CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ INDIRECT OBLIGATIONS OF BUSINESS ENTITIES UNDER THE EUROPEAN CONVENTION… other indirect obligations of these subjects may be derived from the other Articles in the additional Protocols to the Convention, an example would be Article 1 of Protocol No. 1 (right to property). 88 At a later date, these will be discussed in further articles by the author. Conclusions For the purposes of the present study, the author defined ‘business entities’ as subjects carrying out their activities for the purposes of making profit. Notwithstanding the fact that in accordance with Article 34 of the Convention, among legal persons, only non- governmental organisations are entitled to lodge their applications with the Court, analysis of this treaty shows that also profit-making companies are able to do so because they are viewed by the Convention organs as NGOs. Nevertheless, this understanding of ‘non-governmental organisation’ relates primarily to the business entities in the capacity of the applicant. In theory, NGOs may play four main roles in the proceedings before the Court: 1) applicants, 2) representatives of a victim, 3) third parties, or 4) information providers. Research on the Court’s case-law demonstrates that businesses only acted in the capacity of the applicants and occasionally as their representatives. Therefore, it is necessary to distinguish between the notion of NGO in Article 34 of the Convention and the other provisions thereof. An analysis of the Convention demonstrates that there may arise two types of obligations of the state: positive obligations when the dispute concerns private actors and negative obligations in respect to the activities of private legal persons, which may be seen as a state agent. In the second case, we do not address indirect obligations of business entities but direct responsibility of the states for the conduct of their organs. In practice, it may be quite difficult to distinguish between positive and negative obligations of the state. In order to be considered a state agent it is not sufficient that the company is owned by the state but that it should exercise governmental powers. Examination of the case-law of the Court has demonstrated that currently we may allocate the indirect human right obligations of business entities with respect to Article 2 (right to life), Article 3 (prohibition of torture), Article 4 (prohibition of slavery), Article 5 (liberty and security), Article 8 (private and family life), Article 9 (right to manifest religion), Article 10 (freedom of expression), Article 11 (freedom of association), and Article 14 (non- discrimination) of the Convention. The author plans to elaborate on the rights set forth in the additional protocols to the Convention in future writings. We would like to conclude with the words of Carlos Manuel Vázquez: “international law should move in the direction of generally extending human rights obligations of states to private corporations to the extent such obligations are susceptible to application to non- state actors”. 89 However, this remains only an aspiration. The legal determination of human rights’ obligations of business entities is still very uncertain and nebulous. We definitely cannot conclude that there are any direct human rights’ obligations of businesses under the Convention. Justification of the existence of certain indirect obligations of private companies under this treaty may be presumed on the basis of those provided in the third part examples. However, a detailed explanation of this issue requires additional study. 88 Fuklev v. Ukraine , no. 71186/01, § 91, 7 June 2005. 89 VÁZQUEZ, Carlos Manuel, Direct vs. Indirect Obligations of Corporations under International Law. Columbia Journal of Transnational Law , 2005, Vol. 43, p. 948.

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