investment courts are very reluctant to apply human rights just as human rights courts are still reluctant to take into consideration the UNGPs.
I am not very confident that corporate codes of conduct have much of an impact, because they are basically window dressing. Corporations draft these codes, but they rarely enforce them internally. Far more effective had been the shareholder actions, shareholder lawsuits against board of directors. Those had a greater impact in changing corporate behavior.
How do you see the interactions among human rights courts? The Inter-American system is more open to the UNGPs than the Strasbourg court. Do you think that human rights courts can learn from each other?
They not only can learn from each other, they already do so. They often cite each other’s jurisprudence to reinforce the authority of their own decisions. I think this is a very valuable practice in promoting the universal norms of human rights.
With regards to the ongoing treaty-making process which regulatory scheme would you prefer? Do you think a supranational regulatory system is more adequate or would you rather see a treaty that is leaning on states?
I think
a state-based system would garner much more support.
However, the problem with the state-based approach is that corporations have a tremendous amount of power in most countries. Thus they will try to block most efforts in enforcement. Therefore
the whole system would rely upon a balancing between the interests of the corporations and the most affected population.
I think climate change would be a good area to test whether states are willing to rein in some of the corporate activities that are causing problems.
In the past decade we could witness the rise of information globalization along with platform based businesses. This phenomena also has distorting effects on internationally recognized human rights, especially on the freedom of speech and the right to be informed. What approach should be necessary in your view to protect rights against platform based companies?
That is really a difficult question. We have seen many example when Facebook and platform based businesses have the power to undermine or influence elections.
Some of these media platforms became so strong that free speech basically disappears.
So there is another area where there has to be international coordination to get some common rules that states can enforce domestically against these very large platforms to try to ensure that dissidents’ speech actually gets heard.