1. Introduction
1. The motion for a resolution
entitled “Human rights and business – what follow-up to Committee
of Ministers Recommendation CM/Rec(2016)3?” was referred to the
committee on 13 October 2017 for report. On 12 December 2017, the
committee appointed as rapporteur Mr Vusal Huseynov (Azerbaijan,
EPP/CD). Following his departure from the Assembly, the committee
appointed me as rapporteur on 26 June 2018. On 27 June 2019, the
committee held a hearing with the participation of:
- Ms Jo Reyes, Director, Global
Business Initiative on Human Rights (GBI), United Kingdom;
- Ms Claire Methven O’Brien, Chief Adviser, Human Rights
and Business, The Danish Institute for Human Rights, Copenhagen,
Denmark; and
- Ms Anita Ramasastry, member of the United Nations Working
Group on the issue of human rights and transnational corporations
and other business enterprises, Roland L. Hjorth Professor of Law
and Director of the Graduate Program in Sustainable International
Development at the University of Washington School of Law, United
States (via video conference).
2. The above-mentioned motion for a resolution recalls that businesses,
especially trans- or multinational companies, have gained much power
and influence, with some companies’ assets exceeding the gross domestic
product (GDP) of the States in which they operate. They can benefit
society and contribute to the realisation of human rights, including
by providing employment and paying taxes. However, they are also implicated
in human rights violations, such as exploitative or hazardous working
conditions, environmental pollution, employment discrimination and
violations of employees’ right to privacy, including via cyber monitoring.
Whilst businesses can enjoy rights, they are not, as yet, directly
bound by human rights treaties. The primary duty to protect human
rights lies with States. It is widely recognised that businesses
hold responsibilities in this area. However, such responsibilities
may extend further where States have “privatised” their classic
functions in areas such as law enforcement or military activities.
3. The motion for a resolution also recalls that in its
Resolution 1757 (2010) on human rights and business, the Assembly called for
the legal vacuum in this area to be filled. On 2 March 2016, the
Committee of Ministers
adopted
Recommendation CM/Rec(2016)3 on human rights and business, which provides governments, businesses and other stakeholders
with guidance on how to implement the
United
Nations Guiding Principles on Business and Human Rights (“the UN Guiding Principles” or “UNGP”) as the current
globally agreed baseline in this field. The recommendation also
calls on Council of Europe member States to share information on
good practices and sets up a process of review of the recommendation’s
implementation no later than five years after its adoption. In the
meantime, the signatories of the motion for a resolution call on
the Assembly to take stock of the implementation of the UN Guiding
Principles in member States, examine ways of ensuring that the standards
and principles reflected in Recommendation CM/Rec(2016)3 are applied
throughout Europe and engage with member States facing obstacles
to implementation.
4. Over the past decades, the issue of businesses’ responsibility
for human rights abuses has gradually attracted greater attention.
Although in international human rights law States occupy the role
of primary duty-bearer, there has been a growing trend towards wider
acceptance of businesses’ duties in this area, especially with the
adoption of the UN Guiding Principles. In this report, I will briefly
recall the existing international legal standards in this area and
will refer to the recent developments which have occurred in this
field mainly within the United Nations and the Council of Europe.
Furthermore, I will refer to the state of implementation of the UNGP
and to the action plans on their implementation at national level
(“National Action Plans” or “NAPs”), which are policy documents
identifying priorities and actions that States adopt in order to
facilitate compliance with international and national standards.
The elaboration of a NAP is crucial for showing a State’s commitment to
promote respect of human rights by the business sector and, so far,
many existing NAPs have provided examples of good practices in this
field.
2. Businesses’ responsibilities in protecting
human rights in the European Convention on Human Rights and other
Council of Europe’s conventions
5. The European Convention on
Human Rights (“the Convention” or “ECHR”) explicitly protects individuals against
actions or omissions by States and does not usually have direct
effect between private parties.
Applications
lodged with the European Court of Human Rights (“the Court”) against
individuals or companies are inadmissible
ratione
personae (Article 34 of the Convention)
. However, the Court has recognised
that States Parties to the Convention have “positive obligations”
to prevent human rights violations for persons within their jurisdiction
where the competent authorities had known or ought to have known
of a real and immediate risk of such violations, including where
such risks come from third parties. They also have to establish
relevant legislation, including if need be criminal laws, to prevent
abuses by private actors. Such requirements have been developed
especially in the Court’s case law concerning the right to life
(Article 2 of the Convention),
prohibition of torture and inhuman and
degrading treatment or punishment (Article 3 of the Convention),
prohibition
of slavery and forced labour (Article 4 of the Convention),
the right
to liberty and security (Article 5 of the Convention),
the
right to respect for private and family life (Article 8 of the Convention),
the
right to manifest one’s religion (Article 9 of the Convention),
the
right to freedom of expression (Article 10)
or the right
to freedom of association (Article 11 of the Convention).
