UN Committee on Economic Social and Cultural Rights – Groundbreaking concluding observations re. overseas activities of corporate nationals

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A special thank you to Irene Pietropaoli for letting me know about this.

On 24 June 2016, the Committee on Economic Social and Cultural Rights published its latest Concluding Observations on the United Kingdom in the context of the review of that country’s 6th periodic report. The Committee strongly criticized the human rights impacts austerity measures have had on “disadvantaged and marginalized individuals and groups” (para. 18) and a whole section (para 11-13) is devoted to business and human rights.

The Committee “welcomes the adoption of the National Action Plan on Business and Human Rights”. However it expressed concerns “about the lack of a regulatory framework to ensure that (…) companies domiciled under its jurisdiction acting abroad fully respect economic, social and cultural rights.” Specifically the Committee recommends that the United Kingdom

adopt appropriate legislative and administrative measures to ensure legal liability of companies domiciled under the State party’s jurisdiction, regarding violations of economic, social and cultural rights in their projects abroad, committed directly by these companies or resulting from the activities of their subsidiaries. [para. 12(b)]

I have written before about the trend among treaty bodies to recommend that states monitor the overseas activities of their corporate nationals (see here and here. See also my chapter in forthcoming book: Carla Buckley, Alice Donald, Philip Leach (eds.), Towards Coherence in International Human Rights Law: Approaches of Regional and International Systems, Leiden: Brill,  2016).

As far as I know, however, this is the first time that a UN treaty body goes that far. First, the Committee is calling for “legal liability” of companies domiciled in the UK. It is not simply asking the country to loosely monitor what these companies are doing when operating abroad. Second, the Committee mentions the liability of parent companies for the activities of their subsidiaries. This is in line with the most recent case law from the English Court of Appeal, and recent decision by the English High Court (please see information on this here). However, as it seemingly bypasses the principle of separate legal personality of separate companies, this remains a controversial area of the law.