Global Governance and Democracy: Discussing Mutual Legal Correspondence, Human Rights, and Legal Cooperation on Criminal Justice ()
1. Introduction
The interplay between international legal cooperation, human rights protection, and the rule of law stands at the forefront of the global agenda, necessitating a critical examination of pivotal declarations that shape these spheres. This discourse delves into the intersections of the Doha Declarations on the TRIPS Agreement and Public Health (2001) and Integrating Crime Prevention and Criminal Justice (2015). These declarations, emblematic of evolving global governance paradigms, encapsulate the aspirations for equitable access to healthcare and the pursuit of effective crime prevention strategies. Anchored within the principles of democracy and legal cooperation, these declarations underscore the imperative of cross-border collaboration in confronting multifaceted challenges while safeguarding fundamental rights. By dissecting their objectives, evaluating achievements, and addressing criticisms, this exploration aims to illuminate how these declarations intersect with the modern imperatives of justice, human rights, and harmonious international relations.
Law as a global social system could only legitimately be regarded as an instrument that lends potential possibility in the construction of a common multilateral interest identity to favor the lifting of claims to validity in a procedure that shall comply with one fundamental condition: that law as a global social system had been essentially established and shared under a reciprocated recognition between free people and equals to the time in which it allows an interaction between the legal and the geopolitical/social reality.
In this perspective, mutual legal correspondence and self-determination principles mediate the self and the other, as a Hegelian role of otherness in building and (re)building the inter nations’ unity. Nevertheless, accepting the Principle of the Rule of Law as a shield for protecting fundamental rights requires objective coherence and substantial agreement on the normative-making approach to achieve reasonable outcomes.
This institutional design also demands the sharing understanding that the justifications for the exercise of power in the form of intimidating authority no longer satisfy the requirements of an international community of free people and equals entitled by the comprehensiveness of an updated self-determination principle of individuals-state in the field of an open inter nation procedural democracy.
The scope of this essay, pursuing a critical deductive methodology and a dogmatic and doctrine reviewing, as underlined above, is focused on inquiring 1) what the interconnections between the Doha Declaration, the mutual legal correspondence, and the sustainable development goals, and their respective aims and indicators addressing issues related to global governance, democracy, and human rights protection and 2) to discuss the law and development of criminal legal cooperation and policies, under The Rule of Law, in relation specifically to a) The State’s duty to protect against human rights abuses; b) Corporate responsibility to respect human rights, preventing violations of the rights of others and addressing adverse impacts if they occur; c) and a thorough, meaning detailed and an accurate evaluation of the access of victims to adequate resources, both judicial and non-judicial.
2. Interlinking Doha’s Declarations on the TRIPS Agreement and Public Health and Integrating Crime Prevention and Criminal Justice: Global Governance, Democracy, and Legal Cooperation
Connecting both Doha Declarations—The first on the World Trade Organization on the TRIPS Agreement and Public Health (2001a) and the second on United Nations Office on Drugs and Crime Integrating Crime Prevention and Criminal Justice into the Wider United Nations Agenda (2015) in a critical analysis regarding international legal cooperation against crime, human rights protection, and rule of law enforcement requires examining their objectives, achievements, and challenges. The following analysis focuses on several tools and proceedings to enforce legal cooperation and crime prevention.
As a remittance to that geopolitical cornerstone, Doha, we shall remind you that there are two Doha’s Declarations related to global governance, democracy, and desired practical legal cooperation, one connected directly to intellectual properties and the late one about crime prevention.
The first Doha Declaration on the TRIPS Agreement and Public Health was established and adopted by the World Trade Organization (WTO) Ministerial Conference in 2001. One of the main criticisms is that the Doha Declaration has yet to successfully ensure access to affordable medicines for developing countries (Motari et al., 2021) . Critics argue that the declaration needs to effectively resolve the flexibilities that countries under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have used for drugs, particularly for public health problems (Subhan, 2006) . This has led to concerns that the Doha Declaration needs to adequately address developing countries’ needs regarding access to essential medicines (World Trade Organization|Doha 4th Ministerial Declaration, 2001b) . Another criticism is that the Doha Declaration has not effectively promoted the rule of law and human rights protection. Some argue that the declaration has not significantly improved crime prevention, criminal justice, and human rights protection, particularly in developing countries. This declaration reaffirmed the flexibility of TRIPS member states in circumventing patent rights for better access to essential medicines, particularly concerning public health problems.
