CONTENTIONS CONCEPTS
• Sphere of Influence - When reading the Compact, it is evident that the concept of ‘sphere of influence’ plays a key role in its interpretation. This concept has, however, resulted in much legal uncertainty, debate and even criticism, as it is considered by many to be very vague and general. By the same token, the term ‘complicity’, although generously used throughout the Compact, has also not been assigned a definite and clear meaning. Schutte contends that the Compact will remain inefficient and ineffective pending the establishment of clear and certain (acceptable) means being ascribed to the concept. For purposes of the discussion contained in this Thesis, the notion of ‘sphere of influence’ should be viewed as
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Of note, here is the fact that the company itself does not have to be involved in the violation.
The Compact furthermore contains suggestions on how companies might avoid being complicity, namely:
• by conducting a human rights impact assessment on at periodical basis;
• by having explicit human rights policies that protect the workforce; and
• by having explicit policies to protect the supply chain.
Because of the lack of legal precedents on this issue, the Special Representative recommends that one looks to criminal law for guidance, and in particular the issues relating to aiding and abetting. In this regard, international criminal law prohibits aiding and abetting.
Aiding and abetting requires firstly, the act or omission must have a substantial effect on the commissioning of the crime and secondly, an element of knowledge of contribution to the crime must be present.
Over the years, courts have interpreted aiding and abetting to include instances where an entity was:
• directed to assist the wrongdoers;
• encouraged the human rights violation to be committed;
• lend moral support to the wrongdoers; and
• facilitated the crime in some way, manner or
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Such violations can also occur in connection with the companies’ operations, for example through the use of security forces that commit abuses to protect the company’s property and installations, deportation of people and environmental damage to facilitate the company’s projects, or arrest and persecution of workers seeking to promote trade union rights. A company may be regarded as complicit to such actions only when those actions are taken in order to protect the company’s property or investment and the company has not taken reasonable measures to prevent the abuses.
In sum:
1) knowingly providing or substantially contributing to a human rights violation gives rise to complicity;
2) where a company receives some form of benefit from a human rights violation, this gesture may be viewed as the company being complicit in the human rights violation;
3) in instances of omission way the company neglecting to speak up, full well knowing that the human rights violations are taking place, such omission may give rise to finding complicity on the part of the company;
There have been many humanitarians that strive to help countries suffering with human rights abuses. People think that the help from IGOs and NGOs will be enough to stop human rights violations. However, it hasn’t been effective. Every day, more and more human rights violations happen. The problem is escalating.
Organisational illegalities or rather corporate crimes on the other hand, are individual or collective illegalities that are perceived as helping to achieve the organisational goals set by the dominant coalition within an organisation. Kramer (1984: 18) in Gary and Slapper (p.16) describes the concept of corporate crime: By the concept of corporate crime, then we wish to focus attention on criminal acts (of omission or commission) which are the result of deliberate decision making (or culpable negligence) of those who occupy structural positions within the organisation as corporate executives or managers. These decisions are organisationally based – made in accordance with the normative goals (primarily corporate ... ... middle of paper ... ... ealt appropriate justice and indicates that corporate crimes and the people involved in them are the most violent parasitical, and dangerous of all criminals.
More often than not, margin of appreciation doctrine applies when it comes to a question of ‘morality’. It seems to be a truism that Harris’s statement does reflect the court’s manoeuvre Notably, Jeffrey claims the more diversify of the laws on the state; a wider margin would be granted. As contended by Yutaka, a level of discretion will be allowed to the member states to consider any relevant circumstances. As a consequence, it can tentatively be concluded that doctrine could be one of the very efficient shields of the member states.
Though many ‘people are aware of what corporate crimes are there are still many who do not know’. A corporate or white-collar crime can be described as “a crime committed by any person through the venue of his or her employment that benefits the business”, ‘this can mean that a corporation does an illegal act of indifference to better the corporation’. It is argued that corporate crimes are more harmful to the general public than acts of intention. When it comes to these ‘crimes it can be said that many of the victims that it affects do not realize, that they are being affected and if and when they do know it is argued that they are told that it is due to a misfortunate accident and that there is no one to blame for the Act’. Many criminologists such as Sutherland argued that corporate crime is something
Within a company, illegal practices can be seen by many as the “in thing” and the people working within that environment may not see what they are doing as morally wrong. The issue of the lack of media coverage of these types of crimes must also not be overlooked.
Moving onward, it is the intention of this essay to explicate specific matters concerning judicial review. In o...
45 Oona Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (2003) 112 Yale Law Journal
This essay considers that the violation of human rights can indeed be address by extraterritorial jurisdiction throw the human rights legal framework, mainly throw treaties as showed jurisprudence.
The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that
Cholewinski, R. I. (1997). Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment. Clarendon Press.
Rights have been and continue to be violated across the world on both massive and miniscule scales. With rights violations being a constant issue, it is necessary, although it may be difficult, to determine which violations are human rights violations. Two aspects are crucial in this process: universality and paramountcy. Although practicability is also set forth as a criterion by Maurice Cranston, it is not as crucial when determining which acts violate human rights, or when they came into existence. This is due to the fact that when trying to distinguish between rights and human rights, almost all rights, not just specifically human rights, can, in some way, be practicable. For this reason, practicability, for the purpose of this essay, is
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
A company's code of ethics is very important to establishing the expectations and quality of its brand. The code of ethics are concrete expectations for employee behavior, accountability and communicates the ethical policy of a company to its partners and clients. A good business practice is to have sound ethics. Having good ethical practice is knowing the difference between right and wrong and choosing what the right thing is. Though good ethical behavior is something that should be done automatically, a company needs to have a set of rules in place that holds everyone accountable. Over the last twenty years, the country has been bombarded with company scandals and unethical behavior; though morally wrong, the punishment does not fit the crime. The punishments have been overkill. A murderer, rapist, or child molester commits violent crimes and potentially is out of jail in 10 - 20 years. The CEO’s that commit white collar crime receive 25 years to life; this paper will discuss how this punishment for committing nonviolent crimes, such as breaching a company’s code of ethics, are disproportionate to violent crimes that plague the country today.
The judicial statement of Roskill LJ observed in The Albazero [1977] AC774 held plenty of arguments in modern world today. To reach an extent of agree or disagree the judicial statement, it should be critically analysed from a legal perspective:
The Lotus case garners attention due to the fact that it was among the first cases dealing with whether jurisdiction was assumed in accordance with principles of international law. While the Lotus case was heard in the context of criminal jurisdiction over a collision in the high seas, the Lotus principle has been applied in a variety of other cases in varying contexts. For this reason, the judgment of the Permanent Court of International Justice is critiqued for specifically answering only the question in the special agreement as the continued application of the Lotus Principle as a general principle in other contexts such as anti-trust regulations may lead to ambiguous results.