INTERNATIONAL BUSINESS AND HUMAN RIGHTS LAW (LAW 808-001)
Washington College of Law
PROFESSOR DIANE ORENTLICHER
Tuesday: [3:00-4:50]
WCL Room ___
2 Credit Hours Total
Nov. 6, 2015
Course Description
In recent decades, human rights have become a significant focus of international economic
diplomacy. The growing importance of human rights-related issues has had significant
ramifications for businesses that operate across national borders, as well as for the lawyers who
counsel them. The idea that businesses have human rights responsibilities – moral and legal –
has steadily gained acceptance. International organizations, including the United Nations (UN),
have adopted standards and principles delineating human rights and other social responsibilities
of corporations. A watershed development was the UN Human Rights Council’s endorsement in
June 2011 of Guiding Principles on Business and Human Rights, which have already had a
significant impact on government and business policies.
In this setting, the seminar explores the complexities of transnational and cross-political business
practices, seeks to strengthen students’ ability to counsel corporate clients effectively in a
transnational business environment, and increases their awareness of the impact their advice and
decisions may have on human rights conditions. The seminar is designed to achieve the
following goals in the course of the semester:



Develop a basic knowledge of the legal framework governing the human rights impacts
of businesses operating in a transnational setting
Develop the capacity to apply relevant law, both hard and soft, to multiple contexts
Develop students’ capacity to analyze and communicate their analysis in succinct and
context-appropriate ways, including through the preparation and in-class delivery of short
advocacy pieces as well as through more in-depth memoranda.
The seminar explores both the legal and policy dimensions of international business and human
rights. Our exploration of the evolving legal framework will include consideration of the
postwar prosecutions of business leaders for such crimes as exploiting slave labor and selling
poison gas to the Nazis for use in exterminating Jews during World War II; more recent efforts
to secure reparations for slavery; and the legal frameworks governing a range of contemporary
issues such as human trafficking, forced or inadequately compensated labor, Internet privacy,
and the right to health. In addition to our consideration of relevant legal frameworks, we will
explore voluntary regulatory approaches designed to ensure that transnational corporations do
not contribute to human rights violations, including several key multi-stakeholder initiatives;
legal and quasi-legal remedies available for claims against corporations; and non-legal pressures
that can be brought to bear on corporations from civil society and the financial sector.
The first two sessions (Part I of the syllabus) introduce students to the type of human rights
issues that arise for businesses operating in a transnational setting. Starting with the third class
(the first segment in Part II of the syllabus), we then develop a basic understanding of the
evolving international legal framework governing the human rights responsibilities of businesses
and of governments that regulate corporate conduct, including an initial consideration of the
influential soft law principles adopted by the UN Human Rights Council in 2011, the Guiding
Principles on Business and Human Rights.
In Part III, we explore a range of means that have been used to enforce businesses’ legal
responsibilities or to induce their compliance with international standards, ranging from
marshaling finance-based incentives to NGO activism and, of course, legal actions. The final
segment in this section provides a bridge to the next and final segment (Part IV), which explores
business and human rights challenges in specific industry settings.
Assigned Readings
There is no casebook for the course. All assignments will be provided via a link to an online
source in the syllabus if they are accessible on line or, if not, as postings on the MyWCL site for
this class.
In addition, all students must register to receive weekly updates from the Business and Human
Rights Resource Center, a London-based non-profit, at http://www.businesshumanrights.org/Home. This site will also be a valuable resource for your papers.
I also highly recommend that you purchase JOHN GERARD RUGGIE, JUST BUSINESS:
MULTINATIONAL CORPORATIONS AND HUMAN RIGHTS (W.W. Norton & Co. 2013), which
provides an excellent overview of the topic of business and human rights and an inside account
of the development of the UN Guiding Principles on Business and Human Rights.
Course Requirements
The principal requirements for this class, which are elaborated below, are (1) attendance in
accordance with the class attendance policy; (2) participation in class discussion based upon
careful preparation of assignments and participation periodically throughout the semester in
Google discussion groups in advance of class; (3) preparation of a 3-page advocacy paper or
opinion (op-ed) piece on behalf of a hypothetical client, such as a non-governmental organization
or corporation; and (5) a final paper. Students will have the option of preparing one of the
following to satisfy the final paper requirement:
1. One option is to prepare a 20-page memorandum from the general counsel to the CEO of
a real company concerning human rights issues of which the company should be aware.
2. Students may instead choose to write a paper that explores a particular issue, such as the
advantages and disadvantages of pressing forward at this time in the development of a
treaty on business and human rights.
Please note: For students who require upper-level writing credit, the final paper must be a
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minimum of 30 pages.
Grade Allocation: Class participation, including class presentations and contributions to Google
discussion groups, will count for 25% of a student’s final grade; another 25% will be based on
the 3-page advocacy paper; and the remaining 50% will be based upon the final paper.
Attendance Policy: Students are allowed two unexplained absences; further absences must be
explained by e-mail sent to me at orentlic@american.edu. (“Explained” does not mean simply
informing me that you will miss a class, but of course you need not share private information
with me.) Students may not take an unexplained absence on days when we are joined by a
guest lecturer. Unexplained absences in excess of the allowed number will result in a failing
grade or, in the professor’s discretion, in a lower grade than the student would have otherwise
received. In addition to this requirement, students must attend at least 75% of the total class
sessions to receive credit for the seminar.
Class Participation: Participation in class discussion is considered an essential part of each
students’ responsibilities in this class. The grade for class participation will be based, above all,
on the quality and thoughtfulness of a student’s contributions to class discussion—in particular,
on the degree to which class participation reflects thoughtful consideration of the assigned
material. It is expected that you will have given thought in advance of class to the “Questions
for Class Discussion” that are assigned for almost every class so that you are fully prepared to
address those questions in class.
Every week, two or three students will be responsible, on a rotating basis, for leading a Google
discussion group (we will create our own group) on issues we will be focusing on in class that
week. While designated students will kick off each discussion, other students’ contributions to
Google discussions they did not initiate will form part of the basis of class participation grades.
Your contributions to the discussion group can include not only reflections on the material
assigned for class but postings on relevant material you have found through independent
research. You will find particularly relevant materials at the Business and Human Rights web
site (http://www.business-humanrights.org/Home); as noted earlier, all students must sign up to
receive the weekly update from that website while taking this seminar. In addition, every student
will be asked to make a brief (three-minute-long) in-class presentation on his/her advocacy paper
and memorandum.
Deadlines for Advocacy Papers
February 1: Advocacy Paper Topic Selection: Students submit finalized advocacy paper topic
(at orentlic@american.edu) by 7:00 p.m. on February 1. You should briefly (in a few sentences)
describe your topic and the gist of the pitch you will make.

I am happy to review potential topics before Feb. 1 if you would like feedback on
whether a proposed topic lends itself to an advocacy paper. If you choose this option, it
is suggested that you send me your proposed topic no later than Jan. 29 so that you have
sufficient time to refine your proposed topic in light of feedback.
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February 15: Submission of Advocacy Paper: The advocacy paper itself must be submitted
(again, at orentlic@american.edu) by 7:00 p.m. on February 15.
Deadlines for Final Papers
February 29: Final Paper Company or Topic Selection; Outline and Preliminary
Bibliography: You should decide on the company for which you will serve as General Counsel
for purposes of the final paper (or, if you select to write a paper exploring a thematic issue, the
topic of your paper) and submit (at orentlic@american.edu) an outline of the issues you plans to
address in your paper no later than February 29, 2015, so that I can help make sure you are on
track and provide guidance if needed. It is very important that you identify these issues, as doing
so will help ensure that your chosen company confronts sufficiently complex human rightsrelated issues or that your chosen topic raises sufficiently meaty issues to be appropriate for the
final paper. The outline should be more than section headings (i.e., more than a table of
contents); the goal is to communicate to me the principal issues you have identified and the
organization of your analysis. You should also submit a preliminary bibliography on February
29, so that I can let you know whether you are on the right track in your research.
April 29: Final paper submission: The final paper must be submitted by 7:00 p.m. They
should be uploaded to the course dropbox; as a backup, you should send a copy to me at
orentlic@american.edu. Please note that papers submitted late without having secured an
extension will, in the professor’s discretion, receive a lower grade.
Office Hours/Contact Information: I will be in my office Mondays from 3:00 to 3:55 p.m., and
will be available after class on most Tuesdays. Throughout the semester, I am happy to schedule
appointments at your convenience. It is best to schedule them by contacting me at
orentlic@american.edu.
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Syllabus and Assigned Readings
Part I: Introduction to the Course and Initial Consideration of Social and Human Rights
Responsibilities of Business
Class 1: January 12, 2016. Introduction to Course; Responsibilities of Business in a Global
Environment: Social and Legal Perspectives
During this session we will review course objectives and expectations, as well as processes
relating to class assignments. We will then undertake a preliminary examination of questions
that frame much of the semester’s classes: What are or should be the human rights
responsibilities of corporations operating in a global environment? When and why should
business managers care about human rights or other issues relating to corporate social
responsibility?
Assigned Readings:
1. Questions for Class Discussion, posted on MyWCL
2. “Shell Game in Nigeria,” N.Y. TIMES (editorial), Dec. 3, 1995, available at
http://www.nytimes.com/1995/12/03/opinion/shell-game-innigeria.html?pagewanted=print&src=pm
3. Milton Friedman, “The Social Responsibility of Business Is to Increase Its Profits,” N.Y.
TIMES, Sept. 13, 1970 (Magazine), available at
http://www.colorado.edu/studentgroups/libertarians/issues/friedman-soc-respbusiness.html
4. Peter F. Drucker, “The New Meaning of Corporate Social Responsibility,” California
Management Review, Vol. 26, Issue 2, Winter 1984, pp. 53-63, posted on MyWCL
5. Summary of Michael E. Porter and Mark R. Kramer, “Creating Shared Value,” Harvard
Business Review (January-February 2011), pp. 62-77, available at
http://hbr.org/2011/01/the-big-idea-creating-shared-value
Further readings (not required, but provided for those interested in exploring this subject
further):

