration to the United
States, which was published by the Harvard Latino Law Review in 2007.
Kristen Jakobsen Osenga, Associate Professor of Law, University of Richmond School of
Law
Kristen Jakobsen Osenga, Associate Professor at the University of Richmond School of Law,
teaches intellectual property courses, including patent law, trademark and unfair competition law,
and international intellectual property. She holds a B.S.E. in biomedical engineering from the
University of Iowa, an M.S. in electrical engineering from Southern Illinois University, and a J.D.
from the University of Illinois College of Law, where she graduated Magna Cum Laude and Order
of the Coif. After graduation, Ms. Osenga worked a the intellectual property law firm of Finnegan
Henderson in Washington DC and clerked for Judge Linn of the US Court of Appeals for the
Federal Circuit before entering academia.
13
Elizabeth Rindskopf Parker, Dean, University of the Pacific, McGeorge School of Law
Dean Elizabeth Rindskopf Parker became the eighth Dean in Pacific McGeorge history on July 1,
2002. A noted expert on of national security law and terrorism, Dean Parker served 11 years in key
federal government positions, most notably as General Counsel for the National Security Agency,
Principal Deputy Legal Adviser, Department of State, and General Counsel for the CIA. In private
practice, she has advised clients on public policy and international trade issues, particularly in the
areas of encryption and advanced technology.
David F. Partlett, Dean, Emory University School of Law
David F. Partlett assumed the deanship of Emory Law on July 1, 2006. He holds the academic
position of Asa Griggs Candler Professor of Law. Dean Partlett previously served as Vice President,
Dean, and Professor of Law at Washington and Lee University School of Law for six years. He
joined the faculty of the Vanderbilt University Law School in 1987. He was a fellow in the Institute
for Public Policy Studies and was Acting Dean 1996-1997. Partlett held positions in the Australian
government as a senior legal officer for the Commonwealth Attorney-General's Department in
Canberra, where he was responsible for policy advice on the Racial Discrimination Act and other
related human rights and racial discrimination legislation. He later was appointed to the Australian
Law Reform Commission.
From 1978 until 1987, Dean Partlett was a member of the faculty of the Australian National
University, and he served as Associate Dean from 1982-85. He is a member of the American Law
Institute, the American Society of Law and Medicine, and the Selden Society. He currently teaches
torts and has taught courses on torts, judicial remedies and professional liability. He has authored
books on torts, defamation and free speech, child mental health and medical malpractice.
A native of Australia, David Partlett earned his LL.B. degree from the University of Sydney School
of Law in 1970, an LL.M. from the University of Michigan Law School in 1974, and an S.J.D. from
the University of Virginia School of Law in 1982. He remains an active scholar, with recent work
focused on tort law, as well as defamation and free speech, child mental health, and medical
malpractice.
Fausto Pocar, Professor of Law, University of Milan, Judge ICTY
Fausto Pocar is Professor of International Law, former Dean and Vice-Rector at the University of
Milan. Currently an Appeal Judge of the International Criminal Tribunal for the former Yugoslavia,
he has served as President and Vice-President. He has served for sixteen years, including as
Chairman and Rapporteur, in the UN Human Rights Committee under the International Covenant
on Civil and Political Rights, and as Legal Adviser of the Italian delegation to the UN General
Assembly. He is a member of the “Institut de Droit International”.
Rachael Salcido, Professor of Law, University of the Pacific, McGeorge School of Law
Professor Rachael Salcido is a scholar of environmental and natural resources law, with particular
expertise in ocean and coastal law and ecosystem restoration. Her articles have appeared in
prominent law journals and she is an active member of the Rocky Mountain Mineral Law
Foundation.
14
Sabine Schlemmer-Schulte, Associate Professor of Law, University of the Pacific, McGeorge
School of Law
Professor Sabine Schlemmer-Schulte is an internationally-recognized expert on various matters of
international finance. She served as senior counsel and special advisor to the senior vice president
and general counsel of the World Bank for seven years, and has taught at numerous European and
American universities. She has authored several book and numerous articles.
John Sims, Professor of Law, University of the Pacific, McGeorge School of Law
Professor John Sims was an attorney for the Public Citizen Litigation Group before joining the
academy. His practical experience includes involvement with several significant constitutional cases,
including Chadha v. INS and Snepp v. United States. His primary research interests involve human
rights, and problems arising under the First Amendment. Professor Sims is a founding Co-Editor-inChief of the Journal of National Security Law and Policy, a peer-reviewed law review devoted to the
broad range of issues related to national defense.
John G. Sprankling, Distinguished Professor and Scholar, University of the Pacific,
McGeorge School of Law
Professor John G. Sprankling, a nationally-recognized authority on property law, has written four
books and many articles on this subject. Prior to joining the academy, he was the managing partner
of one of the nation’s largest property law firms. At Pacific McGeorge, he has served as Interim
Dean and as Associate Dean for Academic Affairs. He has also served as the Chair of the Property
Law Section of the Association of American Law Schools.
Adrienne Stone, Professor of Law, University of Melbourne (Australia) Law School
Adrienne Stone is a Professor of Law at the University of Melbourne (Australia) and in Spring 2011
she is a Visiting Professor at the Georgetown Law Centre. Her research interests are in
constitutional law, comparative constitutional law and constitutional theory. She has published
extensively on freedom of expression, the legal and institutional questions surrounding bills of rights
and on judicial method in constitutional cases. Her past positions include a Fellowship at the
Research School of Social Sciences at the Australian National University, Associate-in-Law at
Columbia Law School, and Associate to the Hon. Justice M.H. McHugh of the High Court of
Australia. She is a member of the Executive Committee of the International Association of
Constitutional Law, Secretary of the Australian Association of Constitutional Law and a Fellow of
the Australian Academy of Law (elected 2010).
Unni V.K., Assistant Professor, Indian Institute of Management Calcutta
Unni V.K. is an Assistant Professor with the Public Policy and Management Group at the Indian
Institute of Management Calcutta, established by the Indian government in collaboration with Sloan
School of Business at the Massachusetts Institute of Technology and widely recognized as one of
the best business schools in India. Unni completed his doctoral and graduate studies in the field of
Intellectual Property Rights (IPR) and presently holds the Max Planck India Fellowship instituted by
the Max Planck Society Germany. He was also nominated as an expert member on various
panels concerning Intellectual Property education and practice sponsored by institutions such as the
Fulbright Commission, Case Western Reserve University (Cleveland), and the Government of
India’s Ministry of Commerce and Industry. He has consulted on many IPR projects by prestigious
institutions including The Earth Institute - Columbia University (New York), the Munich
15
Intellectual Property Law Center, and the German Federal Ministry of Research. He is an alumnus
of the prestigious “International Visitor Leadership Program” established by the US Department of
State. His publications include a book and articles on various aspects of IPR protection which have
appeared in international as well as national journals.
Winfried van den Muijsenbergh, Partner, Loyens & Loeff
Winfried H.A.M. van den Muijsenbergh (1954) is Partner at Loyens & Loeff, a full-service law firm
based in The Netherlands, Belgium and Luxembourg, with offices in most major financial centers in
the world. He is a member of the Corporate Law practice group. He specializes in corporate law,
with a focus on corporate litigation, (international) arbitration, and advises on corporate governance
issues, joint ventures and general corporate legal issues. He has broad experience in national and
international arbitration procedures before various courts and in inquiry procedures before the
Enterprise Chamber of the Court of Appeal in Amsterdam, mainly for takeover, shareholder and
joint venture disputes. He has worked in Brussels (1982) and in Rome (1986). Winfried teaches
corporate litigation at the ‘Voortgezette Stagiaire Opleiding (VSO)’ [Advanced Training Course for
young lawyers], is visiting professor at (the LLM Program), and President of the International
Advisory Board of Pacific McGeorge School of Law in Sacramento, California, United States, and
visiting professor at the Hainan University, China. He is former chairman of the Natural Resources
Committee of the Union Internationale des Avocats (UIA), former member of the Governing Board
of UIA, member of the IBA, and member of the Associazione Internazionale Giuristi di Lingua
Italiana. He is vice-chairman of the Netherlands Sultanate of Oman Foundation and vice-chairman
of the Leerstoel Sultan Qaboos bin Said Al Said Foundation, board member of the Executive Board
of the Center for International Legal Cooperation, and president and co-founder of the Foundation
Selexys Debuut Prijs and the Foundation Poets of All Nations, the Netherlands, as well as board
member of various other Associations and Foundations in and outside the Netherlands. Education:
Dutch law, University of Leiden, participation in the Leiden-Amsterdam-Columbia Summer
Program in American Law (1980).
16
Human Rights and Corporations
Winfried H.A.M. van den Muijsenbergh
Loyens & Loeff N.V.
Address: Blaak 31, 3011 GA Rotterdam
Country: The Netherlands
Email: [email protected]
Tel: 0031(10) 224 61 24
Fax: 0031(10) 213 64 38
1. The Council of Europe
• Established in 1949.
• Currently: 47 member states (incl. Russian Federation).
• Organs: Parliamentary Assembly, Committee of Ministers,
Secretary General.
• Aim: achievement greater unity between member states for
purpose of safeguarding common ideals.
• Greatest achievement: ECHR.
17
1
2. European Convention of Human Rights
•
•
•
•
•
Signed in Rome on 4 November 1950.
Signatories: all member states of Council of Europe.
Binding.
Applicable to nationals and aliens alike.
