CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ INDIRECT OBLIGATIONS OF BUSINESS ENTITIES UNDER THE EUROPEAN CONVENTION… ‘the EU’) to the Convention became a legal obligation under the Treaty of Lisbon, 19 which entered into force on 1 December 2009. On 18 December 2014, the Court of Justice of the European Union issued an opinion 2/13 in which it concluded that the draft agreement on the accession of the EU to the Convention is not compatible with its law. From then and to the present, the process in question is frozen. Currently, it is unknown that negotiations concerning ratification of the Convention by any other international intergovernmental organisation or any non-state actors, including business entities, would take place. In the Preamble of the Convention we may find a refence to the Universal Declaration of Human Rights (hereinafter also ‘the Universal Declaration’). The authors of the Convention being like-minded and having a common heritage of political traditions, ideals, freedom and the rule of law considered the Universal Declaration and decided to take the steps necessary for the enforcement of the rights stated herein. Some academics rely on language of the declaration as establishing that human rights norms are directly applicable to non-state actors, 20 including legal persons. 21 In particular, they refer to the position stating that “this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society …” 22 Given the fact that there are close ties between the Convention and the Universal Declaration one may presume that the Convention may also impose direct obligations regarding the respect for the rights envisaged in this treaty on business entities. Nevertheless, returning back to the definition of direct obligations (specified explicitly and formally) and taking into account Article 7 of the Convention (no punishment without law) we must disallow the theory of direct human rights obligations of legal persons to safeguard the Convention rights. It does not mean, however, that business entities do not possess direct duties under this treaty at all. Certain procedural obligations may be imposed on them as a part of the judicial proceedings before the Court. Article 34 of the Convention envisions that the Court may receive applications from any person, non-governmental organisation or group of individuals. Unlike most international human rights bodies 23 and international law theorists, 24 the Convention bodies in its case-law consider a business entity to be an NGO. In the case of Ukraine-Tyumen v. Ukraine, where the application was introduced, inter alia , by a joint venture, the Court pronounced that “the 19 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community. Official Journal of the European Union , ISSN 1725-2423, C 306 Volume 50, 17 December 2007. 20 VÁZQUEZ, Carlos Manuel, Direct vs. Indirect Obligations of Corporations under International Law. Columbia Journal of Transnational Law , 2005, Vol. 43, p. 942. 21 PAUST, Jordan J., Human Rights Responsibilities of Private Corporations (February 4, 2010). Vanderbilt Journal of Transnational Law , Vol. 35, p. 801, 2002; U of Houston Law Center No. 2010-A-4. 22 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948), 10 December 1948. 23 For example, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the African Court on Human and Peoples’ Rights and the Commission for Environmental Cooperation consider an NGO to be a non-profit making organization. 24 LINDBLOM, Anna-Karin, Non-Governmental Organizations in International Law . Cambridge: Cambridge University Press, 2005, p. 52; KAMMINGA, M., The Evolving Status of NGOs under International Law: A Threat to the Inter-State System? in ALSTON, P., Non-State Actors and Human Rights . Academy of European Law European University Institute in collaboration with the Center for Human Rights and Global Justice, New York University School of Law, Oxford: Oxford University Press, 2005, p. 96; WILLETTS, P., What is a Non- Governmental Organization? Output from the Research Project on Civil Society Networks in Global Governance. URL: accessed 18 May 2017.

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