Chapter XIII
(In)coherence of the EU External Policy impact on business and human rights developments in the post-Soviet region
p. 245-269
Résumé
The lack of coherence in the EU’s external policy’s impact on business and human rights (hereinafter ‘BHR’) developments is most evident in its relations with post-Soviet countries. A prime example of this is the European Council’s decision to grant candidate country status to Ukraine and Moldova in June 2022. Despite extraordinary geopolitical importance, human rights issues are voiced in this document in the context of governmental institution reforms only. In parallel, the Green agenda and sustainable connectivity focus on energy and green transition to the detriment of human rights, and without any attention to the role of business actors and their possible or real impact on human rights. The Eastern European and Central Asian region1 (hereinafter ‘EECA’) shares a common post-Soviet legacy, characterised by periods of undemocratic regimes, limited competition in key sectors, strong state control over economic processes, and significant state participation in the economy (state-owned enterprises, etc.). These factors have led to a lack of tradition in businesses taking responsibility, and a lack of societal expectations and awareness regarding holding businesses accountable. Despite some positive efforts in certain countries, largely driven by the impact of association agreements with the EU,2 Eastern Partnership initiatives,3 and EU human rights dialogues,4 the region continues to be plagued by the lack of implementation of the BHR agenda. This chapter aims to explore the role of EU external policy in BHR developments in the EECA. In order to address this cross-cutting issue, several sub-questions are raised: 1) What are the key factors influencing the BHR landscape in the region?; 2) How does EU external policy strike a balance between market economy development and improving the business environment on one hand, and promoting responsible business conduct on the other?; and 3) What principles should ensure such a balance?
Texte intégral
I. Introduction: SDG and BHR Agendas in EU External Policy
1The international community is increasingly setting expectations for responsible business conduct through international sustainability initiatives.5 This includes the UN Sustainable Development Goals6 (hereinafter ‘SDGs’), the Organisation for Economic Cooperation and Development (hereinafter ‘OECD’) Guidelines for Multinational Enterprises,7 and the UN Guiding Principles for Business and Human Rights.8
2In 2011, the United Nations Human Rights Council unanimously endorsed the UN Guiding Principles on Business and Human Rights (hereinafter ‘UNGPs’) – a set of guidelines for States and companies to prevent and address human rights abuses committed in business operations. The UNGPs define the duty of the state to protect human rights (Pillar I), the responsibility of businesses to respect human rights (Pillar II), and the need to provide access to remedy and reparations for victims of harm (Pillar III). The UNGPs are widely recognised as the authoritative common framework for BHR, offering clear principles for states and businesses to prevent and address business-related human rights abuses, and ‘have facilitated the socialisation of human rights norms among businesses, a prerequisite to ensuring corporate respect, as well as corporate accountability for human rights’.9
3The adoption of the SDGs marked a new approach to development, explicitly acknowledging the role of businesses as key partners in achieving sustainable development alongside governments and civil society. In essence, the UN Agenda 2030 sets ambitious goals that recognise the potential of the private sector in contributing to sustainable development. Over the past two decades, a discourse on BHR has emerged, influencing our perception of corporate responsibility and the level of accountability corporations bear for their impact on human rights.10
4While connections between BHR and the SDGs have been identified,11 the argument has mainly been that, by respecting human rights (and avoiding human rights risks), companies also contribute to the SDGs.12 The UN Working Group on BHR has stressed that human rights must be embedded in policies and practice, as countries continue to translate the ambitious SDGs into concrete action. The goals, agreed upon by world leaders as part of the 2030 Agenda for Sustainable Development, envisage partnerships between the private sector and governments as part of efforts to solve the world’s development challenges.13
5In response to the 2030 Agenda under the global framework, and as a consolidating move among Member States, the European Commission published a Communication in 2016 to reaffirm its commitment to sustainable development.14 In various places the document emphasises that the EU played a crucial role in shaping the 2030 Agenda, and is ready to take the lead in advancing sustainable development on a global scale. It specifically acknowledges that
the EU recognises that corporate respect for human rights and its embedding in corporate operations and value and supply chains is indispensable to sustainable development and achieving the SDGs. All partnerships in implementing the SDGs should be built on respect for human rights and responsible business conduct.15
6This approach requires not only political leadership, but also a fundamental reorientation of how internal and external EU actions are organised, and how coherence and collective action can be enhanced.16 In this regard, as noted by the European Parliament, special attention should be paid to BHR issues.