Article 19 ECHR establishes a European Court of Human
Rights.
3. European Court of Human Rights
• Established in 1959.
• Located in Strasbourg.
• Number of judges equals number of member states of The
Council of Europe.
• Every member state has its own judge with the Court.
18
2
4. Procedure
•
Victim may lodge application directly with the Court.
•
Admissibility: prior to protocol 14 decided by Committee (3 judges) or Chamber
(7 judges). Protocol 14 added a single judge dismissal system.
•
Protocol 14: entered into force on 1 June 2010, due to reasons of efficiency /
workload.
•
Decisions on the merits are rendered by Committee / Chamber or Grand
Chamber.
•
Competence Grand Chamber: referral in case of (i) serious issues of
interpretation (ii) possibility of conflict with prior case law. Also functions as
internal appellate body.
•
Inclusion state’s own judge: Chamber and Grand Chamber (always), Committee
(possible), single judge format (never).
5. Admissibility Criteria of Article 35 ECHR
• Exhaustion local remedies (application must be lodged within 6
months after final national decision).
• Court will not deal with individual applications which are (i)
anonymous (ii) already dealt with (iii) already dealt with by other
international settlement procedures and which provide no new
information (iv) incompatible with the provisions of the
Convention (v) manifestly ill-founded (vi) an abuse of the right of
individual application (vii) lodged by applicants which have not
suffered a significant disadvantage.
• Court can declare an application inadmissible at any stage of the
proceedings.
19
3
6. Admissibility of Applications by Legal Persons
• Article 35(3a) ECHR: applications must be compatible with the
Convention’s provisions  Article 34 ECHR states that
applications may be lodged by “any
any person,
person non-governmental
non governmental
organization and/or group of individuals”.
• Legal persons are included within the term non-governmental
organization.
• This conclusion is supported by: drafting history / traveaux
preparatoires.
preparatoires
• Court evaluates per provision whether it confers rights to legal
persons.
7. Yukos Expropriation
•
25 October 2003: arrest Khodorkovsky.
•
14 April 2004: demand of payment by Tax Ministry over 2000 with a two day grace
period (first of several tax assessments).
assessments)
•
•
•
15 April 2004: freezing order issued by Moscow Court.
•
26 May 2004: court orders Yukos to pay around EUR 2.9 billion (USD 3.43 billion).
•
19 December 2004: sale of Yuganskneftegaz.
•
1 August 2006: bankruptcy judgment.
•
12 November 2007: Yukos ceases to exist.
21 May - 26 May 2004: hearings on the merits.
20
4
8. Yukos proceedings before the ECHR
• 23 April 2004: Yukos lodges an application with the
Court.
Court
• 29 January 2009: decision on admissibility.
• 4 March 2010: hearing on the merits.
• Judgment on the merits: 2011 (?)
9. EHCR declares (non-existing) Yukos admissible
• ECHR rejects the argument that it lacks jurisdiction because
Yukos ceased to exist on 12 November 2007:
“Striking the application out of the list under such circumstances
would undermine the very essence of the right of individual
applications by legal persons as it would encourage
governments to deprive such entities of the possibility to pursue
an application lodged at a time when they enjoyed legal
personality”
21
5
10. Article 6 ECHR ‘Fair Trial’
•
Article 6 states:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or
national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so
require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the
interests of justice.
•
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
•
3. Everyone charged with a criminal offence has the following minimum rights:
•
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against
him;
•
(b) to have adequate time and facilities for the preparation of his defence;
•
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so require;
•
( ) to examine or have examined witnesses against
(d)
g
him and to obtain the attendance and examination of witnessess on his
behalf under the same conditions as witnesses against him;
•
to have the free assistance of an interpreter if he cannot understand or speak the language used in court”.
-----
•
The Court found that, with respect to article 6 of the convention, the argued circumstances of the case raised serious questions of
fact and law which require an examination of the merits.
11. Article 1 Protocol 1 ECHR ‘Protection of Property’
•
Article 1 Protocol 1 states:
•
“Every natural or legal person is entitled to the peaceful enjoyment of his
possessions.
i
N
No one shall
h ll b
be d
deprived
i d off hi
his possessions
i
exceptt iin th
the public
bli
interest and subject to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way impair the right of a
state to enforce such laws as it deems necessary to control the use of property
in accordance with the general interest or to secure the payment of taxes or
other contributions or penalties”.
•
The Court found that, with respect to article 1 Protocol 1, the argued
circumstances of the case raise serious questions of fact and law which require
an examination of the merits.
22
6
12. Article 14 ECHR ‘Prohibition of Discrimination’
•
Article 14 ECHR states:
•
“The enjoyment of the rights and freedoms set forth in this Convention shall be
secured
d without
ith t di
discrimination
i i ti on any ground
d such
h as sex, race, colour,
l
language, religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.”
•
Applicability of article 14 ECHR to legal persons is accepted, for example, in
Swedish Engine Drivers’ Union v. Sweden (6 February1976):
“Despite finding no breach of article 11 [freedom of assembly and association] , the Court
must ascertain whether the differences in treatment at issue comply with articles 11 and 14
taken together”.
•
The Court found that, with respect to article 14 ECHR, the argued circumstances
of the case raise serious questions of fact and law which require an examination
of the merits.
13. Articles 7, 13 and 18 ECHR
•
Article 7 ECHR (No punishment without law) states: 1. “No one shall be held guilty of
any criminal offence on account of any act or omission which did not constitute a criminal
offence under national or international law at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the time the criminal offence
prejudice
j
the trial and punishment
p
of anyy person
p
for
was committed. 2. This article shall not p
any act or commission which, at the time when it was committed, was criminal according to
the general principles of law recognized by civilised nations”.
•
Article 13 ECHR (Right to an effective remedy) states : “Everyone whose rights and
freedoms as set forth in this Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been committed by persons acting in
an official capacity”.
•
Article 18 ECHR (Limitation on use of restrictions on rights) states: “The restrictions
pe tted u
permitted
under
de tthis
s Co
Convention
e t o to tthe
e sa
said
d rights
g ts a
and
d freedoms
eedo s sshall
a not
ot be app
applied
ed for
o a
any
y
purpose other than those for which they have been prescribed”.
•
The Court found that, with respect to the above articles, the argued circumstances of the
case raised serious questions of fact and law which require an examination of the merits.
23
7
14. Minor dismissals of Yukos’ application
•
Yukos’ (article 6 ECHR) complaint that the case should have been tried in
Nefteyugansk, where the company was registered.
•
Yukos (article 6 ECHR) complaint that the 2001-2003 tax assessments had
been imposed by the Tax Ministry and not by a court.
•
Yukos (article 6 ECHR) complaint that the Tax Ministry failed to clarify the 2000
audit report.
•
Yukos (article 34 ECHR) complaint that the Russian Federation hindered Yukos’
right
i ht tto submit
b it an application,
li ti
because
b
the
th impact
i
t off the
th tax
t claims
l i
was so large
l
that financial ruin would likely follow, making it impossible for Yukos to seek the
protection of the ECHR.
15. Advantages of the ECHR in comparison with BIT arbitral
tribunals
•
Great advantage: the ECHR offers an (often non-existing) international
venue for judicial review for nationals victimized by their own state.
•
Provisions of ECHR are applicable to aliens and nationals alike.
•
Offers the moral authority of a judgment by a human rights tribunal.
24
8
16. Disadvantages of the ECHR in comparison with BIT arbitral
tribunals
•
Generally public nature of proceedings in contrast to arbitration's often
characteristic confidentiality.
y
•
Proceedings before the ECHR are often more lengthy.
•
Reluctance of the ECHR to order high amounts of compensation for
suffered damages.
•
Absence of effective enforcement mechanisms.
17. Criticism of the ECHR
• Points of criticism have included:
• The Court
Court’s
s democratic deficit
deficit.
• The absence of checks and balances.
• The argument that there is no such thing as a uniform
interpretation of fundamental human rights.
• The argument that the Court is conducting politics.
25
9
18. In Conclusion
•
Yukos case demonstrates importance of human rights knowledge for
corporate lawyers.
•
Yukos case exemplifies great advantage of the ECHR (i.e. sole venue
for obtainment of an international judgment).
•
Admissibility numbers justify optimism about the outcome
2008 numbers:
49.850 applications lodged
less than 5% (1.545) rendered admissible
of the 1
1.545
545 applications
applications, 90% (1
(1.423)
423) have led to establishment of a breach of the
Convention
Numbers over 2009 and 2010 show a similar image.
26
10
3/8/2011
From Institutional Misalignments to
Socially Sustainable Governance:
The Guiding Principles for the Implementation of the
United Nation’s “Protect, Respect and Remedy” and the
Construction of Inter-Systemic Global Governance.
Larry Catá Backer
W. Richard and Mary Eshelman Faculty Scholar and Professor of Law
Professor of International Affairs
[email protected]
Traditional System
-- States had a monopoly of political authority exercised through law.
-- Economic entities exercised their authority through contract and the
web of relationships with their stakeholders
-- Social collectives controlled
ll d the
h development
d
l
off social
i l norms that
h in
i turn
impacted political choices by the citizens of states and the consumers of and investors in
economic collectives
27
1
3/8/2011
Contemporary economic
globalization has destabilized this
traditional system.
-- Corporations are no longer completely controlled by the
states that chartered them or within complex enterprises,
even by those in which they operate.
