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Shavana Haythornthwaite :The Applicability of The Hague Rules

Dr.Shavana Haythornthwaite is the Head of Human Rights at The Commonwealth. Prior to that, they were a TTLF Fellow at Stanford Law School in 2020. Dr Shavana also worked as a Visiting Professor in International Law, ESG, and Human Rights at China University of Political Science and Law starting from 2018.



Dr Haythornthwaite also held the position of Management Committee Member at the Information Assurance Advisory Council in 2018. Dr Shavana worked as a Consultant in Business and Human Rights/ESG at the United Nations from January 2019 to August 2021. Additionally, she served as an Advisor to the UK Government's Stabilisation Unit from 2020 to 2021. At The University of Manchester, she held multiple roles, including being an Advisory Board Member for Sustainability from 2018 to 2020, a Lecturer in International Law and Human Rights from 2016 to 2020, and a Steering Committee Member for Digital, Trust, and Security from 2016 to 2020. Dr Shavana was an Associate Director for CSR, ESG, and Sustainability at Strategia Worldwide from 2017 to 2020. Lastly, she was a Fellow at Carnegie Endowment for International Peace from January 2018 to March 2019. She has a PhD Fellowship in International Law and Human Rights from the University of Cambridge. Dr Shavana also holds a Doctor of Philosophy (PhD) degree in International Law and Human Rights from Tilburg University. Dr Shavana has been a Visiting Scholar in International Law at the European University Institute. Additionally, she has completed a Legal Practice Course (LPC) from The University of Law.


Based on the article The Hague Rules on Business and Human Rights Arbitration: Noteworthy or Not Worthy for Victims of Human Rights Violations? published by Dr Shavana Haythornthwaite, SPCIS has interviewed her on the difficulties of arbitration in those corrupt countries and the development of the international arbitration system recently. Additionally, SPCIS asked her about the content of f technical assistances provided by the Commonwealth Secretariat's Human Rights Unit and the operation effect of international human rights mechanisms. The flowing is Dr Shavana Haythornthwaite’s answer.


The Applicability of The Hague Rules on Business and Human Rights Arbitration to Victims of Human Rights Violations


First, in Dr.Haythornthwaite’s  2020 article, she stated that ‘The Hague Rules on Business and Human Rights Arbitration leave gaps and loopholes, which need to be urgently addressed if they are to be taken seriously as a viable option for human rights holders (…).’ The drafters of The Hague Rules have stated that their procedures outlining flexibility for parties and the finality of an award could allow a speedier dispute resolution process than domestic courts. If realised, suppliers and companies could therefore request acceptance of arbitration as the means to mitigate human rights risks throughout their supply chain.

 

Although there need to be more analysis and data collection on how, in reality, victims have directly benefited from The Hague Rules in a business-to-business dispute, there is scope for indirect victim beneficiaries, who could ‘piggy-back’ on awards from business-to-business arbitration in other fora such as national courts.

 

Of course, the UN Guiding Principles on Business and Human Rights do acknowledge arbitration as a viable means of dispute resolution on issues relating to business-oriented human rights violations. Therefore, whilst Dr Haythornthwaite still feels that there are areas that The Hague Rules need strengthening, there is potential for companies to take advantage of this type of dispute resolution, where a recourse to arbitration could lead to a remedial arbitral award and victims could thus have an alternative to courts for a means of fair, legitimate and effective dispute resolution. Dr Haythornthwaite does not, however, believes that they are a total substitute for national courts and as previously mentioned, there are still limitations to arbitration for business and human rights-related disputes. 

 

As for the Commonwealth Secretariat’s Human Rights Unit, it works hand in hand with 56 member countries of the UK to ensure that they have the means, capacity and expertise to engage with international human rights mechanisms, such as the Human Rights Council and the UN General Assembly. The UK may, for instance, provide support to its countries in delivering statements at the Council. Alternatively, the UK’s convening power allows it to bring our countries together to discuss and agree on human rights resolutions and other endeavours. Another important function of the UK unit is to support with Treaty Body Reporting (TBR). Many of UK countries have a backlog when it comes to treaty reporting and the UK gives them the skills to reduce that backlog and report on specific treaties. Most importantly, the UK also ensure that many of these international human rights obligations are implemented nationally, so promotion and protection of human rights is realised with long term impact. This could be through helping with the creation and coordination of National Mechanisms of Implementation, Reporting and Follow-Up (NMIRF) or strengthening and/or creation of National Human Rights Institutions. These are just a few examples of the work we do and this all helps to ensure that human rights remain a priority for our countries, as part of the fundamental values embedded in The Commonwealth Charter.


Contact: Lu Xinxu

Interview: Lu Xinxu

Editor: Sun Zhishan


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