In
the context of Article 2 of the Convention, the Court has examined
cases in which individuals had died because of dangerous industrial
activities (for example, waste-collection sites), reaffirming States’
obligations to take appropriate steps to prevent accidental deaths
and to ensure there is an adequate legal framework to protect the
right to life.
Issues
related to noise and other pollution by private companies were examined
under Article 8 of the Convention; according to the Court, an individual’s
right to respect for private and family life may be violated due
to a State’s failure to regulate private industry properly.
6. Moreover, the Court has established that the Convention’s
provisions also generate “procedural obligations”, meaning that,
once a violation has occurred, a State Party has to ensure an adequate investigation
into the circumstances of the violation.
Beyond that, Article
13 of the Convention grants an effective remedy before a national
authority to anyone who claims that their Convention rights and
freedoms have been violated, although the remedy need not be judicial.
Although this provision may only be violated by a State, and not
by a private entity, in certain circumstances it may be invoked
in connection with abuses by non-State actors under the “positive
obligations” doctrine.
Finally,
Article 6§1 of the Convention grants everyone the right to a fair
trial before a court “in the determination of his civil rights and
obligations”, including in actions brought against corporations.
It also applies to criminal charges brought against an individual
but does not guarantee an individual’s access to a court when bringing
criminal proceedings against third persons, including corporations.
7. The applicability of Convention protection depends primarily
on where an alleged violation occurs. According to Article 1 of
Convention, States Parties to the Convention have to secure the
rights and freedoms guaranteed therein to everyone within their
“jurisdiction”, which generally refers to the territory of a State
Party. An extra-territorial act would fall within the State’s jurisdiction
under the Convention only in exceptional circumstances, such as
when a State Party exercises effective control over an area outside
its own territory.
Even then, the responsibility of
a State Party to the Convention for abuses by non-State actors will
be circumscribed by the limits of the doctrine of "positive obligations”;
however, so far the Convention, as interpreted by the Court, does
not provide a basis for State liability for failure to exercise
control over the conduct abroad of business enterprises.
Hence,
the case law of the Court does not solve all the issues related
to human rights and business, and in particular not in the area
of access to justice.
8. The European Social Charter and the revised European Social
Charter (ETS No.35 and ETS No.163) complement the protection offered
by the ECHR, by guaranteeing a series of social and economic rights
such as: prohibition of forced labour, fair, safe and healthy working
conditions, protection from sexual and psychological harassment,
freedom to form trade unions, non-discrimination and others. Their
implementation is monitored by the European Committee of Social
Rights through national reports drawn up by States Parties and,
if the State Party has agreed, through collective complaints lodged
against States Parties by social actors, including trade unions
and some NGOs.
9. A number of other Council of Europe conventions addressing
certain specific issues – such as bioethics, trafficking in human
beings, children’s rights, the processing of personal data, cybercrime
and corruption – entail further obligations for States that are
party to them and thus may have implications for businesses operating
in such States.
3. Recent
work of the Council of Europe’s bodies on human rights and business
10. In its
Resolution 1757 (2010) on human rights and business,
the Assembly expressed concern
about the existing imbalance in the scope of human rights protection
between individuals and businesses. It noted that “while a company
may bring a case before the Court claiming a violation by a state
authority of its rights protected under the European Convention
on Human Rights (…), an individual alleging a violation of his or
her rights by a private company cannot effectively raise his or
her claims before this jurisdiction” (paragraph 4). It recalled
that, while the primary responsibility to protect human rights lies
with the States, businesses also had responsibilities in this area,
especially where states had “privatised” classic state functions
such as certain law enforcement or military activities (paragraph
2). It called for the legal vacuum in this area to be filled, as
it had already done in
Recommendation
1858 (2009) on private military and security firms and erosion of
the state monopoly on the use of force. Since many of the alleged
human rights abuses by businesses occurred in third countries, especially
outside Europe, the Assembly noted that it was difficult to bring
extraterritorial abuses by companies before national courts or the
Court (paragraphs 2 and 3). It therefore called on member States
to, inter alia, foster accountability for corporate human rights
conduct (for example, by adopting guidelines on public procurement
and investment of public funds aimed at excluding companies associated
with human rights abuses and establishing bodies to advise governments
on ethical issues and investment), legislate to protect individuals
from corporate abuses of rights enshrined in the European Convention
on Human Rights and in the revised European Social Charter and raise
awareness of the Council of Europe’s standards among businesses.
