1. As “the aim of the Council
of Europe is to achieve a greater unity between its Members” by
“facilitating their economic and social progress”,
the importance
of human rights standards for all stakeholders and the effectiveness
of their protection cannot be underestimated. By adopting Recommendation
CM/Rec(2016)3 in March 2016 – at the instigation of the Parliamentary
Assembly – the Committee of Ministers reaffirmed the “indivisible,
interdependent and interrelated” nature of human rights and recognised
that businesses have to respect human rights. Next to the European
Convention on Human Rights (“the Convention”, ETS No. 5), the European
Social Charter (“the Charter”, ETS No. 35 and No. 163) is highlighted
as a major reference in this context.
2. The Assembly views social rights as fundamental human rights.
I therefore wish to stress the duty of both States and businesses
to protect human rights – including social rights. I do so in the
spirit of complementarity to the report by the Committee on Legal
Affairs and Human Rights which focuses in detail on the Convention and
the United Nations “Guiding Principles on Business and Human Rights:
Implementing the United Nations “Respect, Protect and Remedy” Framework”
(“the UNGP”) but somewhat less on the Charter. I would have appreciated
if the report would have given concrete examples of enterprises
either violating human rights or upholding them in light of existing
‘soft law’ instruments and, where appropriate, voluntary commitments
as part of corporate social responsibility.
3. While it is true that many human rights abuses by enterprises
occur outside Europe, we should not turn a blind eye on misdeeds
in Europe itself. For example, foreign nationals from both European
and non-European countries are exploited through forced labour on
our continent as migrant workers, in particular if they are undocumented
migrants or victims of trafficking. Moreover, cases of child labour
do occur in Europe, and this matter needs to be examined more closely
as suggested in the Assembly’s
Resolution 1993 (2014) on Decent work for all which “stresses the need for
better enforcement of a ban on child labour for those under the
age of 15, as stipulated in the European Social Charter” (see proposed
Amendment A). In addition to the reference
documents published by international organisations on the responsibility
of business regarding human rights (listed in paragraph 15 of the
explanatory memorandum), we should mention the General comment No.
16 (2013) on State obligations regarding the impact of the business
sector on children’s rights by the UN Committee on the Rights of
the Child.
4. Annual conclusions from the European Committee of Social Rights
point to multiple failures of countries across Europe to comply
with their international legal obligations, notably the European
Social Charter, regarding labour rights, the right to safe and healthy
working conditions, as well as the right to equal treatment, non-discrimination
and dignity at work. Individual recourse concerning an alleged violation
of his or her rights under the Charter by either a State or an enterprise
is not possible, and the collective complaints procedure is an option
only for citizens of a State that has ratified a relevant protocol
to the Charter. Moreover, given that most States parties to the
Charter have made numerous opt-outs and that information about the
national commitments under the Charter is not widely disseminated
in the corporate world, de facto protection
of fundamental work-related rights remains patchy in Europe.
5. I therefore believe that the draft resolution presented –
including the measures proposed to Council of Europe member States
to implement the UNGP and Recommendation CM/Rec(2016)3 on human
rights and business – should also include the reference to the norms
set out in the Charter (see proposed Amendments C,
D, E and F) and
convey the sense of urgency for member States to take action (Amendment B). Moreover, I find
that Recommendation CM/Rec(2016)3 lacks specific mention of the
needs for additional protection of minorities and persons with disabilities,
as well as for gender-based human rights abuses. These missing important
elements should be taken into account through a future revision
of this Recommendation (see proposed Amendment
G). While engaging in the work of the United Nations
open-ended intergovernmental working group on transnational corporations
and other business enterprises with respect to human rights, Council
of Europe member States should seek to clarify the term of corporate
social responsibility and the ensuing duties that businesses have
towards society and the environment.
6. As Mr Nils Muižnieks, former Council of Europe Commissioner
for Human Rights, points out in his comment soon after the adoption
of Recommendation CM/Rec(2016)3, “some multinational enterprises
have become so powerful that they can surpass the financial resources
available to middle-sized States”
and
thus have considerable impact alongside States – for the better
or for worse – on human rights. Their accountability in this field
should definitely be strengthened, not least in light of emerging
grey areas that blur the limits between States’ and businesses’
responsibility – as Mr Hasanov rightly observes in his concluding
remarks.
7. Based on the current work of the Committee on Social Affairs,
Health and Sustainable Development on the platform economy, artificial
intelligence versus labour markets and the Sustainable Development
Goals (notably as regards climate action and public health protection),
I believe that further updates to the Recommendation CM/Rec(2016)3
will be necessary in response to emerging societal challenges with significant
impact on our fundamental rights. I am particularly concerned with
the need for better respect for privacy and personal data protection
in commercial operations of social media networks, digital search
engines and platforms.
8. Finally, I believe it is high time for us all to join forces
towards ending impunity for environmental crimes committed by enterprises
that undermine our health, wellbeing and ultimately – life. In this
context, I welcome the stated priority of the forthcoming Georgian
chairmanship of the Committee of Ministers of the Council of Europe
in seeking to explore more ambitiously the environmental dimension
of human rights protection.