Kenneth E. Goodpaster and John B. Mathews, Jr., “Can a Corporation Have a
Conscience?,” in Harvard Business Review, Jan.-Feb. 1982

Chapter 3 (“The Conceptual Foundations of Corporate Social Responsibility”), in
Michael Kerr, Richard Janda, and Chip Pitts, eds., Corporate Social Responsibility: A
Legal Analysis, LexisNexis Canada Inc., 2009
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
The Danish Government (2008) Action Plan for Corporate Social Responsibility. English
version. Available at
http://www.eogs.dk/graphics/Samfundsansvar.dk/Dokumenter/Action_plan_CSR.pdf

Aneel Karnani, “The Case Against Corporate Social Responsibility,” WALL STREET
JOURNAL, Aug. 23, 2010, available at
http://online.wsj.com/article/SB10001424052748703338004575230112664504890.html

“Rethinking the Social Responsibility of Business,” A Reason debate featuring Milton
Friedman, Whole Foods’ John Mackey, and Cypress Semiconductor’s T.J. Rodgers (Oct.
2005), available at http://reason.com/archives/2005/10/01/rethinking-the-social-responsi
Part II: International Legal Framework and Soft Law Principles
Class 2: January 19, 2016. Overview of International Legal Framework (I): State
Responsibility for Human Rights Violations resulting from Corporations’ Conduct
During this session and Class 3, we will examine core principles of international human rights
law relevant to the interrelated questions, “Does international human rights law impose any
responsibilities on corporations and/or corporate officials/employees (and if so, under what
circumstances)?” and “How does international human rights law seek to address the impact of
corporate conduct on human rights?” We will consider how this area of law has developed; to
whom international human rights standards apply, distinguishing between state and non-state
actors; and limitations on States’ ability to regulate overseas conduct of their corporate
nationals. In this session, class assignments and discussion will focus on the dominant paradigm
of international law, which places legal responsibilities primarily on States. (Note: Much of
what we cover in this class will inform our later understanding of the UN Guiding Principles on
Business and Human Rights’ conception of states’ duty to “protect.”)
Assigned Readings:
1. Questions for Class Discussion
A. Overview of States Parties’ positive obligations under various human rights
treaties; introduction to the question whether States are responsible for ensuring
that non-State actors refrain from infringing human rights violations when they
act abroad
2. Sende, “The Responsibilities of States for Actions of Transnational Corporations
Affecting Social and Economic Rights: A Comparative Analysis of the Duty to Protect,”
15 COLUM. J. EUR. L. ONLINE 33 (2009), at: http://www.cjel.net/online/15_2-marsellasende/
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3. Please also skim the International Covenant on Political Rights (ICCPR), which is
available at https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I14668-English.pdf, and read Article 2 of the ICCPR; skim the American Convention
on Human Rights (ACHR), which is available at http://www.oas.org/dil/treaties_B32_American_Convention_on_Human_Rights.htm, and read Article 1 of the ACHR;
and skim the African Charter on Human and Peoples’ Rights, which is available at
http://www.achpr.org/instruments/achpr/#ch1.1, and read Article 1 of the ACHPR.
Note: The jurisprudence under various human rights treaties concerning how far States’
treaty responsibilities extend has been inconsistent and in flux. For those interested in
reading more deeply into this subject, see Marko Milanović, From Compromise to
Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties, 8 Hum.
Rts. L. Rev. 411 (2008); Hugh King, The Extraterritorial Human Rights Obligations of
States, 9 HUM. RTS. L. REV. 521 (2009).
B. Territorial Scope of States’ Responsibility to Ensure that Private Actors Do Not
Impair Human Rights; Imputing Corporate Conduct to the State
4. Excerpts,* Olivier de Schutter, “The Accountability of Multinationals for Human Rights
Violations in European Law,” 2004, posted on MyWCL
*You should read only pages 6 (beginning at top of page) through the first seven
lines of 12
5. Paragraph 16, Human Rights Committee, Concluding observations on the sixth periodic
report of Germany, adopted by the Committee at its 106th session, 15 October to 2
November, 2012, posted on MyWCL
6. Shane Darcy, “UN Human Rights Committee Requests Information on Business and
Human Rights,” Business and Human Rights in Ireland, Nov. 13, 2013, available at
https://businesshumanrightsireland.wordpress.com/2013/11/15/un-human-rightscommittee-requests-information-on-business-and-human-rights/
C. Illustrative Jurisprudence under Three Human Rights Treaties
i. Human Rights Committee (International Covenant on Civil and Political Rights)
7. Excerpts, Human Rights Committee, General Comment 31 [80], The nature of the
general legal obligation imposed on States Parties to the Covenant, adopted Mar. 29,
2004, posted on MyWCL
ii. Committee on Economic, Social and Cultural Rights (International Covenant on
Economic, Social and Cultural Rights)
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8. Paragraph 20, Committee on Economic, Social and Cultural Rights, General Comment
12, The right to adequate food, May 12, 1999, posted on MyWCL and available at
http://www.refworld.org/docid/4538838c11.html
iii. African Commission on Human and Peoples’ Rights (African Charter on Human
and Peoples’ Rights)
9. Excerpts, SERAC et al. v. Nigeria (2001), African Commission on Human and Peoples’
Rights, posted on MyWCL. [Note: Although the entire decision is posted, you do not
need to read paragraphs 11-42, which deal with procedural issues]
iv. Inter-American Court of Human Rights (American Convention on Human
Rights)
10. Excerpts, Velasquez Rodriguez Case, Judgment of July 29, 1988, Inter-Am. Ct. of Human
Rights, posted on MyWCL
Recommended but not required:

Excerpts, Case of the Saramaka People v. Suriname (Judgment of Nov. 28, 2007),
Inter-Am. Ct. of Human Rights, posted on MyWCL.

276/2003—Centre for Minority Rights Development (Kenya) and Minority Rights
Group International on behalf of Endorois Welfare Council v. Kenya (Nov.
2009), available at
http://www.worldcourts.com/achpr/eng/decisions/2009.11_CMRD_v_Kenya.htm
Class 3: January 26, 2016. Direct Responsibility of Corporate Actors and Legal
Complicity
During this class session we will continue our initial examination of core principles of
international law relevant to the questions, “Does international human rights law impose any
responsibilities on corporations and/or corporate officials/employees (and if so, under what
circumstances)?” and “How does international human rights law seek to address the impact of
corporate conduct on human rights?” While Class 2 took up the question of when States are held
responsible for conduct of corporate actors, Class 3 focuses on two related questions: (1) Under
what circumstances might international law impose obligations directly on corporate actors? (2)
When are corporate actors responsible, either legally or ethically, for conduct that constitutes
complicity in human rights violations?
Assigned Readings:
1. Questions for Class Discussion, posted on MyWCL
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2. Note on Postwar Prosecutions; excerpts, Charter of the International Military Tribunal
(1945), posted on MyWCL
3. Excerpts, United States v. Friedrich Flick et al.; United States v. Carl Krauch et al., and
United States v. Alfried Felix Alwyn Krupp von Bohlen und Halback et al., posted on
MyWCL (in same document as items in #2, above)
4. In re Tesch (The Zyklon B Case), 13 Ann. Dig. 250 (Brit. Mil. Ct. 1946), reprinted in 1
UNITED NATIONS WAR CRIMES COMM’N, LAW REPORTS OF TRIALS OF WAR CRIMINALS 93,
93 (1947), available at http://www.ess.uwe.ac.uk/wcc/zyklonb.htm
Further recommended (not required) reading:

Grietje Baars, Capitalism’s Victor’s Justice? The Hidden Stories Behind the Prosecution
of Industrialists Post-WWII, Ch. 8 in THE HIDDEN HISTORIES OF WAR CRIMES TRIALS
(KEVIN JON HELLER & GERRY SIMPSON, EDS.) (Oxford Univ. Press 2013), posted on
MyWCL
Class 4: Feb. 2, 2016. Soft Law: Lead-up to the UN Guiding Principles on Business and
Human Rights
Google discussion group leaders: [TBD]
This class introduces the UN Human Rights Framework for Business and Human Rights (2008)
and Guiding Principles (2011) prepared by Prof. John Ruggie in his role as the UN SecretaryGeneral’s special representative for business and human rights. The Guiding Principles have
emerged as the de facto global standard for appropriate business practices that impact human
rights. We will consider how well these two documents address the governance gap identified by
Prof. Ruggie and the potential for the standards to become legally binding.
During our class session on February 5, we will focus on the legal analysis and strategy that
informed Professor Ruggie’s approach, as well as alternative approaches he rejected and the
reasons why. The following week, we will take a closer look at the Guiding Principles
themselves.
Assigned Readings:
1. Issues and Questions for Class Discussion, posted on MyWCL
A. Before the Guiding Principles there were Norms on the Responsibilities of
Transnational Corporations and Other Business Enterprises with Regard to
Human Rights (“the Norms”) and a range of other initiatives
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1. Please familiarize yourselves generally with the UN Global Compact by skimming: UN
Global Compact, After the Signature: A Guide to Engagement in the United Nations
Global Compact (January 2012) (available at
http://www.unglobalcompact.org/docs/news_events/8.1/after_the_signature.pdf); and
with the OECD Guidelines for Multinational Enterprises by reading the introductory page
at http://oecdwatch.org/oecd-guidelines. Those interested in reading the OECD
Guidelines themselves can find them at
http://www.oecd.org/document/28/0,3746,en_2649_34889_2397532_1_1_1_1,00.html).
We will not discuss these in class, but they form a useful background to the material we
will consider.
2. For general background on the “Norms” and the transition from the Norms to the Ruggie
process, please skim the assigned excerpt (see below) of Jena Amerson, ‘The End of the
Beginning?’: A Comprehensive Look at the U.N.’s Business and Human Rights Agenda
from a Bystander Perspective, 17 FORDHAM J. CORP. & FIN’L L. (2012), available at
http://ssrn.com/abstract=2084257 and posted on MyWCL. You should skim Section
II.B, which begins on p. 32, and the first paragraph of Section II.C (pp. 43-44).
3. Read: Norms on the responsibilities of transnational corporations and other business
enterprises with regard to human rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2, posted
on MyWCL
B. Protect, Respect and Remedy: Framework for Business and Human Rights
4. Report of the Special Representative of the Secretary-General on the issue of human
rights and transnational corporations and other business enterprises, John Ruggie:
Protect, Respect and Remedy: a Framework for Business and Human Rights, UN Doc.
A/HRC/8/5 (7 April 2008), posted on MyWCL and available at
http://www.unglobalcompact.org/docs/issues_doc/human_rights/Human_Rights_Workin
g_Group/29Apr08_7_Report_of_SRSG_to_HRC.pdf
Further recommended but not required reading:
Ruggie has critiqued the Norms and explained why he rejected their approach in many
fora, including the following:

John Gerard Ruggie, Global Governance and “New Governance Theory”: Lessons from
Business and Human Rights, 20 GLOBAL GOVERNANCE, at pp. 1-12 (ending before
section on “Regime Complexities”) (2014), posted on MyWCL
JOHN GERARD RUGGIE, JUST BUSINESS, at pp. 47-55
You may wish to skim the Guiding Principles themselves to get a general sense of
the approach they take, but we will cover them in depth in the next class, for which
they are actually assigned:
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Report of the Special Representative of the Secretary-General on the issue of human
rights and transnational corporations and other business enterprises, John Ruggie:
Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework, UN Doc. A/HRC/17/31 (21March 2011),
available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.31_en.pdf
Class 5: Feb. 9, 2016. The Guiding Principles on Business and Human Rights
Google discussion group leaders: [TBD]
During this class we will explore the UN Guiding Principles on Business and Human Rights
themselves. After we master their basic structure, we will apply them to two situations—child
labor and the tainted supply chain issues explored in Class 2.
Assigned Readings
1. Issues and Questions for Class Discussion, posted on MyWCL
I.
The Guiding Principles
2. Report of the Special Representative of the Secretary-General on the issue of human
rights and transnational corporations and other business enterprises, John Ruggie:
Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework, UN Doc. A/HRC/17/31 (21March 2011),
available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.31_en.pdf
3. Skim (for general awareness of follow-up process established by UN Human Rights
Council) HRC Resolution 17/4, Human rights and transnational corporations and other
business enterprises (2011), posted on MyWCL
Further suggested readings on the Guiding Principles (not required)

JOHN RUGGIE, JUST BUSINESS, Ch. 3

Mark Taylor, “A Glass Filling Up-Reflections on the first year anniversary of the UN
Guiding Principles on Business and Human Rights,” June 18, 2012, available at
http://www.ihrb.org/commentary/guest/a-glass-filling-up.html

Wilton Park Conference Report, Business and human rights: implementing the Guiding
Principles one year on (June 2012), available at
http://www.wiltonpark.org.uk/resources/en/pdf/22290903/2012/wp1172-report

You may enjoy viewing Prof. Ruggie’s (and other participants’) remarks at the Forum on
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Business and Human Rights at:
http://www.ohchr.org/EN/Issues/Business/Forum/Pages/2012ForumonBusinessandHuma
nRights.aspx
II.
Applying the Guiding Principles: Child Labor
4. Nicolas Kristof and Sheryl WuDunn, “Two Cheers for Sweatshops,” N.Y. TIMES
MAGAZINE, September 2000, available at
http://www.nytimes.com/2000/09/24/magazine/two-cheers-forsweatshops.html?pagewanted=all&src=pm
5. Laurie Goering, “Ending Child Labor Tricky Job for India,” CHICAGO TRIBUNE
http://articles.chicagotribune.com/2008-04-18/news/0804170692_1_child-labor-workingchildren-india; also posted on MyWCL since this version may be difficult to read
Further readings (highly recommended but not required) on ending child labor

Excerpts, Elliot J. Schrage, “Case Study 1: Addressing Child Labor in Pakistan’s Soccer
Ball Production,” in Promoting International Worker Rights through Private Voluntary
Initiatives: Public Relations or Public Policy?, published by the University of Iowa
Center for Human Rights, Jan. 2004, posted on MyWCL
Reference for Child Labor Issues: Familiarize yourselves generally with the following
conventions

International Labour Organization (ILO) Convention 138 (Minimum Age for Admission
to Employment), available at
http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_INSTRUMENT_ID
:312283

ILO, Convention No. 182 (Worst Forms of Child Labour), available at
http://www.ilo.org/public/english/standards/relm/ilc/ilc87/com-chic.htm