The EU, as the seat of many multinational corporations, as well as one of the most influential political and economic powers in the world, and as a self-declared moral leader in the field of human rights, is bound to pave the way for others, and possesses particular leverage to do so in the framework of its dense network of external relations […] for achieving worldwide respect for human rights by corporations.17
7The EU has been at the forefront of global BHR efforts since its endorsement of the UNGPs in the renewed 2011 Strategy for Corporate Social Responsibility,18 putting forward a ‘smart mix’ of voluntary and mandatory actions, and supporting initiatives undertaken by partner countries. In 2015, the EU adopted the EU Human Rights and Democracy Action Plan for the period of 2015–2019,19 which included commitments to develop capacity and knowledge on Business and Human Rights, raise awareness of the UNGPs and CSR in external action and policy dialogue, as well as promote the adoption of National Action Plans (hereinafter ‘NAPs’) by partner countries. In 2015, the Commission prepared a Staff Working Document on the EU’s implementation of UNGPs.20 In 2019, the Commission published the Reflection Paper entitled ’Towards a sustainable Europe 2030’,21 which recognised the role of responsible business conduct in the implementation of the SDGs.22
8The EU Action Plan on Human Rights and Democracy for the period of 2020–2024,23 adopted in November 2020, reflects the EU’s priorities on Business and Human Rights. It includes a commitment to strengthen the EU’s engagement with partner countries, in order to actively promote and support global efforts to implement the UNGPs, including fostering the development and implementation of NAPs in EU Member States and partner countries. The EU is also committed to developing tools and training materials on Business and Human Rights, responsible business conduct, and due diligence, in order to enable EU Delegations to step up their engagement.24
9In recent years, the European Union has introduced a range of regulatory initiatives, which seek to address the impacts that businesses have on the enjoyment of human rights in different ways.25 Key among these are: the European Green Deal,26 a suite of policy and legislative initiatives announced in 2019, aimed at achieving no net emissions of greenhouse gases by 2050; the 2020 European Pillar of Social Rights,27 and the accompanying action plan; the Corporate Sustainability Reporting Directive,28 Sustainable Finance Disclosure Regulation,29 Green Taxonomy,30 Conflict Minerals Regulation,31 the Timber Regulation,32 a proposed ban on goods produced with forced labour,33 a proposed regulation on deforestation-free products,34 the General Data Protection Regulation,35 the Public Procurement Directive,36 and the proposal of the Corporate Sustainability Due Diligence Directive.37 On 10 March, 2021, the European Parliament adopted a resolution with recommendations to the European Commission regarding the approval of a legislative proposal on mandatory supply chain due diligence (the draft of the Directive was published on 23 February, 2022,38 and voted on by the European Parliament on 1 June, 2023).39
10The approach favoured by the EU’s external human rights policy is one of dialogue and communication with third States, as well as civil society.40 The EU has various tools at its disposal to promote human rights through its external relations. For instance, the Council has developed a set of guidelines on different human rights issues within the framework of the Common Foreign and Security Policy (hereinafter ‘CFSP’),41 as Article 11-1 of the Treaty on European Union42 notably lists respect for human rights and fundamental freedoms as an objective of the CFSP. However, there are no existing guidelines specifically addressing the issue of business and human rights.43
11One notable instrument for promoting human rights abroad is the ‘Human Rights Dialogues’, which consist of ‘highly structured dialogues’ conducted at the senior level of human rights officials with selected countries. Such Human Rights Dialogues focus exclusively on the issue of human rights.44 Human Rights Dialogues are promising as they allow for direct contact with selected third countries, with a view to improving their human rights situation. However, the issue of business and human rights does not appear to be a priority in this respect.
12Aside from these initiatives, the bulk of the EU’s external policies regarding human rights is mainly embedded within its development and trade policies.45 Moreover, the European Parliament resolution46 recommends that the European Commission advance the BHR agenda in the EU’s external relations. It emphasises the need to incorporate business and human rights into external policy activities, including trade and investment agreements, and discussions on the protection of human rights. It also highlights the importance of capacity building for local authorities on BHR issues within the European Commission’s support for third countries in relation to the rule of law, good governance, and access to justice. In June 2020, the European Commission launched a review of the EU’s trade and investment policy. The promotion of international values and standards (including human rights, responsible business conduct, and sustainable development) is an essential part of the review process.47
II. Cooperation with the EU as a Factor of BHR Developments in the Post-Soviet Region
A. The Lack of UNGPs Implementation by Post-Soviet Countries
13In recent years, the development of BHR instruments and academic literature, following the mandate of John Ruggie as the UN Secretary-General’s Special Representative on business and human rights, provides a new lens through which to examine the impact of business on human rights. However, dangerous manifestations of the concept of ‘business OR human rights’ are still present in modern discourse, and are largely predominant in post-socialist societies. One such manifestation is extreme emphasis on the economic rationale (so-called ‘business case’) for corporate responsibility to respect human rights, i.e. on arguments as to why it is economically viable for businesses to respect human rights, discussing ‘about how maximisation of shareholder wealth and stakeholder wealth can be balanced’, and ‘yield a reputational competitive advantage and ultimately improve market and financial performance’.48 The ‘corporate social responsibility’ (CSR) paradigm, based on priorities voluntarily set at the corporate level, cannot fundamentally challenge the foundations of this system, which retains profit maximisation as its central aim.49
14This is especially true for new/transitional democracies (post-socialist societies), which ‘continue to experience unstable democratic and human rights contexts’, ‘collision of public, state and business interests; the weak rule of law and weak institutions; and prosecution of human rights defenders’.50 For them, the transition to capitalism has often resulted in a strong oligarchic economic structure, where the market is often artificially monopolised, and competition is limited.51 In these societies, deregulation (which often does not relieve business from pressure from the State, but exempts business from obligations in relation to rights-holders) and ‘business-friendly’ public governance is to be interpreted as ‘anything goes’ for business.52 A hard reality is that the current model of (economic) development is still not rights-based,53 and business models are not yet human rights oriented. This leaves the profit-maximisation mantra of modern shareholder value-oriented corporations untouched and, in fact, extends it as a guiding ideal to tackle a variety of social and environmental issues, providing an opportunity for governments to privatise public problem-solving, and retreat from essential public domains.
15According to the regional study,54 the most common business-related human rights abuses in the region include violations of workers’ labour rights, including poor working conditions; lack of guarantees of occupational health and safety; forced and child labour; restrictions on the freedom of association; violations of minimum and living wage legislation; human trafficking; environmental degradation, which may result in serious human rights violations; violations of land rights and enforced displacement; prosecution of human rights defenders; gender discrimination in the workplace (horizontal and vertical gender segregation in the labour market, the gender pay gap, sexual harassment, and more). Some of the most vulnerable groups in the region are migrant workers, children, persons with disabilities, LGBTIQ+ people, refugees and internally displaced persons (IDPs), Roma people, people living with HIV, and ethnic and national minorities.