In 2015, the Doha Declaration on Integrating Crime Prevention and Criminal Justice into the Wider United Nations Agenda was adopted to tackle diverse crime prevention and criminal justice issues. The declaration highlights the significance of incorporating crime prevention and criminal justice into the Wider United Nations Agenda to combat social and economic challenges, uphold The Rule of Law, and promote public participation at the national and international levels. It also outlines the primary tools and procedures for legal cooperation and crime prevention.
This Doha Declaration outlines several tools and proceedings to enforce legal cooperation and crime prevention, including:
• Standardized and cross-referenced tools, such as the Criminal Justice Assessment Toolkit, designed to enable United Nations agencies and government officials to assess and address crime prevention and criminal justice issues;
• Data-driven crime prevention tools, which call for and demand community involvement and crime control, utilizing data and technology to enhance public safety efforts;
• Procedural justice strategies that focus on fairness and transparency in the criminal justice system in order to improve compliance and public trust;
• Legal collaboration software which helps law firms and legal professionals work together on cases, manage communication, and share files securely;
• Transfer of proceedings tools that facilitate the implementation of bilateral and multilateral regional treaties binding Council of Europe member States for legal cooperation in criminal matters.
These tools and proceedings aim to promote a culture of The Rule of Law, enhance international cooperation, and support countries in achieving a positive and sustainable impact on crime prevention, criminal justice, corruption prevention, and the rule of law.
The Doha Declaration, 2015 emphasizes the need for international cooperation in criminal matters such as extradition, mutual legal assistance, and the transfer of sentenced persons. This cooperation is necessary to combat transnational organized crime, terrorism, and corruption effectively. Furthermore, the declaration highlights the importance of strengthening judicial integrity and capacity building in crime prevention and criminal justice systems. It promotes transparency, accountability, and the judiciary’s independence while providing training and technical assistance to enhance the capacity of criminal justice institutions.
The declaration recognizes the need for effective prisoner rehabilitation and social reintegration programs to reduce recidivism and promote public safety. It advocates for education, vocational training, and employment opportunities for prisoners and addresses the specific needs of vulnerable groups, such as women, children, and persons with disabilities.
The Doha Declaration, 2015 addresses the root causes of youth crime and violence, such as poverty, inequality, and social exclusion. It stresses the development of comprehensive and evidence-based crime prevention strategies that involve youth in decision-making processes and promote their active participation in society.
Both Doha Declarations have faced criticism for not effectively promoting the rule of law and human rights protection. The first Doha Declaration has been criticized for not ensuring access to affordable medicines for developing countries. At the same time, the second has been charged for not significantly improving crime prevention, criminal justice, and human rights protection, particularly in developing countries. However, the Doha Declaration Global Programme, 2015 aims to address social and economic challenges and promote the rule of law at national and international levels while creating impact using just tangible initiatives.
Finally, the declaration encourages the active involvement of civil society organizations, academia, the private sector, and the media in crime prevention and criminal justice efforts. It promotes public awareness and understanding of crime prevention and criminal justice issues and fosters partnerships and collaboration among various stakeholders.
2.1. The Doha’s Declarations: A Geopolitical Cornerstone from Intellectual Properties to Human Rights
While the Doha Declaration on the TRIPS Agreement and Public Health and the Doha Declaration on Integrating Crime Prevention and Criminal Justice into the Wider United Nations Agenda address different issues, they intersect in global governance, democracy, and legal cooperation. Specifically, both declarations prioritize the prevention of medical fraud and protecting human rights in Global South countries, for example.
When preventing medicine fraud, we must focus on targeting criminal networks and ensure that human rights, specifically the right to health, are protected. This is emphasized in the Doha Declaration on Integrating Crime Prevention and Criminal Justice, which stresses the importance of promoting the rule of law and human rights protection in addressing crime prevention and criminal justice. Additionally, global governance and democracy are vital in addressing the challenges of medicine fraud and crime prevention. The Doha Declaration on the TRIPS Agreement and Public Health highlights the need for international cooperation and flexibility in intellectual property rights to ensure access to essential medicines. Similarly, the Doha Declaration on Integrating Crime Prevention and Criminal Justice calls for integrating crime prevention and criminal justice into the broader United Nations agenda to address social and economic challenges, promote the Rule of Law at the national and international levels, and encourage public participation. In that regard, the COVID-19 crisis became a susceptible and critical standpoint in the lack of human rights equality and solidarity achievements.
