Analysis of the Guiding Principles on Business and Human Rights in comparison with the Russian legislation Alexander Ermolenko Partner, PhD in Law
During the current year, at the request of the National Network of the Global Compact, we have conducted a comprehensive comparative analysis of the Guiding Principles on Business and Human Rights (hereinafter - the "Guiding Principles") and Russian legislation regulating all key aspects of the impact of enterprises on human rights, as well as the practice of its application. In the course of the study, we faced the following main tasks: to assess the level of completeness and maturity of the Russian legislation, which assumes successful / unsuccessful implementation of the Guiding Principles; to identify which special legislative and other special work is needed to bring the legislation of the Russian Federation in full compliance with the Guiding Principles. This presentation is the summary of this study.
The state duty to protect human rights
Foundational principles Russia is a party to the most important international legal acts in the field of human rights protection, including the International Bill of Rights, ILO Declarations, etc. The officially published international treaties of the Russian Federation are applied directly or legal acts are being adopted for their implementation. The Russian legislation consistently establishes the principles of the law-bound state, including the rule of law, legal equality, fairness in the application of law, legal certainty, etc. In practice, courts often refer directly to these principles. In order to prevent and investigate human rights abuses, the activities of enterprises are monitored by state bodies (environmental control, control over the observance of labor and consumer standards, etc.). Universally recognized principles and norms of international law as well as international treaties of the Russian Federation shall be an integral part of its legal system. If an international treaty of the Russian Federation establishes rules, which differ from those stipulated by law, the rules of the international treaty shall be applied (Article 15 (4) of the Constitution of the Russian Federation).
General State regulatory and policy functions Certain duties for the respect of human rights by enterprises and methods for their respect are defined in the sectoral legislation. The Labor Code of the RF adopted in 2001 establishes the state guarantees of labor rights and freedoms Federal law on environmental protection adopted in 2002 sets forth the legal basis for the state policy in the field of environmental protection Federal law on consumer protection adopted in 1992 establishes the state guarantees of consumer rights to purchase goods (works, services) of adequate quality and safe for life, health, property of consumers and the environment Law on the Social Protection of Persons with Disabilities adopted in 1995 determines the state policy whose goal is to provide disabled persons with equal opportunities Russia's Federal Anti-Corruption Law adopted in 2008 establishes the basic principles of fighting corruption, the legal and organizational framework for preventing and fighting corruption The sectoral legislation is adequate to the requirements of the time and has mainly adopted international standards. Federal Law on personal Data adopted in 2006 is aimed at ensuring the protection of human rights and freedoms while processing personal data (including the protection of personal and family secrets) Federal Law on the Rights of Indigenous Peoples of the Russian Federation adopted in 1999 establishes the state guarantees for the original socio- economic and cultural development of indigenous peoples in the Russian Federation
Liability for human rights abuses Russian legislation provides for a wide range of liability measures for violation of human rights by enterprises. Area of law Types of liabilities Civil/ financial Administrative Criminal Labour law Privacy law Indigenous peoples law Consumer protection law Environmental legislation Anti-Corruption law Russian legislation provides liability for acts (omission) committed by multinational enterprises outside the territory of Russia.
Corporate responsibility to respect human rights
Statutory regulation In order to introduce international approaches to socially responsible business conduct, internationally recognized standards of such activity are recommended by state bodies in Russia: National standard of the Russian Federation. ISO 26000:2010. Guidance on social responsibility Legislative work is going on to develop a system for the execution, publication and control over the reliability of non-financial reporting. The Government of Russia has adopted the Concept of non-financial reporting and the Action Plan for implementation of this Concept. The corporate code of joint-stock companies, whose securities are admitted to organized trades The Corporate Governance Requirements for Credit Institutions
Practice The issue of social responsibility of enterprises is considered also in business circles. A number of documents defining the basis of social responsibility have been distributed with the assistance of non-governmental organizations, namely, the Russian Union of Industrialists and Entrepreneurs, the World Business Council for Sustainable Development, the National Network of the Global Compact. In practice, many enterprises not only voluntarily commit themselves to adhere to the principles of liability of business practices, but also reflect information about their activities in non-financial reports. To date, there are more than 165 enterprises in Russia that have ever issued public non-financial reports, of which more than 150 are commercial enterprises, less than 10 are non-commercial. The Russian Union of Industrialists and Entrepreneurs has created a system of public representations of non-financial reporting, especially: established the Non-Financial Reporting Council; developed the Regulation of public assurance of non-financial reports; published information on enterprises producing the non-financial reports for external assurance.
Access to remedy
State-based mechanisms State-based judicial mechanisms The Russian legislation establishes a number of measures aimed at ensuring equal access of individuals to justice, particularly: a relatively low court fee; persons who participate in the case and do not speak the language in which civil proceedings are conducted, are entailed to speak in their native language or in any freely chosen language, and also use the services of an interpreter; court plays an active role in the situation of inequality of the actual capabilities of the parties, etc. At the same time, serious problems exist in the sphere of administration of justice (corruption, political pressure, etc.). To solve these problems, active work is under way to improve legislation. State-based non-judicial grievance mechanisms The Russian legislation provides a system of state-based non-judicial grievance mechanisms as well as a wide range of guarantees for application of effectiveness criteria in practice.
Non-State-based grievance mechanisms International mechanisms The competence of the following international institutions is recognized in Russia: The European Court of Human Rights. The Russian legislation provides for the norms that oblige interstate courts to take the ECHR acts into account; The UN Human Rights Committee. The Committee's views on individual complaints are considered by Russia in the framework of voluntarily assumed international legal obligations. Internal mechanisms The competence of the following internal institutions is recognized in Russia: Binding arbitration. The Russian legislation mainly implies the application of effectiveness criteria in practice. An essential shortcoming of this mechanism is the high size of the arbitration fee, which does not allow to consider it in demand in disputes with individuals. Labor arbitration is the main form of resolving collective labor disputes in the framework of industry, multi-stakeholder and other collaborative initiatives. The status of this mechanism is regulated by laws. Work is under way to determine the standards of labor arbitration. Operational-level grievance mechanisms With regard to certain branches of the economy the Russian legislation provides the rules of handling grievance.
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