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Resolution 2311 (2019)
Human rights and business – what follow-up to Committee of Ministers Recommendation CM/Rec(2016)3?
1. The Parliamentary Assembly recalls
its Resolution 1757 (2010) and Recommendation 1936 (2010) on human
rights and business, as well as its Resolution 1993 (2014) on decent
work for all and Recommendation 2123
(2018) on strengthening international regulations against
trade in goods used for torture and the death penalty.
2. The Assembly notes that transnational or multinational companies
are increasingly influential. They can benefit society and contribute
to the realisation of human rights, for example by ensuring a values-
and principles-based approach to doing business and by operating
in ways that meet their fundamental responsibilities in the areas
of human rights, labour, environment and anti-corruption, as well
as by creating employment and paying taxes. They can also, however,
be implicated in human rights abuses, such as exploitative or hazardous
working conditions, forced labour and child labour, pollution, employment discrimination
and surveillance of employees while at work. Many of the alleged
human rights abuses in which businesses are involved occur in third
countries, especially outside Europe, making it very difficult for
victims to seek remedies. However, children or foreign nationals
(both Europeans and non-Europeans) for example, are also exploited
inside Europe (including as victims of trafficking), which requires
enhanced vigilance and protection from the relevant national authorities.
3. The Council of Europe has adopted a number of conventions
covering a wide range of issues of direct relevance to business
activities, such as social and economic rights, bioethics, the information
society, children’s rights, combating corruption and trafficking
in human beings. Moreover, although the European Convention on Human
Rights (ETS No. 5, “the Convention”) does not allow an individual
alleging a violation of his/her rights by a privately owned company
to bring a case against that company before the European Court of
Human Rights (“the Court”), the Court has accepted that the Convention
may in some cases have direct effect between private parties, especially
if the State Party to the Convention does not fulfil its “positive obligations”.
4. Over the past few decades, attempts to define the responsibilities
of businesses in the area of human rights protection were principally
based on the concept of “corporate social responsibility” and voluntary approaches.
Nevertheless, although the primary duty to protect human rights
lies with States and although there is still no legally binding
instrument on business accountability for human rights abuses, it
is now widely recognised that businesses hold responsibilities in
this area.
5. The Assembly notes that the United Nations Guiding Principles
on Business and Human Rights: Implementing the United Nations “Respect,
Protect and Remedy” Framework, (“the United Nations Guiding Principles”),
endorsed by the United Nations Human Rights Council in 2011, have
been a big step forward in this respect. This set of guidelines
for States and companies has been the first universally recognised
standard in this area. It is based on three pillars: the State duty
to protect human rights, the corporate responsibility to respect
human rights and the right of victims to access an effective remedy.
6. The Assembly notes that soon after the adoption of the United
Nations Guiding Principles, States were encouraged to develop action
plans on their national implementation (National Action Plans –
NAPs), which are policy documents identifying priorities and actions
that States adopt in order to comply with international and national
standards on business and human rights. The Assembly notes that
only 18 member States of the Council of Europe have adopted NAPs
(Belgium, Czech Republic, Denmark, Finland, France, Germany, Ireland,
Italy, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Slovenia,
Spain, Sweden, Switzerland and the United Kingdom), almost all of
which are members of the European Union.
7. The Assembly welcomes the adoption of Committee of Ministers
Recommendation CM/Rec(2016)3 on human rights and business on 2 March
2016 and stresses the importance of its role in encouraging member States
of the Council of Europe to implement the United Nations Guiding
Principles at the regional level. It welcomes the fact that some
Council of Europe member States – mainly European Union member States
– have adopted comprehensive measures to implement this recommendation,
including legislative measures imposing a duty to implement human
rights due diligence procedures in business enterprises.
8. The Assembly therefore urges Council of Europe member States
to take all the necessary measures to implement the United Nations
Guiding Principles and Recommendation CM/Rec(2016)3 on human rights
and business, and in particular to:
8.1. develop NAPs, if they have not yet done so, and to review
and update them on a regular basis, in a transparent process and
in consultation with businesses, business organisations, trade unions,
non-governmental organisations, national human rights institutions
and other relevant stakeholders;
8.2. share NAPs and good practices related to the implementation
of the United Nations Guiding Principles and Recommendation CM/Rec(2016)3
with other Council of Europe member States, in particular through
the shared information system which is being developed within the
Council of Europe;
8.3. ensure translation and a wide dissemination of these two
instruments, as well as the European Social Charter (ETS No. 35
and No. 163), especially within relevant State authorities, State
agencies and business enterprises;
8.4. review their national legislation, practice and policies
to ensure that they comply with the requirements stemming from these
two instruments; in doing so, national parliaments and governments should
pay particular attention to:
8.4.1. a State’s responsibility
in the context of its commercial activities, including its responsibility
for State-owned or -controlled companies and State agencies, and
for giving support to certain companies and privatising the delivery
of certain services;
8.4.2. potential risks of human rights abuses by businesses operating
abroad;
8.4.3. potential risks of human rights abuses by businesses conducting
operations in conflict-affected areas;
8.4.4. the need to adopt legislation on businesses’ responsibilities
for their activities having an adverse impact on human rights, in
particular through developing human rights due diligence procedures
for businesses;
8.4.5. the need to provide judicial (civil, criminal and administrative)
as well as extra-judicial remedies for victims of human rights abuses
by businesses;
8.4.6. gender-related risks and the needs of vulnerable or marginalised
individuals and groups (such as migrant workers, children, indigenous
people, minorities, persons with disabilities and human rights defenders);
8.4.7. the need to provide appropriate information, training
and workshops on human rights issues in third countries to businesses
wishing to operate in such countries and to diplomatic and consular
staff assigned to them;
8.5. based on the above-mentioned legal instruments and the
European Social Charter, enhance the powers and capacity of labour
inspectorates to detect and investigate cases of human rights abuses
at national level, with a view to better protecting vulnerable population
groups from inhuman and degrading treatment, violence, forced labour
and exploitation.
9. In line with its Recommendation
2123 (2018), the Assembly calls on member States of the
Council of Europe to take all the necessary measures to prohibit
businesses domiciled within their jurisdiction from trading in goods
which have no practical use other than for the purpose of capital
punishment, torture, or other cruel, inhuman or degrading treatment
or punishment and to regulate their trade in goods that can be abused
for such purposes.
10. Moreover, the Assembly invites member States of the Council
of Europe to support the adoption of a legally binding instrument
on business activities and human rights, which is now being examined
by the United Nations Open-ended intergovernmental working group
on transnational corporations and other business enterprises with
respect to human rights.
11. The Assembly also calls on member States of the Council of
Europe to enhance their co-operation with other international organisations,
in particular the United Nations, the International Labour Organization
(ILO), the Organisation for Economic Co-operation and Development
(OECD) and the European Union, in order to consolidate coherent
standards on businesses’ responsibilities in the area of human rights
protection and promote implementation of the United Nations Guiding
Principles. In particular, member States should continue to support
the work of the United Nations and its Working Group on the issue
of human rights and transnational corporations and other business
enterprises.