(1998) ILO Declaration on Fundamental Principles and Rights at Work, available at
http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang--en/index.htm
III.
Applying the Guiding Principles: Bangladeshi Factories
5. Please come to class prepared to assess the reparations described in this article in light of
the “remedy” portion of the Guiding Principles:
Steven Greenhouse, “$40 Million in Aid Set for Bangladesh Garment Workers,” N.Y.
Times,” Dec. 24, 2013, available at
http://www.nytimes.com/2013/12/24/business/international/40-million-in-aid-set-forbangladesh-garment-workers.html
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Class 6: Feb. 16, 2016. National Action Plans; From Soft to Hard Law: A Treaty on
Business and Human Rights?
In this segment we consider developments building on the UN Human Rights Council’s
endorsement of the UN Guiding Principles. First we will briefly consider countries’ progress in
adopting National Action Plans. We then turn to a question that is now a subject of robust
debate: is it time to develop a binding IBHR treaty?
I. Readings on NAPs:
[to come]
II. Readings on a Possible IBHR Treaty:
1. For general background on the June 2014 UN Human Rights Council resolution concerning
the elaboration of a treaty on business and human rights, see: http://businesshumanrights.org/en/binding-treaty; for the text of the resolution, see http://businesshumanrights.org/sites/default/files/media/documents/hrc-26_dr_bhr_ecuador.pdf
2. For a brief overview of the debate about the treaty, see Cary L. Biron, “Contentious Start for
UN Process Toward Business and Human Rights Treaty,” Mint Press News, July 10, 2014,
available at http://www.mintpressnews.com/contentious-start-u-n-process-toward-businesshuman-rights-treaty/193731/
3. John Ruggie, Closing Plenary Remarks, Third United Nations Forum on Business & Human
Rights, Geneva, Dec. 3, 2014, available at http://businesshumanrights.org/sites/default/files/documents/ruggie-un-forum-dec-2014.pdf
Part III: Introduction to Legal Enforcement and Non-Legal Forms of Implementation
Class 7: Feb. 23, 2016. Legal Remedies—Litigation in the United States: Prospects in Light
of Kiobel v. Royal Dutch Petroleum; Legal Remedies Elsewhere
Google discussion group leaders: [tbd]
Litigation and, just as important, the prospect of litigation have provided a key source of pressure
for corporate human rights accountability. Human rights advocates have used litigation to seek
compensation for victims of human rights abuses and to promote corporate human rights
compliance under a number of legal theories in US courts, most prominently bringing claims
under the Alien Tort Statute (ATS). This class examines issues concerning corporate liability for
complicity or participation in human rights violations established in ATS cases before that
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statute’s reach was radically contracted by the U.S. Supreme Court’s 2013 decision in Kiobel v.
Royal Dutch Petroleum. We then look ahead at prospects for human rights litigation against
corporate actors in the United States post-Kiobel, and in other countries.
Assigned Readings:
1. Issues and Questions for Class Discussion, posted on MyWCL.
Please note that we will do an in-class role-playing exercise based on the Second Circuit’s
decision in Kiobel v. Royal Dutch Shell. The exercise is described in the “Issues and
Questions for Class Discussion” document.
2. Excerpts, Kadić v. Karadžić, 70 F.3d 232 (1995), available at
http://scholar.google.com/scholar_case?case=3533426122487977874&hl=en&as_sdt=2
&as_vis=1&oi=scholarr. The assigned portions are the “Background” section and
Section A (addressing the plaintiffs’ ATCA claim).
Note: Although this case did not involve a corporate defendant, it established an
important precedent on the question whether private actors can commit violations of
international law.
3. Skim Christopher A. Whytock, Donald Earl Childress III, and Michael D. Ramsey,
Forward: After Kiobel—International Human Rights Litigation in State Courts and
Under State Law, 3 UC IRVINE LAW REVIEW 1 (2013), available at
http://www.law.uci.edu/lawreview/vol3/no1/whytock_childress_ramsey.pdf
This brief introduction to a symposium issue provides a succinct summary of the history
of and several key legal challenges attending human rights litigation against corporate
defendants under the Alien Tort Statute (ATS).
4. Earth Rights International, Historic Advance for Universal Human Rights: Unocal to
Compensate Burmese Villagers, Apr. 2, 2005, available at http://www.escrnet.org/sites/default/files/EarthRights_Article_2005.pdf
This report about the outcome of the Doe v. Unocal case provides a glimpse into the
successes that litigants had achieved in their human rights suits against corporate
defendants before the Supreme Court’s decision in Kiobel.
5. Excerpts, Kiobel v. Royal Dutch Shell, 621 F.3d 111 (2nd Cir., 2010), aff’d on other
grounds by Kiobel v. Royal Dutch Shell, 133 S. Ct. 1659, 185 L. Ed. 2d 671, 2013 U.S.
LEXIS 3159, 81 U.S.L.W. 4241, posted on MyWCL
14
* As noted above, we will do an in-class role-playing exercise based on this decision.
The exercise is described in the “Issues and Questions for Class Discussion” document
posted on MyWCL.
6. Text of Torture Victim Protection Act of 1991, posted on MyWCL
7. A key issue after the Supreme Court’s ruling in Kiobel is, what does the future hold in
terms of prospects for successful human rights litigation against corporations and
corporate executives? During a class before February 23, students will be asked to sign
up to read one an article or blog of their choice on one of the following subjects:
a.
b.
c.
d.
State court litigation in the US:
Actual or potential litigation against corporations outside the US:
Cases under the ATS after Kiobel:
Cases against corporate individuals (though not corporations themselves) under
the Torture Victim Protection Act:
You will find rich resources on all of these topics. Among other sources, you will find a lot of
analysis at the following:

The American Journal of International Law has published symposium essays on Kiobel,
which are available at the ASIL’s web site: http://www.asil.org/resources/americanjournal-international-law

Following the Supreme Court’s decision in Kiobel, Opinio Juris hosted a week-long
insta-symposium. You can start searching these at:
http://opiniojuris.org/2013/04/17/kiobel-instthe-death-of-the-ats-and-the-rise-oftransnational-tort-litigation/ (other posts in the Symposium can be accessed at the end of
the page.
The University of California at Irvine Law Review did a symposium issue before the
Supreme Court’s ruling in which contributors assessed prospects for this type of litigation
in light of the Court’s anticipated ruling, which is available here:
http://www.law.uci.edu/lawreview/issuearchive/vol3no1.html


This site provides a broad list of relevant commentary: http://www.businesshumanrights.org/Documents/SupremeCourtATCAReview#126201

As its title suggests, this article explores avenues for human rights litigation post-Kiobel:
Roger P. Alford, The Future of Human Rights Litigation after Kiobel, available at
http://scholarship.law.nd.edu/law_faculty_scholarship/1063
15
In addition to these sources, developments in several countries are worth following, including:

A Swiss postulate directing a study on access to a remedy for victims of violations of
human rights by companies (see http://businesshumanrights.org/sites/default/files/documents/20141126_Swiss%20Council%20of%20St
ates%20approves%20postulate%20on%20access%20to%20remedy_final%20%283%29.
pdf)

