INDIRECT APPROACH TO ACCOUNTABILITY OF CORPORATE ENTITIES THROUGH THE LENS OF THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS
DOI:
https://doi.org/10.5937/spz0-20339Keywords:
corporate accountability, human rights, ECtHR, violation of human rights, horizontal effect, positive obligations of statesAbstract
The case law of the European Court of Human Rights (ECtHR) pertaining to human rights protection of legal persons, including corporate entities, is well developed and extensively analyzed in legal literature. The international law of human rights is in the process of transformation from imposition of obligations only on States, to gradually taking into consideration the accountability of non-State actors, particularly corporate entities. The objective of the paper is to analyze the conceptualization of corporate accountability for violations of human rights in the case law of the ECtHR. The paper shows that the ECtHR thus far has approached the corporate accountability and has called for regulation of corporate activities at the national level by means of applying the doctrine of horizontal effect of rights guaranteed by the European Convention on Human Rights (ECHR) referred to as Drittwirkung and the doctrine of positive obligations of the states. The authors argue that the ECtHR so far in its jurisprudence has missed to fully take into account the overarching social and policy developments, and that it should take a more proactive role in conceptualizing its approach to violations of human rights committed by corporate entities.
Downloads
References
Alkema E.A., “The Third-Party Applicability or ‘Drittwirkung’ of the European Convention on Human Rights”, In: Protecting Human Rights: the European Dimensions/ Protection des dro its de l’Homme: la dimension européenne: Studies in honour of/ Mélange en l’honn eur de Gérard J. Wiarda (eds. F. Matscher, H. Petzold), Carl Heymanns Verlag KG, Berlin 19902, 33-57.
Fasciglione, M., “Corporate Liability, Extraterritorial Jurisdiction and the Future of the Alien Tort Claims Act: Some Remarks After Kobel”, Diritti Umani e Diritto Internazionale, Società editrice il Mulino, Vol. 7, 2/2013, 401-435.
Garlicki, L., “Relations between Private Actors and the ECHR”, in: The Constitution in Private Relations (eds. A. Sajó, and R. Uitz), Eleven International Publishing, Utrecht 2005, 129-144.
Khoury, S., “Transnational Corporations and the European Court of Human Rights: Reflections on the Indirect and Direct Approaches to Accountability”, Sortuz, Oñati Journal of Emergent Socio-Legal Studies, Volume 4, 1/2010, 68-110.
Spielmann, D., “Companies in the Strasbourg Courtroom”, Cambridge Journal of International and Comparative Law, Vol. 5, 3/2016, 404-417.
Vasquez, C.M., “Direct vs. Indirect Obligations of Corporations under International Law”, Columbia Journal of Transnational Law, Volume 43, 2005, 927-959.
Verdonck, L., “How the European Court of Human Rights evaded the Business and Human Rights Debate in Özel v. Turkey”, The Turkish Commercial Law Review, Vol. 2, 2016, 111-118.
Višekruna, A., “Protection of Rights of Companies before the European Court of Human Rights“, in: Procedural Aspects of EU Law (D. Duić, T. Petrašević), Faculty of Law Josip Juraj Strossmayer University of Osijek 2017, 111-126.
Legal sources
Özel and Others v. Turkey, App. Nos. 14350/05, 15245/05 and 16051/05, Judgement of 17 November 2015
Guerra v. Italy, App. No. 116/1996/735/932, Judgement of 19 February 1998
Lopez Ostra v. Spain, App. No. 16798/90, Judgement of 9 December 1994
Budayeva v. Russia, App. Nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, Judgement of 20 March 2008
Kolyadenko and Others v. Russia, App. Nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, Judgement of 28 February 2012
Köpke v. Germany, App. No. 420/07, Decision of 5 October 2010
López Ribalda and Others v. Spain, App. No. 1874/13 and 8567/13, Judgement of 9 January 2018, Referral to the Grand Chamber, 28 May 2018
Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, App. No. 931/13, Judgement of 27 June 2017, Grand Chamber
Rantsev v. Cypres and Russia, App. No. 25965/04, Judgement of 7 January 2010
Siliadin v. France, App. No. 73316/01, Judgement of 26 October 2005
Marckx v. Belgium, App. No. 6833/74, Judgement of 13 June 1979
Kiobel v. Royal Dutch Petroleum Co., Decision of the United States Supreme Court, 569 US 108 (2013)
Vgt Verein gegen Tierfabriken v. Switzerland, App. No. 24699/94, Judgement of 28 June 2001
Vilnes and Others v. Norway, App. Nos. 52806/09 and 22703/10, Judgement of 5 December 2013
Resolution A/HRC/26/L.22/Rev.1 for the “Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights”
Website references
Khoury, S., Whyte, D., New Mechanisms of Accountability for Corporate Violations of Human Rights, www.livrepository.liverpool.ac.uk/3001783/1/New%20mechanisms%20of%20accountability%20for%20corporate%20violations%20of%20human%20rights.pdf , last visited 1 December 2018.
