Feasibility Study on CSR in the field of human rights Council of Europe’s contribution to the Implementation of the UN Guiding Principles Jörg Polakiewicz

Feasibility Study on CSR in the field of human rights Main human rights instruments European Convention on Human Rights (1950) European Social Charter (1961/1996) Data Protection Convention 108 (1981) Convention for the Protection of National Minorities (1995) Oviedo Convention on Human Rights and Biomedicine (1997) Convention on Action against Trafficking (2005) Protection of Children against Sexual Exploitation (2007) Violence against Women and Domestic Violence (2011)

Feasibility Study on CSR in the field of human rights Business and human rights at CoE Oct 2010: Parliamentary Assembly Res 1936 on “Human Rights and Business” recommends the Committee of Ministers to explore ways of enhancing the role of business in respecting and promoting human rights Nov 2011: Committee of Ministers asks to explore the feasibility and added value of standard setting work in this area Dec 2011: HR Steering Committee CDDH exchanges views on the issue with Ms Lene Wendland (UN High Commissioner for HR) Nov 2012: CDDH adopts feasibility study on CSR in the field of human rights Jan 2013: Committee of Ministers tasks CDDH to work on human rights and business

Feasibility Study on CSR in the field of human rights Feasibility study – Key considerations UN Guiding Principles on Business and Human Rights: first globally agreed standard on business and human rights recognised as authoritative reference point by governments and international institutions including EU, OECD, ISO, FAO only “the end of the beginning” (John Ruggie)  CoE work on business and human rights should: be coherent with the Guiding Principles enhance their effective implementation not duplicate the efforts of other actors in this field be based on CoE’s core areas of expertise

Feasibility Study on CSR in the field of human rights Feasibility study – evaluation of options I.Providing sectorial and thematic guidance II.Addressing possible gaps regarding access to justice (core area of Council of Europe activities) III.Awareness raising (including good practices)

Feasibility Study on CSR in the field of human rights Providing sectorial & thematic guidance Social rights Children‘s rights Clothing & textiles Substantive and procedural obligations for states under ECHR

Feasibility Study on CSR in the field of human rights Clothing and textiles & Internet governance High risk sector of corporate-related HR harm Not covered by EU sectorial guidance But: CoE lacks expertise in this area Clothing & textiles CoE developed many standard-setting instruments concerning internet governance; some addressing private sector responsibilities: Internet Governance Strategy for Rec CM/Rec(2012)3 on the protection of human rights with regard to search engines Rec CM/Rec(2012)4 on the protection of human rights with regard to social networking services But: EU already works on guidance for ICT businesses

Feasibility Study on CSR in the field of human rights Children’s rights But: Several standard-setting instruments regarding state and business responsibilities already available: UNICEF, Global Compact, Save the Children: Children’s Rights and Business Principles (2012) UN Committee on Rights of the Child: General Comment No. 16 on state obligations regarding the impact of the business sector on children’s rights (2013) ILO Convention No. 182 on the worst forms of child labour; ILO Convention No. 138 on the minimum age for admission to employment and work Children‘s rights CoE has considerable experience concerning children’s rights: CoE Strategy for the Rights of Children Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse Case-law of European Court of Human Rights and European Committee of Social Rights

Feasibility Study on CSR in the field of human rights Social rights 1996 European Social Charter contains several provisions relevant for business and human rights Case law of European Committee for Social Rights usually only refers to obligations by states, within their territories But: Some cases involving state failure to protect: Marangopoulos Foundation v. Greece: environmental pollution by a private mining corporation in which the State was the biggest shareholder (violation of the right to protection of health and the right to safe and healthy working conditions) International Commission of Jurists v. Portugal (no. 1/98): failure to properly control child labour (violation of the right of children and young persons to protection)  CoE could focus on social rights, for example, by drafting guidelines on how to apply the relevant rights from the Charter in practice Social rights