16There is a lack of BHR awareness and capacities among all actors in the region: rights-holders, especially vulnerable groups, state and local authorities, and the corporate sector. Policy incoherence at national, local, and corporate levels, and a lack of capacities to ensure substantive (not just formal) compliance of national, local, and corporate policies and practices with human rights standards, and the principle of respect for human dignity, also create a significant barrier for the implementation of UNGPs. The EECA region is further characterised by a lack of effective state and non-state remedies, in particular operational-level grievance mechanisms, to prevent and protect against business-related human rights abuses.
17All these issues should be prioritised by the EU in its external policy for EECA countries, as they indicate the most significant barriers in ensuring corporate responsibility to respect human rights. For example, one regional trend is the significant role of state-owned enterprises in national economies that operate in key sectors, including energy, mining, agriculture, transport, and construction. In addition, certain sectors experience particularly high levels of human rights-related challenges, e.g., high emissions levels at state-owned coal mines. Moreover, their activities and unsustainable mine closures have contributed to excessive water and land pollution. Workers in state-owned mines often face non-payment of their wages, as well as facing health and occupational safety risks, while measures to minimise hazards remain limited. Almost all countries in the region can be characterised as having economic informality, poor working conditions, inadequate occupational health and safety systems, and low and unpaid salaries. Workers in the informal sector are deprived of social protection, and this problem was especially acute during the time of COVID-19. In addition, this situation significantly distorts statistics, which, as a rule, only take into account the formal sector. For example, it is impossible to know the number of work-related accidents since data is inaccurate and does not include information about accidents in the informal sector. Environmental risks are high in different sectors of businesses operating in the region.
18As attacks against BHR defenders mount, so do violations of workers’ rights, and there is a growing need for increased legal protection in the region. Unfortunately, court systems are often inefficient and politically influenced, with access to remedy severely affected by the length of proceedings. Only three countries and territories in the region – Kazakhstan and Ukraine – have National Contact Points for the OECD Guidelines for Multinational Enterprises. Trust in the justice system is low due to the weakness of guarantees of the rule of law and the high level of corruption. Business is often affiliated with corrupt schemes. This is a challenge not only for countries and territories in the region, but also for companies registered in the EU, because they need to control their supply chains. In such circumstances, it is not easy to count on the practical implementation of BHR standards. Furthermore, there is a lack of good practices for establishing internal company grievance mechanisms.
B. BHR as a Gap in the EU External Policy
i. Expectations that Countries Inspired to be Integrated into the EU Should Meet
19Armenia, Azerbaijan, Georgia, Moldova, and Ukraine55 are participants in the EU’s Eastern Partnership (EaP),56 a dimension of the EU Neighbourhood Policy57 aimed at boosting ties with the EU. In addition, most of them are linked to the EU through Association Agreements, including the Deep and Comprehensive Free Trade Area (hereinafter ‘DCFTA’),58 which aims to align their legal frameworks with the EU, and improve the overall business climate. European and Euro-Atlantic integration are defined as the key directions for the development of the national economies of EaP countries. EaP countries share the EU’s climate goals and contribute to joint efforts to create a climate neutral European continent under the Paris Agreement and the UN Sustainable Development Goals 2030.
20The participation of countries in the region in European integration processes, including the EU Association Agreements,59 and obtaining candidate country status by Moldova and Ukraine in June 2022,60 as well as other significant agreements and initiatives between the EU and other countries in the post-Soviet region, particularly the EU’s Generalised Scheme of Preferences Plus (GSP+),61 provides considerable opportunities for implementing the business and human rights agenda when harmonising their policies and legislation with the European regional acquis on human rights protection and corporate responsibility to respect human rights. This could become a driver for positive changes for the entire region, as well as promote green, sustainable development, and decent jobs. In particular, many countries in the region have strong cooperation with the EU, and declare that they are bound by European values, which unite the free peoples of the world: democracy, the rule of law, respect for international law and human rights, the rights of national minorities, as well as gender equality. Respect for democratic principles, human rights, and fundamental freedoms are the core principles underlying cooperation between its Eastern European neighbours (Armenia, Azerbaijan, Georgia, Moldova, Ukraine), and the EU’s Generalised Scheme of Preferences Plus (GSP+) gives developing countries (e.g., Kyrgyzstan) a special incentive to pursue sustainable development and good governance practices. This initiative requires eligible countries to implement 27 international conventions on human rights, labour rights, the environment, and good governance.
21The tendency towards the adoption of binding human rights and environmental due diligence legislation in the EU, as well as other regulatory efforts, is a positive development aimed at promoting the BHR agenda. For example, as highlighted, in Georgia’s National Baseline Assessment of 2017, Article 252 of the Association Agreement with the European Union commits the country to supporting corporate social responsibility, including the application of the principles of Guidelines for Multinational Enterprises of the OECD.62
22However, the EU-Ukraine Association Agreement (hereinafter ‘AA’), including the Deep and Comprehensive Free Trade Area signed in 2014, despite being ‘the most ambitious agreement the [EU had] ever offered to a non-Member State, […] opening the most ambitious external relationship ever developed with the EU’,63 failed to provide any framework for ensuring corporate responsibility to respect human rights. The AA is an exceptionally comprehensive (over 2140 pages in total) ‘cross-pillar agreement’ aiming at political and economic integration between the parties. It covers a broad spectrum of relations between the parties, including cooperation and convergence in the field of foreign and security policy, and the area of freedom, security, and justice. Inter alia, the AA aims to increase Ukraine’s association with EU policies, Ukraine’s gradual integration into the EU internal market, and the completion of the country’s transition into a functioning market economy through, among other factors, the progressive approximation of Ukrainian legislation to that of the Union. Legislative approximation is required in a vast number of areas, for instance, public procurement (Article 153), environmental policy (Article 363), corporate governance, accounting and auditing (Article 387), as well as consumer protection (Article 417). Additionally, the parties agreed that some provisions, for example, on state aid (Articles 262, 263), would be directly applicable.