11. In its
Recommendation
1936 (2010), the Assembly addressed a number of recommendations
to the Committee of Ministers to promote corporate responsibility
in the area of human rights. It recommended that the Committee of
Ministers take a number of measures for this purpose, such as preparing
a study – and possibly a recommendation – on corporate responsibility
in the area of human rights and examining the feasibility of elaborating
a complementary legal instrument, such as a convention or an additional
protocol to the European Convention on Human Rights. In its
Reply
to this Recommendation of 8 July 2011 (
Doc.
12686), the Committee of Ministers considered that the Assembly’s
proposal to draft a convention or an additional protocol to the
ECHR was not the most appropriate solution. It took note of the
proposals to prepare a study and a draft recommendation on the human
rights responsibilities of businesses, together with guidelines
for national authorities, businesses and other actors and recalled
that some of these ideas had already been discussed by the Committee
of Experts on the Development of Human Rights (DH-DEV) and by the
Steering Committee for Human Rights (CDDH).
13. In the meantime, the Assembly has also dealt with specific
issues related to this subject. For example, in its
Resolution 1993 (2014) on “Decent work for all”, it addressed a number of issues
related to employment conditions, stressed that member States should
strengthen the implementation of the European Social Charter as
well as corporate social responsibility and ethics.
More recently, the Assembly reaffirmed
its commitment to end trade in goods used for capital punishment,
torture or inhuman or degrading treatment or punishment in its
Recommendation 2123 (2018) on “Strengthening international regulations against
trade in goods used for torture and the death penalty”.
4. International
legal standards on businesses’ responsibilities in protecting human
rights
14. As noted in Assembly
Resolution 1757 (2010), “over the past few decades, a number of frameworks
and toolkits have been adopted at international and European levels
in an attempt to define the human rights responsibilities of businesses”.
They were principally based on the concept of “corporate social
responsibility” (CSR)
and
were essentially only “soft” law instruments or voluntary codes
of conduct. Since then however, it has become more commonly accepted
that businesses have responsibilities in the area of human rights
and that these obligations are not of a voluntary nature, as they
are derived from the
Universal
Declaration of Human Rights of 1948 and existing international human rights treaties.
Several
international human rights treaties contain specific provisions
applicable to corporations and their conduct: the
Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW) of 1979 (Articles 2(e) and 13 (b)), the Convention
on the Elimination of Racial Discrimination (CERD) of 1965 (Article
2(d)), the
Convention
on the Rights of the Child (CRC) of 1989 (Article 32(1)),
the
Convention on the Rights of Persons with Disabilities (CRPD) of 1965 (Article 27(1)) or the International
Labour Organisation's (ILO) conventions (for example, Article 5
of
the
Forced Labour Convention of 1930 or Article 6 of the
Worst
Forms of Child Labour Convention of 1999). International anti-corruption treaties, such
as the
United
Nations Convention against Corruption of 2003 or the Organisation for Economic Cooperation
and Development (OECD)
Convention
on Combating Bribery of Foreign Public Officials in International
Business Transactions of 1997, require States to adopt legislation criminalising
certain types of corporate conduct, such as bribery of foreign government
officials. Moreover, civil liability for specific forms of corporate
misconduct with environmental effects, such as oil pollution, has
been addressed in specific treaties regulating these issues (for
example,
International Convention
on Civil Liability for Oil Pollution Damage of 1969 and Protocols Thereto). Finally, relevant provisions
of international humanitarian law (IHL) apply to businesses in situations
of armed conflict.
15. Besides that, international organisations have prepared a
number of documents on the responsibility of business to respect
human rights, which may be grouped in the following way:
5. The
UN Guiding Principles
16. In June 2011, the UN Human
Rights Council endorsed the UN “Guiding Principles on Business and Human
Rights: Implementing the United Nations “Respect, Protect and Remedy”
Framework”. The UN Guiding Principles are a set of guidelines for
States and companies to prevent, address and remedy human rights abuses
committed in business operations. They are the first universally
recognised standard in this area and were proposed by UN
Special
Representative of the Secretary-General on the issue of human rights
and transnational corporations and other business enterprises, John Ruggie. They are addressed to all States and all
business enterprises and clearly spell out the implications of the
existing international human rights norms for both governments and
businesses.
They “clarify and elaborate on the implications
of relevant provisions of existing international human rights standards”,
“provide guidance on how to put them into operation” and “refer
to and derive from States’ existing obligations under international
law”.
They are 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.
17. The first pillar refers
to States’ human rights obligations and contains two “foundational”
principles (Principles 1 and 2). Firstly, “States must protect against
human rights abuse within their territory and/or jurisdiction by
third parties, including business enterprises (…)” (Principle 1).
