Global exchange - in association with The Open University

In light of the relentless onset of globalisation and a quickly changing geopolitical environment, The Lawyer’s roundtable on 3 July analysed the growing influence of public international law and human rights on corporations, states and individuals.

The roundtable, which was in association with The Open University, assembled a collection of eminent specialists in public international law and human rights. It was chaired by The Lawyer editor Catrin Griffiths and The Open University lecturer Rosemarie McIlwhan.

At the heart of the discussions was the increasing prominence of public international law and human rights in a rapidly changing and ever-more globalised world. Roundtable members were united in recognising that public international law and human rights had taken centre stage over the last decade.

Guglielmo Verdirame, a barrister and public international law expert at 20 Essex Street, says: “My older colleagues tell me that the role of the public international lawyer 30 years ago wasn’t in the slightest bit as exciting as it is today. It used to be very much an ivory tower and I don’t think it is any more.”

Public international law was previously an issue that was between states but it has become much more, according to Rachel Chambers, a barrister at Cloisters. “It is only in recent times that corporations have become incredibly powerful and people have started to realise that they have an impact on individuals’ human rights too,” she says. Chambers asserts that the concept of corporate accountability has only come to the fore in recent years.

Positive rights

Interights legal director Andrea Coomber notes that human rights is no longer merely about the prevention of torture, execution and the protection of freedom of expression. It now affords more positive rights such as protecting women from abusive spouses and the freedom of sexual orientation.

Coomber says that one example is the European Court of Human Rights in Strasbourg, which allows for an individual to write a letter and have their case heard. “There’s no legal representation required, no money, no fees, nothing. It is an incredibly accessible process, some would say too accessible and open to abuse, but it has led to some of the key cases in Strasbourg occurring simply because a person has written a letter to the court,” she says.

Coomber explains that many other courts now refer to Strasbourg when hearing similar cases and that its influence on the development of human rights law is more significant than many imagine.

Awareness is an issue that is paramount. Jessica Gladstone, an associate and solicitor advocate at Debevoise & Plimpton and a trustee of Advocates for International Development (A4ID), says that NGOs are playing an integral role in promoting what human rights actually means in the wider world.

Law firms are also proving integral to the promotion of human rights and international law in the developing world. They often act for individuals or parties on a pro bono basis. One example is WilmerHale’s representation of The Sudan People’s Liberation Movement/Army in the Abyei arbitration, a case that determined part of the border between Sudan and the new nation of South Sudan. The case centred on the right of self-determination and was heard by the Permanent Court of Arbitration in The Hague.

Wendy Miles, a partner in the international arbitration practice at WilmerHale in London who worked on the case, says that law firms carrying out pro bono work are vital: “It’s something that epitomises the purpose of the law; the purpose of the justice system; the purpose of protection of rights under the law,” she elaborates. “And I think that, although we’re often a bit more altruistic at university, people don’t lose that and throughout their careers they keep that aspect of their personality and still want opportunities to express that altruism.”

Independent benefit

Debevoise also has a strong pro bono initiative and is currently working alongside an NGO in an attempt to seek redress for 250,000 victims of a forced eviction in Nigeria some 20 years ago. Sophie Lamb, a litigation partner at Debevoise in London, says: “One of the great privileges of being in independent practice and in a firm that has a huge pedigree in pro bono work is the ability to work with NGOs in pursuing very difficult and complex cases. These are cases that legally and forensically would be too difficult for an NGO to resolve or prosecute without external counsel.”

With the pace of globalisation unfettered by the global economic problems and with economic power shifting away from Western governments, there is an even greater challenge for international law and human rights law to be applied consistently throughout the world.

Members of the roundtable recognised that a solid international legal framework is vital in securing stability, accountability and security. The United Nations plays an essential role in this, but its powers are limited and not always used to their full extent. Guglielmo Verdirame explains: “Nowadays every state is a member of the United Nations at the very least, so there are certain instruments under the charter of the United Nations and its subsidiary organs that can be activated. But to be fair, without being too starry-eyed about it, their performance has been quite mixed.”

International law is also gaining greater recognition thanks to a rapidly changing geopolitical environment, in which developing economies such as China are now able to assert significantly more influence on global issues. In such an arena, the West needs to be sensitive about imposing its own legal traditions on the rest of the world.

Tom Sprange, an international arbitration partner at King & Spalding in London, acknowledges that some states with very differing traditions, may be less receptive to Western ideals. He suggests: “You have to be very sensitive about these issues, because you are taking something that you are very used to and you think works well and you think this is what you should do. But other countries and cultures have had centuries of their own tradition.

“I think the best way of approaching this is through dialogue. So it is probably best to get on with what we are doing and to continue working together to resolve these commercial disputes. And, as that happens, then some of these other issues may get tagged along.”

Jessica Gladstone says that with the balance of power in the world economy shifting away from the West to Asia and other developing regions, there will be less of a chance for one part of the world to impose its views. She comments: “If you think about how international law is formed, as the power balance changes, the buy-in from various parts of the world will also change. If you’re thinking about state practice, that contributes to customary international law and international treaties where every state sits around the table at the general assembly or large multilateral treaty negotiations, the system that we have does allow everybody to have a voice.”

