Business and Human Rights Law in the Council of Europe: Noblesse oblige

Daniel Augenstein is Assistant Professor at Tilburg Law School. Willem van Genugten is Professor of International Law at Tilburg Law School and at the North-West University in South Africa (extraordinary chair). He also is President of the Royal Netherlands Society of International Law. Nicola Jägers holds the chair of international human rights law at Tilburg Law School and is also Commissioner at the Netherlands Institute for Human Rights.

In January 2013, the Committee of Ministers of the Council of Europe (CoE) instructed its Steering Committee for Human Rights (CDDH) to elaborate a political declaration supporting the UN Guiding Principles on Business and Human Rights (UNGPs), and a non-binding instrument addressing gaps in the implementation of the UNGPs at the European level. This post discusses the evolution of “business and human rights” and the reception of the UNGPs in the Council of Europe. It draws attention to significant differences in policy approach between the CoE’s Parliamentary Assembly and its Committee of Ministers. It then places the discussed policy developments in the context of the CoE’s own key legal human rights instrument, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). We highlight three areas in which the CoE is well-placed to make an important contribution to addressing the detrimental impacts of global business operations on international human rights protection: the interdependency and interaction between civil and political and social and economic rights; state obligations to respect and protect human rights in relation to corporate violations; and the extraterritorial application of international human rights law.

Business & Human Rights in the CoE’s Parliamentary Assembly

CoE activity on business and human rights dates back to 2009, when the Parliamentary Assembly adopted Recommendation 1858 on private military and security firms and the erosion of the state monopoly on the use of force. This was followed, in 2010, by the more general Resolution 1757 and Recommendation 1936 on human rights and business, which among other things highlighted legal protection gaps in the ECHR regarding human rights violations committed by private corporations. The Parliamentary Assembly expressed concerns “about the existing imbalance in the scope of human rights protection between individual and businesses”, remarking that “while a company may bring a case before the Court claiming a violation by a state authority of its rights protected under the [ECHR], an individual alleging a violation of his or her rights by a private company cannot effectively raise his or her claims before this jurisdiction”. Moreover, the Assembly noted that while “many of the alleged human rights abuses by businesses occur in third countries, especially outside Europe, … it is currently difficult to bring extraterritorial abuses by companies before national courts or the European Court of Human Rights”.

To our mind, this analysis of legal protection gaps in the European Convention system (which also applies to much of traditional international human rights law more generally) is very much to the point, as are the remedial measures contemplated by the Parliamentary Assembly. Resolution 1757 calls on member states to “legislate, if necessary, to protect individuals from corporate abuses of rights enshrined in the Convention and in the revised European Social Charter”. Recommendation 1936, in turn, considers the elaboration of “a complementary legal instrument, such as a convention or an additional protocol to the European Convention on Human Rights”.

(Re)action by the Committee of Ministers and its Steering Committee for Human Rights

In 2011 the Committee of Ministers requested its Steering Committee for Human Rights (CDDH) to conduct a study on the feasibility and added value of CoE standard setting work on business and human rights. The CDDH produced a Preliminary Study in June 2012 and a Feasibility Study on Corporate Social Responsibility in the Field of Human Rights in November 2012. The Feasibility Study explored various sector-specific issues and thematic subjects, including internet governance and the strengthening of social rights protection. It favoured the development of “soft-law” standards to support the further implementation of the UNGPs over the elaboration of a new legally binding instrument, while also suggesting that “more harmonised legislation of CoE member states concerning the principle of corporate civil and criminal liability could enhance the remedies for victims of human rights violations committed by private corporations”.

Regarding the legal protection gaps identified by the Parliamentary Assembly, the CDDH stressed that the European Court of Human Rights (ECtHR) has held states accountable for failure to protect human rights against violations by private corporations, as well as for violations committed by private corporations exercising governmental functions. Turning to the territorial limitations of European human rights protection, the CDDH noted that the ECtHR has recognised extraterritorial jurisdiction “on the basis of effective control over territory or on other basis”. However, and unlike other CoE treaties which “require parties to extend jurisdiction to certain activities of natural or legal persons outside their territory” the ECHR is said to apply only to extraterritorial “acts or omissions by state organs”. Against this background, the study recommends to further “explore the challenges relating to the extraterritorial conduct of transnational companies”.

