Transterritorialidade – Uma Teoria de Responsabilização de Empresas por Violações aos Direitos Humanos, Ana Claudia Ruy Cardia Atchabahian (Lumen Juris, 2020)
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引用次数: 0
Abstract
When evaluating the implementation of the United Nations Guiding Principles on Business and Human Rights (UNGPs), some may claim that the State’s duty to protect (Pillar 1) has been fulfilled with the adoption of National Action Plans; and that the corporate responsibility to respect human rights (Pillar 2) has been fulfilled by calls for companies to act responsibly through initiatives that seek to make them aware of social expectations. However, the effectiveness of both types of initiatives to bring about real changes in people’s lives is open to criticism. Access to remedy (Pillar 3) is notoriously the weaker pillar of the UNGPs.1 In Transterritorialidade – Uma Teoria de Responsabilização de Empresas por Violações aos Direitos Humanos (Transterritoriality – A Theory of Corporate Accountability for Human Rights Violations), Ana Claudia Ruy Cardia Atchabahian confronts this reality. The book is law-oriented and will mainly appeal to those with a legal background, perhaps less to a business audience. The theory presented is developed from the realization that Pillar 3 is neglected by both states and businesses. The author is on a quest for instruments that can ensure corporate accountability for human rights violations. First, the book presents the reasons for choosing access to remedy as a research topic; then it analyses existing instruments and initiatives to promote redress, and how they fall short of what is promised and desired. Finally, the author proposes her own theory, which revolves around the application of extraterritoriality, but in such a way that it increases the chances that the substantive law applied is victims-centred. The first chapter delivers the backdrop to Atchabahian’s concerns, namely the postWorld War II reconstruction of countries based on consumption, and the consequent dependence on companies that produce goods and services, which are attracted to countries in exchange for a portion of sovereignty. Investments, economic prosperity, and the possibility of consumption bring a sense of security that blinds people to the human and environmental costs of this arrangement. International law coping with this situation is fragmented, leading to insecurity that is reinforced by the actions of transnational corporations. States, voluntarily or not, fail to protect individuals. The author identifies this as a violation of Douzinas’ ‘ethics of alterity’, the ‘ethics before the being and the obligation before the others’ need or interest’ (p. 22). The response proposed is based on Amartya Sen’s ‘behavioural ethic’ (p. 22) whose normative framework arises from Gunther Teubner’s transnational or global law and the norms of international human rights law. Chapters 2 and 3 discuss corporate liability in existing initiatives, and their ability to produce redress. The UNGPs, the current UN process for drafting a treaty on business and human rights and domestic models (e.g., national action plans or specific legislation like the
在评估《联合国工商业与人权指导原则》的执行情况时,有些人可能会声称,通过《国家行动计划》,国家的保护义务(支柱1)得到了履行;企业尊重人权的责任(支柱2)已通过呼吁企业采取负责任的行动来履行,这些举措旨在让企业意识到社会期望。然而,这两类举措为人们的生活带来真正改变的有效性值得批评。众所周知,获得补救的途径(支柱3)是联合国大会较弱的支柱。1在跨地区——Uma Teoria de Responsabilização de Empresas por Violações aos Direitos Humanos(跨地区——侵犯人权行为的企业问责理论)中,Ana Claudia Ruy Cardia Atchabahian面临着这一现实。这本书以法律为导向,主要吸引那些有法律背景的人,也许不太吸引商业观众。所提出的理论是在认识到支柱3被国家和企业忽视的基础上发展起来的。提交人正在寻求能够确保公司对侵犯人权行为追究责任的文书。首先,本书介绍了选择补救途径作为研究主题的原因;然后分析了现有的促进补救的文书和举措,以及它们如何达不到承诺和期望。最后,作者提出了她自己的理论,该理论围绕着治外法权的适用,但其方式增加了适用的实体法以受害者为中心的可能性。第一章介绍了Atchabahian关注的背景,即二战后基于消费的国家重建,以及随之而来的对生产商品和服务的公司的依赖,这些公司被吸引到国家以换取部分主权。投资、经济繁荣和消费的可能性带来了一种安全感,使人们对这种安排的人力和环境成本视而不见。应对这种情况的国际法支离破碎,导致不安全,跨国公司的行动加剧了这种不安全。无论国家是否自愿,都未能保护个人。作者认为这违反了Douzinas的“互变伦理”、“存在之前的伦理和他人“需要或利益”之前的义务”(第22页)。提议的回应基于Amartya Sen的“行为伦理”(第22页),其规范框架源自Gunther Teubner的跨国或全球法以及国际人权法规范。第2章和第3章讨论了现有倡议中的公司责任及其产生补救的能力。UNGP,目前联合国起草商业和人权条约的程序,以及国内模式(例如,国家行动计划或具体立法,如
期刊介绍:
The Business and Human Rights Journal (BHRJ) provides an authoritative platform for scholarly debate on all issues concerning the intersection of business and human rights in an open, critical and interdisciplinary manner. It seeks to advance the academic discussion on business and human rights as well as promote concern for human rights in business practice. BHRJ strives for the broadest possible scope, authorship and readership. Its scope encompasses interface of any type of business enterprise with human rights, environmental rights, labour rights and the collective rights of vulnerable groups. The Editors welcome theoretical, empirical and policy / reform-oriented perspectives and encourage submissions from academics and practitioners in all global regions and all relevant disciplines. A dialogue beyond academia is fostered as peer-reviewed articles are published alongside shorter ‘Developments in the Field’ items that include policy, legal and regulatory developments, as well as case studies and insight pieces.