Siti Putri

s1808060

EXTRATERRITORIAL OBLIGATIONS
OF STATES UNDER INTERNATIONAL HUMAN
RIGHTS LAW
Siti Putri / s1808060
International Human Rights Law
Final Paper
Siti Putri
s1808060

I. INTRODUCTION

Globalization has increasingly been changing how the world works, and consequently, there has
been a pressing issue as to how international law can accommodate the negative consequences that
come with it.1 As the world becomes more connected, one of the most notable impacts is the
emerging trend of Transnational Corporations (TNCs) setting up foreign subsidiaries in low-to-
middle income countries where the governance is weak and labor law is much less stringent.
Although this has indeed stimulated economic growth in the countries where the foreign
subsidiaries are located (host States), it has also brought an increasing rate of human rights
violations that urgently needs to be addressed.
In 2011, the United Nations published a Guiding Principle on Business and Human Rights
(the Guiding Principle).2 Although a tremendous improvement in the effort to hold TNCs
accountable, this Guiding Principle largely depends on the willingness of the corporations to adhere
to the prescribed standards.3 Consequently, the most powerful way to hold TNCs accountable is for
the States where the TNCs are domiciled (home States) to have its domestic law extraterritorially
applicable.4 This is so that the TNCs who commit human rights violations abroad can still be held
legally liable.5
However, there is a debate with regard to the existence of the extraterritorial obligation of
the home States under International Human Rights Law (IHRL). The Guiding Principle itself states
that currently, there is no general extraterritorial obligations for home States to regulate TNCs
operating abroad.6 This essay will argue that extraterritorial obligations of home States exist under
IHRL. In doing so, it will look at: 1) current international human rights treaties; 2) the jurisprudence
of human rights courts; 3) state practices. Afterwards, it will assess how these extraterritorial
obligations can be implemented, and the challenges that come with the implementation.

The significance of States' extraterritorial obligations

Extraterritorial obligations (ETOs) can be defined as “obligations relating to the acts and
omissions of a State, within or beyond its territory, that have effects on the enjoyment of human

1 Duruigbo, “Corporate Accountability and Liability,” 226.

2 Ruggie, The Guiding Principle, 1.
3 Bernaz, “Enhancing Corporate Accountability,” 493.
4 Ibid.
5 Ibid.
6 Ruggie, The Guiding Principle, 3.
Siti Putri
s1808060

rights outside of that State’s territory”. 7 It can take form in two different ways, namely direct
extraterritorial legislation and domestic measures with extraterritorial implications. 8 Many TNCs
decide to operate in low-to-middle income countries due to the abundance of benefits that come
with it. Amongst these benefits are lower production costs and more favorable tax treatments. 9
However, by operating through their subsidiaries, they are shifting the costs of potential human
rights abuses to the local populations of the host countries.10
Traditionally, States have the obligations to protect the human rights of their own citizens.
However, in this increasingly globalized era, most human rights violations are committed by non-
State actors and occur in countries where the rule of law is not respected.11 This challenge as to as to
how to protect the human rights of these vulnerable individuals may be partly resolved if the home
States have extraterritorial obligations to hold the corporations accountable. This is because home
States have the power to significantly influence the conduct of TNCs abroad through legal or
political measures. Consequently, with such an important role, it is of the utmost importance for the
home States to ensure that the non-private actors within their jurisdictions do not violate human
rights of other individuals in other countries.

II. EXISTENCE OF STATES' EXTRATERRITORIAL OBLIGATIONS UNDER IHRL

The existence of States' human rights ETOs can first be discussed by looking at several human
rights treaties. Assessing human rights treaties to look for the existence of ETOs is arguably a bit
nuanced because the obligations are not explicitly stated on the treaties. Rather, these obligations
are shown through General Commentaries (GC) or the jurisprudence of the regional human rights
courts. Some of these the human rights treaties have a “jurisdictional clause” which explicitly
defines the jurisdictional scope of the treaty. For example, Article 2(1) of the International
Convention on Civil and Political Rights (ICCPR) renders the treaty to only be enforceable to “all
individuals within [the State Party's] territory and subject to its jurisdiction”. In addition, regional
human rights treaties such as the American Convention on Human Rights (ACHR) also contains the
same jurisdictional clause which limits its jurisdictional scope to be exclusively within the State
Party's territory.12 The existence of this jurisdictional clause thus seems to show that under the

