CYIL vol. 11 (2020)
ALLA TYMOFEYEVA CYIL 11 (2020) In the next paragraphs, a more detailed explanation on the information in the table will be provided starting from point 1 and ending with point 7. 1. As it was already mentioned, the ECHR is a binding international treaty, while the UDHR is a soft law instrument. The fact that the UDHR, contrary to the ECHR, has no force of law has its pros and cons. Although hard-law instruments allow states to commit themselves more credibly to international agreements, this does increase the cost of legal sanctions or a state’s reputation when it is found to have violated its legal commitments. 43 Soft-law instruments, such as the UDHR, provide states with greater flexibility and allow the documents to be topical over time. Consequently, states are more open to accept the standards of the UDHR, which are less costly to comply with than the provisions of a binding treaty like the ECHR. At the same time, the absence of the enforcement mechanism under the UDHR limits the knowledge about the practical application of this instrument. For example, in the case of the ECHR, the text of this treaty does not contain any references to business entities, but the practice of the ECtHR clearly demonstrates that this body interpreted the term ‘non-governmental organisation’ so as to include businesses. Given the non-existence of a similar body that would interpret the provisions of the UDHR, it is unclear whether for instance the term ‘everyone’ in its text also includes legal persons established with the aim of generating a profit. 2. Regarding the complaint procedure, the nature of the document plays a crucial role here. Article 34 of the ECHR, as interpreted by the case-law of the ECtHR, clearly provides for the possibility to lodge an application under this treaty. No such mechanism is envisaged under the UDHR. 3. The status of a person habitually includes a possibility to possess certain rights and an obligation to comply with the corresponding duties. Again, the fact that there is no body to settle on the matters of the UDHR makes it uncertain if businesses are human rights holders under this document. Assuming that the two covenants of 1966, which together with the UDHR constitute the IBHR, are supposed to be the implementation of the Universal Declaration at the UN level, we may verify how the situation with the business entities’ rights was explained by these two treaties’ bodies, namely the Human Rights Committee and the Committee on Economic, Social and Cultural Rights. The texts of the ICCPR and ICESCR (including additional protocols), as well as the jurisprudence of its monitoring bodies, demonstrates that the complaints submitted by legal persons were declared inadmissible for lack of standing. Consequently, we may conclude that business subjects are not entitled to human rights envisaged by these two international treaties. On the contrary, the ECtHR has widely recognised the human rights of business entities under the many provisions of the ECHR and its Protocols. Among the rights of businesses we may name the right to fair trial, 44 prohibition of punishment without law, 45 right to respect for seat and correspondence, 46 freedom of 43 SHAFFER, Gregory C. and POLLACK, Mark A., Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance. In Minnesota Law Review , Vol. 94, 2010, p. 717. 44 Saarekallas OÜ v. Estonia (App. No. 11548/04), ECtHR, Judgment of 8 November 2007, para. 52. 45 Radio France and Others v. France (App. No. 53984/00), ECtHR, Judgment of 30 March 2004, para. 20; ECtHR, OAO Neftyanaya Kompaniya Yukos v. Russia (App. No. 14902/04), ECtHR, Decision of 29 January 2009, para. 499. 46 Wieser and Bicos Beteiligungen GmbH v. Austria (App. No. 74336/01), ECtHR, Judgment of 16 October 2007, para. 68.
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