Several cases initiated in Canadian courts, including:
1. HudBay litigation: http://business-humanrights.org/en/hudbay-minerals-lawsuits-reguatemala-0
2. Tahoe Resources litigation: http://business-humanrights.org/en/tahoe-resources-lawsuitre-guatemala
3. Nevsun litigation: http://business-humanrights.org/en/nevsun-lawsuit-re-bisha-mineeritrea
Class 8: March 1. The Role of NGOs and Advocacy
Google discussion group leaders: [tbd]
The vast majority of human rights abuses committed by companies never reach a courtroom and
those that do may be tied up in years of litigation with remote prospects of any significant
vindication for victims. Human rights advocates are accustomed to these challenges and have
developed a wide range of non-judicial strategies for addressing human rights issues raised by
corporate conduct. This class will consider the range and efficacy of non-judicial advocacy
efforts to bring pressure on companies linked with human rights violations. Among the
questions examined in this class, we will consider: (How) has globalization affected advocacy?
What has been the role of the Internet? The (traditional) media? We will consider a range of
cases and tools employed by advocates and will consider how NGOs define their objectives and
the factors that help determine the success of NGO initiatives aimed at improving corporate
responsiveness to human rights concerns.
The following students will also present a three-minute version of their advocacy papers,
which should be designed as a policy “pitch”—i.e., an appeal that, in a brief time, will grab
the attention of those listening and persuade them to share the perspective pitched in the
appeal:
[tbd]
Assigned Readings:
1. Questions for class discussion, posted on MyWCL
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2. [Role-playing exercises, distributed in class (NB: Depending on how long it takes to
get through students’ advocacy pitches, we may or may not do this exercise. No
advance preparation is required in any case).]
3. Tamara J. Bliss, Citizen Advocacy Groups: Corporate Friend or Foe? in UNFOLDING
STAKEHOLDER THINKING (Jörg Andriof, et al. eds), 251-265 (2007), posted on MyWCL
4. Carol Holding, CSR’s Impact on Brand Grows, POLICY INNOVATIONS (Aug. 23, 2007),
available at
http://www.policyinnovations.org/ideas/commentary/data/csr_brand_impact/:pf_printable
5. Debora L. Spar & Lane T. La Mure, The Power of Activism: Assessing the Impact of
NGOs on Global Business, CAL. MGMT. REV. (Apr. 1, 2003) (available at
http://www.people.fas.harvard.edu/~hiscox/Spar.pdf)
Recommended but not required:
6. Margaret E. Keck & Kathryn Sikkink, ACTIVISTS BEYOND BORDERS: ADVOCACY
NETWORKS IN INTERNATIONAL POLITICS, 10-29 (1998)
7. Excerpts, Michael Conroy, BRANDED! HOW THE ‘CERTIFICATION REVOLUTION’ IS
TRANSFORMING GLOBAL CORPORATIONS (2007), posted on MyWCL
8. Kenneth Roth, Defending Economic, Social, and Cultural Rights: Practical Issues Faced
by an International Human Rights Organization, 26 HUM. RTS. Q. 63-73 (2004),
available at
http://www.law.yale.edu/documents/pdf/Defending_Economic_Social_and_Cultural_Rig
hts.pdf)
9. Leonard S. Rubenstein, How International Human Rights Organizations Can Advance
Economic, Social, and Cultural Rights: A Response to Kenneth Roth, 26 HUM. RTS. Q.
845-865 (2004) (available on JSTOR)
***SPRING BREAK***
Class 9: March 15. Finance, Business and Human Rights
Guest Speaker: Nina Gardner
Google discussion group leaders: [tbd]
The financial sector is already incorporating Environmental, Social and Governance (ESG)
standards in its methodology, and these nonfinancial aspects are becoming part of the operations
of the capital markets. This session will review how the world of finance is influencing the
conduct of corporations, including a look at the growing impact of integrated reporting, and the
17
expanding role of the Socially Responsible Investor (SRI) and analyst community. What are the
new responsibilities of fund Boards? What is the definition of “fiduciary duty” and how is it
changing? Is there a role for individual investors? What is the impact of UNEP-Finance’s
Principles for Responsible Investment? We will also explore the issue of conditionality, the role
of the international financial institutions in project finance, as well as the growing importance of
human rights impact assessments.
Assigned Readings:
a. Taking Human Rights into Account in Investment Decisions
NB: This subject is often subsumed in two frequently-used concepts: (1)
Environmental, Social and Governance (ESG) metrics, and (2) Sustainable and
Responsible Investing (SRI) strategies
1. Executive Summary, The Forum for Sustainable and Responsible Investment, Report on
Sustainable and Responsible Investing Trends in the United States 2012, available at
http://www.ussif.org/files/Publications/12_Trends_Exec_Summary.pdf
2. Joe Nocera, “Investing in Guns,” N.Y. TIMES, Jan. 18, 2014, at
http://www.nytimes.com/2013/01/19/opinion/nocera-investing-in-guns.html?_r=3&
3. Rev. Dr. James H. Cooper, Why Trinity Church and Wal-Mart Went to Federal Court,”
Trinity Church News, Dec. 2, 2014, at https://www.trinitywallstreet.org/blogs/news/whytrinity-church-and-wal-mart-went-federal-court
4. Carolyn Cohn, “Sustainable strategies win over skeptical emerging stock investors,”
REUTERS, Dec. 11, 2013, available at http://www.cnbc.com/id/101263928
5. Mark Gunther blog, “Social funds: BP, the 1960s, and greed,” Aug. 15, 2010, available
at http://www.marcgunther.com/social-funds-bp-the-1960s-and-greed/
6. Excerpt,* Mary Dowell-Jones, Financial Institutions and Human Rights, 13 HUM. RTS.
L. REV. 423 (2013), posted on MyWCL
*The portion assigned here is Section 3.B at pp. 442-452
Further recommended reading on this subject (not required):

Institute for Human Rights and Business, Investing the Rights Way: A Guide for Investors
on Business and Human Rights (2013), available at at http://www.ihrb.org/pdf/Investingthe-Rights-Way/Investing-the-Rights-Way.pdf
This publication applies the UN Guiding Principles to an investment context.
18

Rory Sullivan and Nicolas Hachez, Human Rights Norms for Business: The Missing
Piece of the Ruggie Jigsaw – The Case of the Institutional Investors, by Rory Sullivan
and Nicolas Hachez, in THE UN GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS,
Radu Mares, ed. (Martinus Nijhoff, 2012), Ch. 9, posted on MyWCL
b. ESG Metrics and Fiduciary Responsibility
7. UN Principles for Responsible Investment (PRI) initiative, available at
http://www.unpri.org/principles/
8. Excerpts,* FIDUCIARY RESPONSIBILITY: LEGAL AND PRACTICAL ASPECTS OF INTEGRATING
ENVIRONMENTAL, SOCIAL AND GOVERNANCE ISSUES INTO INSTITUTIONAL INVESTMENTS,
UNEP, July 2009, available at
http://www.unepfi.org/fileadmin/documents/fiduciaryII.pdf
*You should read Part I, at pp. 22-32.
c. Financial Institutions
9. Please generally familiarize yourselves with the Equator Principles, the web site for
which describes the initiative as “a risk management framework, adopted by financial
institutions, for determining, assessing and managing environmental and social risk
in projects and is primarily intended to provide a minimum standard for due diligence to
support responsible risk decision-making”: http://www.equatorprinciples.com/resources/equator_principles_III.pdf
10. Human Rights Watch, “World Bank Group: Inadequate Response to Killings, Land
Grabs; Ombudsman Finds Honduras Palm Oil Investment Violates Key Policies,” Jan.
10, 2014, available at http://www.hrw.org/news/2014/01/10/world-bank-groupinadequate-response-killings-land-grabs
Further reading (not required) on this topic: Letter from two IFC Department heads to
IFC Compliance Advisory Ombudsman, Jan. 3, 2014, re IFC’s investment in
Corporacion Dinant S.A. de C.V. in Honduras, available at http://www.caoombudsman.org/documents/IFCResponsetoCAOAuditofDinant_Jan32014.pdf
Further recommended (not required):

(Additional) Excerpts,* Mary Dowell-Jones, Financial Institutions and Human Rights, 13
HUM. RTS. L. REV. 423 (2013), posted on MyWCL.
*Particularly relevant to this topic is Section 3.A., pp. 437-442. The entire article is well
worth reading, as it provides a strong critique of the prevailing approaches to finance and
human rights.
19
PART IV: Special Issues in Corporate Responsibility for Human Rights
Class 10: March 15. The Tainted Supply Chain
Google discussion group leaders: tbd
During this session we will explore the ethical and social responsibilities of companies for
human rights conditions in facilities used by suppliers from which they source products, focusing
on two case studies. We will also begin to explore the pressures in global markets that account
for poor conditions in such facilities, as well as initiatives companies have taken to try to avoid
complicity in human rights violations.
In addition, the following students will present the three-minute version of their advocacy
papers, which should be designed as a policy “pitch”—i.e., an appeal that, in a brief time,
will grab the attention of those listening and persuade them to share the perspective
pitched in the appeal:
Tbd
1. Issues and Questions for Class Discussion, posted on MyWCL
A. Apple: Sourcing from Foxconn in China
a. The Problem
2. Charles Duhigg and David Barboza, “In China, Human Costs Are Built into an iPad,”
N.Y. TIMES, Jan. 25, 2012, available at
http://www.nytimes.com/2012/01/26/business/ieconomy-apples-ipad-and-the-humancosts-for-workers-in-china.html?pagewanted=all
b. The Response
3. Charles Duhigg and Nick Wingfield, “Apple, in Shift, Pushes an Audit of Sites in China,”
N.Y. TIMES, Feb. 14, 2012,
at http://query.nytimes.com/gst/fullpage.html?res=9C07E5D8123CF937A25751C0A964
9D8B63
4. Vindu Goel, “Foxconn Audit Finds a Workweek Still Too Long,” N.Y. TIMES, May 17,
2013, at http://www.nytimes.com/2013/05/17/business/foxconn-audit-reveals-workweekstill-too-long.html?_r=0

This article (by Goel) has a link to the web site of the Fair Labor Association
(FLA). Please click on that link and browse to get a general sense of what the
FLA is and does.
20
Further reading (not required) on Apple/Foxconn

Connie Guglielmo, “Apple’s Supplier Labor Practices in China Scrutinized after
Foxconn, Pegatron Reviews,” Forbes, Dec. 12, 2013, available at
http://www.forbes.com/sites/connieguglielmo/2013/12/12/apples-labor-practicesin-china-scrutinized-after-foxconn-pegatron-reviewed/
B. Responses to Unsafe Working Conditions in Bangladesh
a. The Disasters and Responses
*In a subsequent class, we will return to this case study to consider efforts to
provide a remedy to victims
Virtually all of the articles describing responses to the Tazreen and Rana Plaza disasters
mention the basic facts, but the following reading provides a good overview of the two
episodes that prompted a series of responses and of those responses. You should SKIM
this reading (excerpts from the APPGB report) to get an overview of the disaster and
response and READ the other assigned articles:
5. Excerpts, All Party Parliamentary Group on Bangladesh, After Rana Plaza: A report into
the readymade garment industry in Bangladesh (2013), available at
http://www.annemain.com/pdf/APPG_Bangladesh_Garment_Industry_Report.pdf

