Olivier De Schutter

Corporate Social Responsibility European Style

The concept of corporate social responsibility (CSR) emerged in the official discourse of the EU in 2000. This article explains how, while CSR may have been initially an idea about the scope of the responsibility of companies towards their environment, it has now become a process in which the representatives of the business community have come to occupy the main role, and whose purpose is to promote learning among business organizations, rather than to identify the components of a regulatory framework for CSR. The central question now, therefore, is whether the so-called business case for CSR is strong enough, so that we may hope that the forces of market will suffice to encourage companies to behave responsibly, over and above their obligation to comply with their legal obligations. The article shows, however, that this case rests on certain presuppositions about markets and the business environment, which cannot be simply assumed, but should be affirmatively created by a regulatory framework for CSR. Following the introduction, it proceeds in four stages. First, it examines the development of CSR in the EU. Second, it offers a critical examination of the so-called business case for CSR, taking into account the growing diversity within the enlarged EU. It then discusses, as an alternative, what a regulatory framework for CSR could resemble, highlighting a number of initiatives which have been taken in this regard by the EU. The article finally concludes that, since the failure of the European Multi-Stakeholder Forum on CSR in 2004, the debate has made a turn in the wrong direction, both because of the mistaken view that the establishment of a regulatory framework for CSR would threaten the competitiveness of European companies, and because of the naive (and contradictory) view that reliance on market mechanisms will suffice to ensure that corporations will seek to minimize the negative social and environmental impacts of their activities, even in circumstances where they are not legally obliged to do so.

Europe in Search of Its Civil Society

Building upon the experience of the Convention for the elaboration of the Charter of fundamental rights and upon the suggestions of the White Paper on European Governance, this article puts forward proposals for a better involvement of the ‘civil society’ in the system of the European Union. It offers a general diagnosis of the misunderstandings surrounding the notion of ‘civil society’ and the relationship of representative democracy to participatory democracy. It then draws some lessons from the experiment in deliberative democracy which led to the drafting of the Charter of fundamental rights. Finally, it focuses on the contribution the organisations of the civil society can make to good governance in the European Union. Altogether, the proposals presented tend to encourage a better structuration of the actors of the civil society. Such a structuration, the article concludes, although it is usually considered with suspicion even by those whom it would most benefit, must be seen instead as a condition for the effective exercise of whichever participatory rights might be granted to the organisations of the civil society.

Economic, Social and Cultural Rights as Human Rights

This volume offers a selection of those major contributions which have shaped debate in the field of economic, social and cultural rights. The broad range of discussion includes: the nature of economic, social and cultural rights and the ability of courts to protect them; the effectiveness of non-judicial protective mechanisms at both the universal and the domestic level; ways of measuring whether states do enough to ‘progressively realize’ these rights; the impact of trade and investment liberalization, and of economic globalization generally, on the fulfilment of such rights; and the role of economic, social and cultural rights in development. The editors original introduction provides an insight into the background to the debate and maps the alternative views which coexist in this highly contentious area.

The Emerging Human Right to Land

This article identifies the emergence of the right to land in international human rights law, and which measures of implementation are called for to ensure the full realization of this right. In certain contexts, the right to land may be seen as a self-standing right, whether it is protected as an element of the right to property, whether it is grounded on the special relationship of indigenous peoples to their lands, territories and resources, or whether it is a component of the right to food. In other cases, the right to land may be said to be instrumental to the right to food: it is protected as an indispensable means through which people can produce food, for their own consumption or as a source of income allowing them, in turn, to purchase food. In making the case for the explicit recognition of the right to land in international human rights law, this article recalls the current pressures on land; it examines the protection of landusers in their existing access to natural resources; and it discusses whether agrarian reform may be seen as a component of the progressive realization of the emerging human right to land.

Globalization and Jurisdiction : Lessons from the European Convention on Human Rights

States increasingly affect situations beyond their national borders, by adopting acts which are clearly attributable to them in the meaning of the international law of State responsibility. This paper explores how this affects the relationship between the notion of “jurisdiction”, which Article 1 of the European Convention on Human Rights refers to as a condition for the Convention to be invoked, and the national territory. A number of States parties to the European Convention on Human Rights have been allegedly committing violations of this instrument by deploying activities beyond their national territory, raising the question whether the Convention does apply to such “extra-territorial” situations. The European Court of Human Rights has also been confronted with situations where events occured on portions of the territory which were de facto escaping control by the organs of the defending State. Perhaps even more significantly, the European Court of Human Rights is faced on the European continent with an extraordinary proliferation of cooperations between States, of which the expansion of the European Union and the progress of its integration constitutes perhaps the most spectacular, but by no means unique, manifestation. It therefore is confronted with the discrepancy between the individual character of the responsibility of States under the Convention and the reality of inter-State cooperation, resulting in situations where the alleged violation of the rights of the individual has its source, in fact, not in the acts of any single State party to the Convention, but in the combination of acts of two or more States. These questions, which this paper explores, are made significantly more complex in the context of the European Convention on Human Rights, because of the recognition that the Contracting States may be imposed certain positive obligations. Indeed, the identification of positive obligations in the Convention implies that, where a situation falls under the “jurisdiction” of a State party, that State must act through its organs, and may not remain passive even in the face of events for which is bears no direct responsibility. But the ability for the State to fulfil those positive obligations is severely curtailed where the situation calling for State action either occurs on foreign territory, or is a situation which is affected by the combined action of a number of States, parties or not to the Convention, and therefore does not depend on the adoption of a measure by the defending State alone.

