We have reached an inflexion point

In recent years it has become clearer than ever that fundamental rights have started permeating the business world, in particular at the regulatory level. It was therefore an opportune time for me to transition from public service and the European Court of Human Rights (ECtHR) into private practice at Gibson Dunn, and become an active participator at this inflection point in the legal world.

In this article I will reflect on the development of human rights law, from an idea, to enforceable obligations on states, to slowly imposing binding obligations on the private sector. With regard to the latter, I will explain this development with three examples: current climate change litigation; forthcoming legislation regarding mandatory human rights due diligence; and the development of legislation regulating, from a rights-based perspective, artificial intelligence (AI). These examples will bring to light the difficulties that arise when applying a normative legal system in completely novel, transformative and transnational contexts.

Beginnings

Modern human rights law has been developing since the middle of the 20th century, but the question of enforcement for violations of legally enshrined rights has always been a vexed one. The modern history of international human rights law arguably begins with the adoption of the Universal Declaration of Human Rights (UDHR) on 10 December 1948, 75 years ago. The UDHR was inspired by the tragedies of the second world war, and has since become accepted as one of the fundamental norms of human rights law, albeit still constituting ‘soft law’ and having no enforcement mechanisms. Shortly after the UDHR was adopted, the European Convention on Human Rights (the Convention) came into effect in 1953, followed in later years by regional human rights treaties in Africa and the Americas.

Since the adoption of the UDHR and the Convention, many more international human rights treaties have been adopted and ratified by states. These include the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights in 1966, and treaties designed to protect against specific violations, such as the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment in 1984, and to protect specific groups of individuals, such as the Convention on the Elimination of All Forms of Racial Discrimination in 1965, and the Convention on the Elimination of all Forms of Discrimination against Women in 1979.

Binding obligations?

With many of these treaties, international human rights obligations became binding on states as a matter of international law. But that did not always translate into domestic law and so enforcement of these rights by aggrieved individuals has been a difficult issue.

Some of the international human rights treaties have established treaty bodies that accept complaints by individual applicants who are victims of human rights violations and who have exhausted domestic remedies. However, generally, these bodies do not have the teeth to enforce compliance. For example, the United Nations Human Rights Committee, which consists of independent experts, can receive and consider complaints from individuals in parties to the ICCPR who allege that their human rights have been violated. But the Committee’s written opinions on such complaints do not have the binding force of a court judgment. There is no enforcement mechanism whereby a state must comply with the opinion. Instead, there is an expectation that states will comply with the Committee’s opinions. But in fact, many states have a history of non-compliance.

This can be contrasted with the Convention, pursuant to which individuals have the right to access the ECtHR, the judgments of which are binding on the 46 parties of the Convention.

However, in the cases of the Convention and the international human rights treaties, the obligations are binding only on states. The victim of a human rights violation committed by a private entity would not have recourse against it.

The emphasis that the [EU] AI Act puts on standardisation is in stark contrast to the traditional method for analysing interferences with the right to privacy

Business and human rights

In the early 21st century, the international community mobilised to attempt to close this gap. The instrument that marked the beginning of regulation in this respect was the Guiding Principles on Business and Human Rights. Adopted in 2011, the Guiding Principles are a set of (non-binding) guidelines for states and companies to prevent, address and remedy human rights abuses committed in business operations.

Since the Guiding Principles were adopted, and as public awareness of and sentiment towards human rights increased, legislative appetite for the development of binding obligations on businesses to respect human rights laws has increased. We are now at the beginning of a paradigm shift whereby human rights laws that are binding on private actors will increasingly become the norm. This will lead to challenges, as we will be entering novel legal territory.

Climate change

Most people do not associate climate change with human rights. The reason that climate change is not traditionally examined through a rights-based lens is because at the inception of international human rights law, our effect on the climate was not widely understood.

Global warming and the depletion of the ozone layer increasingly became part of the mainstream consciousness from 1988, which is the year that the Intergovernmental Panel on Climate Change, a forum for the examination of greenhouse warming and global climate change, was established. In 2012, the first UN Human Rights Council special rapporteur on human rights and the environment, John Knox, made the case for the ‘greening’ of human rights. The Paris Agreement recitals acknowledge the interdependence of human rights and addressing climate change. And on 26 July 2022, the UN General Assembly passed a resolution recognising the human right to a safe, clean and healthy environment.

The evolution of climate change into a rights-based issue has real consequences for states and, perhaps, for businesses. This has manifested in three cases being deliberated by the ECtHR’s Grand Chamber: Verein KlimaSeniorinnen Schweiz and Others v Switzerland (no. 53600/20), Carême v France (no. 7189/21) and Duarte Agostinho and Others v Portugal and 32 Others (no. 39371/20). In these cases, the applicants essentially argue that the court’s member states have violated their Convention rights, such as their right to life (read widely and purposively in light of the right to a safe, clean and healthy environment, which is not a right enshrined in the Convention itself) by not implementing effective measures to address the climate crisis, including by not complying with the Paris Agreement. The applicants ask the ECtHR to impose positive obligations on member states to hold the increase in the global average temperature to well below 2°C above pre-industrial levels. Such a ruling might in turn require member states to legislate that businesses reduce their greenhouse gas emissions.

