State obligations to regulate and adjudicate corporate activities under the European Convention on Human Rights

Abstract:

This study examines State obligations to prevent and redress corporate-related human rights violations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. It discusses the evolving jurisprudence of the European Court of Human Rights in two areas of international legal doctrine of particular relevance to the business and human rights debate: the application of international human rights obligations to non-state actors (the public-private divide); and the jurisdictional scope of international human rights treaties (the territoriality-extraterritoriality divide).

The study revises and updates a 2010 contribution to the mandate of the Special Representative of the United Nations Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Entities John Ruggie. The introduction offers an overview of the global regulatory framework on business and human rights. Part B systematises the case law of the European Court of Human Rights (ECtHR) on the public-private divide in terms of two categories of State obligations: negative obligations to respect human rights in relation to corporations acting as state agents; and positive obligations to protect human rights in relation to corporations acting as third parties. Part C discusses the ECtHR’s approach to the extraterritorial dimension of State obligations to prevent and redress corporate-related human rights violations.

The study discusses cases of direct extraterritorial jurisdiction (acts ‘performed’ outside the State’s territory) and extraterritorial effects cases (acts ‘producing effects’ outside the State’s territory), and their respective relevance to the business and human rights domain. Consideration is also given to the growing body of case law on the extraterritorial dimension of the human right to remedy, which remains a pressing concern in the business and human rights domain.