23The following two are the closest provisions to the BHR agenda in the EU-Ukraine AA: Article 293 (chapter entitled ‘Trade favouring sustainable development’) represents the so-called ‘social clause’,64 and obliges parties to foster trade in products contributing to sustainable development, particularly those produced within fair and ethical trade schemes and schemes respecting CSR and accountability principles, and Article 422 (chapter 21 ‘Cooperation on employment, social policy and equal opportunities’), prescribing that the parties: shall promote [CSR] and accountability, and encourage responsible business practices, such as those promoted by the UN Global Compact of 2000, the [ILO Tripartite Declaration] of 1977 as amended in 2006, and the [OECD Guidelines] of 1976 as amended in 2000.
24Although the full text of the AA was agreed upon on 19 December, 2011, i.e., more than six months after the OECD Guidelines 2011 update, and the following the endorsement of the Guiding Principles, Article 422, puzzlingly refers to soft law instruments that had not yet incorporated the UNGPs’ three-pillar framework.65 Accordingly, the latter has still not been explicitly provided for by the EU-Ukraine AA, as opposed to the EU-Georgia AA, which contains a commitment to promote responsible business conduct in line with internationally recognised standards, including said Guiding Principles.
25The war and increased danger from Russia have expedited applications by Ukraine, Moldova and Georgia for EU membership, with Ukraine and Moldova obtaining the status of EU candidate countries.66 There has been a significant rise in the general public’s calls for responsible business conduct in a crisis. The war clearly demonstrates that human lives could be directly dependent on companies’ behaviour, both at the global level when businesses are called to exit from the Russian market and don’t contribute to the war in Ukraine, and at the personal level, when an individual could be saved owing to the actions of a responsible company, such as evacuation organised by an employer, the provision of mobile and internet connections thanks to the efforts of a mobile company, made possible at all costs, in order to continue to operate even in a situation of active military actions or occupation, ensuring the provision of food and pharmaceuticals by retailers continuing to deliver and sell goods amid disrupted supply chains, etc.
26However, based on the content of questionnaires, and information requested by the European Commission from the governments of Georgia, Moldova, and Ukraine, we can conclude that the EU chose not to include legislation of relevance to responsible business conduct standards, which sends out a strong message and raises the question of whether the EU is treating this area seriously. Despite the considerable pressure currently being placed by the EU on responsible business conduct and the transition to the Green Economy, there were no direct questions concerning the policy of Business & Human Rights in the application questionnaires. In particular, the questionnaires include a block of questions related to the business environment, including, inter alia: What is the size of the corporate sector? What are the main market entry and exit requirements for the corporate sector? What initiatives have been taken to enhance the business environment, tackle corruption, and what results have been achieved so far? What is the estimated share of the informal economy? What effects does it have on public finances, employment, and market competition? To what extent and how does corruption affect the business environment?67
27If we take a step back, the 1993 Copenhagen European Council is renowned for its formulation of the Union’s political accession criteria. Yet these criteria were, in themselves, unremarkable. In the 1960s, it had become clear in the practice of the Community’s application of provisions on membership (Article 237 EC Treaty) and association (Article 238 EC Treaty) that only those States satisfying this standard were welcome to join the Community.68 This was reinforced by the Community’s internal legal development, in particular the case law of the European Court of Justice with respect to human rights and the rule of law.69 The 1993 Copenhagen European Council brought just one, albeit important, innovation: minority protection was added to the list of core values, which candidates for membership – members themselves were released from this particular obligation – had to respect.70 The true significance of the Copenhagen European Council lay elsewhere. In previous enlargements, countries had been expected to meet political and economic conditions by themselves before they could be considered candidates for membership. They were also expected to adjust their own legal systems to the acquis communautaire during the negotiations or, as was often the case, during the transition period following accession.71 Taking into consideration recent developments on the corporate sustainability agenda, the need has arisen to add the relevant accession criteria.
ii. Expectations that the Central Asian Countries Should Meet
28For years, relations between Central Asian countries were generally poor, owing to border and resource disputes. Nevertheless, the situation changed rapidly following the change of leadership in Uzbekistan in 2016, opening up new possibilities for regional cooperation. The first Central Asian leaders’ summit on regional cooperation since the 1990s was held in Astana in March 2018, and a second summit took place in November 2019 in Tashkent. Renewable energy sources are another focus of attention in view of the enormous potential for regional cooperation and investment. The regional economy experienced a strong decline in 2020, owing to the COVID-19 pandemic, then expanded in 2021 with growth of 3.9 per cent, and the current outlook is uncertain due to Russia’s invasion of Ukraine, global inflation, and the rise of prices on commodities.72
29Partnership and Cooperation Agreements (PCAs) cover bilateral relations, with the exception of Turkmenistan, for which an interim trade agreement is in place. The new Enhanced PCA (EPCA) with Kazakhstan entered into force fully on 1 March 2020. The EPCA with Kyrgyzstan was initialled in July 2019, and negotiations with Uzbekistan are underway. Tajikistan has also expressed interest in an EPCA.73
30The Central Asian countries are participating in a dialogue on human rights issues with the European Union. In 2019, the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy adopted the Joint Communication to the European Parliament and the Council, ‘The EU and Central Asia: New Opportunities for a Stronger Partnership’, in which they state that
Promoting decent work and respect for international labour standards will remain a priority. The EU will help consolidate the progress made in recent years towards compliance with the fundamental conventions of the International Labour Organization (ILO) and encourage the ratification and implementation of ILO conventions on labour inspections, occupational health and safety and working conditions. The EU will promote compliance with the UN Guiding Principles on Business and Human Rights.74
31The 17th EU-Central Asia ministerial meeting held in November 2021 reaffirmed a joint commitment to forge a strong, ambitious, and forward-looking partnership that builds upon common values and mutual interests.75
32However, there are no more concrete initiatives related to corporate sustainability issues in the partnership between Central Asia and the EU, and no instruments or tools were proposed to provide this agenda and make it strong in the region.