The goal of the Doha Declaration is to leverage the law as a potent instrument to advance democracy and human rights worldwide by fostering international cooperation and establishing a unified global community. Legal partnerships are crucial in fighting transnational crime and promoting global governance. The Merida and Hague Conventions highlight their importance. Countries can share information and resources to combat crime more effectively by working together. However, it is essential to note that more than legal partnerships are needed to address the root causes of transnational crime. Cooperation with social and human rights organizations is also necessary to effectively combat crime. Additionally, while legal partnerships are essential, they may only sometimes be as effective as we hope. The MLA, for example, is a formal agreement that can be difficult to enforce in practice. Nonetheless, legal partnerships remain vital for ensuring justice for victims of transnational crime and promoting international security and cooperation.
The Doha Declaration on Integrating Crime Prevention and Criminal Justice into the Wider United Nations Agenda, adopted in 2015, has faced criticisms. Some of the most severe critics argue that the Doha Declaration’s legal framework needs to address the challenges it was designed to tackle effectively, achieving two primary goals: preventing crime and promoting a culture of lawfulness through education for all levels of education (UNODC, 2015) . To do so, the E4J (Education for Justice) was implemented by empowering educators to teach the next generation how to recognize and address issues that can threaten the rule of law. The E4J initiative seeks to create socially responsible global citizens who actively engage in their communities and future professions. The initiative prioritizes providing quality education on the rule of law for children and young people worldwide. However, the Doha Declaration on Global Justice faces a challenge in ensuring access to technology for young people worldwide. Without access to technology, students cannot participate in distance learning and other educational opportunities. To address this issue, the Doha Declaration Global Programme has established the Education for Justice initiative, which aims to improve the quality of education for children and young people on the rule of law. The Doha Declaration Global Programme also tackles the issue of strengthening judicial integrity and preventing corruption in the justice system by disseminating good practices and promoting experience-sharing among judicial sector stakeholders worldwide. This includes promoting judicial independence, combating organized crime, utilizing artificial intelligence, ensuring judicial transparency, and addressing gender biases. Another challenge that the Doha Declaration Global Programme addresses is prisoner rehabilitation and social reintegration. The initiative seeks to support prisoners reintegrating into society by developing and implementing effective programs and policies. Furthermore, the initiative aims to prevent youth crime by engaging young people in sports-based programs and initiatives that promote positive values. In summary, implementing the Doha Declaration’s provisions presents several challenges for developing countries, including access to technology, intellectual property rights, access to medicines, judicial integrity, corruption, prisoner rehabilitation, social reintegration, and youth crime prevention.
We shall understand that the challenges developing nations encounter in implementing the provisions of the Doha Declaration may be broadly classified into two categories: those related to the TRIPS Doha Declaration and those related to the Doha Declaration on Global Justice. The primary challenges that fall under the ambit of the TRIPS Doha Declaration pertain to intellectual property rights and accessibility to medicines. The TRIPS Agreement could render certain drugs unavailable to patients in poor countries due to patent protection. The Doha Declaration addresses this issue by proposing interpretational and implementational flexibility in the TRIPS Agreement to prioritize public health (Cohen et al., 2005) . Nevertheless, several developing nations, such as India and South Africa, possess limited manufacturing capacity to produce essential medicines (Murillo, 2017) . Although the Doha Declaration sanctions compulsory licensing to manufacture generic versions of patented medicines, this may not solve the issue in countries with inadequate manufacturing capabilities (Cohen et al., 2005) (El Said, 2022) .
It is worth noting that in late 2021 in Kyoto, at the Fourteenth United Nations Congress on Crime Prevention and Criminal Justice in Kyoto, the assembly recognized a lack of system-wide effective coordination in implementing the Doha Declaration. On that behalf, it was acknowledged that “progress” has been made since the Thirteenth Congress, particularly the adoption of the 2030 Agenda for Sustainable Development. However, challenges still need to be addressed to continue moving forward. This has raised questions about the effectiveness of the Doha Declaration in promoting a more just and equitable global order. Additionally, critics argue that the Doha Declaration still needs to successfully address developing countries’ challenges in implementing the current WTO agreements. They contend that the declaration needs to provide more guidance or support for developing countries to overcome the obstacles they face in implementing these agreements, which has hindered their ability to fully benefit from the global trading system.
