CYIL vol. 11 (2020)

CYIL 11 (2020) THE BUSINESS ENTITIES FROM THE PERSPECTIVE OF THE EUROPEAN CONVENTION… In theory, following the logic of the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, 16 businesses may complain of a breach of all the provisions of the ECHR. However, it should be noted that the applicant in the Câmpeanu case was a non- governmental and non-profit organisation, which received the special status of a de facto representative. Consequently, it is very unlikely the ECtHR would follow this example in relation to a commercial enterprise. Even if it would decide to do so, the difference between the position of a victim and a representative should be considered. Regarding the obligations of businesses to respect human rights envisaged in the ECHR, it must be noted that, unlike in the case of the UDHR, the UNGPs do not refer directly to the provisions of the European Convention on Human Rights. However, for instance, in the Czech National Action Plan for Business and Human Rights such references may be found. 17 This confirms that based on the idea of the states’ positive obligations one may derive certain responsibilities for businesses under this treaty. Such a presumption might be confirmed by an example from the case-law of the ECtHR. In the case of Bărbulescu v. Romania of 2017, 18 the applicant, Mr Bogdan Mihai Bărbulescu, was employed in a Romanian private company. He was dismissed for using the company’s Internet network during working hours in breach of the company’s internal regulations. It was proven that over a certain period of time the company had monitored his communications on a Yahoo Messenger account, including those with Mr Bărbulescu’ fiancée. The applicant complained before the ECtHR under Article 8 that his dismissal breached his right to respect for private life and correspondence. In light of the fact that the benefit of this right had been damaged by the actions of a private employer, the ECtHR examined the complaint from the standpoint of the state’s positive obligations and found a breach of Article 8 of the ECHR (right to private life). This case exemplifies that the human rights set forth by the ECHR may also be infringed by the conduct of private business entities, which do not exercise governmental powers. The situation at issue clarifies the concept of indirect obligations as implied in the ECtHR’s practice. The above-mentioned judgment may possibly lead to an imposition of human rights obligations on businesses by states at a domestic level. The objective would be to regulate the conduct of businesses in order to ensure compliance with the norms of the ECHR. This fact demonstrates that the case-law of the ECtHR may indirectly influence corporate conduct by compelling the states to enact and enforce legislation applicable to business entities that reflect the human rights standards set forth in the treaty concerned. The list of indirect obligations of business entities under the ECHR is comparable to the list of their rights under this treaty. Hypothetically, businesses may violate any provision of the ECHR just as a state might do by acting through its bodies. However, in view of the established principles of public international law, there are potential limitations to this hypothesis because certain functions such as prosecution, justice, and national security are traditionally under the purview of state authorities. Therefore, breaches in these spheres, even if they were in practice performed by private entities, are considered to be under state control as the elements of governmental authority. 19 16 Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania (App. No. 47848/08), ECtHR, Grand Chamber, Judgment of 17 July 2014. 17 National Action Plan for Business and Human Rights for the period of 2017-2022, Czech Republic, p. 8 & 11. 18 Bărbulescu v. Romania (App. No. 61496/08), ECtHR, Grand Chamber, Judgment of 5 September 2017, para. 148. 19 ILC, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Report of the International Law Commission on the work of its fifty-third session, 2001, p. 48.

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