Although States are not per se responsible
for human rights abuses by private actors, they must take steps
to prevent, investigate, punish and redress such abuses through
the full range of permissible measures (policies, legislation, regulations
and adjudication). Secondly, “States should set out clearly the
expectation that all business enterprises domiciled in their territory
and/or jurisdiction respect human rights throughout their operations”
(Principle 2). This principle highlights the need for States to
consider and address the impact on human rights that their companies
may have in other countries. The remaining principles from the first
pillar are “operational” (Principles 3 to 10) and they concern general
State regulatory and policy functions (Principle 3), the “State-business
nexus” (Principles 4 to 6), supporting business respect for human
rights in conflict-affected areas (Principle 7) and ensuring policy coherence
(Principle 8). In particular, as regards the “State-business nexus”,
the relevant principles describe the duties of a State in the context
of its commercial activities and address issues of State-owned or
controlled enterprises, State support to businesses (through a range
of State agencies such as, for example, export credit agencies),
privatisation and contracting-out of public services to the business
sector and public procurement. Concerning the privatisation of the
delivery of certain State services that may impact upon the enjoyment
of human rights, Principle 5 sets forth that in such cases “States
should exercise adequate oversight in order to meet their international
human rights obligations (…)”.
18. The
second pillar affirms
that business enterprises have an independent responsibility to
respect human rights which is distinct from State obligations and
contains five foundational principles. Firstly, business enterprises
should respect human rights, i.e. they should avoid infringing on
the human rights of others and should address adverse human rights
impacts with which they are involved (Principle 11). Secondly, business enterprises’
responsibility for human rights refers to internationally recognised
human rights, i.e. at a minimum those set out in the “International
Bill of Human Rights” (including the
Universal
Declaration of Human Rights, the
International
Covenant on Civil and Political Rights and the
International
Covenant on Economic, Social and Cultural Rights) and the
ILO’s
Declaration on Fundamental Principles and Rights at Work (Principle 12). Depending on circumstances, additional
human rights standards should be considered, for instance international
humanitarian law in cases of armed conflict or standards concerning
specific groups of persons (children, persons with disabilities,
national minorities, etc.). Thirdly, as businesses’ activities may
have directly or indirectly adverse human rights impacts, Principle
13 states that business enterprises should: a) avoid causing or
contributing to such impacts through their own activities and address
them when they occur; b) seek to prevent or mitigate such impacts
that are directly linked to their operations, products or services
by their business relationships, “even if they have not contributed
to those impacts”. Fourthly, according to Principle 14, business
enterprises’ responsibility to respect human rights applies “to
all enterprises regardless of their size, sector, operational context,
ownership and structure.” Nevertheless, the means through which
enterprises meet their responsibility may vary according to these
factors and with the severity of their adverse human rights impacts.
Fifthly, business enterprises should have in place appropriate policies
and processes, including: a) a policy commitment to meet their responsibility
to respect human rights; b) a human rights due diligence to identify,
prevent, mitigate and account for how they address their impacts
on human rights; and c) processes to enable the remediation of any
adverse human rights impacts they cause or to which they contribute (Principle
15).
19. These requirements are further specified in the remaining
guiding principles (Principles 16 to 24), which are of operational
nature. In particular, Principle 16 requires that companies should
explicitly express their commitment to respect human rights through
a “
statement of policy”,
which should: a) be approved at the most senior level of the enterprise;
b) be informed by relevant expertise; c) stipulate the enterprise’s
human rights expectations of personnel, business partners and other
parties directly linked to its operations, products or services;
d) be publicly available as well as internally and externally communicated;
e) be reflected in operational policies and procedures necessary
to embed it throughout the business enterprise. Moreover,
human rights due diligence is the
core requirement of business in meeting its responsibility to respect
human rights under the UNGP; it is a process through which enterprises
should identify, prevent, mitigate and account for how they address
their adverse human rights impacts (Principle 17). It comprises
four steps: 1) human rights and impact assessment; 2) integrating
human rights impact assessment findings and taking appropriate action;
3) monitoring effectiveness of company responses and 4) communicating
and reporting (Principles 17-21). It should be pointed out that
Principle 19, which describes the second step, refers to the concept
of “leverage” in addressing adverse human rights impact. According
to the
Commentary
to the UNGP, leverage exists if an enterprise has the ability “(…)
to effect change in the wrongful practices of an entity that causes
a harm”. If the enterprise has leverage to prevent or mitigate the
adverse impact, it should exercise it; if it lacks it, there may
be ways to increase it, for example, by offering capacity-building
or collaborating with other actors. Moreover, Principle 22 establishes
the duty of remediation: businesses have to provide or cooperate
in the remediation of any adverse human rights impacts to which
they have caused or contributed. They also have to first seek to
prevent and mitigate the most serious or irremediable adverse impacts
on human rights (Principle 24). Finally, Principle 23 a) reaffirms
that business enterprises have to “comply with all applicable laws
and respect internationally recognised human rights”; this obligation
applies “wherever they operate” and “in all contexts”.
