In our drive to build a sustainable and inclusive global economy, states have a duty to provide national laws and policies to ensure businesses avoid infringing the human rights of others, and address issues which have an adverse effect on human rights in areas such as labour, non-discrimination and product safety standards, intellectual property, privacy, financial sector, and essential services regulation. For example, it is inevitable that there will be human rights challenges to the building of the third runway at Heathrow (see box, right). Both sides should review the rapidly developing ECtHR jurisprudence on business and human rights.
Promoting human rights in business
Corporate responsibility should include respect for human rights. There are four ways a business can support or promote human rights:
(1) through their core business activities;
(2) strategic social investment and philanthropy;
(3) advocacy and public policy engagement; and
(4) partnership and collective action, which extends to either providing for or co-operating in the remedy of violations where they have identified that they have caused or contributed to the infringement of human rights.
Good businesses want to ensure persons with disabilities work on an equal basis with others – to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. They will also want to eliminate discrimination against women, and all forms of racial discrimination.
Rights and jurisprudence
In 30 of the 47 member states the European Convention on Human Rights (ECHR) is supplemented by the European Social Charter (Revised) which guarantees economic and social rights.
Companies need to verify and prove that they respect human rights, and carry out proportionate due diligence. An important aspect of this due diligence is transparency.
The European Union has recently adopted a new Directive requiring all Member states to implement non-financial reporting requiring “public interest enterprises” with more than 500 employees to annually disclose information on environmental, social, diversity, and employee-related matters, respect for human rights, and anti-corruption and bribery issues.
The ECHR does not apply or even refer to companies, and the Convention cannot have direct effect between private parties. However, the ECtHR has been extending the scope of the Convention to private relationships between individuals in an increasing number of decisions. The ECtHR is developing case law affording indirect protection against human right abuses by corporations.
In order to fulfil its own obligations under the Convention a state must guarantee respect for the Convention in the relationship between individuals although “the boundaries between the state’s positive and negative obligations… do not lend themselves to precise definition” – see for example S.H. and Others v Austria (2011) para 87. When corporations violate human rights the domestic judicial remedies may be constitutional, civil or criminal.
The most obvious example of when a corporation must respect human rights is where it is acting as a state agent. In circumstances where companies which are owned or controlled by the state or which are exercising state functions violate Convention rights, they will be directly imputable to the state – Costello & Roberts v United Kingdom (Judgment of 25 March 1993), and Yershova v Russia (Judgment of 8 April 2010).
The ECtHR jurisprudence clarifies the balancing act that the State must conduct to regulate and control corporate activity in a way that strikes a fair balance between the rights of those affected by regulation and the conflicting interests of the community as a whole. The primary duties involve the assessment of the dangerousness and particularity of the activity in question and the putting in place of a protective framework that is proportionate to the inherent or reasonably discoverable risks. The ECHR framework is designed to provide minimum standards.
The impact of human rights on businesses will be the subject of a major seminar due to be held in London in the autumn organized by the European Programme for Human Rights Education for Legal Professionals (HELP). At the seminar HELP will also launch its new distance learning course on Business and Human Rights.
The role of the HELP Secretariat and the Consultative Board in Strasbourg is to support the Council of Europe (CoE) Member States in implementing the ECHR at the national level. This is done by enhancing the capacity of judges, lawyers and prosecutors of all 47 member states to apply the ECHR in their daily work. The HELP Programme is mainly funded by the Human Rights Trust Fund set up in March 2008 and supported by the UK.
HELP works with lawyers’ and judges’ training bodies at a local level. For lawyers in private practice (self-employed and employed) these are either Bar Associations or Law Societies, and National Training Institutions (such as the Judicial College or CPS) for judges and employed prosecutors. In the UK this includes 3 jurisdictions, England and Wales, Scotland and Northern Ireland.
HELP’s principal objective is to provide relevant training resources on the ECHR. These are available free and on-line. They include training manuals on Key Concepts, as well as Handbooks, standard curricula, course outlines, presentations, case studies, and e-learning courses on the different Articles and themes of the ECHR. Training resources are designed by international experts and then adapted to the national legal orders. They therefore meet legal professionals’ specific training needs and take full account of the heavy time pressure imposed on legal professionals.
Will human rights challenges to Heathrow take off?
Boris Johnson says that, despite Sir Howard Davies’ report, Heathrow’s third runway is not going to be built because “this is the sort of thing you could possibly have got away with in China in the 1950s but the impact on London, the impact on the city, the environmental cost, the whole human rights, legal challenges that will inevitably ensue will be so great that I don’t think it’s deliverable” (Today Programme interview, quoted on politicshome.com, 1 July 2015). Is Boris right? BAA Limited business plans for Heathrow Airport have been challenged on human rights grounds before.
In 1997 Ms Ruth Hatton, who lived in Sheen, and others alleged that the Government’s new policy permitting BAA Limited to operate additional night flights at Heathrow Airport gave rise to a violation of their rights under Article 8 of the ECHR (right to respect for private and family life) and that they were denied an effective domestic remedy for this complaint, contrary to Article 13 of the Convention.
Judgment in Ms Hatton’s application was delivered after 6 years, in July 2003. By twelve votes to five the judges of the Grand Chamber found that there had been no violation of Article 8 and by 16 votes to one that there had been a violation of Article 13. The Court held, by 15 votes to two, that the finding of a violation constituted in itself sufficient just satisfaction for any damage sustained by the applicants. The Court unanimously awarded the applicants 50,000 euros for costs and expenses.
Ms Hatton lost her claim that the additional night flights at Heathrow breached her Article 8 right because the Court took account of the economic necessity of large airports, even in densely populated areas and the fact that BAA Limited pursued a legitimate aim. The Court took further account of the statutory regulatory regime that restricted night flights, and that the Government had constantly adapted the regime to take account of current research into aircraft noise. A state enjoys a wide margin of appreciation in deciding which measures to adopt in difficult social and technical spheres.
HELP information and resources
News on ECHR training for all legal professionals in the 47 member states of the CoE is available on the HELP webpage http://helpcoe.org/.
News on HELP in a specific country and on any activity concerning the implementation of human rights at the national level is available on the HELP National Pages. The UK National Page will be launched at the forthcoming seminar.
This article draws extensively from the material compiled by Wayne Jordash QC, Managing Partner, Global Rights Compliance LLP, International Legal Services, for the new Business and Human Rights Course.
Further information about HELP and registration of interest in the seminar on Business and Human Rights should be sent to HELP@sgotoole.com.
Contributor Simon O’Toole