Human rights, justice and “our European way of life”? More than a dozen other countries have committed to adopting corporate responsibility legislation in their national action plans on business and human rights. An even wider range of countries made written commitments at the 2021 Democracy Summit to pursue more effective trade and human rights policies under the auspices of the UN Guiding Principles. Magdalena Kmak is Professor of International Law specialising in Migration and Minority Studies at Åbo Akademi University and Team Leader of the sub-project: Migration and the narrative of Europe as an “Area of Freedom, Security and Justice” at the Centre of Excellence in European Law, Identity and Narratives at the University of Helsinki. His research interests include research on migration and mobility, research on exile and migration history, international law, human rights, and international and European refugee law. The European Court of Human Rights applies and protects the rights and guarantees of the European Convention on Human Rights. One example of this policy was the widely criticised 2016 EU-Turkey deal. The aim of the agreement was to end irregular migration from Turkey to the EU by returning to Turkey all new irregular migrants arriving from Turkey to the Greek islands and resettling Syrian asylum seekers in their place. Priority should be given to migrants who have not previously entered the EU or who have not attempted to enter it irregularly, and the focus should be on preventing the opening of new sea or land routes for illegal migration from Turkey to the EU. The human rights violations that took place in Greece and Turkey after the introduction of the agreement, including the failed coup in Turkey as well as the recent Turkish offensive in Syria, have been criticised by various organisations such as Amnesty International, the European Council for Refugees and Exiles, Médecins Sans Frontières.
In early 2020, the deal collapsed in practice when Turkey opened its border with Greece. The ensuing conflict at the border exposed the EU`s neglect of its human rights obligations, leading to a violation of the right to asylum guaranteed by Article 18 of the EU Charter of Fundamental Rights. The promotion and protection of human rights is a priority for the European Union, both within the EU and in its relations with third countries. A3: The scope of the Directive is broad in relation to the list of abuses for which companies would be liable in order to prevent, mitigate or remedy them, and requires companies to assess the impact on workers – including workers` health and safety, decent wages and the right to organise – as well as on communities and society as a whole in countries, in which they work and in which they have long-term business relationships. However, as proposed, EU law only directly applies to around 1% of companies registered in the EU, which could be held administratively or civilly liable if they fail to comply with or implement effective human rights due diligence. In order to address abuses that may occur further down the supply chain, these companies are expected to introduce contractual clauses requiring partners with whom they have “established business relationships” to comply with their own human rights due diligence and transpose these requirements into their own supply chains. By defining “established business relationships” as those that are “sustainable,” this approach can inadvertently encourage companies to distance themselves from suppliers over whom they could have significant influence. In addition, as part of a major concession to industry, companies may rely on external auditors or industry initiatives to verify business partners` compliance with these requirements, despite extensive research demonstrating the limited effectiveness of these audits and voluntary anti-abuse initiatives. Parliament`s Subcommittee on Human Rights (DROI), attached to the Committee on Foreign Affairs (AFET), is responsible for issues relating to democracy, the rule of law, human rights, including minority rights, in third countries and the principles of international law, as well as ensuring coherence between all the Union`s external policies and its human rights policy.
It organises hearings on a wide range of human rights issues involving stakeholders in order to contribute to resolutions and other parliamentary initiatives. The Subcommittee is also responsible for the day-to-day management of human rights files, while its delegations visit the countries concerned on a regular basis. Human rights issues in the EU`s external relations are also dealt with by the following committees: AFET, Committee on International Trade (INTA), Committee on Development (DEVE) and Committee on Women`s Rights and Gender Equality (FEMM). Human rights are also an essential part of the work of Parliament`s permanent delegations, which interact bilaterally and through parliamentary assemblies with non-EU parliaments. The accession of the European Union to the Convention, which became a legal obligation by the Treaty of Lisbon, represents an important step in the development of human rights in Europe. The main consequence of these developments is the unprecedented externalisation of EU migration policy in general and border controls in particular, which leads to “push-backs, hot returns, detentions and expedited expulsions” to human rights violations and violations of the rule of law due to government policies. The EU`s response is in line with the wider trend of global externalisation, with host migrants in the Global North adopting measures beyond their territorial borders to prevent migrants from Global South countries from entering their territory. 23. In February, the European Commission published its long-awaited draft regulation on human rights and environmental due diligence, an important part of its sustainable governance initiative. The draft Regulation requires large EU companies and certain non-European companies with significant activities in Europe to assess their actual and potential impact on human rights and the environment throughout their operations and supply chains and to take measures to prevent, mitigate and redress identified human rights and environmental damage. Companies that fail to exercise effective due diligence or implement preventive or remedial measures are subject to both administrative penalties and civil liability.
These restrictions have led to calls for a binding corporate liability regime similar to the draft EU directive. One such proposal, which is gaining momentum, is the passage of an equivalent to the Foreign Corrupt Practices Act (FCPA) on human rights, which would create criminal and civil liability for a myriad of violations, similar to how the FCPA prohibits bribery by U.S. companies abroad. Such an approach could require companies to document efforts to prevent abuse through due diligence (which is consistent with the FCPA`s “books and records” requirement) or to use evidence of due diligence as a mitigating factor in determining civil or criminal penalties. As Thomas Spijkerboer points out in his recent article, such an EU policy is clearly at odds with “our European way of life” as enshrined in the EU Treaties, stressing “Europe`s cultural, religious and humanist traditions that support the development of the universal values of inviolable and inalienable human rights and freedom, democracy, equality and the rule of law”. The EU should start taking these commitments seriously in practice and implement them in its migration and refugee policy. A4: The legal capacity to hold U.S. companies accountable for human rights abuses they commit abroad or to which they are linked through their supply chains is currently limited.
The Supreme Court has repeatedly narrowed the scope of the Alien Tort Statute, which in principle allows non-U.S. citizens. Citizens have to bring civil lawsuits on the basis of damages that occurred abroad, but in practice it is extremely difficult to apply them to companies. In 2018, the U.S. Department of Justice was empowered to prosecute companies for using forced labor in their operations or supply chains outside the U.S. under certain circumstances, but there have been no prosecutions for conduct outside the U.S. Companies can face fines or penalties, or have their shipments seized if they try to import goods produced with forced labor into the United States, which has led some companies to change their business practices. However, the application of this prohibition remains limited to a relatively narrow list of sectors and producers. The Foreign Affairs Council is chaired by the VP/HR, who contributes to the development of the Union`s CFSP and ensures the implementation of decisions.
The VP/HR also represents the EU in CFSP matters and supervises the EEAS and EU delegations in third countries. The EEAS has a Directorate for Human Rights, Global and Multilateral Affairs, and each EU Delegation has a “focal point” for human rights. EU Delegations play a key role in developing and implementing national human rights and democracy strategies, preparing human rights dialogues, working with human rights defenders and civil society, and setting priorities for EU financial support. The EU country strategies on human rights and democracy are based on a bottom-up approach, the aim of which is to integrate the EU`s human rights orientations and priorities into a single and coherent policy document, tailored to a specific country and defined with concrete objectives over a three-year period. EU election observation missions also aim to improve human rights by preventing intimidation and electoral violence and strengthening democratic institutions.