The Kyoto Declaration on Crime Prevention 2021 highlights a global concern about the need for coherence among countries to effectively implement the framework to achieve common goals. Criminals are using new and emerging technologies, such as the internet, to conduct illicit activities, creating unprecedented challenges in preventing and combating existing and new forms of crime. In this context, the Declaration recognizes the importance of sustainable development and the rule of law, which are interconnected and mutually reinforcing. Achieving sustainable development is crucial for effectively preventing and combating crime. The Declaration promotes the rule of law through multidimensional approaches, in line with its considerations (14th UN Congress on Crime Prevention and Criminal Justice, 2021) . While the Doha Declaration has faced criticism, it is crucial to consider the arguments favoring this legal instrument. Proponents of the declaration assert that it serves as a necessary tool to uphold intellectual property rights, promote innovation in the global pharmaceutical industry, and enforce democratic institutions. Ultimately, it is up to individuals to weigh the pros and cons and form informed conclusions about the effectiveness of the Doha Declaration.
2.2. Criticisms of the Doha Declaration on Integrating Crime Prevention and Criminal Justice
The 2015 Doha Declaration on Integrating Crime Prevention and Criminal Justice into the Wider United Nations Agenda has been criticized for its lack of effectiveness in addressing the issues it was designed to tackle. The legal framework established by the declaration needs to be revised to promote the rule of law and human rights protection, particularly in developing countries (UNODC, 2015) . This failure to promote justice and equity in the global order has led many to question the declaration’s effectiveness.
Furthermore, critics argue that developing countries have not received adequate support or guidance to implement crime prevention and criminal justice strategies, which has hindered their ability to benefit from international cooperation in this area (Bassiouni, 2015) . The lack of implementation guidance has reduced the effectiveness of the declaration and its ability to foster collaboration between countries.
Bassiouni and Finckenauer (2014) (cited in United Nations Office on Drugs and Crime, 2014) state that crime prevention and criminal justice should be integrated into the broader United Nations agenda. This integration was emphasized in the Doha Declaration Global Programme (United Nations Office on Drugs and Crime, 2015) , which aimed to establish a comprehensive, balanced, and coordinated approach to address crime-related issues. Furthermore, Van Zyl Smit and Snacken (2015) highlighted the importance of the Doha Declaration in the European Journal of Crime, Criminal Law, and Criminal Justice. As such, it is critical to incorporate these suggestions for a more effective global response to crime.
Despite the Doha Declaration’s existence, there has yet to be a significant improvement in international cooperation and coordination to tackle transnational crime and its related issues. As a result, the declaration’s effectiveness in achieving its goals and objectives has decreased (Finckenauer, 2016) . The declaration’s worth in the global fight against crime and the promotion of criminal justice has been reduced due to its lack of effectiveness in promoting justice and equity, providing implementation guidance, and improving international cooperation. Most critical topics mentioned earlier were addressed during the 14th UN Crime Congress in Japan in 2021.
To summarize, it was committed to the Kyoto Declaration on Crime Prevention 2021 and plans to work towards improving law enforcement and criminal justice institutions. Technical support will be provided to prevent and combat crime while ensuring that innovative technologies are not misused or abused. As a responsible entity, policies, and strategies for crime prevention will be created, and cooperation between law enforcement and other stakeholders will be improved. Full support is given to the Commission on Crime Prevention and Criminal Justice, the primary policymaking body for crime prevention and criminal justice within the United Nations.
2.3. Criticisms of the Doha Declaration on Integrating Crime Prevention and Criminal Justice
This subsection explores the main ideas of the Doha Declaration (UNODC, 2015) and its relationship with the Sustainable Development Goals (SDGs) to promote good global governance, safeguard human rights, uphold the rule of law, and address corruption.
The United Nations’ Sustainable Development Goals (SDGs), also known as the Global Goals, were adopted in 2015. The SDGs are a universal call to action that aims to end poverty, protect the planet, and ensure peace and prosperity for all by 2030. The 17 SDGs are interconnected, which means that progress in one area can positively impact others. They address global challenges such as poverty, inequality, climate change, environmental degradation, peace, and justice, focusing on five core areas: people, planet, prosperity, peace, and partnership. The Sustainable Development Goals (SDGs) offer a shared framework for constructing a sustainable future, serving as a roadmap towards a more equitable world. The SDGs are intimately linked to The Doha Declaration, a crucial instrument integrating crime prevention and criminal justice into the broader United Nations agenda. Its objective is to address social and economic challenges while promoting the rule of law at the national and international levels, focusing on public participation. According to the United Nations Office on Drugs and Crime (UNODC), the Doha Declaration emphasizes the importance of international cooperation, judicial integrity, capacity building, prisoner rehabilitation and social reintegration, youth crime prevention, and public participation and civil society engagement in crime prevention and criminal justice efforts.
