When human rights ‘responsibilities’ become ‘duties’: the extra-territorial obligations of states that bind corporations

The public, the private, and the business-societal: A threefold approach to business responsibility for human rights

“…The human rights regime increasingly begins taking the agency of business actors into account. Discussions of criminal liability (Kamminga and Zia-Zarifi 2000), extraterritoriality (Augenstein and Kinley 2013;Skogly 2013), investment arbitration (Steininger 2018), regulation (Vogel 2009), and multi-level litigation (Noortmann et al 2015;Schrempf-Stirling and Wettstein 2017;Clapham 2006) are on the rise. Nevertheless, the question of business responsibility for human rights remains a highly disputed matter as it challenges a key component of international law: the distinction between public and private.…”

The Emergence of International Standards

“…With regard to the first pillar, it has been argued that the Special Representative missed an opportunity to emphasize State extraterritorial obligations vis-à-vis the victims of corporate abuse, including States' obligations to take reasonable and appropriate measures to secure the victim's rights. 387 So, for instance, the Guiding Principles do not account for the role of States in preventing companies from violating the right to water of individuals and communities in other countries by taking legal or political steps to influence companies. 388 This can also be considered a way to fulfil States' responsibilities to engage in international assistance and cooperation in the realization of relevant international human rights treaties, 389 including at the intersection of human rights and environmental protection.…”

With trade comes responsibility: the external reach of the EU’s fundamental rights obligations

“…What counts in all these cases is that the exercise of a lawful competence to act under PIL establishes a de facto power relationship between the state and the individual(s) concerned that, in turn, triggers human rights jurisdiction. 67 It emerges, therefore, that territory (in the form of effective territorial control) under IHRL is only one, albeit admittedly the least controversial, among several factors that could ground a function-based human rights jurisdiction. 'Competence', both under IHRL and under EU law, is the 'permissive' element: in IHRL, competence is the 'upper limit' to state action determined by PIL, 68 whereas in EU law it refers to the areas covered by the transfer of powers that member states have consented to.…”