III. Conclusions
33All contemporary BHR trends and developments pose a practical challenge to businesses lacking the capacity to solve them. In order to respond to these practical challenges, there is a need for EU foreign policy coherence for sustainable development, especially in regions deficient in business and human rights capacities. Progress could be based on four foundational pillars: the concept of solidarity, the capability approach, the vertical dimension of business’ human rights obligations, and the request for the legitimacy of corporate actors.
34The concept of solidarity plays an important role in the European legal order and beyond,76 in the context of building corporate respect for human rights. EU foreign policy could seek to elucidate the role of solidarity in achieving the SDGs, with special attention to situations of instability, particularly the impact of the Russian full-scale invasion of Ukraine, focusing on the role of responsible business conduct, and the concept of corporate respect for solidarity from a legal perspective.
35The capability approach can answer questions about possible instruments and leverage to address obstacles for businesses to implement (more) comprehensive BHR and SDG frameworks, and their correspondence to one another. The capability approach, designed by prominent philosophers Amartya Sen and Marta Nussbaum, brings the idea that it is not economic growth but the capability of a person to fulfil their basic freedoms and opportunities77 that is the main indicator of the quality of life, human development, justice in economic life, and sustainability. In this way, human dignity and its dimensions become crucial values in the policies and activities of business actors. The EU foreign policy on the implementation of sustainable development should consider the special challenges of ensuring the capability approach in post-Soviet countries, where the policies on human rights and SDGs of business actors may declare general-level human rights protection but underestimate individual or group level capabilities (such as women, children, workers with disabilities, religious people).
36The main goal of ‘legal’ human rights traditionally has been to establish the rules of the relationship between a person and the state (‘vertical effect’ of human rights). However, human rights can also be addressed to other persons and require certain behaviour from non-state actors, a so-called ‘horizontal effect’. This approach, in fact, does not extend beyond the state-centric approach – when speaking about both the vertical and the horizontal effect of human rights, we are speaking of the obligations of the state – in the first case regarding its own actions, in the second – regarding the actions of third parties having an influence on human rights. That is, the horizontal effect of human rights takes place when it is the state which remains the primary addressee in the field of human rights.
37However, there can be instances in which corporations may have some degree of positive duties towards the rights-holders. In this case, there is a place for the vertical dimension of the human rights obligations of business, which should also be flagged in communication between the EU and its partners.
38Business legitimacy is the prerequisite for a company’s license to operate in society, and its relations with various internal and external stakeholders, including investors, shareholders, employees, customers, consumers, suppliers, local communities, the state, and the international community. This is an important feature of the concept of business and human rights, which extends beyond the boundaries of ‘Western neoliberal capitalism’. While the latter recognises the need for the social responsibility of business, it considers this to be a private responsibility. According to liberal theory, only states are considered public actors. Companies belong exclusively to the private sphere, and therefore they do not need legitimisation by society. This approach ‘conceptualizes corporations as apolitical and corporate responsibility as purely private’.78 But it ignores the true state of affairs: company activities can significantly affect public interests, companies do not always operate purely in the private space ‘given to them by the state’, and states are not always able to exercise effective control over such activities. This indicates the need to recognise companies as subjects of public responsibility, whose authority is subject to legitimisation by society.
39Recent developments in the EU concerning the Green Deal and related sustainability-focused legislation have the potential to drive progress in the EECA region,79 although most likely at the practical level, through pressure exerted by business. In particular, the EU’s forthcoming legislation on mandatory Human Rights and Environmental Due Diligence is expected to have a spillover effect in the region, with many businesses operating in the EECA being subsidiaries of EU-based companies, and thus naturally affected by developments at the EU level.80
40The request to ensure coherence of the EU external policy’s impact on sustainable development in its relations with the countries of the post-Soviet region is strongly aligned with the EU’s aims of protecting human rights and the environment, as well as its core values. Moreover, it is focused on the European legal framework on corporate sustainability, as part of, and complementary to, the global framework on business, human rights, and the environment. External policy should aim to encourage dialogue on corporate respect for human rights, and the environment among different stakeholders in the EU and partner countries, through raising awareness and building cooperation on corporate sustainability issues.
41The war in Ukraine has exposed the urgent need for effective coordination and coherence between EU policy frameworks. Simultaneously, synergies need to be enhanced. Currently, however, the content and implementation of sustainable development in the context of the business and human rights agenda still follow a sectoral and siloed approach that contradicts the EU’s policy coherence ambitions.81
Notes de bas de page
1 This article focuses on post-Soviet countries, with the exception of Belarus and Russia: Armenia, Azerbaijan, Georgia, Moldova, Ukraine, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan. Baltic countries – Latvia, Lithuania and Estonia – also had the status of the Soviet republic (after their occupation by the USSR in June 1940), but they are not covered by this paper as they are EU Member States.