The Doha Declaration is directly related to several SDG targets that include the promotion of the rule of law and human rights protection, enhancing international cooperation in criminal matters, reducing corruption, and building capacity at all levels, particularly in developing countries, to prevent violence and combat terrorism and crime.
Some of these targets include:
SDG 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all. This target aligns with the Doha Declaration’s emphasis on promoting the rule of law and human rights protection in addressing crime prevention and criminal justice.
SDG 16.4: By 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets, and combat organized crime. This target is closely related to the Doha Declaration’s call for enhanced international cooperation in criminal matters, including extradition, mutual legal assistance, and the transfer of sentenced persons.
SDG 16.5: Substantially reduce corruption and bribery in all their forms. The Doha Declaration recognizes that corruption severely impedes sustainable development, economic growth, and poverty eradication, making this target particularly relevant.
SDG 16. A: Strengthen relevant national institutions, including through international cooperation, for building capacity at all levels, particularly in developing countries, to prevent violence and combat terrorism and crime. This target aligns with the Doha Declaration’s emphasis on judicial integrity and capacity building in crime prevention and criminal justice systems.
Criticisms of the Doha Declaration
Despite the Doha Declaration’s importance in the fight against corruption and commitment to creating a more fair and equitable society for all, it has faced some criticisms:
a) Ineffectiveness in Promoting the Rule of Law and Human Rights Protection
One of the main criticisms is that the Doha Declaration must effectively promote the rule of law and human rights protection. Some argue that the declaration has not significantly improved crime prevention, criminal justice, and human rights protection, particularly in developing countries. This has raised questions about the effectiveness of the Doha Declaration in promoting a more just and equitable global order.
b) Insufficient Support for Developing Countries
Critics argue that the Doha Declaration has not successfully addressed developing countries’ challenges in implementing crime prevention and criminal justice strategies. They contend that the declaration needs to provide more guidance or support for developing countries to overcome the obstacles they face in implementing these strategies, which has hindered their ability to benefit from international cooperation fully.
c) Limited Impact on International Cooperation
Globalization has significantly influenced Mutual Legal Assistance (MLA) by increasing the need for international cooperation to address cross-border crime and the globalization of criminal evidence. With the rise of globalized communications, criminal enforcement often encounters communications stored in other countries, leading to Mutual Legal Assistance Treaties (MLATs) as the principal mechanism for responding to cross-border data requests. As crime becomes more globalized, formal treaties have been established to create a solid basis for international cooperation, requiring states to extend reciprocal assistance to each other in cases of suspected transnational crime (The Globalization of Criminal Evidence, n.d.). The globalization of criminal evidence creates challenges for law enforcement, as traditional cross-border mechanisms, such as MLATs, are considered too slow and cumbersome. Consequently, countries are responding with new laws and legal proposals that impact privacy, human rights, and Internet governance (Swire & Hemmings, 2016) .
Another criticism is that the Doha Declaration has not significantly improved international cooperation in crime prevention and criminal justice. Despite the declaration’s emphasis on integrating crime prevention and criminal justice into the broader United Nations agenda, critics argue that the declaration has not substantially improved international cooperation and coordination in addressing transnational crime and other related issues.
In light of the criticisms, it is essential to reevaluate the Doha Declaration’s effectiveness in promoting The Rule of Law, human rights protection, and global governance. While the declaration has made strides in addressing crime prevention and criminal justice, more work is needed to ensure its objectives are met, particularly in supporting developing countries and enhancing international cooperation. By addressing these concerns, the Doha Declaration can better contribute to achieving the Agenda 2030 and protecting human rights worldwide.
