Companies, primarily global corporations, may enjoy enormous power and influence. Their power comes mainly from the capital these companies have at their disposal, but also from other sources. And while the main focus is on whether the influence of companies can be limited, case law and international legislation have recognized certain human rights for companies.
The most important legal document on human rights is the United Nations Universal Declaration of Human Rights. This document influenced most of the United Nations member states’ national constitutions after its adoption, as well as international documents such as the Council of Europe’s European Convention on Human Rights (the “Convention“).
The Convention recognized that companies could enjoy human rights by stipulating in Article 1 that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention.” This principle is further confirmed in Article 34 of the Convention, which defines who can apply to the European Court of Human Rights (“ECtHR“), where that possibility is given to “any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.” Companies are covered by the term “non-governmental organizations”.
The ECtHR has a long tradition and practice of recognizing human rights to companies and humans, which began as early as 1978 in the case of Sunday the Times vs. United Kingdom [1]. In this case, the ECtHR determined that there was a violation of the right to freedom of expression and a violation of Article 10 of the Convention. Namely, in 1972, the British newspaper Sunday Times published articles regarding the settlement negotiations in the “thalidomide children” case, which came to light after pregnant women’s use of thalidomide resulted in severe congenital disabilities in their newborns. Sunday Times criticized the settlement proposals, after which it was banned from further publication of articles on the subject at the request of the British Attorney General because future publications would constitute contempt of court. Although the ECtHR found that state interference was permitted by law and had the legitimate aim of protecting the impartiality and authority of the court, it also found that it was not necessary for a democratic society. The ECtHR noted that the right to freedom of expression guarantees the freedom of the press to inform the public and the right of the public to be properly informed. The “thalidomide disaster” was the subject of undeniable public concern. The ECtHR noted that the article in question was moderate and balanced in its arguments on a widely debated topic and that the risk of undermining the authority of the court was minimal. The ECtHR concluded that the state’s interference did not correspond to a social need that was important enough to outweigh the public interest for freedom of expression in the sense of the Convention, which all resulted in the first judgment in which a human right was recognized to a company, in this case – the right to freedom of expression.
The practice initiated by the case above has led to the situation where today, there are countless judgments that only confirm something that has long since become a fact – that companies have human rights [2].
Here, however, the question arises – do all the Convention’s articles (and all human rights) also apply to companies? When answering this question, the ECtHR decides on a case-by-case basis and assesses whether there is room for using certain articles of the Convention regarding companies. Companies’ human rights are the same as for natural persons but with certain restrictions due to the specific characteristics of legal entities. For example, the company will not be able to invoke the violation of the right to life, nor will it invoke Article 3 of the Convention, which prescribes the prohibition of torture, inhuman or degrading treatment, or punishment. Companies can, however, turn to the ECtHR when they feel their rights have been violated, such as the right to a fair trial, freedom of expression, and property.
The applications submitted to the ECtHR by companies throughout Europe are mainly related to the protection of property, especially in cases of nationalization of real estate or changes in regulations governing land use (when certain restrictions on the disposal of real estate are imposed). The applications also regard the violations of the right to a fair trial in civil, criminal, or administrative proceedings, including cases of breach of competition laws and cases of protection of the right to freedom of expression (when newspapers and publishing houses usually initiate proceedings).
It is precisely in this sense that the case of Société Cola Est vs. France [3] is interesting. The case was brought before the ECtHR regarding violating the right to respect private and family life from Article 8 of the Convention, where the ECtHR established that the concept of home could be applied to all business premises of companies. In this case, the French authorities ordered the National Bureau of Investigation to conduct an extensive investigation into the conduct of the public works contractors, which resulted in raids of the company’s premises between November 1985 and October 1986. The companies subject to this treatment claimed that the raids carried out without supervision or restrictions violated the right to respect their “home.” In its defense, the French government pointed out that legal entities cannot exercise the right to protect their business space with as much force as an individual – a natural person. In its decision, the ECtHR considered that, in certain circumstances, a registered office, branch, or other business premises of a company could enjoy the rights guaranteed by Article 8 of the Convention. Although the action of state authorities was justified in the sense of preventing anti-competitive practices, the legislation should have provided adequate and effective protective measures against possible abuse of power, which did not happen in this case. During investigations, inspectors had broad powers and, therefore, the exclusive right to determine the inspection’s purpose, number, length, and scope. The change in legislation prescribing mandatory prior approval of the judge occurred after the inspections had already been carried out.
