American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

Transnational corporations have become actors with significant political power and authority which should entail responsibility and liability, specifically direct liability for complicity in human rights violations. Holding TNCs liable for human rights violations is complicated by the discontinuity between the fragmented legal/political structure of the TNC and its integrated strategic reality and the international state system which privileges sovereignty and non-intervention over the protection of individual rights. However, the post-Westphalian transition—the emergence of multiple authorities, increasing ambiguity of borders and jurisdiction and blurring of the line between the public and private spheres—should facilitate imposing direct responsibility on transnational firms. Mechanisms for imposing direct responsibility on TNCs are considered including voluntary agreements and international law. However, I conclude that a hybrid public-private regime which relies on non-hierarchical compliance mechanisms is likely to be both more effective and consistent with the structure of the emerging transnational order.

/pdf/private-political-authority-and-public-responsibility-5fl954a6yf.pdf

Private Political Authority and Public Responsibility: Transnational Politics, Transnational Firms, and Human Rights

The state-based system of global governance has struggled for more than a generation to adjust to the expanding reach and growing influence of transnational corporations, the most visible embodiment of globalization. This paper reviews two recent chapters in this endeavor, focused specifically on human rights: the "Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights," adopted by the United Nations Sub-Commission on the Promotion and Protection of Human Rights but not by its parent body, the UN Human Rights Commission (since replaced by the Human Rights Council); and the author's subsequent UN mandate as Special Representative of the Secretary-General "on the issue of human rights and transnational corporations and other business enterprises." The paper analyzes key conceptual flaws of the draft Norms, noting the pitfalls of imposing on corporations, directly under international law, the same range of human rights duties that states have; it presents an empirical mapping of current international standards and practices regarding business and human rights, ranging from the most deeply rooted international legal obligations to voluntary initiatives; and it proposes a strategy for building on existing momentum in order to reduce human rights protection gaps in relation to corporate activities.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID976547_code385205.pdf?abstractid=976547&rulid=5206414&mirid=5

Business and Human Rights: The Evolving International Agenda

How do international human rights and humanitarian law protect vulnerable individuals during peace and war? Provost analyzes systemic similarities and differences between the two to examine how they are each designed to achieve their specific goals. He describes the dynamics of human rights and humanitarian law, revealing that each performs a task for which it is better suited than the other, and that the fundamentals of each field remain partly incompatible. He covers all relevant materials from the UN, ICTY, ICTR, and regional organizations in Europe, Africa and Latin America.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1710614_code372725.pdf?abstractid=1710614&mirid=1&type=2

International Human Rights and Humanitarian Law

The state-based system of global governance has struggled for more than a generation to adjust to the expanding reach and growing influence of transnational corporations. The United Nations first attempted to establish binding international rules to govern the activities of transnationals in the 1970s. That endeavor was initiated by developing countries as part of a broader regulatory program with redistributive aims known as the New International Economic Order. Human rights did not feature in this initiative. The Soviet bloc supported it while most industrialized countries were opposed. Negotiations ground to a halt after more than a decade, though they were not formally abandoned until 1992.

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Business and Human Rights The Evolving International Agenda

A distinction has become entrenched in United States law between treaties that are “self-executing” and those that are not. The precise nature of this distinction—indeed, its very existence—is a matter of some controversy’ and much confusion. More than one lower federal court has pronounced the distinction to be the “most confounding” in the United States law of treaties. A tremendous amount of scholarship has sought to clarify this distinction, but the honest observer cannot but agree with John Jackson’s observation that “[t]he substantial volume of scholarly writing on this issue has not yet resolved the confusion” surrounding it. The continuing, and remarkably candid, judicial confusion over this issue will, I hope, excuse yet another attempt to bring some coherence to the doctrine. In this article, I argue that much of the doctrinal disarray and judicial confusion is attributable to the failure of courts and commentators to recognize that for some time four distinct “doctrines” of self-executing treaties have been masquerading as one. With a view to furthering the development of doctrine in conformity with constitutional allocations of power, I identify these four “doctrines,” as reflected in the self-execution decisions of the Supreme Court and the lower federal courts, and I examine the very different types of analysis that they call for.