-- Social collectives now operate to change the political
cultures that affect the public policy of state and the
economic behavior of companies.
Result: Misalignment.
These misalignments have the potential to
detrimentally affect the welfare of individuals
and groups.
--thus connection between misalignment and
human rights impacts
28
2
3/8/2011
ISSUE: how to realign governance.
Alternatives—
i. extraterritoriality
ii. enterprise law principles
iii. Disclosure
iv. Corporate social responsibility
v. active investor
vi. Attack shareholder maximization model
vii. international soft and hard law
frameworks
The United Nations’
“protect, respect, and remedy” framework.
--reframes the way in which the political, economic and social
governance orders work together.
-- framework seeks inter systemic harmonization that is
socially
i ll sustainable,
i bl and
d thus
h stable.
bl
--Now reduced to a set of Guiding Principles.
29
3
3/8/2011
This paper critically analyzes the Guiding
Principles and its three key parts
-- the state duty to protect
-- the corporate responsibility to respect,
--the
h access to remedies.
di
OBJECTIVES:
--focus on the development of the Guiding
Principles from conception to articulation.
--Examine the Guiding Principles in detail.
i. the report introducing the Guiding Principles,
ii. section by section analysis of the Guiding Principles themselves,
iii. overall assessment.
30
4
3/8/2011
The Guiding Principles
٠Framework
-- Describes hierarchy of business and human rights
governance
٠States retain primary role in protecting human rights
٠Business as a specialized
p
organ
g of societyy
II. The State Duty to Protect Human Rights
Foundational Principles
The basic standard: States must protect human rights.
The mechanism: take appropriate steps to investigate, prevent, punish and
redress.
The scope: extraterritorial reach of home state grounded in activities of
domiciled entities.
1.
2.
States must protect against business-related human rights abuse within their territory and/or
jurisdiction by taking appropriate steps to prevent, investigate, punish and redress such abuse
through effective policies, regulation, and adjudication.
States should encourage business enterprises domiciled in their territory and/or jurisdiction to
respect human rights throughout their global operations, including those conducted by their
subsidiaries and other related legal entities.
31
5
3/8/2011
II. The State Duty to Protect Human Rights
P li Operationalization
Policy
O
ti
li ti
-- Horizontal and vertical coherence within states
-- Between the State and the International sphere
3.
4.
States should ensure that governmental departments, agencies and other State-based institutions that
shape business practices, at both the national and sub-national levels, are aware of and observe the
State’s human rights obligations in fulfilling their respective mandates, including by providing them
with relevant information, training and support.
States should maintain adequate domestic policy space to meet their international human rights
obligations when pursuing business-related policy objectives with other States or business
enterprises, particularly when they enter into investment treaties or contracts.
II. The State Duty to Protect Human Rights
Fostering
g Business Respect
p
for Human Rights
g
Application of state duty to the regulation of business
--set out human rights expectations (get the law right)
--take steps to implement via voluntary and mandatory rules
(law and policy approaches)
5.
As part of their policy and regulatory functions, States should set out clearly their expectation for all
business enterprises operating or domiciled in their territory and/or jurisdiction to respect human
rights, and take the necessary steps to support, encourage and where appropriate require them to do
so including by:
so,
a.
Enforcing laws that require business enterprises to respect human rights;
b.
Ensuring that laws and policies governing the creation and ongoing operation of business
enterprises, such as corporate law, do not constrain but enable business respect for human
rights;
c.
Providing effective guidance to business enterprises on how to respect human rights;
d.
Encouraging, and where appropriate requiring, business enterprises to provide adequate
communication on their human performance
32
6
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II. The State Duty to Protect Human Rights
The State-Business Nexus
Detail Detail Details
--State owned enterprises
--outsourced services
--financing or financially supported enterprises
6.
States should take steps to ensure that human rights are respected by business enterprises that are
owned or controlled by the State. This includes encouraging, and where appropriate, requiring, such
enterprises
t
i
tto undertake
d t k effective
ff ti h
human rights
i ht d
due dili
diligence process.
Because States do not relinquish their international human rights obligations by outsourcing the
delivery of services, they should ensure that they continue to exercise adequate oversight in order to
meet those obligations when they contract with, or legislate for, business enterprises to provide
services that may impact upon the enjoyment of human rights.
States should take appropriate steps to ensure respect for human rights by business enterprises that
receive support and services from the State, including through export credit agencies and official
investment insurance or guarantee agencies.
7.
8.
II. The State Duty to Protect Human Rights
Commercial Transactions of the State
States as Participants in Commerce
9.
States should seek to ensure respect for human rights by business enterprises when they
conduct commercial transactions with them.
33
7
3/8/2011
II. The State Duty to Protect Human Rights
Supporting Business Respect for Human Rights in Conflict
ConflictAffected Areas
Applying Extraterritoriality to Weak States and
Conflict Zones
-- The Standard: Responding
p
g to higher
g
risk of human rights
g
violations
10.
Because the risk of gross human rights abuses is heightened in conflict-affected areas, States
should help ensure that business enterprises operating in those contexts do not commit or
contribute to such abuses, including by:
II. The State Duty to Protect Human Rights
Supporting Business Respect for Human Rights in ConflictAffected Areas
A l i Extraterritoriality
Applying
E
i i li to W
Weak
kS
States and
d
Conflict Zones
-- The Methodology:
Engagement, assistance, public support, law and policy
10.
a.
b.
c.
d.
Engaging at the earliest stage possible with business enterprises to help them identify and
mitigate the human rights related risks of their activities and relationships;
Providing adequate assistance to business enterprises to assess and address the
heightened risks of abuse;
As appropriate, reducing or withdrawing access to public support and services for a
business enterprise that is involved in gross human rights abuse and fails to cooperate in
addressing the situation;
Ensuring that their current policies, regulation and enforcement measures are effective in
addressing the risk of business involvement in situations which could amount to the
commission of international crimes.
34
8
3/8/2011
II. The State Duty to Protect Human Rights
Multilateral Institutions
Incorporating the Standard into International Law
--Institutions
--Law Making
-- Incorporation
11.
States, when acting as members of multilateral institutions that deal with business
business-related
related issues,
should:
a.
Seek to ensure that those institutions neither restrain the ability of their member States to meet
their duty to protect nor hinder business enterprises from respecting human rights;
b.
Encourage those institutions, within their respective mandates and capacities, to promote
business respect for human rights and to help States meet their duty to protect against businessrelated abuse, including through technical assistance, capacity building and awareness-raising;
c.
Draw on the “Protect, Respect and Remedy” Framework to promote shared understanding and
advance international cooperation in the management of business and human rights challenges.
II. The Corporate Responsibility to Respect
Human Rights
Foundational Principles
Standard: Respect Human Rights
Definition: Avoid infringement and mitigate
12.
Business enterprises should respect human rights, which means to avoid infringing on the human
rights of others and to address adverse human rights impacts they may cause or contribute to. The
responsibility to respect human rights:
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9
3/8/2011
III. The Corporate Responsibility to Respect
Human Rights
Foundational Principles
Methodology:
-- Source: International Bill of Rights and ILO Core Conventions
-- Internal Scope: Supply chain
-- External Scope: All enterprises in all forms
12.
12
a.
b.
c.
Refers to internationally-recognized human rights, understood, at a minimum, as the principles
expressed in the International Bill of Human Rights and in the eight International Labor
Organization core conventions;
Applies across a business enterprise’s activities and through its relationships with third parties
associated with those activities;
Applies to all enterprises regardless of their size and ownership structure and of how they
distribute responsibilities internally or between entities of which they are constituted.
III. The Corporate Responsibility to
Respect Human Rights
Foundational Principles
p
From Standard and Methodology to Application
-- Policy
-- Process
13.
In order to meet their responsibility to respect human rights, business enterprises should have
in place policies and processes appropriate to their size and circumstances that enable them to
identify, prevent, mitigate and remediate any adverse human rights impacts they cause or
contribute to through their activities and relationships, and to account for their human rights
performance.
36
10
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III. The Corporate Responsibility to
Respect Human Rights
Policyy Commitment
The Policy Statement
-- Form
-- Content
14.
4
As the foundation for embedding
g their responsibility
p
y to respect
p
human rights,
g , business enterprises
p
should express their commitment through a statement of policy that;
a.
Is approved at the most senior level of the business enterprise;
b.
Is informed by appropriate consultation with relevant internal and external expertise;
c.
Stipulates the enterprise’s expectations of personnel and business partners;
d.
Is communicated internally and externally to all personnel, business partners and relevant
stakeholders;
e.
Is reflected in appropriate operational policies and procedures to embed it throughout the
business enterprise.
III. The Corporate Responsibility to
Respect Human Rights
Human Rights
g
Due Diligence
g
Process:
The Human Rights Due Diligence project as instrument of policy
15.
In order to identify, prevent and mitigate adverse human rights impacts, and to account for their
performance, business enterprises should carry out human rights due diligence. The process should
include assessing actual and potential human rights impacts, integrating and acting upon the
findings, and tracking as well as communicating their performance. Human rights due diligence;
a.
Will vary in scope and complexity with the size of the business enterprise, the severity of its
human rights risks, and the context of its operations;
b.
Must be on-going, recognizing that the human rights risks may change over time as the business
enterprise’s operations and operating context evolve;
c.
Should extend beyond a business enterprise’s own activities to include relationships with
business partners, suppliers, and other non-State and State entities that are associated with the
enterprise’s activities.