Verdirame agrees: “Ideas have quite a complex history, and when it comes to the idea of human rights - anything from Jesus Christ to John Locke to Mahatma Gandhi - there are a number of very different people that can stake a claim to it. And, in terms of the evolution of human rights in the world of modern politics, we see many different forces including NGOs and developing countries contribute a great deal.” He says that places such as Africa, which is now a destination for considerable volumes of investment from China, now represent a significant test to international law and human rights.

Power shifts

He explains: “The EU and the US are being replaced as the main trading partners by the Chinese in virtually all of Africa. The main challenge in terms of enforcement will be to bring China on board and Chinese investment on board. If you look at Chinese investment in Africa, we have gone from one or two per cent to 25 per cent in just a few years.”

In addition, members of the roundtable recognised that disputes should not always be resolved in The High Court in London, or other courts in the EU or US, but that efforts should be made to encourage domestic courts to hear cases. Again, roundtable members asserted that this needed to be approached with genuine diplomacy.

Sophie Lamb says: “There are many examples of judicial or lawyer-led groups going to developing judicial systems and talking about best practice. The idea that people would go to one jurisdiction and preach about the things that they do, that their system is by definition best practice, is a subject that needs to be addressed with the utmost sensitivity. But, if you have practised in many arbitral centres around the world, you can say that these things might have worked here and this might have been slightly less effective.”

Lorraine Brennan, managing director of mediation and arbitration services organisation JAMS International, believes that mediation can provide an effective form of dispute resolution in international law and politically charged cases, as evidenced by its successful use during the Northern Ireland peace process. “They made sure that every stakeholder had a seat at the table,” she explains. “This wasn’t easy with all the ongoing violence that was taking place. But every time an act of violence occurred, they held a press conference and said we will persevere and keep going.”

Mediation is certainly not an alien dispute resolution process in the field of human rights and international law. In 2006, BP achieved a multi-million pound settlement with Columbian farmers after a mediation in Bogotá, relating to allegations that the oil and gas company benefitted from the aggressive tactics of Colombian government paramilitaries to protect a 450-mile pipeline.

Corporate investment

As part of the ongoing globalisation process, many corporations are looking to have operations in developing and emerging states that may not be so well attuned to the rule of law and human rights. In these circumstances, corporations must take additional steps to ensure that their investment is protected, and that they also adhere to human rights laws even in jurisdictions that do not have a satisfactory human rights record.

Last year, the UN Human Rights Council endorsed guiding principles for businesses to ensure that they do not violate human rights during “the course of their transactions”. And also that they provide redress should this occur. “In the event of an investment in perhaps a conflict-afflicted region, or somewhere where the rule of law is not enforced, the guiding principles provide a structure and an approach to going into business there,” Rachel Chambers remarks.

“For example, they require a corporation to do human rights due diligence, which means looking at how their activities have a direct or indirect effect on the human rights of their stakeholders. So this is not just about the people that work for the company, but also the community around them, or those who might protest about their activities.”

Tom Sprange suggests that companies must also pay attention to the Foreign Corrupt Practices Act in the US and the Bribery Act in the UK. “There is certainly something for companies to think about when investing in these countries and trying to take advantage of a lack of rule of law,” he comments.

Yet they should also seek comfort from the mechanisms that are available to protect their investments. The growing prevalence of Bilateral Investment Treaties (BITs) delivers a clear structure to companies to seek redress if their rights are not observed by the host state. “Even if the government’s actions are perfectly legal under its own domestic legal order, nevertheless there are still in principle remedies available and compensation under BITs,” Sophie Lamb says.

And what of the rights of workers and employees that are sent overseas to work? Jessica Gladstone suggests that all corporates have a duty of care to their employees, but that it has to be viewed within the “realistic context of what you are trying to do”.

When Wendy Miles travelled to South Sudan as part of the firm’s work in the Abyei arbitration, she was faced with the inherent dangers of travelling in a country that had very primitive infrastructure and comparatively unreliable, if not dangerous, transportation vehicles. Her life insurance cover did not cover the 10-day trip, so she was forced to take out a supplementary policy.

“There is a degree of risk in this work,” she explains. “It’s cutting-edge, exciting, seat-of-the-pants stuff, but gosh, you as the lawyer popping over for 10 days is nothing compared to what these people are living through. And if you are able to contribute something of your skill in that time, then I think it is a risk worth taking.”

Lorraine Brennan says that companies and workers also need to be sensitive to the culture and ideals of a foreign jurisdiction. She also adds that Western views on human rights do not always sit comfortably.

She explains that when she taught in China for five years, she was observed closely by government figures and had her internet sensored. “I had to accept that as one of the terms of going there, I couldn’t take my American first amendment free speech notions over to mainland China and say that you have to respect them - they don’t. I had to understand that I had to respect their law and that I couldn’t impose my own culture and my law on them.”

It is this kind of understanding and sensitivity that will be integral to the further development and success of international law and human rights throughout the globe.