Finally, one of the more recent cases of great importance from the perspective of companies’ human rights is the case of Yukos vs. Russia [4], which concerns the nationalization of the oil company Yukos by the Russian government in the early 2000s. At one point, Yukos was the largest oil company in Russia, until in 2003, its CEO Mikhail Khodorkovsky was arrested for alleged fraud and tax evasion. Soon after, the Russian government seized Yukos’ assets and sold its main production unit to state oil company Rosneft. Yukos and its shareholders contested the nationalization’s legality in Russian courts and international tribunals. The case turned into a major global legal battle that lasted over a decade, with the Russian government accused of expropriation and violation of international investment treaties. All this resulted in a large number of proceedings that were conducted before courts and arbitrations in different countries.
Regardless of the court above and arbitration proceedings, Yukos shareholders applied to the ECtHR to seek compensation from the Russian government for violating their rights guaranteed by the Convention. On the other hand, the Russian government argued that the ECtHR did not have jurisdiction to hear the case because it was related to economic issues and not human rights, which the ECtHR disagreed with, and accepted to hear the specific case. In its 2011 decision, the ECtHR ruled that the arrest and detention of Yukos CEO Mikhail Khodorkovsky were arbitrary and politically motivated and that the Russian government violated his right to a fair trial guaranteed by Article 6 of the Convention. The ECtHR also found that Yukos was the subject of arbitrary tax audits and that the company’s nationalization was carried out in a manner that violated the right to peaceful enjoyment of Yukos’ assets guaranteed by Article 1 of Protocol 1 to the Convention. The ECtHR ordered the Russian government to pay Yukos shareholders 1.9 billion euros in damages. This case is significant because it shows that human rights can also protect the rights of companies in the context of foreign investment. It also highlights the need to ensure that states do not abuse their power when expropriating private, mainly foreign-owned property.
The conclusion that can be drawn from all of the above is that companies have a wide range of human rights and enjoy the rights they can enjoy without any restrictions, just like natural persons. It is up to companies to enjoy human rights responsibly and without abusing them to the detriment of society, which made it all possible.
[1] European Court of Human Rights, Sunday Times v. United Kingdom, application no. 6538/74, judgment dated April 26, 1979, available in English at: https://hudoc.echr.coe.int/eng?i=001-57584 ;
[2] André and others v. France, application no. 18603/03, judgment dated July 24, 2008, paragraphs 36-37, available in English at: https://hudoc.echr.coe.int/eng?i=001-87938 , Dubus v. France, application no. 5242/04, judgment dated 11 June 2009, available in French at: https://hudoc.echr.coe.int/eng?i=001-92990 ; Menarini Diagnostics v. Italy, application no. 43509/08, judgment dated 27 September 2011, available in French at: https://hudoc.echr.coe.int/eng?i=001-106438 ; Société Canal Plus and others v. France, application no. 29408/08, judgment dated December 21, 2010, paragraphs 55-57, available in French at: https://hudoc.echr.coe.int/eng?i=001-102435 ;
[3] Société Colas Est v. France, application no. 37971/97, judgment dated April 16, 2002, paragraph 41, available in English at: https://hudoc.echr.coe.int/eng?i=001-60431 ;
[4] OAO Neftyanaya Kompaniya Yukos v. Russia, application no. 14902/04, judgment dated July 31, 2014, paragraph 613, available in English at: https://hudoc.echr.coe.int/eng?i=001-106308
Author: Luka Đurić
