Extraterritorial Jurisdiction and Corporate Accountability for Human Rights Violations

Abstract

The international human rights law accountability for transnational corporations has long been one of the most challenging questions for the realisation of internationally recognised human rights. The existing legal framework protecting human rights does not impose binding obligations on corporations. The existing challenges in holding corporations accountable for their human rights violations does not only derive from governance gaps in international human rights law, but also from the so called ‘corporate veil’ which creates obstacles for imposing responsibility on a transnational corporation and therefore also for the access to remedy for victims of powerful rights-violating corporate actors. The nature and legal personality of corporations under international human rights law creates opportunities for corporations with global operations to avoid respect towards human rights through operating through subsidiaries registered in states with less restrictive legislation. If the corporate veil can be pierced, a genuine connection could be found between a business-related human rights violation and the home state of a transnational corporation.

The genuine connection between a conduct and a state can justify the exercise of extraterritorial jurisdiction as a method to impose accountability on a corporation in cases where the host state is incapable or unwilling to locally prosecute alleged human rights violations. The exercise of extraterritorial jurisdiction over human rights violations across borders does not only require a solid justification but is also rather restricted. One of the main restrictions arises from the relationship between jurisdiction and sovereignty. States have internationally recognised responsibilities and a positive obligation to protect human rights provided through various human rights treaties. International human rights treaties provide a notion of jurisdiction which can be extended to areas outside a state’s territorial powers, if the state has effective control over the territory or the individuals subject to a conduct.

This thesis provides an overview of the different methods to exercise extraterritorial jurisdiction and arguments why extraterritoriality could be used in situations where corporations violate human rights. The thesis starts by analysing the nature and existing duties of corporations, followed by an analysis of the prevailing principles for the exercise of extraterritorial jurisdiction. The doctrine of state responsibility and states’ positive obligations will be discussed to understand which circumstances obligate a state to exercise extraterritorial jurisdiction or legitimise the exercise of it.