To address the criticisms of the Doha Declaration, potential solutions can be proposed in the following areas: promoting The Rule of Law and human rights protection, supporting developing countries, and enhancing international cooperation.
a) Promoting the Rule of Law and Human Rights Protection
They are strengthening the implementation and monitoring mechanisms:
Establishing a robust monitoring system to evaluate countries’ progress in implementing the Doha Declaration’s provisions and ensuring they adhere to the rule of law and human rights protection standards.
b) Enhancing capacity building and technical assistance:
Providing targeted capacity building and technical assistance to countries, particularly developing nations, to help them strengthen their legal frameworks, institutions, and enforcement mechanisms related to the rule of law and human rights protection.
c) Encouraging civil society engagement:
Fostering partnerships with civil society organizations to promote awareness, advocacy, and monitoring of the rule of law and human rights protection efforts at the national and international levels.
d) Supporting Developing Countries
Providing financial and technical assistance and allocating more resources and expertise to help developing countries implement crime prevention and criminal justice strategies effectively.
e) Developing tailored solutions:
Designing context-specific solutions that consider developing countries’ unique challenges in implementing the Doha Declaration’s provisions.
f) Strengthening regional cooperation:
Encouraging regional cooperation and knowledge sharing among developing countries to address common challenges and share best practices in crime prevention and criminal justice.
g) Enhancing International Cooperation:
Establishing a global platform for dialogue and coordination:
Creating a platform for countries to share experiences, challenges, and best practices in implementing the Doha Declaration and fostering collaboration in addressing transnational crime and other related issues.
h) Strengthening mutual legal assistance and extradition mechanisms:
Enhancing the effectiveness of mutual legal assistance and extradition mechanisms to facilitate international cooperation in criminal matters.
i) Promoting public-private partnerships:
Encouraging collaboration between governments, international organizations, and the private sector to address the challenges posed by transnational crime and support the implementation of the Doha Declaration.
Moreover, finally, by implementing these potential solutions, the Doha Declaration can better address its criticisms and contribute more effectively to achieving the Sustainable Development Goals, promoting global governance, democracy, and human rights protection.
3. The State’s Duty to Protect against Human Rights Abuses
The safeguarding of human rights is impacted by an array of factors, including historical, political, legal, economic, social, cultural, religious, ethnic, and technological aspects. International human rights law, consisting of treaties and customary international law, mandates that states uphold human rights. National governments primarily promote, protect, respect, and fulfill human rights under domestic fundamental laws. However, enforcing international human rights law can be difficult due to a lack of education, laws restricting rights, national security concerns, and economic disparities. Civil society also plays a vital role in promoting and protecting human rights. Overall, human rights protection results from a complex interplay of factors involving state actors, international organizations, civil society, and individual citizens (CHAI, 2007) .
The responsibility of states to prevent human rights violations is a crucial principle in international human rights law, both legally and geopolitically. This principle is upheld by several international legal documents, including the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). These instruments outline the duty of states to uphold and safeguard the human rights of all individuals within their authority.
3.1. The Importance of Protecting Human Rights in Business and Government
Respecting human rights is a crucial responsibility that requires states to refrain from interfering with or restricting the enjoyment of such rights (United Nations, 1948) . However, governments must do more than refrain from violating human rights. It is equally essential that state agents, including law enforcement officers and public officials, do not commit human rights abuses (Amnesty International, 2021) . Non-state actors, such as corporations and individuals, must be held accountable for human rights violations (Human Rights Watch, 2021) . To achieve this, states must establish and enforce laws and regulations prohibiting such abuses and providing effective remedies for victims (International Justice Resource Center, 2021) .
Lastly, fulfilling human rights requires taking positive actions to ensure that everyone within their jurisdiction can enjoy their human rights. This involves implementing appropriate legislative, administrative, and other measures to promote and facilitate the realization of human rights (United Nations, 2005) .
Challenges in Fulfilling the State’s Duty to Protect against Human Rights Abuses
Safeguarding human rights is a state legal obligation (Case of OAO Neftyanaya Kompaniya Yukos v. Russia, European Court of Human Rights & Justice, 2015 ). However, fulfilling this duty is hindered by various challenges, including weak legal frameworks that fail to provide the necessary protection for human rights and, in some cases, even contribute to human rights abuses (Case of the Yakye Axa Indigenous Community v. Paraguay, Interamerican Court of Human Rights, 2018 ). Additionally, the lack of accountability poses another challenge, as state agents or non-state actors who violate human rights are often not held responsible for their actions (Case of Navalnyy v. Russia, European Court of Human Rights & Justice, 2019 ).
This failure to hold perpetrators accountable can be attributed to corrupt judicial systems, the insufficient political will to prosecute perpetrators, or both (Case of Gómez Palomino v. Peru, Interamerican Court of Human Rights, 2017 ). Moreover, a lack of resources, expertise, and institutional capacity can impede a state’s ability to protect human rights effectively (Case of Ilias and Ahmed v. Hungary, European Court of Human Rights & Justice, 2016 ). This limitation can restrict their ability to enforce laws, investigate and prosecute human rights abuses, and provide remedies for victims.
