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Which extraterritoriality?

When dealing with extraterritoriality in the context of human rights and business, the main issue at stake is the exercise of extraterritorial jurisdiction by a ‘home’ state over the overseas activities of a transnational company with some link to that state (domicile, registration, or listing in the territory or within the jurisdiction of the state). Navigating between a few legal obligations and many soft law recommendations, the UNGPs reflect the confusion that already exists as to which type of extraterritoriality is at stake: on the one hand, a possible extraterritorial human rights obligation of the state to ensure by law that business enterprises domiciled on their territory do not commit human rights-related abuses abroad and, on the other hand, the mere possibility of applying extraterritorial jurisdiction in criminal prosecution or civil litigation to business enterprise operations outside the state.

Extraterritoriality is mentioned indirectly in the text of GP 2 which is worded in a highly cautious and non-committal manner: ‘States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.’ Focusing primarily on an extraterritorial application of the human rights obligation of the state, the ‘minimal’69 wording of GP 2 is explained by the fact that, at present, states are not required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. In international human rights law, the extraterritorial application of the human rights obligation of states requires a certain degree of control by the state on the situation occurring outside the territorial jurisdiction. The relevant and extensive case law of the European Court of Human Rights thus deals primarily with military operations or other forms of military presence abroad.[1] [2]

In the field of human rights and business, there is fierce debate regarding the actual existence—and possible future development—of an extraterritorial human rights obligation of the state/1 Some human rights treaty bodies already ask that home states take steps to prevent abuses abroad by business enterprises domiciled within their territorial jurisdiction. For example, the Committee on Economic,

Social, and Cultural Rights has stated in its General Comment on the right to water that ‘steps should be taken by states parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries’.^ Transnational activities that have critical human rights impacts such as child trafficking have compelled the Committee on the Rights of the Child to urge states to take action in order to prosecute and punish those engaging in trafficking. Article 3(1) of the Optional Protocol on Sale of Children, Child Prostitution, and Child Pornography requires that such offences be criminalized, whether they are committed ‘domestically or transnationally or on an individual or organized basis’.73

Independently of the existence of any international human rights obligations, states have chosen to adopt direct extraterritorial legislation4 or to extend their civil and or criminal jurisdiction to acts that have taken place outside their own territory.75 In the USA, the Alien Tort Statute of 1789 has opened up the possibility of victims obtaining redress for human rights violations by companies operating outside their territory of domicile. This was a rather exceptional development and has been significantly toned down following the 2013 Kiobel judgment of the US Supreme Court/6 However, numerous cases against multinational companies have been pursued in many countries on the basis of tort (negligence arising from a breach of a company’s duty of care). Even though there has not yet been a final legal determination on the point of establishing an extraterritorial duty of care for parent companies that could serve as the basis of an ‘extraterritorial’ tort claim/7 cases are not dismissed from the outset on the basis of lack of territorial jurisdiction/[3] [4]

The above and recent developments in the field of extraterritoriality show that there are many possibilities for increasing access to effective remedy for victims of human rights-related abuses committed in host countries, even though there is no legal obligation for states to do so.

  • [1] Overview of this case law in the Factsheet on extraterritorial jurisdiction available on the websiteof the ECtHR.
  • [2] Augenstein and Kinley in Deva and Bilchitz (2013): 271—94; O. De Schutter, ExtraterritorialJurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations, Dec.2006 (background paper to the seminar organized in collaboration with the Office of the UN HighCommissioner for Human Rights in Brussels on 3^ Nov. 2006).
  • [3] 2 Para. 33 of General Comment 15 on the right to water (E/C.12/2002/11). See also CESCRGeneral Comment 14 on the right to the highest attainable standard of health (E/C.12/2000/4), atpara. 39 for similar comments to General Comment 15, para. 33 in relation to influencing third partyactions abroad. 73 Optional Protocol on sale of children, child prostitution, and child pornography (GeneralAssembly Resolution A/RES/54/263 of 25 May 2000), see also Arts 3.2, 4.2, and 4.3. See also interalia CRC concluding observations, Lebanon, UN Doc. CRC/C/LBN/CO/3, 8 June 2006, at para.82(e). See also the international framework for combating terrorism, which relies heavily on statesestablishing extraterritorial jurisdiction or the 2000 International Convention for the Suppression ofthe Financing of Terrorism. For references to several other standards: De Schutter (2006). 74 See e.g.: the United States legislation re the fight against corruption or consumer protection: USForeign Corrupt Practice Act of 1977 and US Dodd—Franck Act of 2010, section 1502 on conflict freeminerals. See also: UK Bribery Act of 2010. 75 J. Zerk, Corporate Liability for Gross Human Rights Abuses: Towards a Fairer and More EffectiveSystem of Domestic Law Remedies, a study prepared for the Office of the UN High Commissioner forHuman Rights (2014): 31—9. 76 Esther Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct 1659 (2013). Until the Kiobel judgment in2013, the US Alien Tort Statute of 1789 had been interpreted by US federal courts ‘as implying thatthey have jurisdiction over enterprises either incorporated in the United States or having a continuousbusiness relationship with the United States, where foreigners, victims of violations of internationallaw wherever such violations have taken place, seek damages from enterprises which have committedthose violations or are complicit in such violations as they may have been committed by State agents’(De Schutter (2006): 6). 77 R. Meeran, ‘Access to Remedy: The United Kingdom Experience of MNC Tort Litigation forHuman Rights Violation’, in Deva and Bilchitz (2013): 378^02. See also e.g. the list of tort caseslitigated in the UK at 388.
  • [4] 78 E.g. the Quebec Superior Court of Justice in the Anvil judgment of 27 Apr. 2011: the Courtdismissed a motion to strike the claim brought by Anvil based on lack of jurisdiction. In so doing,
 
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