The assigned excerpts are the Forward (p. 5) and Part 1 (pp. 18-28) and Part II
(pp. 29-40).
6. Katerina Sokou and Howard Schneider, “U.S. suspends Bangladesh’s trade privileges
due to labor concerns,” June 27, 2013, WASH. POST, available at
http://www.washingtonpost.com/business/economy/us-to-suspend-trade-privileges-withbangladesh/2013/06/27/16171f08-df3d-11e2-963a-72d740e88c12_story.html
7. “Clothing firms in Bangladesh: Accord, alliance or disunity?,” THE ECONOMIST, July 13,
2013, available at http://www.economist.com/news/business/21581752-transatlanticdivide-among-big-companies-may-hinder-efforts-improve-workers-safety

Although not required, you might find the following article of interest; it expands
on the response of U.S. retailers mentioned in the ECONOMIST article:
Steven Greenhouse and Stephanie Clifford, “U.S. Retailers Offer Plan for Safety
at Factories,” N.Y. Times, July 11, 2013, available at
http://www.nytimes.com/2013/07/11/business/global/us-retailers-offer-safetyplan-for-bangladeshi-factories.html?_r=0
21
8. Jim Yardley, “Bangladesh Takes Steps to Increase Lowest Pay,” N.Y. TIMES, Nov. 5,
2013, available at http://www.nytimes.com/2013/11/05/world/asia/bangladesh-takes-steptoward-raising-38-a-month-minimum-wage.html
9. Steven Greenhouse, “Europeans Fault American Safety Effort in Bangladesh,” N.Y.
TIMES, Nov. 18, 2013, available at
http://www.nytimes.com/2013/11/19/business/international/europeans-fault-americansafety-effort-in-bangladesh.html
Please also skim the Accord on Fire and Building Safety in Bangladesh, available at
http://www.laborrights.org/sites/default/files/publications-andresources/Accord_on_Fire_and_Building_Safety_in_Bangladesh_2013-05-13.pdf
Further recommended (not required) reading on Bangladesh

Samson Okalow, “Bangladesh workers: Two bucks more for a T-shirt to help
them?,” Canadian Business, May 15, 2013, available at
http://www.canadianbusiness.com/companies-and-industries/bangladesh-workerstwo-bucks-more-for-a-t-shirt-to-help-them/

“Bangladesh’s clothing industry: Bursting at the seams,” THE ECONOMIST, Oct.
26, 2013, available at http://www.economist.com/news/business/21588393workers-continue-die-unsafe-factories-industry-keeps-booming-bursting-seams

Steven Greenhouse, “U.S. Retailers Decline to Aid Factory Victims in
Bangladesh,” N.Y. TIMES, Nov. 22, 2013, available at
http://www.nytimes.com/2013/11/23/business/international/us-retailers-declineto-aid-factory-victims-in-bangladesh.html

Jim Yardley, “Clothing Brands Sidestep Blame for Safety Lapses,” N.Y. TIMES,
Dec. 31, 2013, available at
http://www.nytimes.com/2013/11/23/business/international/us-retailers-declineto-aid-factory-victims-in-bangladesh.html
Further recommended readings relevant to general topic:

Stephanie Clifford and Steven Greenhouse, “Fast and Flawed Inspections of
Factories Abroad,” N.Y. Times, Sept. 2, 2013, available at
http://www.nytimes.com/2013/09/02/business/global/superficial-visits-andtrickery-undermine-foreign-factory-inspections.html?pagewanted=all
http://www.nytimes.com/2013/09/02/business/global/superficial-visits-andtrickery-undermine-foreign-factory-inspections.html?pagewanted=all&_r=0

Declan Walsh and Steven Greenhouse, “Certified Safe, Karachi Factory Quickly
Burned,” N.Y. TIMES, Dec. 8, 2012, available at
http://www.nytimes.com/2012/12/08/world/asia/pakistan-factory-fire-showsflaws-in-monitoring.html?_r=0
22

Ian Urbina and Keith Bradsher, “Linking Factories to the Malls, Middleman
Pushes Low Costs,” N.Y. TIMES, Aug. 6, 2013, available at
http://www.nytimes.com/2013/08/08/world/linking-factories-to-the-mallsmiddleman-pushes-low-costs.html?_r=0

Richard M. Locke, “Can Global Brands Create Just Supply Chains?,” Boston
Review Forum, May 21, 2013, available at
http://www.bostonreview.net/forum/can-global-brands-create-just-supply-chainsrichard-locke
***SPRING BREAK MARCH 7-11***
Class 10: March 22. Extractive Industries, Conflict Minerals, and Challenges to Protection
of Human Rights
Google discussion group leaders: tbd
Just as other special sectors examined in previous classes have encountered human rights
challenges peculiar to their industries, the extractive industries have encountered a special set of
human rights issues. One set relates to heightened security risks associated with protecting
extractive industries’ facilities, which as we have seen, have often been protected by abusive
security forces. Another, which has formed the context of cases we examined earlier in the
semester, involves the heightened potential of certain extractive industries for interference with
rights of indigenous persons. A third set of issues involves the particular “tainted supply chain”
issues associated with conflict minerals, such as diamonds, that have fueled deadly conflicts.
Finally, a broad set of issues revolves around lack of transparency about the terms under which
governments have contracted for access to their countries’ natural resources.
These and other issues have generated several global efforts to define appropriate human rights
guidelines for extractive industries. We will explore the following initiatives in class: The
Voluntary Principles on Security and Human Rights, a key multi-stakeholder initiative created
with regard to the extractive industry to address security-related concerns; the Extractive
Industries Transparency Initiative (EITI), the global standard for transparency in oil, gas, and
mining; the Kimberly Process, which seeks to prevent complicity in human rights violations
relating to conflict minerals; and provisions in the Dodd-Frank Act of 2010 regarding conflict
minerals (1502) and extractive industries (1504), and the SEC enforcement role.
Assigned Readings:
1. For an introduction to this issue, please view this brief YouTube video:
http://www.youtube.com/watch?v=aF-sJgcoY20&feature=player_embedded
23
Voluntary Principles on Security and Human Rights
2. Read through: Voluntary Principles on Security and Human Rights, at
http://www.voluntaryprinciples.org/principles/introduction
3. Salil Tripathi, “Have the Voluntary Principles realised their full potential?,” Institute for
Business and Human Rights, at
http://www.ihrb.org/commentary/staff/voluntary_principles_tenth_anniversary.html
4. Remarks of Bennett Freeman, “To What Extent Can Voluntarism Provide Answers?,”
Wilton Park Conference on Business and Human Rights: Advancing the Agenda, Oct. 11,
2005, posted on MyWCL
Transparency Initiatives: Focus on the Extractive Industries Transparency Initiative
(EITI)
5. Please look at this site to get a sense of the Extractive Resources Transparency Initiative
(EITI), which attempts to combine transparency (in the form of the EITI report) with
accountability (the multi-stakeholder group):
http://eiti.org/files/English_EITI%20STANDARD_11July_0.pdf
6. You should read pp. 15-18 (ending just before Section A) of Peter Rosenblum & Susan
Maples, “Contracts Confidential: Ending Secret Deals in the Extractive Industries”,
Revenue Watch Institute, available at
http://www.revenuewatch.org/sites/default/files/RWI-Contracts-Confidential.pdf, with a
view to getting a sense of how transparency relating to extractive industries
advances human rights goals (as well as other concerns).
“Blood Diamonds”: The Kimberly Process
7. Skim the first two sections and read Section III-V of Ian Smillie, Blood Diamonds and
Non-State Actors, 46 VAND. J. TRANSNAT’L L. 1003 (2013), available at
http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/Smillie-.pdf
Note: You should read this article with a view to (1) learning what the Kimberley
Process is and how it works; and (2) understanding criticisms of its limitations.
Transparency and Conflict Minerals: Dodd Frank Sections 1502 and 1504
8. Karin Lissakers, “Wall Street Reform Included Big Steps on Oil and Mining
Transparency,” Huffington Post, July 15, 2010, available at
http://www.huffingtonpost.com/karin-lissakers/wall-street-reform-includ_b_643399.html
9. Deb Miller, “Congolese Miners: In the Trenches of the Conflict-Free Mineral
Movement,” iQ Intel, Nov. 4, 2014, at http://iq.intel.com/in-trenches-conflict-freemineral-movement/?dfaid=1&crtvid=0&dclid=1-1873234-8289317-113443698286515173-0
24
10. Sudarsan Raghavan, “How a well-intentioned U.S. law left Congolese miners jobless,”
Wash. Post, Nov. 30, 2014, posted on MyWCL
11. Summary report, “Transparency, Conflict Minerals and Natural Resources: Debating
Sections 1502 and 1504 of the Dodd-Frank Act,” The Brookings Institution, Dec. 20,
2011, available at
http://www.brookings.edu/research/opinions/2011/12/20-debating-dodd-frank-kaufmann
Class 11: Mar. 29. The Right to Health and Access to Medicines
Google discussion group leaders: tbd
Several multinational corporations, including in particular pharmaceutical companies, encounter
a specialized subset of human rights challenges relating to two principal areas—the
internationally-protected “right to the highest attainable standard of health,” and prohibitions
against non-consensual and otherwise harmful medical experimentation. This class examines
several recent controversies implicating these issues. We will consider such questions as: Does
the right to health include a right of access to medicines? If so, what would that mean? How
does international law balance intellectual property rights against the right to health? What are
the moral and legal issues that should be considered before companies test drugs in developing
countries?
In addition, the following students will present the three-minute version of their advocacy
papers, which should be designed as a policy “pitch”—i.e., an appeal that, in a brief time,
will grab the attention of those listening and persuade them to share the perspective
pitched in the appeal:
Tbd
1. Issues and Questions for Class Discussion, posted on MyWCL
I.
Ethical and Legal Issues Raised by Testing New Drug Treatments on Foreign
Populations
2. “Ethics left behind as drug trials soar in developing countries,” The Guardian, July 4,
2011, available at http://www.theguardian.com/global-development/2011/jul/04/ethicsleft-behing-drug-trials-developing
3. Ruth Macklin, “Intertwining Biomedical Research and Public Health in HIV Microbicide
Research,” PUBLIC HEALTH ETHICS (Sept. 15, 2010), available at
http://phe.oxfordjournals.org/content/early/2010/09/14/phe.phq019.full.
4. David Smith, “Pfizer pays out to Nigerian families of meningitis drug trial victims,” The
Guardian, available at http://www.guardian.co.uk/world/2011/aug/11/pfizer-nigeriameningitis-drug-compensation
25
5. Michael Specter, The Vaccine, THE NEW YORKER, Feb. 3, 2003, posted on MyWCL.
You should focus on the discussion of ethical issues relating to drug testing in Africa at
pp. 56-57; 63-65, and either skim or read the rest of this article.
6. Peter Lurie and Sidney M. Wolfe, Unethical Trials of Interventions to Reduce Perinatal
Transmission of the Human Immunodeficiency Virus in Developing Countries; Harold
Varmus and David Satcher, Ethical Complexities of Conducting Research in Developing
Countries; Marcie Angell, The Ethics of Clinical Research in the Third World, THE NEW
ENGLAND JOURNAL OF MEDICINE, Sept. 18, 1997, posted on MyWCL
7. Brady Dennis, “As researchers develop Ebola vaccine, early human clinical trials show
promise,” WASH. POST, Oct. 24, 2014, posted on MyWCL

