General comments are the main instrument by which Committees publish their interpretation of certain provisions of international Human Rights conventions and the corresponding obligations assumed by states.
General comments are predominantly issued to elaborate on the meaning of specific rights or certain aspects of the monitoring procedures. They can prove very useful for plaintiffs lodging individual complaints.
The Committees in action regarding states’ obligations towards business enterprises
Human Rights Committee (CCPR), General comment No. 31
“The Covenant (on Civil and Political Rights) itself envisages in some articles certain areas where there are positive obligations on States Parties to address the activities of private persons or entities. In fields affecting basic aspects of ordinary life such as work or housing, individuals are to be protected from discrimination within the meaning of article 26.” 1
Committee on economic, social and cultural Rights (CESCR) – The Right to health, General comment No. 14
“While only states are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society – individuals, including health professionals, families, local communities, intergovernmental and non-governmental organisations, civil society organisations, as well as the private business sector – have responsibilities regarding the realization of the right to health. State Parties should therefore provide an environment which facilitates the discharge of these responsibilities. […] States Parties should take appropriate steps to ensure that the private business sector and civil society are aware of, and consider the importance of, the right to health in pursuing their activities.” 2
CESCR – The right to adequate housing: forced evictions, General comment No. 7
“The practice of forced evictions is widespread and affects persons in both developed and developing countries. […] Forced evictions might be carried out in connection with conflict over land rights, development and infrastructure projects, such as the construction of dams or other large-scale energy projects. […] It is clear that legislation against forced evictions is an essential basis upon which to build a system of effective protection. […] The legislation must also apply in relation to all agents acting under the authority of the state or who are accountable to it.” 3
CRC – state obligations regarding the impact of the business sector on children’s rights, General comment No. 16
“Host States have the primary responsibility to respect, protect and fulfil children’s rights in their jurisdiction. They must ensure that all business enterprises, including transnational corporations operating within their borders, are adequately regulated within a legal and institutional framework that ensures that they do not adversely impact the rights of the child and/or aid and abet violations in foreign jurisdictions.
Home States also have obligations, arising under the Convention and the Optional Protocols thereto, to respect, protect and fulfil children’s rights in the context of businesses’ extraterritorial activities and operations, provided that there is a reasonable link between the State and the conduct concerned. A reasonable link exists when a business enterprise has its centre of activity, is registered or domiciled or has its main place of business or substantial business activities in the State concerned. When adopting measures to meet this obligation, States must not violate the Charter of the United Nations and general international law nor diminish the obligations of the host State under the Convention.
Both home and host States should establish institutional and legal frameworks that enable businesses to respect children’s rights across their global operations. Home States should ensure that there are effective mechanisms in place so that the government agencies and institutions with responsibility for the implementation of the Convention and the Optional Protocols thereto coordinate effectively with those responsible for trade and investment abroad. They should also build capacity so that development assistance agencies and overseas missions that are responsible for promoting trade can integrate business issues into bilateral Human Rights dialogues, including children’s rights, with foreign governments. States that adhere to the OECD Guidelines for Multinational Enterprises should support their national contact points in providing mediation and conciliation for matters that arise extra-territorially by ensuring that they are adequately resourced, independent and mandated to work to ensure respect for children’s rights in the context of business issues. 4 Recommendations issued by bodies such as the OECD national contact points should be given adequate effect.” 5
CESCR - The Right to just and favorable conditions of work, General Comment No. 23
“While only States are parties to the Covenant, business enterprises, trade unions and all members of society, have responsibilities to realize the right to just and favourable conditions of work. This is particularly important in the case of occupational safety and health given that the employer’s responsibility for the safety and health of workers is a basic principle of labour law, intrinsically related to the employment contract, but it also applies to other elements of the right.”
“Business enterprises, irrespective of size, sector, ownership and structure, should comply with laws that are consistent with the Covenant and have a responsibility to respect the right to just and favourable conditions of work, avoiding any infringements and addressing any abuse of the right as a result of their actions. In situations where a business enterprise has caused or contributed to adverse impacts, the enterprise should remedy the damage or cooperate in its remediation through legitimate processes that meet recognized standards of due process.” 6
CESCR - State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities. General Comment No. 24“States parties may be held directly responsible for the action or inaction of business entities: (a) if the entity concerned is in fact acting on that State party’s instructions or is under its control or direction in carrying out the particular conduct at issue, as may be the case in the context of public contracts; (b) when a business entity is empowered under the State party’s legislation to exercise elements of governmental authority or if the circumstances call for such exercise of governmental functions in the absence or default of the official authorities; or (c) if and to the extent that the State party acknowledges and adopts the conduct as its own”.
