The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A Case of Extraterritorial Overreach?

Abstract

The notion that states have extraterritorial human rights obligations is one basis upon which calls are made for an international treaty on business and human rights. In particular, it has been claimed that “home” states of transnational corporations (TNCs) have a duty to protect against human rights abuses occurring on the territory of a “host” state that may be breached by a failure to regulate TNCs’ extraterritorial activities. At the same time, advocates of such a duty often criticise the UN Guiding Principles (UNGPs) for failing to reflect this obligation to its full extent.

This paper challenges the claim that such a home state duty to regulate TNCs’ extraterritorial human rights impacts can be said currently to exist. Specifically, through a systematic analysis of principles and authorities relating to the various legal building blocks needed to get such a duty off the ground, it demonstrates that extraterritoriality advocates only appear to reach their desired conclusions because, at each step in their argument, the true position in existing international law is subtly misinterpreted or misrepresented. Incidentally, it is affirmed that the UNGPs’ evaluation of the status quo regarding states’ competence to regulate extraterritorially remains substantially a correct one.

The paper proceeds as follows. Section 2 summarises a sample of contributions by extraterritoriality advocates to convey the broad gist of their approach. Section 3 considers extraterritorial jurisdiction, its distinct meanings and foundations, firstly, in public international law, and secondly, in the norms and decisions of international and regional human rights regimes. Section 4 addresses principles of attribution and state responsibility in relation to the conduct of non-state actors. Section 5 considers the scope and limits of “positive obligations” to ensure the effective enjoyment of human rights, domestically and in the extraterritorial context, and as they may relate to the prevention of human rights abuses by transnational corporate actors. Section 6 concludes.

Keywords: Business and human rights, UN Guiding Principles on Business and Human Rights, extraterritoriality, international human rights law, jurisdiction, positive obligations, corporate social responsibility, corporate accountability

JEL Classification: K10, K20, K30, K33