37
11
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III. The Corporate Responsibility to
Respect Human Rights
Human Rights Due Diligence
(continued)
Outputs:
Finding actual and potential adverse human rights impacts
-- Identification
-- Assessment
16.
6
IIn order
d tto b
become aware off h
human rights
i ht risks
i k generated
t d th
through
h th
their
i activities
ti iti and
d relationships,
l ti
hi
business enterprises should identify and assess the actual and potential adverse human rights impacts
of those activities and associated relationships. This process should:
a.
Draw on internal or external human rights experts and other resources;
b.
Involve meaningful engagement with potentially affected groups and other relevant
stakeholders, as appropriate to the size of the business enterprise and the nature and context of
its operations.
III. The Corporate Responsibility to
Respect Human Rights
Human Rights Due Diligence
(continued)
From Outputs to Action:
-- Integration
-- Mitigation
17
17.
In order to prevent and mitigate potential adverse human right impacts,
impacts business enterprises should
integrate the findings from their impact assessments across relevant internal functions and processes
and take appropriate action. Effective integration requires that:
a.
Responsibility for addressing such impacts is assigned to the appropriate level and function;
b.
Internal decision-making, budget allocations and oversight processes enable effective responses
to such impacts.
38
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III. The Corporate Responsibility to
Respect Human Rights
Human Rights Due Diligence
(continued)
Monitoring
Transparency
Reporting
18.
19.
In order to verify whether adverse human rights impacts are being effectively addressed, business enterprises should
track their performance. Tracking performance should:
a.
Be based
b d on appropriate qualitative
l
and
d quantitative metrics;
b.
Draw on feed-back from both internal and external stakeholders;
c.
Inform and support continuous improvement processes.
In order to account for their human rights performance, business enterprises should be prepared to communicate
publicly on their response to actual and potential human rights impacts when faced with concerns of relevant
stakeholders. Those business enterprises with significant human rights risks should report regularly on their
performance. The frequency and form of any communications on performance should:
a.
Reflect and respond with adequate information to an enterprise’s evolving human rights risks profile;
b.
Be subject to any risks such communications pose to stakeholders themselves, to personnel or to the legitimate
requirements of commercial confidentiality.
III. The Corporate Responsibility to
Respect Human Rights
Remediation
Scope and Nature of Obligations
-- Link to GP29
20
20.
Where business enterprises identify that they have been responsible for adverse impacts,
impacts they
should provide for or cooperate in their remediation through legitimate process.
39
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III. The Corporate Responsibility to
Respect Human Rights
Issues of Context
Operationalization Standards
-- Implementation of context specific action principle
-- Corporate substitution for State in weak governance and conflict
zones
21.
While the scale of complexity of policies and processes for ensuring that business enterprises
respect
p human rights
g
will varyy according
g to the enterprises’
p
size and the severityy of their human
rights impacts, in all cases enterprises should:
a.
Observe internationally recognized human rights also where national law is weak, absent
or not enforced;
b.
Seek ways to honor the principles of internationally recognized human rights where
domestic legal compliance may undermine their responsibility to respect;
c.
Respect the principles of international humanitarian law when operating in conflictaffected areas;
d.
Treat the risk of causing or contributing to international crimes as though it were a legal
compliance issue.
III. The Corporate Responsibility to
Respect Human Rights
Issues of Context
Prioritization Rules
-- Prevention first
-- Mitigation second
-- Factors: Severity, irremediable harm
22.
Where it is necessary to prioritize actions to address actual and potential adverse human rights
impacts, business enterprises should first seek to prevent and mitigate those that are most
severe or where delayed response would make them irremediable.
40
14
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IV. Access to Remedy
Foundational Principle
Remedy as a subset of the State duty to protect
-- Territorial principle
--Rule of law principle
-- Strong governance principle
23.
As part of their duty to protect against business-related human rights abuse, States must take
appropriate steps to ensure that when such abuse occur within their territory and/or
jurisdiction, those affected have access to effective remedy through judicial, administrative,
legislative or other appropriate means.
IV. Access to Remedy
State-Based Judicial Mechanisms
Judicial Remedies
-- Principle of supremacy of International Law in Domestic legal order
-- Tension with Constitutional constraints of many states
i. US example Avena case
24.
States should take appropriate steps to ensure the effectiveness of domestic judicial
mechanisms when addressing human rights-related claims against business, including
considering ways to reduce legal, practical and other relevant barriers that could lead to a
denial of access to remedy.
41
15
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IV. Access to Remedy
State-Based Non-Judicial Grievance Mechanisms
The State and non-judicial remediation mechanisms
-- Standard: Effective and appropriate mechanism
-- Supplement rather than substitute
25.
States should provide effective and appropriate non-judicial grievance mechanisms, alongside
judicial mechanisms, as part of a comprehensive State-based system for the remedy of
business-related human rights harms.
IV. Access to Remedy
Non-State-Based Grievance Mechanisms
State involvement in business based remedial mechanisms
Operational level grievance mechanism as supplement
Collective private grievance mechanisms encouraged
-- Subordination of Corporate Responsibility to State duty
-- Supplemental not substitute for either judicial or non-judicial state
based remedies
-- Collective private remedies treated like company based mechanism
26.
27.
28.
States should consider ways to facilitate access to effective non-state-based mechanisms
dealing with business-related human rights grievances.
To make it possible for grievances to be addressed early and remediated directly, business
enterprises should establish or participate in effective, operational-level grievance mechanisms
for individuals and communities who may be adversely impacted.
Collaborative industry or multi-stakeholder initiatives in this domain should also provide for
effective grievance mechanisms.
42
16
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IV. Access to Remedy
Effectiveness Criteria for Non-Judicial Grievance Mechanisms
Operationalization Mechanics
-- Mandatory standards for authority
-- Legitimate
-- Accessible
-- Predictable
-- Equitable
E it bl
-- Rights
-- Compatible
-- Transparent
29.
Non-judicial grievance mechanisms, whether state-based or non-state-based, should be:
IV. Access to Remedy
Effectiveness Criteria for Non-Judicial Grievance Mechanisms
Operationalization Mechanics
-- Optional standards for authority
--Dialogue, Engagement, Empowerment
29.
a.
Legitimate: having a clear, transparent and sufficiently independent governance structure to ensure that no party
to a particular grievance process can interfere with the fair conduct of that process;
b.
Accessible: being publicized to those who may wish to access it and provide adequate assistance for aggrieved
parties who may face barriers to access, including language, literacy, awareness, finance, distance, or fear of
reprisal;
c.
Predictable: providing a clear and known procedure with a time frame for each stage and clarity on the types of
process and outcome it can (and cannot) offer, as well as a means of monitoring the implementation of any
outcome;;
d.
Equitable: ensuring that aggrieved parties have reasonable access to sources of information, advice and expertise
necessary to engage in a grievance process on fair and equitable terms;
e.
Rights-Compatible: ensuring that its outcomes and remedies accord with internationally recognized human rights
standards;
f.
Transparent: providing sufficient transparency of process and outcome to meet the public interest concerns at
stake and presuming transparency wherever possible; non-State mechanisms in particular should be transparent
about the receipt of complaints and the key elements of their outcomes.
Operational-level mechanisms also should be:
g.
Based on Dialogue and Engagement: focusing on processes of direct and/or mediated dialogue to seek agreed
solutions, and leaving adjudication to independent third-party mechanisms, whether judicial or non-judicial.
43
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Summing Up: Will it work?
-- Globalization has made it possible for large multinational corporations to
avoid national regulation. There is no global substitute for national regulation.
--Multiple
M lti l sources off governance; goal--can
l
th work
they
k ttogether
th ffor a common
objective?
-- Human rights has become a key feature of the social political and legal debate
about the responsibility of corporations for their actions and operations.
-- Can the United Nations successfully step into the void?
-- We have examined the United Nations “Protect, Respect, and Remedy”
Framework as a basis for creating a regulatory environment for issues of
business and human rights
-- The Framework creates a new form of governing corporations based on an
inter-relationship between law enforced by states, business norms enforced by
markets and international norms that influence both.
Definitions
For the purposes of these guiding principles:
The term business enterprise refers to all companies, both transnational and others,
regardless of sector or country of domicile or operation, of any size, ownership form or structure.
The term corporate is used in the non-technical sense, interchangeably with ‘business
enterprises’, regardless of their form.
Internationally recognized human rights refers at a minimum to the principles
contained in the International Bill of Human Rights (consisting of the Universal Declaration of
Human rights and the main instruments through which it has been codified: the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social and
Cultural rights), coupled with the eight ILO core conventions that form the basis of the Declaration
on Fundamental Principles and Rights at Work.
Human rights risks refer to potential adverse impacts on human rights through a
business enterprise’s activities or relationships. Identifying human rights risks comprises an
assessment both of impacts and – where they have not occurred – of their likelihood.
A grievance is understood as a perceived injustice evoking an individual’s or a group’s
sense of entitlement, which may be based on law, explicit or implicit promises, customary practice,
or general notions of fairness of aggrieved communities.
The term grievance mechanism is used to indicate any routinized, state-based or nonstate-based, judicial or non-judicial process through which grievances related to business abuse of
human rights can be raised and remedy can be sought.