7 Maastricht Principles, para. 8(a).

8 Further discussion on the two ways will be discussed in the third section
9 Skinner, “Rethinking Limited Liability,” 1807.
10 Ibid.
11 Kamatali, “The New Guiding Principles,” 446.
12 American Convention on Human Rights, Art. 1(1)
Siti Putri
s1808060

treaties in which the clause exists, the State Parties do not have human rights ETOs. However, the
existence of extraterritorial obligation would actually often be found on the GC of the treaty by the
supervisory committee. For instance, in López Burgos v. Uruguay, the Human Rights Committee
has stated that Art. 2(1) of ICCPR does not imply that the State parties can't be held accountable for
human rights violations committed by its agents in the territory of another state. 13 In addition,
although it is not explicitly laid out on International Covenant on Economic, Social, and Cultural
Rights (ICESCR), its supervisory body, the Committee of Social, Economic, and Cultural Rights,
has stated that State Parties are obliged to ensure that transnational corporations domiciled in their
territories respect the rights of individuals in other countries. 14 Hence, this shows that although it is
not explicitly stated on the treaties, States do have human rights ETOs based on the treaties'
supervisory bodies.
Besides human rights treaties, the decisions of regional human rights courts have also shown
the existence of the ETOs. For instance, although Article 1 of the European Convention of Human
Rights (ECHR) “sets limits on the reach of the Convention”, in Loizidou v Turkey, the European
Court of Human Rights (ECtHR) declared that “the concept of jurisdiction under this provision is
not restricted to the national territory of the High Contracting Parties”. 15 In addition, the jurisdiction
limit contained in ACHR under Article 1(1) has been clarified several times by the Inter-American
Court of Human Rights (IACHR) to not exclude the jurisdiction outside the State party's territory 16.
In Velasquez Rodriguez v. Honduras, the IACHR declared that:

[a]n illegal act which violates human rights and which is initially not directly imputable to a
State (for example, because it is the act of a private person ...) can lead to international
responsibility of the State, not because of the act itself, but because of the lack of due
diligence to prevent the violation or to respond to it as required by the Convention17

As such, the jurisprudence of human rights courts has evidently shown the existence of States'
ETOs.
Thirdly, the existence of ETOs can be shown through observing State practices. For
example, the Optional Protocol to the Committee of the Right of Child has led several States to
adopt legislative measures which prohibit its nationals from conducting sexual offenses to children

13 López Burgos v. Uruguay, para. 12.3.

14 McCorquodale and Simons, “Responsibility beyond Borders,” 619.
15 Loizidou v Turkey (Preliminary Objections), ICJ, para. 62.
16 Coard et al v United States, para. 37; Velasquez Rodriguez v. Honduras, para. 172.
17 Velasquez Rodriguez v. Honduras, para. 172.
Siti Putri
s1808060