Though not assigned, this article provides an update on the proposed Ebola
vaccine trials discussed in the assigned Washington Post article: Andrew Pollack,
“In Africa, a Decline in New Ebola Cases Complicates Vaccine Development,”
N.Y. TIMES, Jan. 10, 2015, available at
http://www.nytimes.com/2015/01/10/health/ebbing-of-ebola-complicates-testingof-vaccines.html?_r=0
International Legal and Professional Standards
1. Article 7 of the International Covenant on Civil and Political Rights, set forth below:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to medical or
scientific experimentation.
2. Articles 2 and 12 of the International Covenant on Economic, Social and Cultural Rights,
set forth below
Article 2
1. Each State Party to the present Covenant undertakes to take steps, individually and
through international assistance and co-operation, especially economic and technical, to
the maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights
enunciated in the present Covenant will be exercised without discrimination of any kind
as to race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.
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3. Developing countries, with due regard to human rights and their national economy,
may determine to what extent they would guarantee the economic rights recognized in
the present Covenant to non-nationals.
Article 12
1. The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the
healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other
diseases;
(d) The creation of conditions which would assure to all medical service and medical
attention in the event of sickness.
9. Excerpts, Laurie E. Abbott, Incentive for Innovation or Invitation to Inhumanity?: A
Human Rights Analysis of Gene Patenting and the Case of Myriad Genetics, 2012 UTAH L.
REV. 497 (2012), available at http://epubs.utah.edu/index.php/ulr/article/view/694/534. You
should read only Sections I (Introduction) and II, at pp. 497-509.
10. Excerpts (pp. 1-5), Declaration of Helsinki IV, 41st World Medical Assembly, Hong
Kong, Sept. 1989, available at http://www.wma.net/en/30publications/10policies/b3/17c.pdf
Further recommended reading (not required)

Seth W. Glickman et al., “Ethical and Scientific Implications of the Globalization
of Clinical Research,” NEW ENGLAND JOURNAL OF MEDICINE, Feb. 19, 2009,
available at http://www.asph.org/userfiles/Glickman-Ethical-ScientificImplications-of-Globalization-of-clinical-research.pdf

David Buchanan, “Assuring Adequate Protections in International Health
Research: A Principled Justification and Practical Recommendations for the Role
of Community Oversight,” (2008), UMass Institute for Global Health Faculty
Publications, available at
http://connection.ebscohost.com/c/articles/44587301/assuring-adequateprotections-international-health-research-principled-justification-practicalrecommendations-role-community-oversight
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
Michael J. Malinowski and Grant G. Gautreaux, All that is Gold Does Not Glitter
in Human Clinical Research: A Law-Policy Proposal to Brighten the Global
‘Gold Standard’ for Drug Research and Development, 45 CORNELL INT’L L.J. 185
(2012)

A.P. Brizi, et al., Biomedical Research in Developing Countries: The Promotions
of Ethics, Human Rights and Justice, UNICRI (2009), available at
http://www.unicri.it/news/2009/09081_bio_research_dev_countries/Biomedical_Research_in_Developing_Countries.p
df.

Patricia A. Marshall, Ethical challenges in study design and informed consent for
health research in resource-poor settings, World Health Organization (2008),
available at http://whqlibdoc.who.int/publications/2007/9789241563383_eng.pdf.
Class 12: April 5. Corporate Remedies for Past Wrongs
Google discussion group leaders: tbd
A. Slavery
Assigned Readings:
1. For a brief account of how a single person (Belgium’s King Leopold) owned and
enslaved a country—the Congo—read this review of Adam Hochschild’s KING
LEOPOLD’S GHOST: http://www.nytimes.com/books/98/08/30/daily/leopold-bookreview.html

Not required but highly recommended: For a good overview of the central role of
enslavement and the slave trade to Western economies and the relevance of changing
market requirements for the abolitionist movement, see Chapter 1, BASIL DAVIDSON, THE
AFRICAN SLAVE TRADE (Atlantic-Little Brown & Co. 1961), posted on MyWCL
2. Carola Hoyos, “Businesses regret links with slavery,” FINANCIAL TIMES, July 1, 2009,
available at http://www.ft.com/cms/s/0/56fcf9e6-659f-11de-8e3400144feabdc0.html#axzz2xeEFnlCV
3. Katherine Shaver, “Seeking accountability for sins of the past,” WASH. POST, Mar. 10,
2014, at http://www.washingtonpost.com/local/trafficandcommuting/opposition-tomaryland-rail-line-bidder-raises-questions-about-accountability-forholocaust/2014/03/09/ddb2a8c2-9f0c-11e3-a050-dc3322a94fa7_story.html (also posted
on MyWCL)
4. Excerpts, Randall Robinson, THE DEBT: WHAT AMERICA OWES TO BLACKS (Plume,
2000), posted on MyWCL
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5. Excerpts, Eric K. Yamamoto, Racial Reparations: Japanese American Redress and
African American Claims, 40 B.C. L. REV. 477 (1998-99), posted on MyWCL
6. “Slave Era Policies: A burden to insurers can be a benefit to African-American families,”
Viewpoint Magazine, Summer 2012, available at
http://www.aaisonline.com/AAISFrame/ConnectFrame/ViewpointFrame/tabid/108/Articl
eID/517/Slave-Era-Policies.aspx
7. Darryl Fears, “Seeking More than Apologies for Slavery; Activists Hope Firms’
Disclosure of Ties Will Lead to Reparations,” WASH. POST, June 20, 2005, available at
http://h-net.msu.edu/cgi-bin/logbrowse.pl?trx=vx&list=HSlavery&month=0506&week=c&msg=XddUGD7X44reTWx9Oo3ugA&user=&pw=
8. Excerpts,* Max Clarke & Gary Alan Fine, “A” for Apology: Slavery and the Discourse
of Remonstrance in Two American Universities, 22 History & Memory 81 (2010),
available at http://muse.jhu.edu/journals/ham/summary/v022/22.1.clarke.html
* The portions you should read are the section on Brown University beginning at p. 88
and ending on p. 96, and the brief sections titled “What Words Do” and “Conclusion” at
pp. 105-107.
Further recommended reading (not required but highly recommended)

