BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

the exercise of economic, social and cultural rights is frequently found in private spheres. This includes workplace, the labour market and the housing and lending sectors. 50 The Committee has stressed that some groups are often disproportionally affected by the adverse impact of business activities, such as women, children, indigenous peoples, ethnic and religious minorities, and are at a greater risk of facing intersectional and multiple discrimination. For example, investment-linked evictions and displacements often result in physical and sexual violence against, and inadequate compensation for, women and girls. 51 The General comment uses the classical division of State’s obligations under human rights treaties, namely obligations to protect, respect and fulfil, with the most detailed elaboration of the obligation to protect. The obligation to respect is violated when States parties prioritize the interests of business entities over the economic, social and cultural rights enshrined in the Covenant without adequate justification, or when they pursue policies that negatively affect such rights. This may occur for instance in the context of forced evictions ordered due to an investment project without prior and informed consent of an indigenous population. Therefore, conclusion of any trade or investment treaty should be preceded by human rights impact assessment to allow for identification of the potentially negative impact and of the measures to mitigate and compensate such impact. 52 States parties cannot derogate from the obligations under the Covenant in the trade and investment treaties. The obligation to protect requires State parties to prevent effectively infringement of economic, social and cultural rights in the context of business activities. This includes adoption of legislative, administrative and other measures to ensure protection against harmful impact of business activities on enjoyment of the Covenant rights, and provision of an access to effective remedies to victims, if such harmful impact occurs. This obligation also entails a positive duty of States to adopt a legal framework requiring business entities to exercise due diligence to identify, prevent and mitigate risks of violation of the Covenant rights by business operations. Due diligence requirement should extend to the business entity’s supply chain, sub-contractors, suppliers, franchises and business partners. Measures to fulfil obligation to protect sometimes require direct regulations, for example restricting marketing and advertising of certain goods and services in order to protect public health (such as tobacco products), combating gender role stereotyping and discrimination, exercising rent control in the private housing market, establishing minimum wage, progressively eliminating informal forms of employment to enforce protection of workers’ labour rights and social security. While privatization of services traditionally provided by State is not per se prohibited by the Covenant, private providers of such services (such as provision of water, electricity, health care, education) should be subject to strict regulations (quality requirements, account contribution of other treaty bodies, including the General Comment of the CRC Committee No. 16 (2013).

50 Ibid., paragraph 7. 51 Ibid., paragraph 9. 52 Ibid, paragraph 13.

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