Введение в Право (10 класс)

Over recent decades the relationship of the business sector to human rights has gradually attracted greater attention within human rights debates. As non-state actors, businesses are not traditionally regarded as duty-bearers under international human rights law. Yet, in the context of globalisation and liberalisation, the scope for businesses to impact on human rights has grown to the extent that there is an increasing view that human rights norms and mechanisms ought to adapt to ensure business accountability for such impacts. But the question of exactly how human rights law, which was built on the assumption that sovereign nation states should occupy the role of primary duty-bearer, can be adapted to prevent and redress abuses of human rights by corporations, is not yet resolved.

In 2008, the United Nations Human Rights Council (‘HRC’) approved the Framework on Business and Human Rights (‘the Framework’) developed by the United Nations Special Representative John Ruggie. The Framework is based on Three Pillars: firstly, that the State has a duty to protect rights-holders against abuses by companies within their territory or jurisdiction; secondly, that all businesses have a responsibility to respect human rights; and thirdly, that there is a right to a remedy for any business-related human rights abuse.  

In 2011, the HRC unanimously endorsed the Guiding Principles on Business and Human Rights (‘UNGPs’) implementing the Framework’s Three Pillars. 

Since 2008, the Framework and the UNGPs have garnered wide support amongst governments, businesses, civil society and international and regional organisations. As a result, a variety of steps have been taken to reflect the UNGPs in a variety of policies and standards.

In the Council of Europe, in 2010, the Parliamentary Assembly adopted two Resolutions on

“Human Rights and Business” (Resolution 1757 and Recommendation 1936 of the Parliamentary Assembly on "Human rights and Business", 2010). In 2011, the Steering

Committee for Human Rights (‘CDDH’) published a preliminary document listing the existing standards and outstanding issues and a study on the feasibility and the added value of new standard-setting work of the Council of Europe on corporate social responsibility in the field of human rights. 

Following these reports, the Committee of Ministers requested the CDDH to elaborate a declaration supporting the UNGPs as well as a non-binding instrument, which may include a guide of good practice, addressing gaps in the implementation of the UNGPs at the European level by the end of 2015. In that context, the Drafting Group on Human Rights and Business (CDDH-CORP) has been set up and has already held four meetings.

The Group elaborated a Declaration of the Committee of Ministers supporting the UN Guiding Principles, which was approved by the CDDH at its 79th meeting in November 2013 and subsequently adopted by the Committee of Ministers in April 2014. 

In addition, the Organisation for Economic Cooperation and Development, the European Union, financial institutions, businesses, and a significant number of national governments through, inter alia, the development of national action plans (NAPs) on business and human rights. 

Discussion continues regarding whether additional measures beyond the UNGPs are required to address challenges to human rights resulting from some business activities. In particular, the question of whether a new binding legal framework, in the form of a human rights treaty to address transnational corporations, is now under discussion in the United Nations (‘UN’) via an inter-governmental working group established in 2014. 

Such discussions are likely to continue during the coming years. Meanwhile, an increasing number of businesses are initiating actions to consider and respond to their human rights impacts. At the same time, efforts by civil society organisations, victims of business-related human rights abuses, and human rights lawyers and advocates to secure accountability for such abuses through legal action before national courts and human rights supervisory mechanisms, as well as through actions to engage the attention of investors, regulators, the media and general public are also increasing.

This dynamic environment provides the context for this HELP Business and Human Rights Course. Although the Course is principally concerned with the ECHR, the Course has been constructed around the “three-pillar” UN Framework and UNGPs. The Framework and the UNGPs provide the most widely accepted heuristic for addressing the variety of complex legal and policy issues relevant to business and human rights.

Session 3 thus focuses on the State Duty to Protect Human Rights (Pillar I); Session 4 considers the Corporate Responsibility to Respect Human Rights (Pillar II); and Session 5 addresses the right to remedy for business-related human rights abuses (Pillar III). Session 6 considers the issue of extraterritoriality as a cross-cutting issue.

Throughout, the aim is to introduce participants both to the existing international legal framework relevant to business and human rights, which provides the point of departure for current discussions amongst governments, jurists, human rights advocates and businesses, as well as presenting the main strands of current debates that, albeit de lege ferenda, have potential to influence the future evolution of the field. This approach, as well as the broad range of potential impacts of businesses on human rights, necessitates reliance on diverse source materials, extending beyond that which participants may encounter in other HELP courses.

As mentioned above, the range of potential impacts of business activity is wide, including both positive and negative impacts across the spectrum of working and private life for individuals, communities and the public in general. Given the importance to the rest of the Course of an appreciation of the nature and diversity of such impacts, this Session will introduce participants to these impacts with some general points that should be kept in mind during completion of this Course.

Business-related human rights impacts are highly context-dependent. The UNGPs provide that the corporate responsibility to respect human rights applies equally to all businesses. However, the type and scale of the impacts of any particular business are variable. They may be influenced, for example, by its size – the potential impact of a large multi-national enterprise employing hundreds of thousands of workers at operational sites in dozens of countries worldwide will contrast sharply with that of a family-owned local business where the owners are the only employees. They may be influenced, for example, by the particular industry sector; by the social, political, cultural, economic and environmental context of its activities, whether it operates at a local or national level; and the strength of regulation and respect for the rule of law in the jurisdiction in question. 

Equally diverse are the ways in which businesses can make a positive contribution towards fulfilment of human rights, which can include through the generation of employment and opportunities for skills development; and contributions to tax revenue and economic development at local and national levels. For instance, where a company employs women and men on contractual terms that are in line with requirements set by national law and international labour and human rights standards, this can contribute to fulfilment of the right to just and favourable conditions of work. Where companies pay taxes, this contributes to State revenues and can therefore support the achievement of national development objectives, including human rights. 

On the other hand, business activities can also have adverse impacts on human rights. For example, company activities can interfere with the rights to health, property, and an adequate standard of living, such as where workers are exposed to environmental contaminants, or where people are resettled without adequate consultation and/or compensation. Likewise, businesses can interfere with the right to non-discrimination, privacy and the right to freedom of association, for instance, through their own employment policies and practices. As discussed in Session 4, they may also have such impacts through their contractual and other relationships with business partners, including their suppliers and service-providers, customers and joint-venture partners.

Participants should thus assume, as they proceed to the following Sessions, that any business may, through its activities, potentially impact on the human rights of those individuals with whom it interacts directly and indirectly, and that the precise scope and nature of such impacts should be treated as an open question, to be answered through an analysis of the law, facts and the broader context that may be applicable to any given case.