In January 2013, the Committee of Ministers instructed the CDDH to elaborate a political declaration supporting the UNGPs and a non-binding instrument addressing gaps in their implementation at the European level. A Drafting Group on Human Rights and Business (CDDH-CORP) was established and held its first meeting in October 2013, on occasion of which one of us delivered a keynote on the relevance of the UNGPs for the CoE. CDDH-CORP prepared the said Declaration of the Committee of Ministers, which was adopted in November 2013. It also compiled a preliminary list of key issues to be considered for the CoE’s new non-binding instrument, including “the exercise of jurisdiction by member states, including extraterritorial jurisdiction” and “obstacles to justice and remedies for victims of business-related human rights abuses” (CDDH-CORP(2013)R1 Appendix IV). This list was discussed during a CDDH meeting in November 2013. Access to justice was considered “a particularly important issue to which the Council of Europe could provide specific added value”. Having regard to the “complexity and the lack of existing standards” on extraterritorial jurisdiction, it was felt that this issue could be further explored but “should not be the main focus of the future instrument”. These issues will be further discussed during the next CDDH-CORP meeting from 12-14 February 2014 to which one of us contributes in her capacity as a member of the Netherlands Institute for Human Rights.

The ECHR and the UNGPs

To effectively address implementation gaps of the UNGPs at the European level, it is of utmost importance to fully explore the existing potential of the ECHR and its Court to prevent and redress human rights violations by private corporations. Various recent studies and reports have already documented the strengths and weaknesses of the European Convention system in holding states to account for such violations, including a 2010 report by the Parliamentary Assembly’s Committee on Legal Affairs and Human Rights; a 2010 research policy study for the European Commission and a 2011 study in support of the UNGPs, both written by one of the present authors; and the CDDH’s 2012 Draft Preliminary Study on corporate social responsibility in the field of human rights. To our mind, three particular aspects deserve special attention in this regard.

First, research conducted in support of the UNGPs has shown that corporate activities impact on the whole spectrum of internationally recognised human rights, cutting across the received civil/political – social/economic/cultural rights divide. In this regard, the CoE should continue to emphasise the indivisibility and interdependency of all human rights for the sake of their effective protection. Despite the ECHR’s textual focus on civil and political rights, the Court’s interpretation of, inter alia, the right to life, the right to respect for private and family life and freedom of assembly and association has already brought labour relations, education and environmental protection within the scope of the European Convention. We welcome the CDDH proposal to strengthen the protection of social and economic rights as laid down in the European Social Charter (ESC), while we also call upon the CoE to further explore the interaction between these instruments, such as with regard to the relationship between inhuman labour conditions (ESC) and freedom from torture and the right to life (ECHR).

Secondly, an important challenge to closing protection gaps at the European level remains human rights violations committed by corporations inside and outside Europe with the (legal, financial, logistic, etc.) support or acquiescence of CoE member states. In this regard, we would want to highlight that whereas the ECHR does not directly impose obligations on non-state actors, it requires states to respect and protect human rights in relation to corporate violations. Two types of state obligations can be distinguished: negative obligations to respect human rights in relation to corporations acting as state agents; and positive obligations to protect human rights in relation to corporations acting as third parties. While, in the former case, acts of corporations are attributed to the state so that the state is considered to directly violations human rights, in the latter case the state violates its obligations by failing to take all reasonable measures to protect individuals against corporate abuse. The ECtHR’s case-law in this area is comparatively rich and developed, and we hope that the Court keeps contributing to flesh out, if not point beyond, the rather general requirements stipulated in this respect by the UNGPs.

Thirdly, there is  the issue of extraterritorial human protection – to which the UNGPs have taken a conservative approach that contrasts sharply with other learned interpretations of international legal doctrine, such as the recent Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights. At least when compared to its Inter-American and African counterparts, the ECtHR has developed a fairly robust albeit not always consistent body of case-law on extraterritorial state obligations. Indeed, from Banković (which conflates prescriptive jurisdiction and human rights jurisdiction) over Al-Skeini (which builds rules on the basis of exceptions) to Nada (which brushes extraterritoriality under the carpet) the Court’s approach appears informed less by coherent legal principles than by conflicting policy considerations. Cases such as Ilasçu and Isaak illustrate how these problems become compounded when violations are committed by private actors outside the state’s territory. Moreover, a constellation of extraterritorial positive state obligations particularly relevant to business and human rights – where (a constituent part of) a corporation is located on the state’s territory while the victim resides elsewhere – has not yet received much judicial attention. In our view, it would be highly desirable for the CoE to develop a more consistent and forward-looking approach to extraterritorial human rights protection if only – as rightly stressed in the CDDH’s Feasibility Study – the challenge of extraterritoriality is closely related to obstacles to access to justice on which the CoE’s new instrument is to focus.

In many regards, the Council of Europe is already considered one of the most developed and progressive systems of international cooperation on human rights protection … and noblesse oblige also when it comes down to business.