44
18
Interpretation of Human Rights for the Protection of the
Environment in the Jurisprudence of the European Court of
Human Rights
Dr. Prof. Svitlana Kravchenko
Introduction
The European Convention for the Protection of Human Rights and Fundamental
Freedoms 1 (hereinafter — the European Convention) was signed in 1950 and entered into force
in 1953, before environmental problems were recognized and protection of the environment
appeared in international law. Therefore, environmental rights cannot be found among rights
enshrined in the Convention. However, the European Court of Human Rights (hereinafter –
ECHR or the Court) has taken a new direction, starting in the 1990s. The Court has derived
environmental rights from traditional fundamental rights, such as the right to respect for private
and family life, the right to information, the right to life, and the right to effective judicial
protection and right to compensation for damage. In particular, the Court’s jurisprudence has
recognized violations of Article 8 – the right to respect for private and family life – and
violations of Article 2 – the right to life. The Court uses creative interpretation of fundamental
human rights to solve environmental problems and protect the environment.
The European Convention on Human Rights has been ratified by every nation that is a member
of the Council of Europe. In some countries the Convention is directly applicable, such that
national courts apply the Convention in the same way as they apply their own national laws and
even use the jurisprudence of the ECHR as legally binding precedents or at least show respect
and deference to them. For example, the German Federal Constitutional Court understands
decisions of the ECHR under the Convention to be binding not only for the Government, but also
for German courts. 2 In some countries the ECHR’s decisions may even be superior to national
legislation, giving them a quasi-constitutional status.
In Ukraine the European Convention is part of national legislation according to the Article 9 of
the Constitution and therefore has direct application. The Parliament of Ukraine ratified the
European Convention on July 17, 1997, 3 and accepted the jurisdiction of the ECHR. Moreover,
the Government of Ukraine has recently recognized the jurisprudence of ECHR as a source of
law – and as legally binding precedents for Ukrainian courts to follow while adjudicating cases
between individuals, companies and authorities. 4
1
Official text of the Convention see at http://www.echr.coe.int/echr/index.htm
Frank Hoffmeister, Germany: Status of European Convention on Human Rights in domestic law — GermanyOxford Journals, Journal of Constitutional Law, Volume 4, Number 4, at 722-731 at
http://icon.oxfordjournals.org/cgi/reprint/4/4/722.
3
Закон України «Про ратифікацію Конвенції про захист прав людини і основоположних свобод 1950 року,
Першого протоколу та протоколів N 2, 4, 7 та 11 до Конвенції», http://zakon1.rada.gov.ua.
4
The Law of Ukraine on the Enforcement of Judgments and the Application of the Case-Law of the European Court
of Human Rights, Article 17 http://zakon1.rada.gov.ua
2
45
In other countries, the European Convention is effectively applied only when cases are taken
to the European Court of Human Rights. In both types, decisions of the Court are, once handed
down, considered to constitute a legal obligation for the country concerned as well as a matter of
precedent to be observed by that member and all other members of the Council of Europe. As a
consequence, the jurisprudence of the European Court of Human Rights is central to the question
of whether environmental harms have a human rights dimension in Europe.
The procedure of application to the ECHR is the most open and democratic among regional
human rights courts - the ECHR accepts applications alleging human rights violations brought by
individuals 5 against States. When the ECHR finds a breach of the rights enshrined in the
Convention the Court grants just satisfaction 6 obliging Governments to adopt measures to
remedy applicant’s individual situation.
Despite the lack of an explicit right to a healthy environment 7 in the European Convention on
Human Rights, other rights that are recognized in the Convention have been used to grant
remedies in the case of environmental harm. The most ECHR’ environmental cases interpreted
article 8 – Right to privacy and family life – as a legal basis to stopping pollution or degradation
of the environment.
I. Article 8 – Right to privacy and family life
1. López Ostra v. Spain
Mrs. Gregoria López Ostra lived in Lorca, in the Murcia region in Spain. She and her family
- husband and their two daughters - had their home a few hundred meters from a heavy
concentration of leather industries. Several tanneries belonging to a company SACURSA had a
plant for the treatment of liquid and solid waste about twelve meters away from the applicant's
home. The plant began to operate without the license required by regulations on activities
classified as causing nuisance and being unhealthy, noxious and dangerous for health. This
contamination of air caused health problems and nuisance to many Lorca people, particularly
those living in the area closed to tanneries. The town council evacuated the local residents free of
charge in the town centre for the months of July, August, and September 1988. But in October
the applicant and her family returned to their flat and lived there until February 1992. 8
On 9 September 1988, following numerous complaints and in the light of reports from the
health authorities and the Environment and Nature Agency for the Murcia region, the town
council ordered cessation of one of the plant's activities while permitting the treatment of waste
water contaminated with chromium to continue.
5
Supra note 1, Article 34.
Supra note 1, Article 41
7
Recently the right to enjoy a healthy and protected environment was recognized in Tatar v. Romania (discussed
later, on p.7).
8
Application No. 16798/90, Series A no. 303-C, (1995) 20 E.H.R.R. 277
Judgment of 9 December 1994
6
46
In a lower court the judge ordered a number of expert opinions as to the seriousness of the
nuisance caused by the waste-treatment plant and its effects on the health of those living nearby.
The investigation file contains several medical certificates and expert opinions concerning the
effects on the health of those living near the plant. Doctor-pediatrician stated that Mrs. López
Ostra's daughter, Cristina, presented a clinical picture of nausea, vomiting, allergic reactions,
anorexia, etc., which could only be explained by the fact that she was living in a highly polluted
area and recommended to move from the area. 9
The Ministry of Justice's Institute of Forensic Medicine indicated that gas concentrations in
houses near the plant exceeded the permitted limit. It noted that the applicant's daughter and her
nephew, Fernando López presented typical symptoms of chronic absorption of the gas
periodically manifested in the form of acute broncho pulmonary infections. It considered that
there was a relationship between this disease and the levels of gas.
The appellate court stated that the nuisances in issue impaired the quality of life of those
living in the plant's vicinity, but it held that this impairment was not serious enough to infringe
the fundamental rights recognized in the Constitution.
Who was responsible for the pollution? The Spanish authorities, and in particular the Lorca
municipality, were theoretically not directly responsible for the emissions. However, the town
allowed the plant to be built on its land and the State subsidized the plant's construction. The
municipality had a duty to act. The plant did not satisfy the legal requirements, in particular as
regards to its failure to obtain a municipal license.
The Court found a violation of Article 8 of the Convention. In interpreting Article 8 of the
Convention, the Court states that “regard must be had to the fair balance that has to be struck
between the competing interests of the individual and of the community as a whole.” In
evaluating this balance the Court uses a “margin of appreciation” doctrine. Under this doctrine,
the Court allows the state a certain degree of discretion in determining the appropriate balance.
The Court ruled that the State did not succeed in striking a fair balance between the interest of
the town's economic well-being of having a waste-treatment plant and the applicant's effective
enjoyment of her right to respect for her home and her private and family life.
The Court ordered compensation of non-pecuniary damage. In addition to the nuisance
caused by the gas fumes, noise and smells from the plant, the applicant felt distress and anxiety
as she saw the situation persisting and her daughter's health deteriorating. The Court awarded
Mrs. López Ostra 4,000,000 Spanish pesetas.
López Ostra represents a significant turning point for environmental claims under the
Convention regime. It was the first case in which the ECHR found a breach of the Convention as
a consequence of environmental harm. Moreover, Spain was found to have breached an
affirmative duty to act to ensure the respect of a derivative right not explicitly set forth under the
Convention regime, the right to live in an environment not adverse to one's health. 10
What kind of guidance does the European Court of Human Rights’ López Ostra decision give
to the national courts of Spain and other countries governed by the European Convention? How
are they to determine how to handle future claims involving air pollution and private homes?
9
Ibid
Mariana T. Acevedo, The Intersection of Human Rights and Environmental Protection in the European Court of
Human Rights, 8 N.Y.U. Envtl. L.J. 437 (2000)
10
47
Furthermore, in order for such rights to become embedded in the culture, practices, and
legislation of a country, legislatures must be able to draw lessons from the ECHR decision.
2. Giacomelli v. Italy.
A homeowner complained of pollution from a waste storage and treatment plant about 30
meters from her home. The state authorities granted permission to operate the plant and increase
the quantity of waste processed there without conducting an environmental impact assessment
(EIA) to ensure the plant’s compliance with Italy’s environmental laws. Eventually, when the
plant operator applied for relicensing five years later, an EIA was conducted. Even though the
EIA indicated that the plant was in violation of two different Italian environmental laws, the
authorities did not suspend operation of the plant as required by law. The ECHR held that the
state conduct violated Article 8 because the state authorities deprived the homeowner of her
procedural rights by failing to complete an EIA in the first instance and by failing to suspend the
plant’s operation when the EIA was eventually completed. 11
3. Guerra v. Italy
In this case 40 applicants lived in the town of Manfredonia, 1km from a chemical factory
which produced fertilizers and other chemicals. The factory was classified as "high risk"
according to criteria set out by Presidential Decree. 12 The applicants complained that the
authorities did not take appropriate action to reduce the risk of pollution by the factory and to
prevent the risk of accident. They argued that this infringed their rights to life and physical
integrity under Article 2 of the Convention. They also complained that the State had failed to
provide information about the risks and how to proceed in the event of an accident. They argued
that this is a breach of their right to freedom of information under Article 10 of the Convention.
In addition, they complained before the Court that their right to respect for family life under
Article 8 of the Convention had been infringed, as a result of the authorities' failure to provide
them with the relevant information. 13
The applicants live 1km away from the chemical factory which produced fertilizers and
classified as "high risk" according to the criteria set out in Presidential Decree of 18 May 1988.