abroad.18 In addition, the US' adoption of Alien Torts Claims Acts (ATCA) also proves this point.
The ATCA allows foreign nationals to bring a claim against a US citizen for human rights violations
committed abroad.19 The first case brought through ATCA was filed in 1996 against Union Oil
Company for alleged human rights violations committed in Myanmar, where the company's foreign
subsidiary operated.20 Moreover, France and Switzerland have adopted legislative although not
legally binding, Organisation for Economic Co-Operation and Development (OECD) has adopted
“Guidelines for Multinational Corporations” which encourages TNCs to respect the human rights of
the local people in accordance to the host government's international obligations. The OECD is an
organisation which is mostly comprised of the home States of TNCs.
Despite the evidence of human rights ETOs as laid out above, the 2011 Guiding Principle
rejects the existence of this obligation. As such, the commentary of the Second Principle states that
“at present States are not generally required under international human rights law to regulate the
extraterritorial activities of businesses domiciled in their territory and/or jurisdiction”. This is an
interesting statement and has been criticized by multiple non-governmental organizations (NGOs)
through a Joint Statement, stating that this view contradicts the clear view of the CESR which has
repeatedly emphasized on States' obligations to respect human rights abroad. 21 However, it might be
possible that what the Guiding Principle means is that there is no general “hard law” that is
codified under IHRL obliging States to also prevent human rights violations committed abroad. The
Committee of the Convention on the Elimination of All Forms of Racial Discrimination also took a
more advisory position in this issue. In its review of Canada's human rights record, it “encourages
Canada” to conduct appropriate legislative measure towards the TNCs who do not respect the
human rights of indigenous peoples outside Canada. 22 Similar advisory approach is also echoed in a
UNSC resolution which calls upon States who have nationals or corporations operating in Namibia
to ensure that they would not violate the rights of the Namibians as protected under Universal
Declaration on Human Rights.23
Nevertheless, although the approach that all treaties under IHRL is not uniform in this
regard, the adoption of Maastricht Principles on Extraterritorial Obligations of States in the area of
Economic, Social and Cultural Rights (Maastricht Principles) in 2011 reaffirms the existence of
extraterritorial obligations, at least in the area of economic, social and cultural rights. Maastricht

18 Langford, “Extraterritorial Duties in International Law,” 101

19 Harvard Law Association, “Developments in the Law,” 2026.
20 Ibid., 2027.
21 Amnesty International et al., States' Obligations to Respect and Protect Human Rights Abroad, available at:
https://www.fidh.org/IMG/pdf/States_obligations_to_respect_and_protect_human_rights_abroad-2.pdf.
22 UN Committee on the Elimination of Racial Discrimination, Concluding Observations, para. 17.
23 UN Security Council Resolution 310, para. 5.
Siti Putri
s1808060

Principles were drawn from international law with the aim to crystallize the legal status of
extraterritorial State obligations.24 Principle 25 obliges States to take all necessary measures to
ensure that TNCs do not “nullify or impair the enjoyment” of the aforementioned rights abroad.
This principle was drawn from the General Comment of the ICESCR Committee which states:

“States parties have to respect the enjoyment of the right to health in other countries, and to
prevent third parties from violating the right in other countries, if they are able to influence
these third parties by way of legal or political means, in accordance with the Charter of the
United Nations and applicable international law.”25

As such, the quote above clearly shows that States' human rights ETOs exist if they are able to
influence the TNCs through legal or political means. As such, the ax§next section of this essay will
outline the possible means through which States can prevent TNCs from violating human rights
abroad.

III. MEASURES TO IMPLEMENT THE EXTRATERRITORIAL OBLIGATIONS

The Guideline Principle itself already outlines two different ways through which States can prevent
human rights violations by TNCs through imposing the appropriate legal measures. 26 The first one
constitutes direct extraterritorial legislation, and the second one constitutes domestic measures
which have extraterritorial implications. These two ways will further be assessed below.

Domestic measures with extraterritorial implications

The first way for States to fulfill its extraterritorial obligations is through enacting domestic
measures which would have extraterritorial implications. One example of this type of measure is for
the home State to require the parent corporation to conduct due diligence on its subsidiaries'
operations. Due diligence refers to “an ongoing management process that a reasonable and prudent
enterprise needs to undertake, in the light of its circumstances to meet its responsibility to respect
human rights”.27 As such, it places a duty on parent corporations to monitor the activities of the

24 Maastricht Principles, “Preamble,” 5.

25 ICESCR Committee , GC 14, para. 39.
26 Ruggie, The Guiding Principle, 4.
27 Ruggie, The Corporate Responsibility, 6.
Siti Putri
s1808060

entire business enterprise, including the foreign subsidiaries. 28 The main difference of this measure
is that the goal is to increase corporate accountability rather than liability. 29 Therefore, this measure
does not hold the corporations legally accountable for their actions. Rather, it holds the corporations
accountable by ensuring that they have to explain all the conducts of their operations. Schaffer and
Kaeb suggested that the most effective way for TNCs to fulfill this obligation is to establish
compliance divisions in their organizational structures. 30 These compliance units will specifically
work on ensuring that the companies' operations are in accordance with both national and
international standard of human rights.31 As for the legal consequences, the corporations will not be
under direct legal liability in the case of violations. However, they will be held directly liable if they
fail to comply with the due diligence obligation. 32

