BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

3 Indirect Obligations of Business Entities under Article 8 of the European Convention on Human Rights

Alla Tymofeyeva 1

The Court has no jurisdiction to consider applications directed against private individuals or businesses . 2

1. Introductory remarks on the indirect obligations of businesses within the Council of Europe

The concept of obligations of businesses to respect human rights is closely related to the work of the UN Special Representative John Ruggie titled the UN Guiding Principles on Business and Human Rights (UNGP) endorsed by the Human Rights Council in its resolution 17/4 of 16 June 2011. 3 Principle 11 of the UNGP set forth that “ Business enterprises should respect human rights… ”, which means that businesses should avoid infringing on the human rights of others and take adequate measures for the prevention, mitigation, and even remediation of such violations. When discussing obligations of a specific subject, one must distinguish between direct and indirect obligations. 4 A direct obligation signifies a duty directly imposed on a person or entity by law and an indirect obligation is implied, derived from the objective and purpose of a statute. Regarding human rights obligations of business entities under the European Convention on Human Rights (the Convention), we may say that the direct obligations are those that are imposed on the forty-seven High Contracting Parties on the basis of this human rights instrument. The indirect obligations should be seen as the duties set forth by the states on a domestic level with the aim to regulate the conduct of businesses in order to comply with the norms of this international treaty. In other words, the Convention may regulate corporate conduct indirectly by requiring states to enact and enforce legislation applicable to business entities, which reflects the human rights norms of this treaty. This is the so-called horizontal application of the Convention, 5 1 I would like to express my profound gratitude to Donald Adams for assistance in the preparation of this contribution. 2 ECtHR, Bogomolova v. Russia , Appl. No. 13812/09, Judgment, 20 June 2017, § 38. 3 HRC, Human rights and transnational corporations and other business enterprises, UN Doc. A/HRC/ RES/17/4. 4 KARAVIAS, M.: Corporate Obligations under International Law . Oxford: Oxford University Press, 2013, p. 60. 5 KUČERA, M.: Responsibility of the State under the Convention in connection with actions of Non-State actors and applicability of the Convention in business. In: Šturma, P., (ed.) Stát vs. nestátní aktéři. (State vs. non-state actors) Praha: Česká společnost pro mezinárodní právo, 2012, p. 162.

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