The Role of the United Nations in the Formation of Customary International Law in the Field of Human Rights

The present work addresses the role of un in the formation of customary international law from a constructivist perspective. It dialogues with the International Law Commission and, in contrast with the latter, it argues that the importance of the un is a matter to be defined empirically. Its organs are capable of acting as norm entrepreneurs, articulating and promoting new norms. They are capable of affecting social processes in order to create pressure on the states that resist emergent norms. Thus, instead of a mere agent of states the un is capable of deeply influencing them both in behavioural and attitudinal terms. Furthermore, the un promote the formalization and institutionalization of new norms, elucidating their scope, application, and embedding them in consistently coherent amalgamation of norms and practices. Hence, it is capable of fostering the processes that lead to the crystallization of norms as customary international law.</jats:p

Transnational Corporations and International Human Rights Law

National courts often face many obstacles in enforcing human rights law in the private sphere. There is the difficulty in determining the effect that human rights have in private legal relationships. With regard to criminal liability, only a very limited number of states have legislation that makes the attribution of criminal responsibility to legal entities possible. As to responsibility under civil law, it can easily become an empty exercise, if the company directly involved with the violation has no means to bear the costs of remediation, since it is an established doctrine of corporate law in most jurisdictions that the owners of a company are not liable for the damage the company causes (corporate veil). Non legal barriers, notably in countries in which the rule of law is weak, include costs of the judicial process; lack of political or economic independence of the courts;obstruction of the legitimate work of human rights defenders; and difficulties in securing legal representation or a lack of adequate resources to legal prosecutors.The above dilemma creates vulnerability for local populations facing violations of human rights carried out in the context of the activities of transnational corporations, notably in developing countries. It frequently happens that the barriers for sanctioning and remedying such violations in the countries hosting the corporations are insurmountable. As a consequence, cases had been multiplying in which victims of human rights violations, allegedly committed by transnationals in developing and the least developed countries, brought suits against the companies before the domestic courts of their home states or before the courts of other developed states where those companies are also present. Turning to the parent company has not been always successful, however. These are some of the aspects of the context in which this Article is inserted.This Article is concerned with transnational corporations’ embryonic duty to respect international human rights law. Understanding how that obligation may be crystallizing and how courts address that responsibility is relevant for the enforcement of human rights at both the international and domestic levels.Professor André Nollkaemper explains that an international dispute is based on competing claims that are grounded in international law,3and many of the claims brought against transnationals in states where they are established or have legal presence are at least in part founded on international law. Accordingly, some courts have resorted to applying international legal standards when deciding such cases. Furthermore, international law provides national courts indifferent jurisdictions with a common ground and language to address the same type of problems under varying domestic laws, which directly or indirectly reflect international legal standards, allowing them to cooperate among themselves in enforcing the same legal standards, to build up an international case law and to foster the rule of law at the local and international level.This Article addresses the issue through a very specific perspective and does not attempt to be exhaustive. It assesses how transnational corporations’ duty to respect international human rights law is progressively emerging in the practice of the United Nations, and how that practice may foster and reflect the emergence of an international law obligation to respect human rights. It also reviews,albeit briefly, the main legal obstacles in the path of enforcing that obligation at the international and national levels. The terms “transnational corporations(TNCs),” “transnationals,” “corporations,” and “businesses” are equivalently employed in their broader sense so as to encompass businesses in general while focusing on the corporations with activities and interests in different jurisdictions; a TNC is considered a non-state actor (NSA

Opinio Juris:Between Mental States and Institutional Objects

This chapter addresses the role of international organisations in the formation of Customary International Law from a specific viewpoint: whether international organisations, which knowingly have many instruments to shape the behaviour of States, are also capable of shaping the opinio juris of States. For instance, would an international organisation such as the United Nations be able to promote, or at least influence the formation of opinio juris that is consistent with findings and recommendations of the Intergovernmental Panel on Climate Change? To develop my argument, I organise the chapter in two main parts – a study into the concept of opinio juris, and a study into the ability of international organisations to promote opinio juris with a desired content. This work concludes by playing down the possibility that international organisations are able to coordinate international processes in a manner to shape opinio juris pursuant to desired standards

Institutionalisation of Emerging Norms of Customary International Law through Resolutions and Operational Activities of the Political and Subsidiary Organs of the United Nations

The paper looks at resolutions and operational activities of the un as parts of processes of institutionalisation of nascent norms of cil. It argues that institutionalisation clarifies the scope of the norm and of its application; and improves mechanisms of persuasion and compliance with the norm, thereby increasing social pressure on resilient States. Hence, institutionalised norms have a higher potential to affect both the behaviour and attitude of States than non-institutionalised norms. Crucially, the paper argues that un resolutions and activities foster processes of institutionalisation of new norms. Although the work acknowledges that is not possible to foresee whether a norm will crystallise as cil, it suggests that its potential increases if it matches and draws on the normative framework provided by the un Charter; if it does not excessively challenge the predominant expectations of States, and if un organs work together in promoting it.</jats:p

A Corte Internacional de Justiça e o imbróglio balcânico

A presente análise tem como foco os impactos políticos e jurídicos que a recente condenação da Sérvia pela Corte Internacional de Justiça pela violação da Convenção para a Prevenção e a Repressão do Crime de Genocídio, devido a não prevenção contra o genocídio de Srebenica, ainda em tempos da antiga República Federal da Iuguslávia.A presente análise tem como foco os impactos políticos e jurídicos que a recente condenação da Sérvia pela Corte Internacional de Justiça pela violação da Convenção para a Prevenção e a Repressão do Crime de Genocídio, devido a não prevenção contra o genocídio de Srebenica, ainda em tempos da antiga República Federal da Iuguslávia

Trinta anos da United Nations International Force in Lebanon

O presente artigo tem como foco o “United Nations International Force in Lebanon”, uma das mais tradicionais missões de paz da ONU. Analisar-se-á seus objetivos, eficácia e desenvolvimento histórico.O presente artigo tem como foco o “United Nations International Force in Lebanon”, uma das mais tradicionais missões de paz da ONU. Analisar-se-á seus objetivos, eficácia e desenvolvimento histórico

Identifying, improving, and investing in national commitments to just transition:reflections from Latin America and the Caribbean

A 1.5 °C world relies on the development of modern renewable energy sources in Latin America and the Caribbean. Whilst existing research offers insights into national case studies, our study responds to a lack of region-wide analysis. To identify the relative level of national commitment to a just transition in the region, this study collects, analyses, and visualizes global data from eight different sources. It uses a ranking method to analyse relative performance. To find where policy improvement is most urgently needed, trends are extrapolated on fossil fuel dependency, subsidies, and carbon dioxide emissions, as well as renewable energy production and international finance, through the lens of distributional, procedural, and restorative justice. We call for a new approach to international clean energy finance which promotes greater procedural justice whilst ensuring that green energy deployment leads to higher levels of meaningful employment