2 Georgia, Moldova and Ukraine.
3 The Eastern Partnership (EaP) is a joint initiative involving the EU, its Member States, and five Eastern European Partner countries: Armenia, Azerbaijan, Georgia, the Republic of Moldova and Ukraine. Belarus has suspended its participation in the Eastern Partnership as of June 2021.
4 In particular, structured human rights dialogues are held with each of the five Central Asian republics (Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan). They are designed to discuss issues of mutual interest and enhance cooperation on human rights, as well as to raise the EU’s concerns regarding human rights in Central Asia.
5 B. Sjåfjell and M. B. Taylor, ‘Clash of norms: Shareholder primacy vs. sustainable corporate purpose’ (2019) 13(3) International and Comparative Corporate Law Journal 40–66; H. Ahlströms and B. Sjåfjell, ‘Why policy coherence in the European Union matters for global sustainability’ (2022) Environmental Policy and Governance 1–16: doi.org/10.1002/eet.2029.
6 United Nations, ‘Transforming our world: the 2030 Agenda for Sustainable Development’ (2015) 70(1): sustainabledevelopment.un.org/post2015/transformingourworld.
7 OECD, ‘OECD Guidelines for Multinational Enterprises’ (1976): www.oecd.org/corporate/publicationsdocuments/legalactsstandards/5/.
8 United Nations. ‘Guiding Principles on Business and Human Rights’ (2011): www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf.
9 D.Surya, ‘The UN Guiding Principles on Business and Human Rights and Its Predecessors. Progress at a Snail’s Pace?’ in I. Bantekas and M. A. Stein (eds), The Cambridge Companion to Business and Human Rights Law (Cambridge University Press, 2021); 10th United Nations Forum on Business and Human Rights, (Concept Note) 29 November – 1 December 2021, ‘The next decade of business and human rights: increasing the pace and scale of action to implement the Guiding Principles on Business and Human Rights’: www.ohchr.org/Documents/Issues/Business/2021ForumConceptNote.pdf.
10 N. Jägers, ‘Sustainable Development Goals and the Business and Human Rights Discourse: Ships Passing in the Night?’ (2020) 42 (1) Human Rights Quarterly 145–73.
11 Ch. Rees, Business, Human Rights and the Sustainable Development Goals: Forging a Coherent Vision and Strategy (New York, Shift, 2016): http://shiftproject.org/wp-content/uploads/2016/11/BSDC-Biz-HumanRights-SDGs.pdf.
12 K. Buhmann, J. Jonsson and M. Fisker, ‘Do no harm and do more good too: connecting the SDGs with business and human rights and political CSR theory’ (2019) 19(3) Corporate Governance 389–403.
13 Key recommendations for connecting the business and human rights agenda to the 2030 Sustainable Development Goals: www.ohchr.org/en/special-procedures/wg-business/key-recommendations-connecting-business-and-human-rights-agenda-2030-sustainable-development-goals.
14 European Economic and Social Committee, ‘The 2030 Agenda – A European Union committed to supporting sustainable development goals globally’ (Opinion) (2016) REX/461: www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/2030-agenda-european-union-committed-support-sustainable-development-goals-globally-own-initiative-opinion.
15 The Council Conclusions on Business and Human Rights, adopted by the Council at its 3477th meeting held on 20 June 2016: https://data.consilium.europa.eu/doc/document/ST-10254-2016-INIT/en/pdf.
16 German Institute of Development and Sustainability (IDOS), ‘The future of EU External Action’: www.idos-research.de/en/events/details/the-future-of-eu-external-action/.
18 Internal Market, Industry, Entrepreneurship and SMEs, ‘Corporate social responsibility & Responsible business conduct’: https://single-market-economy.ec.europa.eu/industry/sustainability/corporate-sustainability-and-responsibility_en.
19 Joint Communication, ‘Action Plan on Human Rights and Democracy (2015-2019). “Keeping human rights at the heart of the EU agenda”’, JOIN/2015/0016 final.
20 Commission staff working document on Implementing the UN Guiding Principles on Business and Human Rights, RESPECT: https://respect.international/commission-staff-working-document-on-implementing-the-un-guiding-principles-on-business-and-human-rights/.
21 European Economic and Social Committee, ’Towards a Sustainable Europe by 2030’ (Reflection Paper), (2023): https://www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/reflection-paper-towards-sustainable-europe-2030.
22 EU contribution to the upcoming thematic report on the 10th anniversary of the UN Guiding Principles on Business and Human Rights, (2020): https://www.ohchr.org/sites/default/files/Documents/Issues/Business/UNGPsBHRnext10/inputs/states-igos/EU.pdf.
23 Joint Communication, ’EU Action Plan on Human Rights and Democracy 2020-2024’, JOIN/2020/5 final.
24 EU contribution to the upcoming thematic report on the 10th anniversary of the UN Guiding Principles on Business and Human Rights (n 22 above).
25 Danish Institute for Human Rights, ‘How do the pieces fit in the puzzle? Making sense of EU regulatory initiatives related to business and human rights’, (2023): https://www.humanrights.dk/publications/how-do-pieces-fit-puzzle-making-sense-eu-regulatory-initiatives-related-business-human, 10.
26 Commission, ‘The European Green Deal’ (Communication) COM/2019/640 final.
27 Employment, Social Affairs & Inclusion – European Commission, ‘European Pillar of Social Rights – Building a fairer and more inclusive European Union’: https://ec.europa.eu/social/main.jsp?catId=1226&langId=en.
28 Finance–European Commission, ‘Corporate sustainability reporting’: https://finance.ec.europa.eu/capital-markets-union-and-financial-markets/company-reporting-and-auditing/company-reporting/corporate-sustainability-reporting_en.
