Are countries permitted to regulate corporate human rights violations abroad? (Book Preview)
My book ‘The European Union, Emerging Global Business and Human Rights’ has just been published by Cambridge University Press.[1] In the first part of this book. I answer the question of whether extraterritorial countries are permitted to regulate abuse by corporations beyond their territorial borders under international law. This question is not often posed, as most of the literature on ‘business and human rights’ has argued in which circumstances extraterritorial countries are obliged to do so. These discussions focus exclusively on situations in which ‘their’ corporate nationals are involved in human rights violations abroad. The approach in my book is broader. It considers other situations in which extraterritorial countries (in particular the European Union Member States) regulate ‘other’ corporations (in particular ‘competitors’ of European Union based-corporations that are born and bred in developing and emerging countries).
The answer to the question is that there are two conditions for extraterritorial countries to be permitted to regulate abuse abroad. Both conditions are discussed in turn.
1. Reasonable link
First, there needs to be a ‘reasonable link’ between the extraterritorial country and the regulated corporation.[2] When does such a reasonable link exist?
There is only one certainty. Such reasonable link exists when an extraterritorial country takes regulatory measures over ‘its’ corporate nationals in relation to their involvement in human rights violations (through their activities or business relationships) abroad. The United Nations Guiding Principles on Business and Human Rights (2011) recommended that extraterritorial countries hold businesses domiciled in their jurisdiction accountable for their involvement human rights violations abroad.[3]
These Principles have also been criticized because they do not acknowledge that countries are obliged to reign in their corporate nationals when they are involved in violations of human rights abroad. This interpretation has been challenged with great success. Many experts have even argued that obligations for extraterritorial countries have always existed (complementary to those of the country where the abuse occurs) to some extent in some core human rights instruments.[4]
Apart from regulation by extraterritorial countries over ‘their’ corporate nationals, there is some guidance from international law sources about the reasonableness requirement. In my book, I identify some ways in which this requirement has been interpreted. For example, the United Nations Committee of the Rights of the Child’s General Comment 16 on the Impact of the Business Sector on Children’s Rights indicates that a reasonable link is not limited to the situation in which a corporation is domiciled in a State Party to the Convention that it monitors, but also when it has its ‘center of activity’ or ‘main place of business or substantial business activities’ in that State Party.[5]
2. Non-interference
The second condition for the extraterritorial country to be permitted to regulate abuse is that this country should not act in violation of the United Nations Charter or other principles of international law by violating the principle of non-intervention.[6] Extraterritorial regulation will thus be controversial if other countries regard it as interference in their sovereign rights to pursue their own interests and to regulate corporations within their own borders.
In principle, even objections against regulation by extraterritorial countries over ‘their’ corporate nationals are possible on the basis of the principle of non-interference. But Malcolm Langford, Wouter Vandenhole, Martin Scheinin and Willem van Genugten have indicated that such objections can hardly be legitimate when the objecting ‘is a party to human rights treaties such as the International Covenant on Economic, Social and Cultural Rights and International Labour Organization’s Conventions or is bound by international customary law’.[7]
It is pivotal that the extraterritorial country anticipates any concerns by cooperating to a considerable extent with other countries. This includes ensuring that corporations subjected to overlapping or conflicting requirements imposed by different countries are sufficiently involved during law-making processes. In any case, extraterritorial countries should remain careful. Criticisms of neo-colonialism and protectionism are apposite. Unilateral rule-making denies the fiction that all countries are equal as much as the reality of different experiences in all countries.[8]
Aleydis Nissen is an FWO and F.R.S.-FNRS senior researcher at the Free Universities of Brussels and Leiden Law School.
[1] The European Union, Emerging Global Business and Human Rights, https://www.emergingbhr.eu/ (last visited Dec. 8, 2022).
[2] Jennifer Zerk, Extraterritorial Jurisdiction: Lessons for the Business and Human Rights Sphere from Six Regulatory Areas (Harvard Corporate Social Responsibility Initiative, Working Paper No. 59, 2010).
[3] Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, HR/PUB/11/04 (United Nations 2011) 15, https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
[4] See, e.g., Daniel Augenstein, Willem van Genugten & Nicola Jägers, Business and Human Rights Law in the Council of Europe: Noblesse oblige, EJIL: Talk! (Feb. 10, 2014), https://www.ejiltalk.org/business-and-human-rights-law-in-the-council-of-europe-noblesse-oblige/; Robert McCorquodale & Penelope Simons, Responsibility beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law, 70 Modern L. Rev. 598 (2007); Cases and Concepts on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights (Fons Coomans et al. eds., Maastricht Series in Human Rights, Vol. 14, 2012).
[5] Committee on the Rights of the Child, General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights, U.N. Doc. CRC/C/GC/16 (Apr. 17, 2013).
[6] https://www.icj.org/wp-content/uploads/2012/12/HRQMaastricht-Maastricht-Principles-on-ETO.pdf
[7] Olivier De Schutter, Asbjørn Eide, Ashfaq Khalfan, Marcos Orellana, Margot Salomon, & Ian Seiderman, Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, 34 Hum. Rts. Q. 1084 (2012).
[8] The last sentence of this post won the Big Quote Contest of Leiden Law School’s Art Commission in 2021. Aleydis Nissen wint Grote Citatenwedstrijd 2020 [Aleydis Nissen wins Big Quote Contest 2020], Universiteit Leiden (Jan. 12, 2021), https://www.medewerkers.universiteitleiden.nl/nieuws/2021/01/winnaar-grote-citatenwedstrijd-2020-bekend?cf=rechtsgeleerdheid&cd=fdr-bestuur-bureau.
The views expressed in this post represent the views of the post’s author only.