Feasibility Study on CSR in the field of human rights Corporate HR abuses occur also in CoE member states, particularly in Eastern Europe ECHR rights such as the right to property and to respect for private and family life (pollution- related cases), freedom of assembly and association or the prohibition of discrimination “Positive obligations” to protect individuals from harm by private individuals Case law: Lόpez Ostra v. Spain, Taşkin and Others v. Turkey, Fadeyeva v. the Russian Federation, Tatar v. Romania, Vilnes and Others v. Norway  Future CoE work could examine the nature and scope of the state duty to protect under ECHR and provide guidance on how to put it into practice State duty to protect (“positive obligations”) ECHR: substantive and procedural obligations

Feasibility Study on CSR in the field of human rights Under certain circumstances, harmful conduct of private companies can be attributed to the state and may result in direct state responsibility Companies that are state-controlled or performing essentially public functions Case law: Costello-Roberts v. UK; Powell and Rayner v. UK  Future CoE work could examine the nature and scope of state obligations concerning companies exercising public functions, possibly with regard to private military and security firms, private prisons, immigration detention centres or private escort services for the removal and deportation of immigrants (PACE Recommendation 1858 (2009), PACE Report on Human Rights and Business (2010)) State accountability for actions of companies ECHR: substantive and procedural obligations

Feasibility Study on CSR in the field of human rights Access to justice Governance Gaps Access to justice in CoE member states (purely “domestic” cases) HR abuses outside CoE member states in countries unable or unwilling to provide effective protection In particular in the latter case, victims face Legal barriers: jurisdictional limits (lack of extraterritoriality), corporate structures (separate legal personality of subsidiaries & suppliers coupled with absence of legal standards for attribution) Practical barriers: high litigation costs, restricted access to legal aid, lack of support for public interest litigation or mass tort claims, time limitations, collection of evidence

Feasibility Study on CSR in the field of human rights Access to justice How to reduce barriers? ? Some jurisdictions allow for adjudication of corporate HR abuses (both of parent company and foreign subsidiary) Chandler v Cape plc parent companies may be held accountable in UK for not preventing harm caused by subsidiaries (based on tort of negligence) Oguru v Shell Dutch courts may exercise jurisdiction over harm suffered by foreign nationals caused by foreign subsidiaries of Dutch multinationals in third countries  CoE could develop principles for the establishment, under national law, of civil and/or criminal liability of companies and provide guidance on how to reduce barriers to access to justice (“good practices”)

Feasibility Study on CSR in the field of human rights Awareness-raising UN Working Group (A/67/285, ): “There is an overwhelming lack of awareness of the Guiding Principles among stakeholders globally, particularly businesses, especially small and medium- sized enterprises. The Working Group is aware of the urgent need to build awareness, provide support and increase the capacity of this sector to implement the Guiding Principles”  CoE declaration supporting the UN Guiding Principles  conferences and roundtables involving business enterprises  guides of good practices about how companies have implemented the UN Guiding Principles  establish co-operation with national human rights institutions and other specialised bodies in disseminating relevant information to companies and assessing progress and possible problems

Feasibility Study on CSR in the field of human rights Recent developments Jan 2013: Ministers’ Deputies instruct CDDH: o To elaborate a declaration of the Committee of Ministers supporting the UN Guiding Principles by June 2014 o To elaborate a non-binding instrument addressing gaps in the implementation of the Guiding Principles at the European level, including with respect to access to justice, by December 2015 o To be developed in cooperation with private sector and civil society and may include guide of good practice Ministers’ Deputies recommend: o To consider CSR issues in CoE activities concerning children’s rights, internet governance and social rights o To closely cooperate with EU, UN and other bodies specialised in CSR May 2013: CDDH holds first exchange of views and instructs Secretariat to develop draft declaration by June 2013; drafting group will be set up in early 2014

Feasibility Study on CSR in the field of human rights Discussion How can the CoE best contribute to the implementation of the Guiding Principles? What are the CoE’s comparative advantages? What kind of instruments provide added-value? What synergies between CoE and European Union?