29 Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability‐related disclosures in the financial services sector [2019] OJ L 317/1.
30 EU taxonomy for sustainable activities. Finance: https://finance.ec.europa.eu/sustainable-finance/tools-and-standards/eu-taxonomy-sustainable-activities_en.
31 Conflict Minerals Regulation: The regulation explained. (4 May 2023). Trade: https://policy.trade.ec.europa.eu/development-and-sustainability/conflict-minerals-regulation/regulation-explained_en.
32 Timber regulation. Environment: https://environment.ec.europa.eu/topics/forests/deforestation/illegal-logging/eu-timber-regulation_en.
33 Proposal for a ban on goods made using forced labour. Think Tank. European Parliament: https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2023)739356#:~:text=On%2014%20September%202022%2C%20the,to%20promote%20decent%20work%20worldwide.
34 Regulation on deforestation-free products. Environment: https://environment.ec.europa.eu/topics/forests/deforestation/regulation-deforestation-free-products_en.
35 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) [2016] OJ L 119/1.
36 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC [2014] OJ L 94/65.
37 See: Human Rights Due Diligence Legislation in Europe – Implications for Supply Chains to India and South Asia: www.dlapiper.com/en-ae/insights/publications/2021/03/human-rights-due-diligence-legislation-in-europe.
38 Just and sustainable economy: Commission lays down rules for companies to respect human rights and environment in global value chains: https://ec.europa.eu/commission/presscorner/detail/en/ip_22_1145.
39 Amnesty International (2023). EU: European Parliament’s vote for new corporate due diligence legislation should strengthen human rights. Amnesty International: https://www.amnesty.org/en/latest/news/2023/06/eu-european-parliaments-vote-for-new-corporate-due-diligence-legislation-should-strengthen-human-rights/
40 Commission, ‘The European Union’s role in promoting human rights and democratisation in third countries’ (Communication) COM(2001) 252 final. 8.
41 Common Foreign and Security Policy: https://commission.europa.eu/funding-tenders/find-funding/eu-funding-programmes/common-foreign-and-security-policy_en#:~:text=The%20Common%20Foreign%20and%20Security,human%20rights%20and%20fundamental%20freedoms.
42 Consolidated version of the Treaty on European Union [2012] OJ C 326/13.
43 Council of the European Union, ‘EU Human Rights Guidelines’: https://ec.europa.eu/external_relations/human_rights/guidelines/index.htm.
44 See: Council of the European Union, ‘European Union Guidelines on Human Rights Dialogues’ (13 December 2001): https://ec.europa.eu/external_relations/human_rights/doc/ghd12_01.htm, 4. Policy Department DG External Policies 22.
45 https://www.europarl.europa.eu/document/activities/cont/200904/20090430ATT54804/20090430ATT54804EN.pdf.
46 European Parliament resolution of 10 March 2021 with recommendations to the Commission on corporate due diligence and corporate accountability (2020/2129(INL)): www.europarl.europa.eu/doceo/document/TA-9-2021-0073_EN.html.
47 M. Cayuela ‘The EU defense and enforcement of human rights through its trade relations with third countries’, (Master’s Thesis, Tilburg University, 2021) supervisor: Daniel Augenstein: http://arno.uvt.nl/show.cgi?fid=155030.
48 L. Eagle, S. Dahl, P. De Pelsmacker, Ch. R. Taylor (eds), The SAGE Handbook of Marketing Ethics, (Thousand Oaks/California, SAGE Publications Ltd, 2020).
49 F. Wettstein, ‘The History of “Business and Human Rights” and its Relationship with Corporate Social Responsibility’ in S. Deva, D. Birchall (eds), Research handbook on human rights and business (Cheltenham, Edward Elgar Publishing, 2020) 38.
50 J. Letnar Černič, ‘Mapping Business and Human Rights in Central and Eastern Europe’, Cambridge Core Blog, (2020) 11 December, Business and Human Rights Journal: www.cambridge.org/core/blog/2020/12/11/mapping-business-and-human-rights-in-central-and-eastern-europe/.
51 UNDP, The Status of the Implementation of the UNGPs on Business and Human Rights in Europe and Central Asia, (Istanbul, United Nations Development Programme, 2023): www.undp.org/eurasia/publications/implementation-un-guiding-principles-business-and-human-rights-ecis.
52 Ibid.
53 S. Deva, ‘From “business or human rights” to “business and human rights”: what next?’ in S. Deva and D. Birchall (eds), Research handbook on human rights and business (Cheltenham, Edward Elgar Publishing, 2020).
54 UNDP, The Status of the Implementation, (n 51 above).
55 Belarus suspended its participation in the EaP in June 2021, indicating EU’s sanctions and restrictions as a reason; see eg: A. Brzozowski, ‘EU reproves Belarus’ walkout from the Eastern Partnership’, EURACTIV.com: www.euractiv.com/section/europe-s-east/news/eu-reproves-belarus-walkout-from-the-eastern-partnership/; https://www.consilium.europa.eu/en/policies/eastern-partnership/belarus/.
56 Launched in 2009, the EaP is a strategic partnership aimed to strengthen and deepen political and economic relations between the EU, its Member States, and partner countries and territories, and support sustainable reform processes in those countries and territories. For further information, see: https://www.eeas.europa.eu/node/419.
57 European Neighbourhood Policy: www.eeas.europa.eu/eeas/european-neighbourhood-policy_en#:~:text=The%20European%20Neighbourhood%20Policy%20(ENP,their%20mutual%20benefit%20and%20interest.
58 Deep and comprehensive free trade agreements: https://trade.ec.europa.eu/access-to-markets/en/content/deep-and-comprehensive-free-trade-agreements.