/pdf/the-four-doctrines-of-self-executing-treaties-40qsivg17j.pdf

The Four Doctrines of Self-Executing Treaties

International law today addresses the conduct of private corporations in a variety of areas. With very few exceptions, however, international law regulates corporate conduct indirectly -- that is, by requiring states to enact and enforce regulations applicable to corporations and other non-state actors. Only a small number of international legal norms --- primarily those relating to war crimes, crimes against humanity, and forced labor -- apply directly to non-state actors. Scholars have argued forcefully that international law should move in the direction of directly imposing obligations on corporations. These arguments overlook important aspects of the problem. If international legal norms were extended to corporations and backed by effective enforcement mechanisms, states would lose control over compliance with the norms. If not accompanied by an effective enforcement mechanism, the norms would probably be widely disregarded. The first option is likely to be strongly resisted by states; the second option would do little for the interests sought to be protected and would be bad for international law.

Direct vs. Indirect Obligations of Corporations Under International Law

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Courts in recent years have perceived threshold obstacles to the enforcement of treaties deriving from their nature as contracts between nations that generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. This approach to treaty enforcement is in tension with the Constitution's declaration that treaties are part of the law of the land and its instruction to judges to give them effect. The Founders understood that treaties depended on interest and honor on the international plane, but they made treaties enforceable in our courts anyway in order to avoid the international friction that could be expected to result from treaty violations and to capture the benefits of a reputation for treaty compliance. The Supremacy Clause gives treaties a domestic judicial sanction that they would otherwise lack. It makes treaties enforceable in the courts in the same circumstances as the other two categories of norms specified in the clause - federal statutes and the Constitution itself.The sole exception to this rule is for treaties that are non-self-executing in the sense contemplated by the Court in Foster v. Neilson. The concept of a non-self-executing treaty fits uneasily with the Supremacy Clause, as reflected in the common but untenable view that non-self-executing treaties lack the force of domestic law. According to Foster, a non-self-executing treaty is not enforceable in the courts because it is addressed to the political branches. But determining which treaties are so addressed has been challenging. Treaties generally leave the question of domestic implementation to the domestic laws of the states-parties, and our domestic law (the Supremacy Clause) directs judges to give them effect. The author argues that the Supremacy Clause establishes a default rule that treaties are directly enforceable in the courts like other laws, rebuttable only by a clear statement that the obligations imposed by the treaty are subject to legislative implementation.If the stipulation had to appear in the text of the treaty, the clear statement rule would present problems for U.S. treaty makers seeking to control the domestic consequences of multilateral treaties. To address this problem, the treaty makers have developed a new form of clear statement, the "declaration" of non-self-execution. However, scholars have questioned the compatibility of such declarations with the Supremacy Clause. The author concludes that the treaty makers have the power to limit the domestic effects of treaties through declarations of non-self-execution. On the other hand, if the Constitution were understood to establish a default rule of non-self-execution, declarations of self-execution would stand on more tenuous ground. Thus, a default rule of self-execution is not only more consistent with the constitutional text and structure and with Supreme Court precedent, it is also normatively attractive because it leaves the treaty makers with the power to control the domestic consequences of the treaties they conclude.

Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties

Treaties are frequently described as contracts between nations. As instruments of international law, they establish obligations with which international law requires the parties to comply. In the United States, treaties also have the status of law in the domestic legal system. The Supremacy Clause declares treaties to be the "supreme Law of the Land" and instructs the courts to give them effect. The status of treaties as law in two distinct legal orders has given rise to unusual conceptual problems. In recent years, it has produced confusion among the courts regarding the enforceability of treaties in the courts by individuals. As Chief Justice Marshall long ago observed, "[t]he province of the court is, solely, to decide on the rights of individuals .... " Accordingly, it is frequently said that treaties are enforceable by individuals in our courts only when they confer rights on individuals. Yet it is widely held that treaties, as international instruments, establish legal obligations and correlative legal rights only of the nations that are parties to them, not of individuals.

Carlos Manuel Vázquez

Papers

The Four Doctrines of Self-Executing Treaties

Direct vs. Indirect Obligations of Corporations Under International Law

Direct vs. Indirect Obligations of Corporations Under International Law

Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties

Treaty-Based Rights and Remedies of Individuals