ABSTRACT
Whereas international law presently does not directly impose human rights obligations on corporations, it requires states to take positive steps to prevent and redress corporate human rights ‘abuses’.26 Such positive human rights obligations entail duties of conduct on the part of the state to take all reasonable and appropriate measures to protect human rights in relationships between non-state actors. While, for instance, the human rights obligations imposed by the International Covenant on Civil and Political Rights ‘are binding on states parties and do not, as such, have direct horizontal effect as a matter of international law’, they nevertheless require states to ‘take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by… private persons or entities’.27 Similarly, according to the Inter-American Court of Human Rights ‘an illegal act which violates human rights and which is initially not directly imputable to a state (for example, because it is the act of a private person) can lead to international responsibility of the state, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the convention.28 Or, as in Fadeyeva v. Russia – a case concerning environmental pollution emitting from a Russian steel plant owned and operated by a private corporation – the European Court of Human Rights (ECtHR) considered that ‘the state’s responsibility in environmental cases may arise from a failure to regulate private industry. Accordingly, the applicant’s complaints fall to be analysed in terms of a positive duty on the state to take reasonable and appropriate measures to secure the applicant’s rights under Article 8(1) of the Convention.’29 As the SRSG puts it, international law imposes obligations on states not only to ‘refrain from violating’ human rights, but also ‘to “ensure” (or some functionally equivalent verb) the enjoyment or realization of those rights by the rights holders’.30 The latter obligation ‘requires protection by states against other social actors, including business, who impede or negate those rights. Guidance from international human rights bodies suggests that the state duty to protect applies to all recognized rights that private parties are capable of impairing and to all types of business enterprises’.31