“The obligation to protect entails a positive duty to adopt a legal framework requiring business entities to exercise human rights due diligence in order to identify, prevent and mitigate the risks of violations of Covenant rights, to avoid such rights being abused, and to account for the negative impacts caused or contributed to by their decisions and operations and those of entities they control on the enjoyment of Covenant rights. States should adopt measures such as imposing due diligence requirements to prevent abuses of Covenant rights in a business entity’s supply chain and by subcontractors, suppliers, franchisees, or other business partners”.
“States parties have the duty to take necessary steps to address these challenges in order to prevent a denial of justice and ensure the right to effective remedy and reparation. This requires States parties to remove substantive, procedural and practical barriers to remedies, including by establishing parent company or group liability regimes, providing legal aid and other funding schemes to claimants, enabling human rights-related class actions and public interest litigation, facilitating access to relevant information and the collection of evidence abroad, including witness testimony, and allowing such evidence to be presented in judicial proceedings. The extent to which an effective remedy is available and realistic in the alternative jurisdiction should be an overriding consideration in judicial decisions relying on forum non conveniens considerations. The introduction by corporations of actions to discourage individuals or groups from exercising remedies, for instance by alleging damage to a corporation’s reputation, should not be abused to create a chilling effect on the legitimate exercise of such remedies”.
States parties’ obligations under the Covenant [do] not stop at their territorial borders. States parties [are] required to take the steps necessary to prevent human rights violations abroad by corporations domiciled in their territory and/or jurisdiction (whether they [are] incorporated under their laws, or [have] their statutory seat, central administration or principal place of business on the national territory), without infringing the sovereignty or diminishing the obligations of the host States under the Covenant.
“The extraterritorial obligation to protect requires States parties to take steps to prevent and redress infringements of Covenant rights that occur outside their territories due to the activities of business entities over which they can exercise control, especially in cases where the remedies available to victims before the domestic courts of the State where the harm occurs are unavailable or ineffective”.
“In discharging their duty to protect, States parties should also require corporations to deploy their best efforts to ensure that entities whose conduct those corporations may influence, such as subsidiaries (including all business entities in which they have invested, whether registered under the State party’s laws or under the laws of another State) or business partners (including suppliers, franchisees and subcontractors), respect Covenant rights. Corporations domiciled in the territory and/or jurisdiction of States parties should be required to act with due diligence to identify, prevent and address abuses to Covenant rights by such subsidiaries and business partners, wherever they may be located. The Committee underlines that, although the imposition of such due diligence obligations does have impacts on situations located outside these States’ national territories since potential violations of Covenant rights in global supply chains or in multinational groups of companies should be prevented or addressed, this does not imply the exercise of extraterritorial jurisdiction by the States concerned. Appropriate monitoring and accountability procedures must be put in place to ensure effective prevention and enforcement. Such procedures may include imposing a duty on companies to report on their policies and procedures to ensure respect for human rights, and providing effective means of accountability and redress for abuses of Covenant rights.”
In General Comment N°24, a paramount piece of analysis as regards human rights in the context of business activities, the UN Committee on Economic, Social and Cultural Rights clarifies and recalls the obligations deriving from the Covenant both for States Parties, particularly concerning their extraterritorial obligations, and for enterprises, reaffirming that they must respect the provisions of the Covenant regardless of domestic rules enforcing them.
First, it reminds States Parties that they may be held directly responsible for the action or inaction of business entities and that they must require companies to conduct human rights due diligence within a national legal framework. At the same time, this implies the need to establish criminal or administrative sanctions and penalties when companies fail to act with due diligence. States Parties must also assure access to justice for victims of transnational corporate abuses, guaranteeing their right to an effective remedy.
Regarding the extraterritorial obligations of States Parties, the General Comment recalls that there is no territorial or jurisdictional restriction under the Covenant. State Parties are consequently under an obligation to take the necessary measures to prevent human rights violations abroad by enterprises domiciled in their territory and/or jurisdiction. This obligation extends to any business entities over which States parties may exercise control, including businesses incorporated under their laws, or who have their statutory seat, central administration, or principal place of business on their national territory. Finally, the General Comment emphasizes the importance of international cooperation and assistance among States parties to protect ESCR, especially in transnational cases to avoid the risk of positive and negative conflicts of jurisdiction.