The applicant complained that production cycle of the factory released large quantities of
inflammable gas which could have led to explosive chemical reactions, releasing into the air
highly toxic substances such as sulphur dioxide, nitric oxide, sodium, ammonia, metal hydrides,
benzoic acid and arsenic trioxide. Serious accident of air pollution happened on 26 September
1976 when the scrubbing tower for the ammonia synthesis gases exploded and several tons of
potassium carbonate and bicarbonate solution, containing arsenic trioxide emitted into
atmosphere. 150 people were admitted to hospital with acute arsenic poisoning. The results of a
study by the factory itself showed that the emission treatment equipment was inadequate and the
environmental impact assessment incomplete.
11
Application No. 59909/00, ECHR 2006, (2007) 45 E.H.R.R. 38, judgment of 2 November 2006
Application No. 14967/89, Reports of Judgments and Decisions 1998-I, (1998) 26 E.H.R.R. 357
13
Ibid
12
48
National law (Articles 11 and 17 of D.P.R. 175/88) requires the relevant local government to
inform local inhabitants of the hazards of the industrial activity, the safety measures taken, the
plans made for emergencies, and the procedure to be followed in the event of an accident.
On 14 September 1993 the Ministry for the Environment and the Ministry for Health jointly
adopted conclusions on the factory's safety report of July 1989, as required by Article 19 of
D.P.R. 175/88. Those conclusions prescribed a number of improvements to be made to the
factory and provided the Prefect with instructions as to the emergency plan for which he was
responsible and the measures required for informing the local population under Article 17 of the
decree. However, the mayor pointed out that the District Council was still awaiting direction
from the Civil Defense Department before deciding what safety measures should be taken and
what procedures should be followed in the event of an accident and communicated to the public.
No measures were taken at this point.
In relation to this case it is important to mention that the Parliamentary Assembly of the
Council of Europe Resolution 1087 (1996) on the consequences of the Chernobyl disaster, which
was adopted on 26 April 1996. This Resolution refers not only to the risks associated with the
production and use of nuclear energy in the civil sector but also to other matters, it states "public
access to clear and full information . . . must be viewed as a basic human right.” 14
The ECHR ruled in Guerra v. Italy that the respondent State did not fulfill its obligation to
secure the applicants' right to respect for their private and family life, in breach of Article 8 of
the Convention. Because it found a violation under Article 8, the Court ruled that there was no
need to consider an additional claim under Article 2, the right to life.
In concurring opinion Judge Walsh wrote that “…the Court in its judgment has briefly
mentioned Article 2, but has not ruled on it, I am of the opinion that this provision has also been
violated.” 15 Moreover, Judge Jambrek in his concurring opinion wrote that protection of health
and physical integrity is as closely associated with the "right to life" as with the "respect for
private and family life.” He also wrote: “If information is withheld by a government about
circumstances which foreseeably, and on substantial grounds, present a real risk of danger to
health and physical integrity, then such a situation may also be protected by Article 2 of the
Convention: "No one shall be deprived of his life intentionally."
It may therefore be time for the Court's case law on Article 2 (the right to life) to start
evolving, to develop the respective implied rights, articulate situations of real and serious risk to
life, or different aspects of the right to life.” 16
That time came just a few years later in 2002, when the Court eventually brought Article 2
into play in a more serious context in the case Öneryildiz v. Turkey (analyzed later).
4. Fadeyeva v. Russia
The applicant was born in 1949 and lives in the town of Cherepovets where an important
steel-producing cement plant “Severstal” (“the plant”) is located. In 1982 her family moved to a
flat situated at about 450 meters from the territory of the plant. The plant is the largest iron
14
EUR. PARL. ASS., Resolution 1087 on the Consequences of the Chernobyl Disaster, ¶ 4 (1996). Later, in
Öneryildiz v. Turkey, the Grand Chamber went further, noting that such a human right to information had previously
been found by the Court to be part of the right of private and family life under Article 8 of the European Convention
on Human Rights, citing the decision in Guerra v. Italy.
15
Supra note 3
16
Ibid
49
smelter in Russia. In order to limit the areas in which pollution caused by steel production the
authorities established a buffer zone around the Severstal – “the sanitary security zone.” It
covered a 5,000 meter-wide area around the territory of the plant. Although this zone was, in
theory, supposed to separate the plant from the town's residential areas, in practice thousands of
people (including the applicant's family) lived there. 17
The apartment buildings in the sanitary zone belonged to the plant and were designated
mainly for its workers, who occupied the flats as life-long tenants. A Decree of the Council of
Ministers of the Russian Soviet Republic, dated 10 September 1974, obliged the Ministry of
Black Metallurgy to resettle the inhabitants of the sanitary security zone who lived in districts
nos. 213 and 214 by 1977. However, this has not been done.
In 1990 the Government of the Russian Soviet Republic adopted a program that stated that
“the concentration of toxic substances in the town's air exceeds the acceptable norms many
times” and that the morbidity rate of Cherepovets residents was higher than average. It was noted
that many people still lived within the steel-plant's sanitary security zone. Under the program, the
steel-plant was required to reduce its toxic emissions to safe levels by 1998. The steel-plant was
also ordered to finance the construction of 20,000 square meters of residential property every
year for the resettlement of people living within its sanitary security zone.
By municipal decree no. 30 of 18 November 1992 the boundaries of the sanitary security
zone around the plant were redefined. The width of the zone was reduced to 1,000 meters.
In 1996 the Government of the Russian Federation adopted Decree no. 1161 that had a
program to reduce emission and to resettle people. Implementation of the 1996 program was
funded by the World Bank. The second paragraph of this program stated as follows:
The concentration of certain polluting substances in the town's residential areas is 2050 times higher than the maximum permissible limits (MPLs). . . . 18 The biggest
“contributor” to atmospheric pollution is Severstal PLC, which is responsible for 96 per
cent of all emissions. The highest level of air pollution is registered in the residential
districts immediately adjacent to Severstal's industrial territory. . . . The situation is
aggravated by an almost complete overlap of industrial and residential areas of the city,
in the absence of their separation by sanitary security zones. 19
The Decree further stated that “the environmental situation in the city has resulted in
a continuing deterioration in public health.”
The applicant made attempts to be resettled from sanitary zone. In 1995 Mrs. Fadeyeva
brought a law suit to the town court seeking resettlement outside the zone. She alleged that the
environmental situation in the zone was dangerous for health and life. On 17 April 1996 the
court examined the situation and did not make an order to resettle an applicant but stated that the
local authorities must place her on a “priority waiting list” to obtain new housing. However, in
February 1997 the bailiff discontinued the enforcement proceedings on the ground that there was
no “priority waiting list” for new housing for residents of the sanitary security zone.
17
Application No. 55723/00, ECHR 2005-IV, (2007) 45 E.H.R.R. 10
Judgment of 30 November 2005
18
MPLs are the safe levels of various polluting substances, as established by Russian legislation («предельно
допустимые концентрации», ПДК).
19
Supra note 9
50
In 1999 the applicant brought a new law suit against the municipality, seeking immediate
execution of the judgment of 17 April 1996. The applicant claimed that systematic toxic
emissions and noise from Severstal facilities violated her basic right to respect for her private life
and home, guaranteed by the Russian Constitution and the European Convention on Human
Rights. 20
The Court found that the State authorized the operation of a polluting enterprise in the middle
of a densely populated area. The toxic emissions from this enterprise exceeded the safe limits
established by the domestic legislation and might endanger the health of those living in polluted
areas. The State established sanitary protective zone around the plant that should be free of any
dwelling. However, these legislative measures were not implemented in practice.
The Court chose not to dictate what measures should be adopted by the States in order to
comply with its positive duties under Article 8 of the Convention. However, State should offer
the applicant effective solution to help her move from the dangerous area. Therefore the Court
concluded that the State “has failed to strike a fair balance between the interests of the
community and the applicant's effective enjoyment of her right to respect for her home and her
private life. There has accordingly been a violation of Article 8.” 21
Might more comprehensive remedies be available in the national court system? If so, would
it be possible for a litigant in a national court to use the ECHR ruling on a violation of Article 8
but to ask a national court to grant a more sweeping remedy such as an injunction to clean up the
steel plant or resettle the residents? If the Russian Federation ignores ECHR precedents and
compensation rulings, what can a complainant do? Does it matter whether the European
Convention on Human Rights has direct application within the nation’s legal system? Does that
give hope for achieving a domestic remedy after this ECHR ruling?
A year later after Fadeyeva case, the Court considered similar claims from several applicants
living in the same apartment complex area and within the same “security zone” near the
Severstal plant in Ledyayeva v. Russia. 22 The Court unanimously found as follows:
Having examined the materials submitted to it, the Court notes that in the present cases
the Government did not put forward any new fact or argument capable of persuading it to
reach a conclusion different from that of the Fadeyeva case. The Court concludes that,
despite the wide margin of appreciation left to the respondent State, the authorities failed
to take appropriate measures in order to protect the applicants' right to respect for their
homes and private lives against serious environmental nuisances. In particular, the
authorities have neither resettled the applicants outside the dangerous zone, nor have they
provided for a compensation for those seeking the resettlement. Furthermore, it appears
that the authorities failed to develop and implement an efficient public policy which
would induce the steel-plant to reduce its emissions to the safe levels within a reasonable
time. There has accordingly been a violation of Article 8 of the Convention.
