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When Human Rights ‘Responsibilities’ become ‘Duties’: The Extra-Territorial Obligations of States that Bind Corporations

HUMAN RIGHTS OBLIGATIONS OF BUSINESS: BEYOND THE CORPORATE RESPONSIBILITY TO RESPECT? D. Bilchitz & S. Deva, eds., Cambridge University Press, 2013

Sydney Law School Research Paper No. 12/71

23 Pages Posted: 20 Sep 2012 Last revised: 14 Feb 2013

Daniel Augenstein

Tilburg University

David Kinley

The University of Sydney Law School

Date Written: 2013

Abstract

This essay addresses two critical, intersecting, questions regarding the legal status of responsibility for corporate abuses of human rights standards as portrayed in the UN’s Business and Human Rights Framework and Guiding Principles. One relates to the obligations of states to regulate corporations in this respect, and the other to the extent that they can and must do so extra-territorially. By reconstructing the nature of the relationship between the first and the second pillar of the UN Framework, combined with a critique of the relationship between the authority under general international law for a state to regulate corporate behavior extra-territorially (the ‘permissive question’), and the obligation for it to do so under international human rights laws (the ‘prescriptive question’) the authors reach the following conclusion. That in order for a state to comply fully with its human rights obligations under international law, it must ensure the protection of human rights to those who fall within its jurisdiction, whether inside or outside its territorial boundaries, and against threats to their rights, whether from state or non-state actors over which the state has jurisdiction.

Keywords: corporations, international human rights law, extra-territorial jurisdiction, UN business and human rights framework

JEL Classification: K10, K30, K33

Suggested Citation

Augenstein, Daniel and Kinley, David, When Human Rights ‘Responsibilities’ become ‘Duties’: The Extra-Territorial Obligations of States that Bind Corporations (2013). HUMAN RIGHTS OBLIGATIONS OF BUSINESS: BEYOND THE CORPORATE RESPONSIBILITY TO RESPECT? D. Bilchitz & S. Deva, eds., Cambridge University Press, 2013; Sydney Law School Research Paper No. 12/71. Available at SSRN: https://ssrn.com/abstract=2149921

Daniel Augenstein

Tilburg University ( email )

P.O. Box 90153
Tilburg, DC 5000 LE
Netherlands

David Kinley (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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