20. The
third pillar focuses
on access to remedies for business-related human rights abuses (Principle
25). This foundational principle holds that “as part of their duty
to protect against business-related human rights abuse, States must
take appropriate steps to ensure, through judicial, administrative,
legislative or other appropriate means, that when such abuses occur
within their territory and/or jurisdiction those affected have access
to an effective remedy.” Operational Principles 26-31 give more
specific guidance on access to remedies. While States are required
to take appropriate steps to ensure effective and appropriate judicial (State-based)
and non-judicial (State-based or non-State based, including mediation-based,
adjudicative or other) mechanisms (Principles 26-28), business enterprises
should also set up complaint mechanisms at their level to provide
early warning and resolve grievances before they escalate (Principles
29-30). According to the
Commentary
to the UN Guiding Principle 25, remedies may include “apologies, restitution, rehabilitation, financial
or non-financial compensation and punitive sanctions (whether criminal
or administrative, such as fines), as well as the prevention of
harm through, for example, injunctions or guarantees of non-repetition”.
As regards non-judicial grievance mechanisms (both State-based and
non-State-based), Principle 31 requires them to be legitimate, accessible,
predictable, equitable, transparent and rights-compatible; they
should also be “a source of continuous learning”. The UN Office
of the High Commissioner for Human Rights is currently working on
Accountability
and Remedy Project, which is aimed at delivering guidance on access to
remedy.
21. The UN Guiding Principles should be implemented in a non-discriminatory
manner, with particular attention to the rights and needs of groups
and persons that “may be at heightened risk of becoming vulnerable and
marginalised” and “with due regard to the different risks that may
be faced by women and men” (General Principles, fifth paragraph).
22. When adopting the UN Guiding Principles in 2011, the UN Human
Rights Council also established the
UN
Working Group on human rights and transnational corporations and
other business enterprises, composed of five independent experts and tasked, amongst
other things, with promoting and exchanging good practices on the
implementation of the said principles. The working group also guides
the work of the
Forum
on Business and Human Rights, the world's largest global gathering on business and
human rights. Soon after the UNGP had been endorsed by the United
Nations, it started to call upon governments to develop NAPs as
a means to implement this document. It has also issued a number
of reports on various issues related to the interpretation and implementation
of the UN Guiding Principles.
For example, in May 2016, it released
a report to the Human Rights Council focusing on the obligations
of State-owned enterprises and concluded that States did not ask
their own companies or enterprises to abide by the UN Guiding Principles.
In June 2018,
the Working Group presented a report on the Human Rights Council
focusing on “economic” or “commercial” diplomacy policies and tools
(including export credit, trade missions and advocacy and other
support for trade). While it found evidence of some good practices,
it concluded that very few States had fully aligned their trade
and investment and other business support mechanisms with the UN
Guiding Principles (and in particular Principle 4).
In May 2019, the
working group released new guidance on “Gender dimensions and the
Guiding Principles on Business and Human Rights”, in which it proposed
gender guidance specific to each of the 31 UN Guiding Principles.
It will also soon launch another
guidance document on the UNGP and human rights defenders and is
engaged in a project focused on the UN Guiding Principles and conflict-affected
areas, which should be finalised in October 2020.
23. Moreover, by
Resolution
26/9 of 26 June 2014, the UN Human Rights Council also established
an open-ended intergovernmental working group on transnational corporations
and other business enterprises with respect to human rights (OEIGWG),
which has been tasked with drafting “a legally binding instrument
to regulate, in international human rights law, the activities of
transnational corporations and other business enterprises.” At its
fourth session in Geneva on 15-19 October 2018, the OEIGWG discussed
a first draft of such an instrument (along with a draft optional
protocol). Following its discussions,
a
revised draft legally binding instrument on business activities
and human rights has been released and will be examined at the forthcoming
fifth session of the OEIGWG (Geneva, 14-18 October 2019). In its
current version the preamble to the revised draft legally binding
instrument refers to the UN Guiding Principles and underlines that
all business enterprises have the responsibility to respect all
human rights. According to Article 1.2 of the draft, “human rights
violation or abuse” shall mean any harm committed by a State or
a business enterprise, through acts or omissions in the context
of business activities, against any person or group of persons,
individually or collectively, including physical or mental injury,
emotional suffering, economic loss or substantial impairment of
their human rights, including environmental rights. The draft legal
instrument shall apply to all business activities, including transnational
ones (Article 3.1), contains a number of definitions, including
that of “victims” (Article 1.1), and provisions regulating issues
such as rights of victims, prevention of human rights violations
or abuses, legal liability, adjudicative jurisdiction, mutual legal
assistance, international cooperation, etc. It also foresees the
establishment of new bodies: a committee of experts to interpret
this legal instrument, a conference of States Parties to consider
any matter related to its implementation and an international fund
for victims of human rights violations or abuses by businesses.