20
Ibid
Ibid
22
App. Nos. 53157/99, 53247/99, 53695/00 and 56850/00, Judgment of 26 October 2006.
21
51
It should not have been necessary for the Ledyayeva case to be decided by the European
Court after the Fadeyeva case. Fadeyeva should have been a sufficient precedent in the national
legal system that additional persons in the same situation could be used to obtain at least
compensation. In this situation directive given by the Supreme Court of the Russian Federation
looks particularly contradictory:
The Russian Federation, as a Party to the Convention for the Protection of Human Rights and
Fundamental Freedoms, accepts the jurisdiction of the European Court of Human Rights as
binding on matters of the interpretation and application of the Convention and its Protocols in
the case of a presumed infringement by the Russian Federation of the provision of these
treaties documents, when the presumed infringement occurred after the entry into force in
relation to Russian Federation . . . Therefore use by the courts of the above mentioned
Convention must have regard to the practice of the European Court of Human Rights so as to
avoid any infringement of the Convention. . . .
Interpretations of the decisions concerning the Russian Federations implies that, should the
need arise, the State will adopt special measures aimed at eliminating breaches of the human
rights covered by the Convention and the consequences of these breaches. The courts should
act within their competence so as to ensure fulfillment of the obligations of the State arising
from the participation of the Russian Federation in the Convention. . . . 23
5. Tatar v. Romania
In a recent case Tatar v. Romania concerning the exploitation of Baia Mara gold mine
by the company S.C. Aurul S.A. (now operating as S.C. Transgold S.A.) near populated
areas 24 the Court for the first time used the precautionary principle and positive obligation of
the state to address in advance the potential risk of the gold mine on the environment and
health of population. The company's extraction process involved the use of sodium cyanide.
Part of its activity was located in the vicinity of the applicants' home. On 30 January 2000 an
environmental accident occurred at the site. A United Nations study reported that a dam had
breached, releasing about 100,000 m3 of cyanide-contaminated tailings water into the
environment. 25 The Court observed that pollution could interfere with a person's private and
family life by harming his or her well-being, and that the State had a duty to ensure the
protection of its citizens by regulating the authorizing, setting-up, operating, safety and
monitoring of industrial activities, especially activities that were dangerous for the
environment and human health. The Court further noted that the company had been able to
continue its industrial operations after the January 2000 accident, in breach of the
precautionary principle, according to which the absence of certainty with regard to current
scientific and technical knowledge could not justify any delay on the part of the State in
adopting effective and proportionate measures. 26 The Court concluded that the Romanian
authorities had failed in their duty to assess the risks that the company's activity might entail,
No.5 of Oct. 10, 2005, available in Russian at Бюллетень № 12 от 31.12.2003,
http://www.supcourt.ru/vscourt_detale.php?id=1961
24
Application no 67021/01, ECHR
25
Ibid
26
Ibid
23
52
and to take suitable measures in order to protect the rights of those concerned to respect for
their private lives and homes, within the meaning of Article 8, and more generally their right
to enjoy a healthy and protected environment. 27 For the first time the Court recognized the
right to a healthy and protected environment.
II. Article 2 - Right to Life
1. Öneryildiz v. Turkey
The applicant lived with twelve close relatives in the slum quarter Kazım Karabekir, a
district of Istanbul. Since the early 1970s a household-refuse tip had been in operation in a slum
area. Situated on a slope, the site spread out over a surface area of approximately 35 hectares and
was used as a rubbish tip by several districts under the authority and responsibility of the city
council and the ministerial authorities. 28
When the rubbish tip started being used, the area was uninhabited and the closest built-up
area was approximately 3.5 km away. However, later dwellings were built without any
authorization in the area surrounding the rubbish tip, which eventually developed into the slums
of Ümraniye.
According to the experts’ report of 7 May 1991, the rubbish tip in question did not conform
to the technical requirements set in the Regulations of 14 March 1991 and presented a danger
and a major health risk for the inhabitants of the valley, particularly those living in the slum
areas. The Report underlined that:
In any waste-collection site gases such as methane, carbon dioxide, and hydrogen sulphide
form. These substances must be collected and ... burnt under supervision. However, the tip in
question is not equipped with such a system. If methane is mixed with air in a particular
proportion, it can explode. This installation contains no means of preventing an explosion of
the methane produced as a result of the decomposition [of the waste]. 29
The report was brought to the attention of the four councils and later the governor asked
to brief the Ministry of Health and the Prime Minister’s Environment Office. The Environment
Office made a recommendation urging the Istanbul Governor’s Office, the city council and
Ümraniye District Council to remedy the problems identified in the present case. 30 While
different governmental agencies discussed the problem back and forth, Ümraniye District
Council informed the mayor of Istanbul that from 15 May 1993 the dumping of waste would no
longer be authorized.
27
http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/e4ca7ef017f8c045c1256849004787f5/98470652f7cb7870c125754c002de
91f?OpenDocument See also Alan Boyle, “Environment and Human Rights” in Max Plank Encyclopedia of Public
International Law (Max Plank Institute for Comparative Public Law and International Law and Oxford Univ. Press,
2010), available at http://www.mpepil.com
28
Application No. 48939/99, ECHR 2004-XII, (2005) 41 E.H.R.R. 20
Judgment of 30 November 2004
29
Ibid
30
Ibid
53
On 28 April 1993 a methane explosion occurred at the site. Following a landslide caused by
mounting pressure, the refuse erupted from the mountain of waste and engulfed some ten slum
dwellings situated below it, including the one belonging to the applicant. Thirty-nine people died
in the accident. The applicant complained that the death of nine of his close relatives in the
accident had constituted a violation of Article 2 of the Convention which provides:
Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a
crime for which this penalty is provided by law. . . .
The Court recognized that the protection of the right to life, as required by Article 2 of the
Convention, could be relied on in connection with the operation of waste-collection site and held
positive obligation on States to take appropriate steps to safeguard the lives of those within their
jurisdiction, for the purposes of Article 2. Therefore the Court held unanimously that there has
been a violation of Article 2 of the Convention in its substantive aspect, on account of the lack of
appropriate steps to prevent the accidental death of nine of the applicant’s close relatives. 31
2. Budayeva v. Russia
Budayeva and other applicants lived in the town of Tyrnauz in Russia. Mudslides have been
recorded in the area every year since 1937. The applicants alleged that in July 2000 the Russian
authorities failed to warn the local population about the likelihood of a large-scale mudslide
devastating Tyrnauz and to implement evacuation and emergency relief policies. On 18 July
2000 a flow of mud and debris hit the town of Tyrnauz and flooded part of the residential area.
Because there was no advance warning applicants only just managed to escape. Fatima
Atmurzayeva and her daughter, caught in the mud and debris while trying to escape, were
injured and suffered severe friction burns. 32 Once the mudslide struck, the alarm was raised
through loudspeakers, but the applicants claimed that there were no rescue forces or any other
emergency relief after the disaster. In the morning of 19 July 2000 the mud level fell and, as
there were no police or emergency officers to stop them, certain residents, among them Khalimat
Budayeva and her family, returned to their homes. They were not aware of any order to evacuate.
At 1 p.m. that day a second, more powerful, mudslide hit the town. Ms. Budayeva and her eldest
son managed to escape. Her younger son was rescued, but sustained serious cerebral and spinal
injuries. Her husband, Vladimir Budayev, who had stayed behind to help his parents-in-law, was
killed when the block of flats collapsed. The town was subsequently hit by a succession of
mudslides over a period lasting until 25 July 2000. Eight people were officially reported dead,
although the applicants alleged that 19 people went missing. All the applicants claimed that their
homes and possessions were destroyed and that their living conditions and health had
deteriorated since the disaster. 33
Relying on Articles 2 (right to life), 8 (right to respect for private and family life), the
applicants alleged that, as a result of the Russian authorities' failure to mitigate the consequences
of the mudslides from 18 to 25 July 2000, the authorities put their lives at risk and were
responsible for the death of Mr. Budayev and the destruction of their homes. They also
31
Ibid
Application no 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 ECHR
33
Ibid
32
54
complained under Article 2 that the authorities failed to carry out a judicial enquiry into the
disaster.
The Court found violation of Article 2, and decided that it is not necessary to examine article
8. Under Article 41 (just satisfaction), the Court awarded in respect of non-pecuniary damage. 34
Conclusions
The Convention was recognized as “living instrument which has to be interpreted in the light of
present-day conditions.” 35 Even though the Convention does not expressly guarantee the right to
a sound and healthy environment, during last two decades the ECHR interpreted several of its
articles (namely 2, 8, and 10) to address cases of environmental degradation.
34
35
Ibid
Tyrer v. United Kingdom, Application no 5856/72, at 31.
55
3/8/2011
Prof Steven D. Jamar
Howard University School of Law, and Associate Director of the Institute for Intellectual Property and Social Justice
Overview
 Copyright essentials
 IHR of access to information
 Information technologies impacting access to information
 Role of copyright in mediating access and technologies
 Copyright: Engine of development or brake on advancement?
56
1
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Copyright Essentials
 Does not protect ideas or processes
 Protects original expression of ideas or processes in writings, art, computer programs, webpages, music, audiovisual works, etc.