Victims of crime can access various instruments related to Mutual Legal Assistance (MLA) under the Doha Declaration and the recent Hague Convention on MLA. Some of these instruments include:
• Extradition: when a state surrenders a person accused or convicted of a crime to another state for trial or punishment. Victims can access this instrument to ensure the accused faces justice in the state where the crime was committed.
• Transfer of sentenced persons: This is the process by which a state transfers a person convicted of a crime to another state to serve their sentence.
• Victims can access this instrument to ensure that the convicted person serves their sentence in the state where the crime was committed.
• Taking evidence or statements from persons: This is one of the purposes for which mutual legal assistance can be requested. Victims can access this instrument to provide evidence or statements to help investigate and prosecute the crime.
• Providing documents, records, and articles of evidence: This is another purpose for which mutual legal assistance can be requested. Victims can access this instrument to provide documents or evidence to help investigate and prosecute the crime.
However, it is essential to note that no universal instrument or treaty governs mutual legal assistance in criminal matters. The effectiveness of these instruments also depends on the willingness of states to cooperate and provide service to each other.
3.2. Corporate Responsibility to Respect Human Rights
The United Nations and legal jurisprudence have recognized the importance of corporate responsibility concerning human rights from European courts, the African Court of Human Rights, and reports from the OECD. The European Court of Human Rights has emphasized that corporations have a positive obligation to respect human rights, including the right to life, under the European Convention on Human Rights. The African Court of Human Rights has similarly held that corporations can be held accountable for human rights violations under the African Charter on Human and Peoples’ Rights. The OECD has published guidelines for multinational enterprises that include provisions on human rights due diligence and the responsibility of companies to respect human rights. These sources underscore the need for corporations to conduct due diligence and take steps to prevent and mitigate potential human rights risks in their operations.
The significance of corporations in promoting and undermining human rights has gained attention in recent years. The United Nations Guiding Principles on Business and Human Rights (UNGPs), adopted by the UN Human Rights Council in 2011, set a worldwide standard for preventing and addressing the risk of adverse human rights impacts linked to business activities. The UNGPs outline a framework for corporate responsibility towards respecting human rights, which has two main components: a) preventing violations of the rights of others and b) addressing adverse impacts if they occur:
a) Preventing Violations of the Rights of Others:
Corporations are accountable for respecting human rights by conducting due diligence to recognize, prevent, and alleviate potential human rights risks associated with their operations. This includes evaluating their activities’ potential human rights impacts, integrating human rights considerations into their decision-making processes, and keeping track of their performance in addressing human rights risks.
b) Addressing Adverse Impacts if They Occur:
If corporations cause or contribute to adverse human rights impacts, they are responsible for providing or cooperating in providing effective remedies for the affected individuals. This includes creating grievance mechanisms that allow individuals to raise concerns about potential human rights abuses and ensuring that appropriate remedial actions are taken to rectify any identified harms.
Challenges in Ensuring Corporate Responsibility to Respect Human Rights
Despite the growing awareness of corporate responsibility toward respecting human rights, several challenges remain in ensuring that corporations effectively prevent and address human rights abuses. These challenges include:
• Lack of Awareness and Understanding: Many corporations may need to be fully aware of their human rights responsibilities or need more expertise to implement the UNGPs effectively.
• Inadequate Legal Frameworks: In some circumstances, there may be insufficient legal frameworks to hold corporations accountable for human rights abuses.
• Insufficient Enforcement Mechanisms: Even if legal frameworks exist, there may be inadequate enforcement mechanisms to ensure that corporations are held accountable for human rights abuses.
• Limited Access to Remedy: Individuals who have suffered human rights abuses may face difficulties in accessing effective remedies, particularly in cases where corporations operate in countries with weak Rule of Law or where access to justice is limited.
Corporations must take responsibility when their actions contribute to adverse human rights impacts. This means providing effective remedies for affected individuals and setting up grievance mechanisms for reporting potential human rights violations. Despite growing recognition of corporate responsibility, there are still challenges to ensuring that corporations effectively prevent and address human rights abuses.
One of the biggest challenges is corporations’ lack of awareness and understanding of their human rights responsibilities. Additionally, some countries need more legal frameworks, and complex global supply chains can make it difficult for corporations to identify and address human rights risks.