It is too early to predict when and in what form the binding instrument
will be adopted. Its feasibility and potential effectiveness have
been discussed at length in the doctrine, with some scholars having
doubts about whether it could in practice be binding under international human
rights law, and others stressing its possible usefulness to the
victims.
These
questions would certainly deserve further attention and more detailed
analysis.
6. Committee
of Ministers’ Recommendation CM/Rec(2016)3 on human rights and business
24. Although the UNGP are a soft
law instrument without automatic legal implications, they are widely recognised
as the basis for policy approaches towards business and human rights
and received wide support from governments, businesses, civil society
and international organisations. The Council of Europe supported them,
inter alia, by adopting Recommendation
CM/Rec(2016)3 on human rights and business (hereinafter “the Recommendation”)
which recalls the Council of Europe member States’ obligation to
respect human rights and fundamental freedoms stemming from the
European Convention on Human Rights, the European Social Charter
and the revised European Social Charter and other legal instruments
and explicitly recognises that business enterprises have a responsibility
to respect human rights. It builds on the UN Guiding Principles
and its three pillars and is aimed at contributing to their effective
implementation at the European level.
Therefore, it recommends
that the governments of Council of Europe member States:
- review their national legislation
and practice to ensure that they comply with the recommendations, principles
and further guidance set out in the Appendix to the Recommendation;
- ensure a wide dissemination of the Recommendation;
- share good practices related to the implementation of
the Recommendation with a view to their inclusion in a shared information
system, to be established and maintained by the Council of Europe;
- share plans on the national implementation of the UN Guiding
Principles, including revised National Action Plans and best practice
concerning their development and review in a shared information
system, to be established and maintained by the Council of Europe;
- examine, within the Committee of Ministers, the implementation
of the Recommendation no later than five years after its adoption,
with the participation of relevant stakeholders.
25. The Appendix to the Recommendation includes seventy paragraphs
focusing on the implementation of the UN Guiding Principles (referring
to its three pillars) and additional protection for specific groups
such as workers, children, indigenous peoples and human rights defenders
(in paragraphs 58-70). In the part on “general measures”, it recalls
that member States should effectively implement the UNGP “as the
currently globally agreed baseline in the field of business and
human rights (…)” (paragraph 1) and in a “non-discriminatory manner
with due regard to gender-related risks” (paragraph 2). It also
provides further guidance on how Council of Europe member States
could implement the UNGP, in particular, through their translation and
dissemination (paragraph 6), encouraging third countries to do so
and developing partnerships (paragraph 7), supporting the work of
the UN and its Working Group on Business and Human Rights (paragraph
9). Moreover, it calls on member States to develop and adopt NAPs
(paragraph 10), if they have not yet done so. This issue will be
examined in detail below.
26. As regards the first pillar (“the State duty to protect human
rights”), paragraphs 13-19 of the Appendix refer to the obligations
stemming from the ECHR (paragraph 15) and recalls that the European
Social Charter, the European Social Charter (revised) and the Additional
Protocol to the European Social Charter providing for a system of
collective complaints are “other key instruments that afford protection
against business-related human rights abuses, in particular with
regard to the rights of workers” (paragraph 16). Therefore, “in
line with their international obligations, member States should
ensure that their laws relating to employment are effectively implemented
and require business enterprises not to discriminate against workers
on any grounds”, in accordance with Article 14 of the European Convention
on Human Rights (paragraph 17). Member States should also ensure
that “their legislation creates conditions that are conducive to
the respect for human rights by business enterprises and do not
create barriers to effective accountability” (paragraph 18) and
should pay particular attention to “vulnerable or marginalised”
individuals and groups (paragraph 19).
27. Concerning the second pillar (”State action to enable corporate
responsibility to respect human rights”), paragraphs 20-30 of the
Appendix include a number of specific recommendations to member
States on how to ensure respect of human rights by business enterprises
(paragraphs 21-30). In particular, member States should carry out
human rights due diligence where they own or control business enterprises,
grant substantial support and deliver services through agencies
(such as export credit agencies and official investment insurance
or guarantee agencies) to business enterprises, grant them export
licenses, conduct commercial transactions with them (including through
the conclusion of public procurement contracts) and privatise the delivery
of services that may impact upon the enjoyment of human rights (paragraph
22). Member States should also consider possible human rights impacts
when they conclude trade or investment agreements and include therein
human rights clauses, if need be (paragraph 23). They should ensure
that business enterprises domiciled within their jurisdiction do
not trade in goods which can only be used for capital punishment,
torture, or other cruel, inhuman or degrading treatment or punishment
(paragraph 24) and should inform business enterprises on the potential
human rights consequences of carrying out operations in conflict-affected
areas (paragraph 27).
