BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

human rights treaties and treaty bodies in preventing and addressing the impact of business activities on human rights. International human rights treaties stipulate obligations of States, e.g. State parties to these treaties, and not of private entities, such as business enterprises. However, States parties have to protect individuals against violations of rights guaranteed in those treaties committed by third parties, including businesses, as part of their duty to protect. Failure to fulfil this duty may amount to a violation of the State’s treaty obligations. An examination of the treaties, treaty bodies’ recommendations and jurisprudence confirms that the duty to protect includes preventing corporations – both national and transnational, publicly or privately owned - from infringing rights, taking steps to punish violations and provide reparation to victims when violation of their rights occur. 5 Under some circumstances, State parties can be directly responsible for impact of business activities on human rights, for example in the case of publicly owned enterprises or exercise of public contracts, if the business entity acts on the State instructions or is under the State’s control or direction in carrying out the particular conduct at issue. 6 Another example of the direct State’s responsibility includes situations when a business entity is authorized to exercise elements of a government authority, such as private prisons or security forces. 7 Finally, under the general rules on state responsibility, the adverse impact on human rights by a business entity activity can be also attributed to the State if the later acknowledges and adopts such conduct as its own. 8 Provisions of human rights treaties While the earlier human rights treaties do not refer to private enterprises in their provisions, the more recent once, starting with the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) contain a few specific references and obligations of States vis-à-vis business entities. For instance, article 2 (e) of CEDAW requests States to “ take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise .” Similarly, article 4 (e) of the Convention on the Rights of Persons with Disabilities (CRPD) requires that States “take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise”. In addition, article 9 of CRPD contains obligation of State parties to ensure that private entities offering public services and facilities take into account accessibility to persons with disabilities. The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography refers to legal persons in article 3 paragraph 4. It obliges State Parties to take measures in order to establish the liability of 5 See the Report of the Special Representative of the Secretary General on the Issue of human rights and transnational corporations and other business enterprises, Addendum, State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries, A/HRC/4/35/Add.1. 6 Articles on responsibility of States for internationally wrongful acts, art. 8, A/56/10. 7 Ibid., art. 5. 8 Ibid., art. 11; See also General comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, E/C.12/GC/24.

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