Showing papers in "Columbia Human Rights Law Review in 2015"

Openness in International Adoption

Abstract: After a long history of secrecy in domestic adoption in the United States, there is a robust trend toward openness. That is, however, not the case with international adoption. The recent growth in international adoption has been spurred, at least in part, by the desire of adoptive parents to return to closed, confidential adoptions where the identity of the birth mother is secret and there is no ongoing contact with her. There is, however, an emergent interest in increased openness in international adoption, spurred by the success of domestic open adoptions, health concerns when an adoptee's genetic history is important, psychological issues relating to identity in adoptees, and concern that the international adoption might have been corrupt. International adoptive families who were once happy to avoid birth parent involvement have begun to seek them out. Increased openness in international adoption is mandated by international human rights and, in particular, the U.N. Convention on the Rights of the Child and the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption. In addition, a growing body of research demonstrates that open adoptions are in the best interests of children as they grow and develop a sense of identity. The transparency of open adoption can also serve to ameliorate fraud and corruption in adoption. Therefore, countries involved in international adoption, and the international human rights community, need to take adopted children's right to identity

Ethical transnational corporate activity at home and abroad: A proposal for reforming continuous disclosure obligations in Australia and the United States

Abstract: Multinational Corporations establish operations in states with lower legal and ethical standards in areas including the environment, wages, labor standards, human rights, corruption, and company taxation. Corporate law scholars cannot be indifferent to the horrific consequences of these lax standards. From contributing to rapes and violent incidents stemming from trade in conflict minerals in the Congo to the killing of workers due to poor conditions in garment manufacturing units in Bangladesh, multinational corporations exploit conditions in developing countries abroad without disclosing their actions at home. We advance a normative argument to clarify and strengthen the existing model of disclosure-based regulation to hold MNCs accountable. We argue that, since the core expectations held by shareholders of companies are the same whether they are operating within our borders or externally, a harmonization of disclosure obligations imposed by law would be a more flexible and less costly solution. We posit that a broader reading of the disclosure obligations of companies under existing legislation like the Reg. S-K in the United States, the continuous disclosure rules under * Dean and Professor of Law, University of Newcastle Law School. Sandeep Gopalan would like to thank Terrie Troxel, Jack Tatom, Professor Bill Wilhelm, and the Networks Financial Institute at Indiana State University College of Business for their valuable support in conducting research for this article. We are also grateful to Audrey Son, Bassam Khawaja, and the editorial staff of the Columbia Human Rights Law Review for their excellent editorial work. ** Solicitor and doctoral candidate, University of Newcastle Law School. 2 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.2:1 the Australian Corporations Act 2001, and listing rules such as those adopted by the Australian Securities Exchange and the New York Stock Exchange would require the disclosure of material corporate practices outside our national borders.

Disclosing Disclosure's Defects: Addressing Corporate Irresponsibility for Human Rights Impacts

Abstract: Although many people believe that the role of business is to maximize shareholder value, corporate executives and board members can no longer ignore their companies’ human rights impacts on other stakeholders. Over the past four years, the role and responsibility of non-state actors such as multinationals has come under increased scrutiny. In 2011, the United Nations Human Rights Council unanimously endorsed the “UN Guiding Principles on Business and Human Rights,” which outline the State duty to protect human rights, the corporate responsibility to respect human rights, and both the State and corporations’ duties to provide remedies to parties. The Guiding Principles do not bind corporations, but dozens of countries, including the United States, are now working on National Action Plans to comply with their own duties, which include drafting regulations and incentives for companies. In 2014, the UN Human Rights Council passed a resolution to begin the process of developing a binding treaty on business and human rights. Separately, in an effort to address information asymmetries, lawmakers in the United States, Canada, Europe, and California have passed human rights disclosure legislation. Finally, dozens of stock exchanges have imposed either mandatory or voluntary non-financial disclosure requirements, in sync with the UN Principles. Despite various forms of disclosure mandates, these efforts do not work. The conflict lies within the flawed premise that, armed with specific information addressing human rights, consumers and investors will either reward “ethical” corporate behavior, or punish firms with poor human rights records. However, evidence shows that disclosures generally fail to change behavior because: (1) there are too many of them; (2) stakeholders suffer from disclosure overload; and (3) not enough consumers or investors penalize companies by boycotting products or divesting. In this Article, I examine corporate social contract theory, normative business ethics, and the failure of stakeholders to utilize disclosures to punish those firms that breach the social contract. I propose that both stakeholders and companies view corporate actions through an ethical lens, and offer an eight-factor test to provide

Imagining the Unimaginable: Torture and the Criminal Law

Abstract: This article examines use of torture by the U.S. government in the context of the late 20th century preventive turn in criminal justice. Challenging the assumption that the use of “enhanced interrogation tactics” in the war on terror was an exceptional deviation from accepted norms, this article suggests that this deviation began decades before the terror attacks, in the context of conventional criminal procedure. I point to the use of the “ticking time bomb hypothetical,” and its connection to criminal procedure’s “kidnapping hypothetical.” Using case law and criminal procedure textbooks I trace the employment of that narrative over several decades, prior to 2001, including growing support for the use of physical brutality in obtaining information from criminal suspects. Far from “unimaginable,” I argue that the use of torture had been imagined, and gained increasing acceptance, in the increasingly preventive focus of these standard criminal procedural debates.

Tribal laws and same-sex marriage: Theory, process, and content

Abstract: Although twelve federally recognized Indian tribes are currently known to allow same-sex marriage, comprehensive information on the content of each of these laws and the processes by which they cam...