59 Association Agreements with Ukraine, Georgia and Moldova on the roads to EU Membership. Think Tank, European Parliament: www.europarl.europa.eu/thinktank/en/document/EPRS_IDA(2022)730340.
60 Grant EU candidate status to Ukraine and Moldova without delay, MEPs demand, European Parliament: www.europarl.europa.eu/news/en/press-room/20220616IPR33216/grant-eu-candidate-status-to-ukraine-and-moldova-without-delay-meps-demand.
61 Generalised Scheme of Preferences Plus (GSP+): https://trade.ec.europa.eu/access-to-markets/en/content/generalised-scheme-preferences-plus-gsp.
62 The Office of the Public Defender (Ombudsman) of Georgia and CIDA, National Baseline Assessment on Business and Human Rights (Georgia, 2017): www.ombudsman.ge/res/docs/2020070817231792603.pdf.
63 G. Van der Loo, ‘The EU-Ukraine Association Agreement and Deep and Comprehensive Free Trade Area. A New Legal Instrument for EU Integration without Membership’ (Linden, Boston, Brill Nijhoff, 2016) 1, (citing former President of the European Council H. Van Rompuy on the signing ceremony on 27 June 2014).
64 The social clause of a trade agreement may be ‘defined as any attempt to link labour standards and trade relations’; J. Orbie, H. Vos and L. Taverniers, ‘EU Trade Policy and a Social Clause: A Question of Competences?’ (2005) 17 Politique européenne 159.
65 I. Konopka (2021), Getting hard to resist: The prospect of mandatory human rights due diligence in Ukraine, (Master’s Thesis, Lund University, 2021, supervisor: R. Mares) 45.
66 European Council Conclusions on the membership applications: www.consilium.europa.eu/en/press/press-releases/2022/06/23/european-council-conclusions-on-ukraine-the-membership-applications-of-ukraine-the-republic-of-moldova-and-georgia-western-balkans-and-external-relations-23-june-2022/.
67 Questionnaire. Information requested by the European Commission from the Government of Georgia for the preparation of the Opinion on the application of Georgia for membership of the European Union Parts I and II (April 2022): https://docs.rferl.org/ka-GE/2022/04/15/8b1ffa82-e3c2-4cb3-b822-d9b2cb700e28.pdf and www.gov.ge/files/573_81827_881717_QuestionnairepartIIGeorgia.pdf; see also: Questionnaire to the Government of Moldova and Ukraine: https://gov.md/sites/default/files/document/attachments/chestionar_p.1-final-ue.pdf.
68 Ch. Hillion, ‘The Copenhagen Criteria and Their Progeny’ in Ch. Hillion, (ed) EU Enlargement: A Legal Approach (Oxford, Hart Publishing, 2004) 57.
69 N. Walker (2009), ‘The Rule of Law and the EU: Necessity’s Mixed Virtue’ (2008) 4 Michell Working Papers, University of Edinburgh Working Papers 119, 125; T. von Danwitz ‘The Rule of Law in the Recent Jurisprudence of the ECJ’ (2014) 37(5) Fordham International Law Journal; A. J. Menéndez ‘A Rights-Based Europe? The Charter of Fundamental Rights of the European Union’ (2002) 20(2) Nordic Journal of Human Rights 31–35.
70 The Maastricht Treaty of the European Union Art. F and Amsterdam Treaty Art. 6 did not list minority protection as a founding principle of the EU.
71 M. Maresceau, ‘Pre-accession’ in M. Cremona (ed) The Enlargement of the European Union (Oxford, Oxford Academic 2003, online edn); Ch. Hillion, The Creeping Nationalisation of the EU Enlargement Policy. Report No. 6, (Stockholm, Swedish Institute for European Policy Studies, 2010).
72 The Central Asian countries and EU-Central Asia relations: www.europarl.europa.eu/factsheets/en/sheet/178/central-asia.
73 European Parliament, ‘Fact Sheets on the European Union. Central Asia’: www.europarl.europa.eu/factsheets/en/sheet/178/central-asia.
74 Joint Communication, ‘The EU and Central Asia: New Opportunities for a Stronger Partnership’ JOIN(2019) 9 final.
75 Joint Communiqué: 17th EU-Central Asia Ministerial Meeting, Dushanbe (22 November 2021): https://www.eeas.europa.eu/eeas/joint-communiqué-17th-eu-central-asia-ministerial-meeting_en.
76 O. Uvarova, ‘Sustainability in Transition: Corporate Respect for Solidarity’ (2023) 1 Kharkiv Forum – Wageningen Law Series: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4365497 or dx.doi.org/10.2139/ssrn.4365497.
77 A. Sen, ‘The economics of happiness and capability’ in L. Bruni et al. (eds) Capabilities and Happiness (Oxford, Oxford University Press, 2008) 16–27.
78 F. Wettstein ‘The History of “Business and Human Rights” and its Relationship with Corporate Social Responsibility’ (n 49 above) 38.
79 Business & Human Rights Resource Centre, Governance, rule of law and corruption in Eastern Europe and Central Asia: Barriers to holding corporations accountable for human rights abuses – Business & Human Rights Resource Centre: www.business-humanrights.org/en/blog/governance-rule-of-law-and-corruption-in-eastern-europe-and-central-asia-barriers-to-holding-corporations-accountable-for-human-rights-abuses/.
80 Ibid.
81 The European Green Deal and the war in Ukraine: Addressing crises in the short and long term: https://ettg.eu/publications/the-european-green-deal-and-the-war-in-ukraine-addressing-crises-in-the-short-and-long-term/.
Auteur
MSCA4 Ukraine Postdoc, Wageningen University and Research, Netherlands
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