While this may seem enticing, it does not mean that the ECtHR’s active intervention would be justified or appropriate, as I have argued elsewhere. Indeed, there are several issues that come with interpreting the Convention in a way that imposes positive substantive obligations on its member states.

First, when it comes to the nature and cross-border effects of climate change, there are significant issues that need to be addressed at the admissibility stage, including challenges related to the traditional notions of victim status and extraterritorial jurisdiction: namely, whether victims can prove a direct link between the alleged violations and the greenhouse gases emissions by the member state in question, as required by the Convention.

Second, at the merits stage, there is the issue of the margin of appreciation that the ECtHR traditionally affords to member states in areas of significant economic and social policy, which is certainly implicated by any sweeping measures applied for the purpose of addressing a wide-ranging issue such as climate change.

Third is the question of whether it is realistic for judges to determine what constitutes a safe, clean and healthy environment. This has the potential to invite extremely difficult definitional, scientific and probative challenges when litigated in adversarial proceedings, and the potential to tread on territory that is traditionally left to politicians and policymakers as opposed to the judiciary.

Due diligence

The European Union is currently in the final round of negotiations on the draft Directive on Corporate Sustainability Due Diligence (CSDDD), and an agreement is expected in 2024. The CSDDD sets out mandatory human rights and environmental due diligence obligations for corporates, together with a civil liability regime to enforce compliance to prevent, mitigate and end adverse impacts.

One of the more controversial features of the CSDDD is whether to include directors’ duties. The draft version adopted by the European Parliament removed the responsibility on directors for putting in place and overseeing the due diligence actions set out in the CSDDD. However, the inclusion of such duties is something that the European Commission is intent on.

In addition, both the European Commission and the European Parliament have agreed (while the European Council has opposed) to the inclusion of a duty on directors to ‘take into account the consequences of their decisions for sustainability matters, including, where applicable, human rights, climate change and environmental consequences, including in the short, medium and long term’.

Combined with these tangible requirements, the CSDDD imposes real consequences for failures to comply with it. This comes in the form of civil liability of companies for failure to comply with the obligations in the CSDDD, and a sanctions regime to be imposed by each member state that is ‘effective, proportionate and dissuasive’, including pecuniary sanctions ‘based on the company’s net worldwide turnover’.

The CSDDD is groundbreaking in that it introduces legally binding human rights obligations on businesses across entire value chains, with real remedies for aggrieved individuals. However, it will introduce real implementation complexity and litigation risk for companies within its scope.

Artificial intelligence

There has been much discussion regarding concerns that developments in AI pose a danger to a variety of human rights, such as the rights to privacy and right to non-discrimination. Recognising the potential for this danger, the EU is currently negotiating the text of the AI Act that purports to lay down ‘harmonised rules for the placing on the market, the putting into service and the use of AI systems’.

The AI Act is now in the final stages of the EU’s trilogue procedure. It appears that it will adopt a risk-based approach (that is to say, unacceptable risks posed by AI systems would be banned, while higher-risk AI activity would attract stricter regulations and lower-risk lighter regulation).

The AI Act recognises that the level of risk posed by an AI system is directly related to the impact it poses on fundamental rights. In other words, it introduces a transversal (non-sector-specific), multi‐level, risk‐based regulatory assessment of fundamental rights. This raises several concerns.

First, identifying harmonised standards to address and mitigate the risks to fundamental rights is difficult, due to the diversity of AI systems, the products that they are deployed in, and the range of fundamental rights that are implicated. For example, who will design the harmonised standards, and how? Second, the emphasis that the AI Act puts on standardisation is in stark contrast to the traditional method for analysing interferences with the right to privacy as applied in the digital ecosystem. For example, the ECtHR has developed, over decades of jurisprudence, gradations of concrete, fact‐specific, interferences with privacy rights in the field of mass surveillance.

Conclusion

For better or worse, businesses are facing a rapid expansion of fundamental rights regulations of their operations and business models. This will not come without its challenges, in particular for the legal profession. Navigating this complex new environment will require a multidisciplinary approach and an in-depth understanding of how fundamental rights principles can be infused pragmatically and effectively into the business sector. It will be very interesting to participate in this ever-growing part of private legal practice in the months and years to come.

Robert Spano is a partner in the London and Paris offices of Gibson Dunn & Crutcher. A former president of the European Court of Human Rights, he is a visiting professor of law at the University of Oxford, a professor of law at the University of Iceland, and an honorary bencher of the Middle Temple