 Utilitarian justification – advancement of society
 Moral justification –
j
Property right of a creator of p y g
property IHR of Access to Information
 ICCPR explicitly provides such a right
p
yp
g
 Generally considered in relation to political information
 Other types of information are also encompassed by the right
 Environmental
 Artistic
 Economic
 Technological
 Entrepreneurial
57
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William Kamkwamba
 The Boy Who Harnessed the Wind
 Malawi
 Wind turbine electrical generator based on books from U.S. AID library
 Think if the Kamkwambas of the world had internet?
 Google search for “wind turbines”
Google search for wind turbines
Information Access Technologies
 Internet/world wide web
 Search engines
 Databases
 Google Books
 YouTube
 DIY
 Wikipedia
 Government information  NGOs
58
3
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Copyright Mediating Access to Information
 “Information wants to be free”
Information wants to be free
 “Mine, mine, mine”
 Inducement to create and disseminate
 Business and development models
 Payment
 Distribution
Copyright mediating access to information (continued)
 Copyright (and other IP) in the distribution 



technology (the mechanism)
Copyright in the works/information being distributed (the content)
Payment mechanisms
Public interest
Utilitarian core
59
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Engine or Brake
Kamkwamba’s Windmill
60
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Exploring Patents through the
Prism of Public Policy
Prof. V.K. Unni
Public Policy and Management Group
Indian Institute of Management Calcutta
E-mail: [email protected]
Symposium on The Global Impact and Implementation
of Human Rights Norms
March 11-12, 2011, McGeorge School of Law,
University of the Pacific, Sacramento, CA
Exploring ….





All forms of Intellectual Property (IP) confer some sort of
a monopoly to the right holder
But this is not an absolute monopoly
Public policy has played a crucial role in making sure
that the IP holders do not abuse this right and cause
harm to the society
Thus in almost all jurisdictions there are various
safeguards being incorporated to protect the public
interest
This is true even in the case of countries which are
perceived to be more IP friendly
61
1
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Patents & Public Policy




Under the patent law there are various provisions to
safeguard the public policy
Right from the requirements to be satisfied for the grant of a
patent till the time a patent is revoked there are numerous
provisions contained in the statute
Patentability requirements like novelty, inventive step and
industrial application are nothing but tools triggered by
public
bli policy
li to
t preventt the
th existence
i t
off unworthy
th patents
t t
Furthermore in countries like India and U.K. there are
provisions dealing with exclusions from patentability, for
e.g. Sec 3 of the Indian Patents Act 1970
Patents & Public Policy



Sec 3 (d) is a tool to safeguard the public interest against
the concept of patent evergreening which is being
practised by some pharmaceutical companies
Sec 3 (p) “An invention which, in effect, is traditional
knowledge, or is an aggregation or duplication of known
properties of a traditionally known component, was
enacted as a result of the public outcry against the
patenting issues relating to neem and haldi extracts in
USA
Furthermore there are other provisions dealing with
opposition, governmental use, revocation
62
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Patents & Public Policy
Opposition of patents
 The Indian Law
La provides
pro ides for both pre grant and post grant
opposition
 As per Sec 25 (1) when an application for a patent has been
published but has not been granted, any person may ,in
writing, represent by way of opposition to the Controller
against the grant of the patent. (pre-grant opposition)
 As mentioned,, the Indian law also p
provides for post
p ggrant
opposition
 After the grant of patent but before the expiry of a period of
one year from the date of grant, any interested person may
give notice of opposition to the Controller, Sec 25 (2)
Patents & Public Policy
The grounds can be many like lack of novelty, obviousness,
insufficient description of the invention etc
 Then the Controller of patents has to constitute an opposition
board to consider this opposition
 The opposition board has to hear both the parties and give its
opinion to the controller,
 Thus the Controller can either, maintain, amend or revoke the
ppatent after the said pproceedings
g
Compulsory Licensing
 The aim or purpose of this provision is to ensure hat the
patented invention is worked on a commercial scale in India to
the fullest extend possible and also to protect the interests of
people developing the invention

63
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Patents & Public Policy
Grounds for compulsory licensing can be classified the grounds
into two categories,
categories (private and public)
 Those that can be invoked directly by a private company like Dr.
REDDY’S / Torrent, this is known as a licence on private grounds
and those that can only be invoked by or with the help of the
government, known as a licence on ‘public grounds
 Sec 84 deals with compulsory licensing on private grounds
 After 3 y
years from the ggrant of the ppatent anyy person
p
shall apply
pp y to
the controller to issue him a compulsory license to work the patent
The grounds for making such application are
 The reasonable requirement of the public with respect to the
invention are not satisfied or

Patents & Public Policy
Patented invention is not available to the public at a reasonably
affordable price or
 Invention is not worked in the territory of India
 Thus if the controller is satisfied that these conditions are not
being met, he will grant a compulsory license upon the terms
he may think fit
Compulsory Licensing: Public Grounds
 If the central govt
govt. is satisfied that a compulsory license shall
be granted for any patent because of circumstances arising out
of national emergency/ extreme urgency/ public non
commercial use, then it shall grant such license at anytime
after the grant of the patent (Sec 92)

64
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Patents & Public Policy



If the controller feels that because of national emergency, extreme
urgency and public non commercial uses which includes cases like
AIDS, tuberculosis, Malaria, epidemics he shall immediately grant
a compulsory license without following the procedures provided
under the Act.
Compulsory licence shall be available for manufacture and export
of patented pharmaceutical products to any country having
insufficient or no manufacturing capacity in the pharmaceutical
sector
t for
f the
th concerned
d product
d t tto address
dd
public
bli health
h lth
problems, Sec 92A (By virtue of 2005 amendment)
However there should be a compulsory licence granted by such
country or such country should allow importation of the patented
pharmaceutical products from India.
Patents & Public Policy
Sec 92A incorporates the 2003 August 30 decision of TRIPS
Council into the Indian law
Council,
Government use of inventions
 The government is free to use a patented invention without
running the risk of being sued for infringement
 By virtue of Sections 99-103, the Central Government or any
authorised person can use an invention for the purposes of the
Central Government/ State Government/ PSU,, pprovided
adequate compensation is paid.
 Sec 47 also deals with government use of inventions and as
per this provision a patented invention may be imported or
manufactured by or on behalf of the Government for its own
use, here there is no mention of any compensation to be paid to
the patent holder

65
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Patents & Public Policy
Bolar Exception Sec 107A (a)
 This provided
pro ided for a research exemption
e emption as an exception
e ception to the
general rules of patent infringement.
 This research exception enables a manufacturer of generic
drugs to use a patented invention to obtain marketing approval
without the patent owner's permission before the patent expires
 Thus even in cases where there is a product patent for a drug
molecule,, an Indian ggeneric drugg maker can use the patented
p
invention in order to gain marketing approval for their own
version of that drug molecule
 The generic drug maker can then market their own version of
the patented drug as soon as the patent expires.
Patents & Public Policy
Parallel Importation Sec 107A (b)
 As per Sec 107A (b) it is not an infringement to import a
patented product, if the exporter of such patented product is
duly authorised under the law of that country to produce and
sell or distribute the product.
 Thus India /Indian companies can import drugs from least
developed countries by basing their operations in those
countries, because least developed countries will not have any
patent protection until the year 2016
Revocation of patents
 These proceedings can be instituted at any time after the grant
of the patent, while the patent is in force.
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Patents & Public Policy
Revocation can be made by the Controller (Sec 85), The High
Court (mostly in a counter claim to an infringement suit),
suit) the
Central Government (Sec 66, in public interest) or the
Appellate Board (under grounds mentioned in Sec 64)
Revocation of Patents by Controller (Sec 85)
 When a compulsory license has been granted, after 2 years
from the date of such grant any interested person/ central govt.
can apply before the controller to revoke the patent
 The grounds are reasonable requirements of the public with
respect to the invention not satisfied/ patented invention is not
available to the public at a reasonably affordable price

Exploring Intellectual Property…….






Apart from patent law even laws like copyright and trade mark
contain provisions guided by public policy
In copyright there are provisions dealing with compulsory licensing
and fair use / dealing
Trade mark law also contains provisions dealing with honest
concurrent use, comparative advertisement etc
The Drug Price Competition and Patent Term Restoration Act,
popularly known as the Hatch-Waxman Act is a US legislation
guided by public policy which seeks to give the generic drug
manufacturers a level playing field in the US market
The Act grants generic manufacturers a chance to mount a validity
challenge without incurring the cost of entry or risking enormous
damages flowing from any possible infringement
Lot of Indian companies like Ranbaxy, Dr. Reddy’s, Lupin etc have
benefited from this Law
67
7
3/8/2011
Thank You Very Much for Your Kind
Attention
Dr. V.K. Unni
Public Policy and Management Group
Indian Institute of Management Calcutta
E-mail: [email protected]
Symposium on The Global Impact and Implementation
of Human Rights Norms
M h 11-12,
March
11 12 2011
2011, M
McGeorge
G
S
School
h l off L
Law,
University of the Pacific, Sacramento, CA
68
8
3/8/2011
SCHOOL OF
LAW
Impact of Human
Rights Norms
Pacific McGeorge Global
Center Conference
The Libel Tourist
House of Lords
Rachel
Ehrenfeld
69
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The Prime Villain
Khalid Salim Bin Mahfouz
JOSEPH GUTNICK: THE AUSTRALIAN CONNECTION
INTERNATIONALIZATION OF DEFAMATION
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