The Reform of the Committee on World Food Security: The Quest for Coherence in Global Governance

The global surge in prices of food commodities in 2007–2008 led governments to identify gaps in the global governance of food security as a major obstacle to the realization of the right to food. The reform of the Committee on World Food Security, completed at the end of 2009, was to remedy that: its objectives were to introduce more consistency across policy areas, and to serve as an inclusive platform for a modest form of monitoring by peer review, and for collective learning. The reform is an ambitious one. But it is most remarkable for its recognition that unless food security policies are informed by the views of the victims of hunger and permanently tested and revised, they shall fail: participation and experimentalism are therefore key components of the new mechanism that has been established. Combating hunger and malnutrition is a complex task, and it can only be achieved through multiyear strategies and coordinated efforts at different levels and in different sectors: this chapter explores whether the reform, that has now entered its implementation phase, can meet the challenge it has set for itself.

Sovereignty-Plus in the Era of Interdependence: Towards an International Convention on Combating Human Rights Violations by Transnational Corporations

This paper argues that the classical rules that restrain the exercise by States of their extraterritorial jurisdiction may have to be reinterpreted in the light of the growing interdependency between States, which results from increased trade and investment flows. The traditional understanding is that, when a State adopts regulations that seek to influence situations located outside its national territory, it competes with the sovereignty of the territorially competent State, and that such regulations therefore should only be allowed in the most exceptional circumstances, since they may run counter to the principle of sovereign equality of States. However, if the adoption by the State of origin of the investor of extra-territorial regulations in fact facilitates the role of the host State in regulating that investor, thus ensuring that the investment will contribute to human development and will benefit local communities, this enhances, rather than restricts, the exercise by the host State of its sovereignty. To the extent that it serves universal values, unilateral action may thus contribute to the achievement of the goals set by the international community: the regulation of transnational corporations becomes a global public good, to which each State should contribute in accordance with its ability. Against this background, this paper examines the question of the jurisdiction of States over the activities of transnational corporations. It argues that the duty of the host State to regulate corporations operating on its territory could be more easily discharged if home States of transnational corporations made a more principled use of extraterritorial regulation. These two sovereignties are not as much competing with each other than they are mutually supportive: the adoption of a new international instrument allocating responsibilities to control transnational corporations could codify in treaty form what is already, arguably, emerging customary international law. The paper also argues that, until a consensus emerges about the desirable division of tasks between the host State and the home State in controlling investors, the adoption by the home State of extraterritorial legislation addressed directly to the parent company, but imposing on that company to exercise control on its subsidiaries, may be the best route forward.

The Right to Adequate Nutrition

Four important conceptual shifts have occurred in our understanding of under- and malnutrition in recent years. Together, they have led to the emergence of the concept of ‘food and nutrition security’ and to a renewed emphasis not on calorie intake alone, but also on the adequacy of diets and care. Human rights provide a useful framework for ensuring food and nutrition security. However, only through more democracy in the food systems can change happen.

Fundamental Rights and the Transformation of Governance in the European Union

Shall the adoption of the EU Charter of Fundamental Rights lead the European Union to develop an active fundamental rights policy? Rather than asking the classical question of which initiatives need to be taken by the Union in order to improve the protection of fundamental rights, this paper argues in favour of the establishment of a mechanism which would ensure a form of permanent learning between the Member States, in order to encourage progress in the direction of the further realisation of fundamental rights as recognised in the Charter of Fundamental Rights, irrespective of whether this takes the form of legislative developments at the level of the Union. What is advocated here has already been experimented with in certain areas—such as health care, the rights of the child, or, to a limited extent, asylum and immigration. This paper asks whether this should be generalised, and become a permanent component of governance in the EU. It envisages the future of fundamental rights in the European Union as based on a view of rights as having to be permanently reinvented in the new settings in which they are invoked, and as objectives (or ‘values’) the fulfilment of which requires a permanent learning process, both (horizontally) between the Member States and (vertically) between the institutions of the Union and the Member States.

The Fundamental Rights Agency: Towards an Active Fundamental Rights Policy of the Union

ConclusionDiscussing the relationship between the EU Network of Independent Expertson Fundamental Rights and the forthcoming Fundamental Rights Agency, the Working Document of 25 March 2004 on the proposal for a Council Regulation on the European Monitoring Centre on Racism and Xenophobia (Recast version) prepared with the European Parliament’s Committee on Citizens’ Freedomsand Rights, Justice and Home Affairs (rapp. J. Swiebel) concluded: “Itisimpor tanttostr esstha t theanal ytical, evaluative and advisory functions of the Experts’ Network continue to befulfilled in an independent way. This should not prevent close links between the Human Rights Agency and the Experts’ Network being established.”