Direct extraterritorial legislation

Through direct extraterritorial legislation, the home State is able to prosecute its nationals for
violating human rights, regardless of where the violations took place. 33 Due to the direct intervening
nature of this measure, in practice the conflicts of law may occur since there will be two
jurisdictional exercise concerning the same issue and the same company. 34 As such, the issues in the
implementation of this direct measure do not revolve around inefficiency or both results. Rather, it
concerns the fear of infringing another State's sovereignty. If a state is obliged to prevent or punish
human rights violations by the TNCs operating abroad, one could argue that this is in violation of
Article 2(7) of the UN Charter regarding the principle of non-intervention. In addition, in the
Barcelona case, the International Court of Justice (ICJ) affirms that the subsidiary is a separate legal
entity from its parent company and thus each of them is subject to their territorial regulation. 35
Having two separate legal entities adds to the complexities of implementing this direct
extraterritorial legislation. However, the International Law Commission (ILC) has also asserted that
extraterritorial jurisdiction is entitled to be recognized by other States as long as it is in consistency
with international law.36 Whether or not the required actions are in accordance with the domestic
law of the host State is not an issue in IHRL as long as the actions are in compliance with the host
28 Skinner, “Rethinking Limited Liability,”
29 Bernaz, “Enhancing Corporate Accountability,” 496.
30 Scheffer and Kaeb, “Corporate Accountability,” 380.
31 Ibid.
32 Bernaz, “Enhancing Corporate Accountability,” 496.
33 Ruggie, The Guiding Principle, 4.
34 Bernaz, “Enhancing Corporate Accountability,” 508.
35 McCorquodale,”Corporate Social Responsibility,” 390; Barcelona Case, para. 34.
36 UN International Law Commission, Report of the International Law Commission, U.N. Doc. A/61/10, 529-30.
Siti Putri
s1808060

State's international obligations.37

Consequently, through implementing direct extraterritorial measure, corporate nationals
responsible for human rights violations abroad can face criminal prosecutions. If the frequency of
claims being brought against companies increases, the more awareness that it also brings will
eventually serve as a deterrence for abuse in the future. 38 Due to this, it would arguably be more
favorable for States to fulfill their extraterritorial obligations through implementing this direct
measure.39 There exist, however, difficulties in implementing this measure. For instance, in practice,
the high financial costs and difficulty to gather evidence due to the lack of clear cooperation with
the host state serve as the main difficulties. Nevertheless, as has already been evidenced in the first
section, there have been several States which have imposed this direct measure. Although the
capacity of each country differs, it should not hinder other host States from at least initiating to
implement the same measure.

IV. CONCLUSION

This essay has shown that extraterritorial obligations to prevent human rights abuses
committed by non-State actors abroad exist under the vast jurisprudence of IHRL. Human rights
treaties, decisions by regional human rights courts, and the conduct of state practices have already
shown that States can be held responsible in the cases of human rights violations conducted by
corporate nationals. Given that the host States have weak legal system, victims of human rights
abuses will not be able to have an adequate access to justice without the existence of these
ETOs.40.States can fulfill these obligations in various ways. However, implementing direct
extraterritorial measure, such as criminally prosecuting individuals responsible for the human rights
violations committed abroad, would be more favorable as it is more powerful in preventing the
violations from occurring. Overall, the global effort to fight against human rights violations
committed by corporations has to be brought a step further. Every day, TNCs are able to freely
exploit the vulnerability of individuals of weak countries without the fear of facing prosecution.
Although improving the protection framework under IHRL might not be the one-stop legal
panacea, it is a step further in the global joint effort in protecting the vulnerable and holding those
responsible accountable.