In re African-American Slave Descendants Litigation, 304 F. Supp. 2d 1027 (Jan. 26,
2004); complaint dismissed at In re African-American Slave Descendants Litig., 375 F.
Supp. 2d 721, 2005 U.S. Dist. LEXIS 13445 (N.D. Ill., July 6, 2005); Affirmed in part
and reversed in part by, Remanded by, Modified by, in part In re African American Slave
Descendants Litig., 471 F.3d 754, 2006 U.S. App. LEXIS 30525 (7th Cir. Ill., Dec. 13,
2006; writ of certiorari denied Hurdle v. R.J. Reynolds Tobacco Co., 2007 U.S. LEXIS
10881
NB: Although not the last decision in this consolidated litigation, the decision at 304 F. Supp. 2d
1027 (2004) is one of the most thoroughly developed rulings on the possibility of reparations for
slavery in US case law.

Slavery and Justice: Report of the Brown University Steering Committee on Slavery and
Justice (Oct. 2006), available at
http://www.brown.edu/Research/Slavery_Justice/documents/SlaveryAndJustice.pdf
NB: Although this report addresses Brown University’s historical debt to/resulting from slavery,
it includes an illuminating broader exploration of contemporary responses to slavery, including
reparations.

Ta-Nehisi Coates, “The Case for Reparations,” The Atlantic, June 2014, available at
http://www.theatlantic.com/features/archive/2014/05/the-case-for-reparations/361631/
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Class 13: April 12. Information and Communications Technology: Freedom and
Restraints
Google discussion group leaders:
Companies in the information and communications technology (ICT) sector have encountered a
range of human rights challenges in recent years. In this class we will explore the following
situations in which such challenges arise:
(1) governments seek to impose restrictions on Internet providers’ services that affect access
to information and freedom of expression;
(2) ICT providers, such as YouTube, block postings that might trigger human rights
violations;
(3) governments hijack ICT services to track dissidents’ communications and use the
information they glean to further repressive practices; and
(4) companies provide to governments technology that may be used by the governments to
spy on their citizens.
We will explore the human rights responsibilities of ICT companies in these situations and
consider the adequacy and efficacy of recent initiatives to develop human rights guidelines for,
and advocacy campaigns targeting, ICT service providers.
Assigned Readings:
a. When should ICT companies block access to their platforms to protect
human rights? What standards should they use?
1. Susan Benesch, Rebecca MacKinnon, “The Innocence of YouTube,” Foreign Policy
online, Oct. 5, 2012, available at
http://www.foreignpolicy.com/articles/2012/10/05/the_innocence_of_youtube
2. ICCPR, articles 19 & 20:
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with
it special duties and responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
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(b) For the protection of national security or of public order (ordre public), or of public
health or morals.
Article 20
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence shall be prohibited by law.
b. Censoring at the Request of a Government: Google in China
1. Rebecca MacKinnon, “Google Gets on the Right Side of History,” ASIAN WALL STREET
JOURNAL, Jan. 13, 2010, available at
http://online.wsj.com/article/SB10001424052748704362004575000442815795122.html?
mod=WSJ_Opinion_LEFTTopOpinion
2. Tetyana Lokot, “RuNet Watchdog ‘Baffled’ by Twitter’s Refusal to Block Kremlin’s
Opponents,” Global Voices Online, Feb. 10, 2015, available at
http://globalvoicesonline.org/2015/02/10/roscomnadzor-twitter-extremism/
3. Rebecca MacKinnon, “Playing Favorites,” Guernica, Feb. 3, 2014, available at
https://www.guernicamag.com/features/playing-favorites/ (Note: This article also
addresses a range of other contexts in which ICT companies face human rights
challenges)
c. Corporate complicity in monitoring and hacking citizens’ communications
4. Andrea Peterson, “Spyware vendor may have helped Ethiopia target journalists—even
after it was aware of abuses, researchers say,” Wash. Post blog, Mar. 9, 2015, available at
http://www.washingtonpost.com/blogs/the-switch/wp/2015/03/09/spyware-vendor-mayhave-helped-ethiopia-spy-on-journalists-even-after-it-was-aware-of-abuses-researcherssay/
5. Russell Brandom, “FinFisher spyware violated human rights guidelines, says UK
watchdog,” The Verge, Feb. 26, 2015, available at
http://www.theverge.com/2015/2/26/8115657/finfisher-spyware-gamma-human-rightsviolation-britain-OECD
6. On the right to privacy in the International Bill of Rights, see Article 12 of the Universal
Declaration of Human Rights:
Article 12
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No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right
to the protection of the law against such interference or attacks.
…and Article 17 of the International Covenant on Civil and Political Rights:
Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
d. Initiatives to address ICT practices that implicate human rights: Ranking
Digital Rights & Global Network Initiative
7. Rebecca MacKinnon, “Ranking Digital Rights: How can and should ICT sector
companies respect Internet users’ rights to freedom of expression and privacy?,” Jan. 19,
2015, available at https://rankingdigitalrights.org/2015/01/19/unesco-reportintermediaries/

For further information on the Ranking Digital Rights initiative, please see its web
site at https://rankingdigitalrights.org (NB: RDR is a ranking, not a voluntary
initiative. In fact it is involuntary: companies have no choice in whether or not they
get ranked.)
8. Joint Statement from Civil Society to Technology Companies for Expanded
Transparency Reports, posted Mar. 25, 2015, available at http://bolobhi.org/jointstatement-from-civil-society-to-technology-companies-for-expanded-transparencyreports/
9. Please skim to get a general sense of GNI: Global Network Initiative Principles, available
at www.globalnetworkinitiative.org
Further recommended (not required) readings:

Human Rights Watch, “They Know Everything We Do”: Telecom and Internet
Surveillance in Ethiopia, Mar. 25, 2014, available at http://www.hrw.org/node/123977

Congressional Research Service, U.S. Initiatives to Promote Global Internet Freedom:
Issues, Policy, and Technology, Jan. 3, 2011, pp. 4-9, available at
http://fpc.state.gov/documents/organization/140637.pdf
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
Human Rights Watch, “Race to the Bottom”: Corporate Complicity in Chinese Internet
Censorship, August 2006, available at http://www.hrw.org/reports/2006/08/09/racebottom

Sahil Tripathi, “Google China Decision,” Blog post, Institute for Human Rights and
Business (1/14/2010), available at
http://www.ihrb.org/commentary/staff/google_china_decision_remarkable_courageous_a
nd_far-reaching.html

Google blogspot, “A New Approach to China,” Jan. 12, 2010, available at
http://googleblog.blogspot.com/2010/01/new-approach-to-china.html#!/2010/01/newapproach-to-china.html
GNI, Public Report on the Independent Assessment Process for Google, Microsoft, and
Yahoo, Jan. 14, 2014 (this is GNI’s first ever company assessment report), available at:
http://globalnetworkinitiative.org/sites/default/files/GNI%20Assessments%20Public%20
Report.pdf

Human Rights Council Resolution L13, The Promotion, Protection and Enjoyment of
Human Rights on the Internet, adopted by consensus on July 5, 2012, available at
http://iipdigital.usembassy.gov/st/english/texttrans/2012/07/201207058545.html#axzz2BI
eSsa2q

Vinton G. Cerf, “Internet Access Is Not a Human Right,” N.Y. TIMES, Jan. 4, 2012,
available at http://www.nytimes.com/2012/01/05/opinion/internet-access-is-not-a-humanright.html/

Report of the Special Rapporteur on the promotion and protection of the right to freedom
of opinion and expression, Frank La Rue, UN Doc. A/HRC/17/27, available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.
Class 14: April 19. Lightening Rounds
We will devote our final class to lightening rounds—students will briefly (realistically, three
minutes each) share the key issue(s) their paper will address OR the key issue in their papers
with which they are still struggling; classmates will then briefly provide feedback with a few to
assisting the presenter as s/he finalizes her/his paper.
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