Both states and corporations must play essential roles in protecting and respecting human rights. While states must protect against human rights abuses, corporations must respect human rights by preventing violations and addressing adverse impacts when they occur. It is crucial to overcome the challenges associated with these obligations to realize human rights for all.
4. Conclusion
Adherence to mutual legal correspondence and self-determination principles promotes unity between nations. Achieving reasonable outcomes requires a normative-making approach based on objective coherence and substantial agreement. Emphasizing the rule of law and protecting fundamental rights create a just and inclusive society that respects the rights of all individuals.
To promote global governance, democracy, and human rights protection, the Doha Declaration on Criminal Prevention, the Hague Convention on Mutual Legal Assistance in Criminal Matters, 1988, and the very recent the Ljubljana - The Hague MLA Convention adopted at the 18th Plenary Session of the MLA Diplomatic Conference in Ljubljana on 26 May 2023 represent a landmark international treaty that will help to deliver justice to victims of genocide, crimes against humanity and war crimes. Besides all these conventions, the Doha Declaration reaffirms the international community’s commitment to promoting and protecting human rights, the Rule of Law, and democracy. It recognizes the importance of international cooperation, particularly in justice, security, and the fight against terrorism and violent extremism. Similarly, the 2nd Additional Protocol to the Budapest Convention of 2022 aims to enhance international cooperation in investigating and prosecuting transnational crimes related to cybercrime and terrorism. It provides a framework for exchanging information and evidence among signatory states and for the execution of requests for assistance in criminal matters.
These agreements are closely linked to the sustainable development goals (SDGs), particularly SDG 16, which aims to promote peaceful and inclusive societies, provide access to justice, and build effective, accountable, and inclusive institutions. The SDGs provide a comprehensive framework for addressing global challenges, including poverty, inequality, and environmental degradation, and measuring progress toward achieving these goals.
One key issue in this area is the development of criminal legal cooperation and policies under the Rule of Law. The state must protect against human rights abuses, and criminal legal cooperation is essential for achieving this goal.
Another essential issue is the corporate responsibility to respect human rights. In recent years, there has been increasing recognition of the need for corporations to respect human rights and prevent violations of the rights of others.
Nevertheless, access to justice for victims of international crimes is vital for promoting the Rule of Law and protecting human rights. Providing victims with just resources is essential for promoting justice and accountability, ensuring that victims have access to adequate judicial and non-judicial resources are necessary.
Mutual Legal Assistance (MLA) is a crucial process that enables states to seek and assist each other in servicing judicial documents and gathering evidence for use in criminal cases. However, the efficacy of MLA is frequently hindered by political issues and geopolitical interests. Selective cooperation, political influence, geopolitical interests, and differences in legal systems can all hamper the effectiveness of MLA.
These challenges pose a significant threat to combating transnational organized crime. Political issues and geopolitical interests can lead to selective cooperation, where states choose to cooperate with certain States based on their political interests. This can lead to a lack of coherence in providing mutual legal assistance.
Additionally, political influence can affect the effectiveness of MLA, where States may use their political influence to delay or hinder the provision of mutual legal assistance. Geopolitical interests can also impact the effectiveness of MLA, where states may prioritize their geopolitical interests over the provision of mutual legal assistance, particularly in cases where the requested state is strategically vital to the requesting state. Furthermore, differences in legal systems and procedures between the requesting and requested states can also hinder the effectiveness of MLA. This can lead to delays in providing assistance, which can impact the effectiveness of MLA in combating transnational organized crime. To address these challenges, there is a need for greater international cooperation and coordination in providing mutual legal assistance.
States must prioritize providing mutual legal assistance over their political interests and geopolitical considerations. Additionally, there is a need for greater harmonization of legal systems and procedures between states to ensure adequate mutual legal assistance. By addressing these challenges, states can enhance the effectiveness of MLA and combat transnational organized crime more effectively.
To sum up, even with all the promises and agreements made at the 14th UN Crime Congress, it is still crucial for governments to work together to investigate and prosecute transnational crimes. These agreements aim to create a legal framework that ensures fair trials and establishes trustworthy and transparent institutions for addressing cross-border offenses. The connection between these agreements and sustainable development goals emphasizes the importance of promoting human rights, democracy, and effective global governance while promoting social equality. Additionally, it is essential to hold corporations accountable and ensure justice for those affected by international crimes to uphold the rule of law and protect human rights.