PRAVNI ZAPISI • Year X • No. 1 • pp. 65-100
STATE’S RESPONSIBILITY FOR BUSINESS-RELATED HUMAN RIGHTS VIOLATIONS IN THE LIGHT OF THE STRASBOURG COURT’S CASE-LAW
Mr Boris Topić
Ph.D. Candidate, Union University Law School Belgrade,
National Anti-Trafficking Officer, OSCE Mission in Bosnia and Hercegovina
Pravni zapisi, No. 1/2019, pp. 65-100
Original Scientific Article
European Convention on Human Rights and Fundamental Freedoms, European Court of Human Rights, negative obligations, positive obligations, responsibility of states, United Nations Guiding Principles on Business and Human Rights, corporations, transnational companies, human rights violations
On the one hand, business entities have a huge potential to contribute to economic and social progress and consequently to the advancement of human rights. On the other, violations of human rights connected with business are very common. Although the Universal Declaration of Human Rights (UDHR) calls upon “every organ of society”, and thus business entities, to promote respect of human rights, the subsequent international human rights treaties, including the European Convention of Human Rights (the Convention), only oblige States to respect, protect and fulfil human rights.
Against this backdrop, an attempt has been made to analyse the case-law of the European Court of Human Rights (the Court) with respect to the State’s responsibility for business-related human rights violations.
The analysis reveals that the State will bear responsibility for business related human rights violations if acts or omissions of a business entity, amounting to a violation of a particular right guaranteed under the Convention, can be directly attributed to that State. This would occur, for instance, in case a company is considered a “governmental organisation” or where the State empowers a business entity to perform public authority functions. In this situation, the State would be responsible for violating its negative obligations under the Convention, namely its obligation to refrain from conduct that breach human rights through its own action or those of its agents.
Furthermore, the State will bear responsibility for business-related human rights violations if it fails: (a) to regulate business activities in order to prevent business-related human rights violations; (b) to investigate business-related human rights violations; and (c) to establish effective remedies for this kind of human rights violations. In these situations, the State would be responsible for violating its positive obligations under the Convention.
This paper describes the State responsibility for violations of its negative obligations in business and human rights context as a direct responsibility for business-related human rights violations while its responsibility for violation of positive obligations describes as indirect State responsibility for business-related human rights violations.
The analysis also reveals that despite the Court’s intention to interpret the Convention in accordance with general rules of international law, including rules on the State’s responsibility for internationally wrongful acts, it has its own specific approach. In determining whether the State can be held directly responsible for acts or omissions of business entity the Court combines several criteria. It takes into account: (a) the company’s legal status (under public or private law); (b) the nature of its activity (a public function or an ordinary commercial business); (c) the context of its operation (such as a monopoly); (d) its institutional independence (the extent of State ownership); and (e) its operational independence (the extent of State supervision and control).
Through the dynamic interpretation of the Convention and the elaboration of the concept of positive obligations, the Court has, to a certain extent, succeeded in providing individual protection at international level for business-related human rights violations.