28. In light of the Council of Europe’s acquis on
access to effective remedies, the Recommendation focuses a lot on
the third pillar – “access to remedy”. Section IV of the Appendix
provides more specific guidance on access to judicial mechanisms
(civil and criminal liability and administrative remedies) and non-judicial mechanisms
(including State-based mechanisms such as labour inspectorates,
consumer protection authorities and environmental agencies, national
human rights institutions, ombudsperson institutions and national
equality bodies). In line with Principle 31 of the UN Guiding Principles,
member States should encourage business enterprises to establish
their own grievance mechanisms (see paragraph 54 of the Appendix).
29. As a legally non-binding document the Recommendation has its
strengths and weaknesses. On one hand, it became immediately operational
upon its adoption and across all Council of Europe member States. On
the other hand, as a “soft” law document, in case of non-compliance
with its provisions, it is not enforceable in a court of law, although
it may serve as a basis for judicial interpretation. As
a regional document, it complements the implementation of the UN
Guiding Principles at the European level, addresses current gaps in
human rights protection and inspires other regions of the world.
7. National
action plans (NAPs) on business and human rights
30. As indicated above, Recommendation
CM/Rec(2016)3 calls on Council of Europe member States to share
NAPs and good practices through an information system to be maintained
by the Council of Europe. The Appendix to the Recommendation encourages
member States, which have not yet done so, to develop and adopt
such plans and to ensure their publication and wide distribution.
In the process of developing NAPs, member States should refer to
the available guidance, including that provided by the UN Working
Group on Business and Human Rights. They should seek the expertise
and involvement of all stakeholders, including business organisations
and enterprises, national human rights institutions, trade unions
and non-governmental organisations. With the participation of those
stakeholders, they should continuously monitor the implementation
of their NAPS and periodically evaluate, update and share them with
each other (paragraphs 10-13 of the Appendix).
31. The CDDH is currently working on a project aimed at establishing
a digital platform for the collection and dissemination of good
practices and information on the implementation of Recommendation
CM/Rec(2016)3 and the UN Guiding Principles. For this purpose, it
has sent a questionnaire to the member States and National Human
Rights Institutions and received replies from ten States (Belgium,
Czech Republic, Denmark, France, Germany, Ireland, Netherlands,
Poland, Portugal and Switzerland) and four National Human Rights Institutions.
32. The UN Working Group on transnational corporations and other
business enterprises with respect to human rights systematically
encourages States to develop and adopt NAPs and published
guidance on the development of a NAP in 2014. Moreover, in 2014,
the Danish Institute for Human Rights published a
Toolkit for
the Development, Implementation, and Review of State Commitments
to Business and Human Rights Frameworks, which is already in use in all regions of the world
by governments, national human rights institutions and civil society.
So far, only 22 States have produced NAPs.
This list includes eighteen member States
of the Council of Europe (chronologically): the United Kingdom,
the Netherlands, Denmark, Finland, Lithuania, Sweden, Norway, Switzerland,
Italy, Germany, France, Poland, Spain, Belgium, Czech Republic, Ireland,
Luxembourg and Republic of Slovenia.
33. In 2018, the Danish Institute for Human Rights analysed 21
NAPs for the period 2013-2018. It concluded that the majority of
NAPs are stand-alone action plans and are structured to follow the
design of the UNGP. Their lengths vary considerably. Although all
States held stakeholder and right-holder events during the development
of NAPs, the extent of the involvement of such groups varied considerably.
While many NAPs address issues concerning vulnerable groups, certain
groups receive less attention than others (migrant workers, persons
with disabilities and indigenous peoples).
It is also important
to note that many NAPs refer to the
UN
2030 Agenda for Sustainable Development.
34. An overview of the NAPs produced by Council of Europe member
States shows that they have taken various legislative initiatives
to prevent corporate-related human rights abuses and to ensure access
to remedies. This includes, in particular, laws requiring companies
to disclose their due diligence efforts. For example, under the
Modern Slavery Act 2015 companies that carry on a business or part
of a business in the UK and which meet a minimum turnover threshold
must produce a slavery and human trafficking statement each financial
year. These statements must explain the measures that the company
has taken to ensure human trafficking is not taking place in its
business and supply chain (
Provision
54). Moreover, the EU Non-Financial Reporting
Directive
2014/95/EU requires all EU member States to implement measures
that oblige companies with over 500 employees (approximately 6,000
across the EU) to disclose information in annual reports on the
impact of its activity, relating to, as a minimum, environmental,
social and employee matters, respect for human rights, anti-corruption
and bribery matters.
In order to implement this directive,
Poland, for example, amended its Accounting Act by making compulsory
for certain large entities, primarily in the financial sector, to
report on their human rights policies in business practice.