37 McCorquodale and Simons, “Responsibility beyond Borders,” 616.

38 Bernaz, “Enhancing Corporate Accountability,” 509.
39 Ibid.
40 Skinner, “Rethinking Limited Liability,” 1803.
Siti Putri
s1808060

Bibliography

UN Documents

American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July
1978) 1144 UNTS 123 (ACHR)
ICESCR ‘General Comment 14’ in ‘The Right to the Highest Attainable Standard of Health (Art.
12)' (2000) UN Doc E/C.12/2000/4
ILC, ‘Report of the International Law Commission on the Work of its 58th Session’ (1 May–9 June
2006) UN Doc A/61/10
Ruggie, John. 2011. "Guiding Principles on Business and Human Rights: Implementing the United
Nations ‘Protect, Respect and Remedy’ Framework". Geneva: The Office of the United
Nations High Commissioner for Human Rights
Ruggie, John. 2012. "The Corporate Responsibility To Respect Human Rights: An Interpretive
Guide". Geneva: The Office of the United Nations High Commissioner for Human Rights
UN Committee for the Elimination of Racial Discrimination, ‘Canada's Concluding Observations’
in ‘Consideration of Reports Submitted by States Parties under Article 9 of the Convention’
(25 May 2007) UN Doc CERD/C/CAN/CO/18
UNSC Res 310 (4 February 1972) UN Doc S/RES/310
Court Cases
Barcelona Case (Belgium v Spain) (Merits) [1970] ICJ Rep 3
Coard et al. v. United States, Inter-American Court of Human Rights Series C No 109/99 (29
September 1999)
Loizidou v. Turkey (Preliminary Objections), European Court of Human Rights, ECHR 1996-VI (23
March 1995)
UN Human Rights Committee, Lopez Burgos v Uruguay, (29 July 1981) UN Doc
CCPR/C/13/D/52/1979
Velasquez Rodriguez v. Honduras, Inter-American Court of Human Rights Series C No 4 (29 July
1988)
Secondary Literature

Amnesty International, et al. 2011. "States' Obligations To Respect And Protect Human Rights
Abroad".
https://www.fidh.org/IMG/pdf/States_obligations_to_respect_and_protect_human_rights_abroad-
2.pdf.

Augenstein, Daniel, and David Kinley. 2015. “Beyond the 100 Acre Wood: In Which International
Human Rights Law Finds New Ways to Tame Global Corporate Power.” The International
Journal of Human Rights 19 (6):828–48.
Bernaz, Nadia. 2013. “Enhancing Corporate Accountability for Human Rights Violations: Is
Siti Putri
s1808060

Extraterritoriality the Magic Potion?” Journal of Business Ethics 117 (3):493–511.

Duruigbo, Emeka. 2008. “Corporate Accountability and Liability for International Human Rights
Abuses: Recent Changes and Recuuring Challenges.” Northwestern Journal of International
Human Rights 6 (2):222–61.
Harvard Law Association. 2001. “Developments in the Law - International Criminal Law.”
Harvard Law Review 114:1943–2070.
International Commission of Jurists. 2011. Maastricht Principles on Extraterritorial Obligations of
States in the area of Economic, Social and Cultural Rights. Heidelberg: ETO Consortium.
Kamatali, Jean-Marie. 2012. “The New Guiding Principles on Business and Human Rights'
Contribution in Ending the Divisive Debate over Human Rights Responsibilities of
Companies.” Cardozo Journal of International & Comparative Law 20 (2):437–63.
McCorquodale, Robert. 2009. “Corporate Social Responsibility and International Human Rights
Law.” Journal of Business Ethics 87:385–400. https://doi.org/10.1007/s10551-009-0296-5.
McCorquodale, Robert, and Penelope Simons. 2007. “Responsibility beyond Borders: State
Responsibility for Extraterritorial Violations by Corporations of International Human Rights
Law.” The Modern Law Review Limited 70 (4):598–625.
Scheffer, David, and Caroline Kaeb. 2011. “The Five Levels of CSR Compliance: The Resiliency
of Corporate Liability under the Alien Tort Statute and The Case for a Counterattack
Strategy in Compliance Theory.” Berkeley Journal of International Law 29 (1): 334-297.
Skinner, Gwynne. 2015. “Rethinking Limited Liability of Parent Corporations for Foreign
Subsidiaries’ Violations of International Human Rights Law.” Washington and Lee Law
Review 72:1769–1864.