35. Moreover, some States have adopted laws imposing a duty to
implement full human rights due diligence (HRDD) procedures. The
French Duty of Vigilance Law of 2017 is the best-known example,
as it establishes a duty of due diligence for large French companies
to develop, disclose and implement a “vigilance plan” which should
include reasonable vigilance measures adequate to identify and prevent
risks of violations of human rights, as well as injury, health and
environmental damage risks.
In
May 2019, the Dutch Senate passed the Child Labour Due Diligence
Law; according to its provisions, Dutch companies and companies
from elsewhere that deliver products to the Dutch market will have
to declare that they have addressed the issue of child labour in
their supply chains.
In Switzerland, in 2016, following
a citizens’ legislative initiative, a proposal to include mandatory
HRDD on multinational companies has been examined by the two Chambers
of the Federal Parliament. However, its adoption has been postponed
up to now following a blockage over a legislative counterproposal
backed by multinational companies.
The governments of Luxembourg, Germany
and Finland have included in their government programmes a commitment
to assess the adoption of HRDD legislation in the upcoming years.
8. Conclusion
36. Although businesses can make
a positive contribution towards the fulfilment of human rights and
the achievement of national development objectives, their activities
can also have adverse impacts on the human rights of individuals
with whom they interact. These activities have an increasing impact
on people’s lives, their human rights and fundamental freedoms in
times of economic globalisation and intensifying inequalities. The use
of internet and social media platforms, high rates of unemployment,
massive migration, modern slavery, privatisation of public services,
environmental pollution and climate change create new challenges,
which might involve private sector accountability for human rights
violations. There are new grey areas showing that the line between
States’ and business enterprises’ responsibility is still very thin.
In the absence of a legally-binding instrument on business accountability
for human right abuses, there is no monitoring mechanism to assess
States’ and business enterprises’ actions in this area.
37. For many decades, the issue of businesses’ liability for human
rights abuses focused on voluntary approaches based on “corporate
social responsibility” and therefore the adoption of the UNDG was
a big step forward. However, since this document is more geared
towards the business sector, its national implementation has been
limited and quite slow. Moreover, there is no systematic review
of national efforts to implement the UN Guiding Principles, including
the adoption of NAPs, despite some actions taken at the UN level
and the growing interest in the issue of corporate responsibility
to respect human rights. Interestingly, the majority of States that
have produced NAPs are members of the European Union (and of the
Council of Europe at the same time). That also means that only eighteen
out of the 47 member States of the Council of Europe have produced
NAPs to implement the UNGP. Almost all of these member States (with
the exception of Switzerland) are EU member States. Although some
States have already started the process of developing NAPs, more
efforts are needed to encourage States to prepare NAPs and promote
awareness of the recommendations stemming from the UN Guiding Principles
and Recommendation CM/Rec(2016)3, especially between member States
of the Council of Europe which do not belong to the European Union.
38. NAPs provide a useful policy tool to help strengthen policy
frameworks to protect against business-related human rights abuses.
As indicated above, many States have adopted legislative measures
imposing obligations on businesses. NAPs’ development and review
should be used as an opportunity for States to conduct an effective
and comprehensive review of existing legal and regulatory framework
and to consider introducing appropriate legislation when voluntary
commitment of companies proves insufficient to ensure business respect
for human rights and access to a remedy when abuses occur. States
should be further encouraged to review their NAPs on regular basis
and to adopt them as soon as possible, if they have not done so
yet. The Assembly could play a particular role here by inviting
national parliaments to adopt laws aimed at preventing corporate-related
human rights abuses and ensuring access to a remedy. In particular,
if need be, such laws should include human rights due diligence
procedures. The Assembly could also invite governments to include
in their relevant programs issues related to businesses’ responsibility
for human rights abuses.
39. The Council of Europe’s Recommendation CM/Rec(2016)3 foresees
a mid-term review of its implementation of the recommendation within
the five years following its adoption, a period during which good practices
will be collected and shared among member States. This means that
such a review will not be available before March 2021 and currently
there is no other mechanism to assess States’ efforts in this area. Nevertheless,
one should welcome the efforts made by the CDDH, which has already
collected some examples of good practices through the answers received
to its questionnaire on business and human rights and which will
soon launch its Platform on Human Rights and Business. Therefore,
member States of the Council of Europe should be further encouraged
to support the work of the CDDH in this area. The Committee of Ministers could
further reflect on how to promote the implementation of Recommendation
CM/Rec(2016)3 and what other steps could be taken within the Council
of Europe to promote the adoption of a legally-binding instrument on
business accountability for human rights abuses. In particular,
it should continue and even strengthen its cooperation with the
United Nations and other international organisations in this field.