Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law
| Published date | 01 July 2007 |
| Author | Penelope Simons,Robert McCorquodale |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00654.x |
| Date | 01 July 2007 |
Responsibility Beyond Borders: State Responsibility for
ExtraterritorialViolations by Corporations of
International Human Rights Law
Robert McCorquodale and Penelope Simons
n
States routinely provide support and assistance to their corporate nationals in their global trade
and investment ventures. While states may not intend to allow corporate nationals to violate
human rights in their extraterritorial operations, by their actions or omissions, states may facil-
itate, or otherwise contribute to, a situation i n which such violations by a corporation occur.This
article investigatesthe extent to whichthe extraterritorial activitiesof trans nationalcorporations
(TNCs) thatviolate international human rights law can give rise to home state responsibility.The
analysis shows that home states of TNCs have obligations under international law in certain
situations to regulate the extraterritorial activities of corporate nationals or the latter’s foreign
subsidiaries and can incur international responsibility where they fail to do so.
INTRODUCTION
[The British] Foreign O⁄ce isn’t in the business of passing judgment on the safety
of non-indigenous drugs, is it? [It is] supposed to be greasing the wheels of British
industry, not going around telling everybody that a British company in Africa is
poisoning its customers.
1
In his novel,TheConstantGardener,JohnLeCarre
Łdescribes vividly the role of a
government knowingly allowing its corporations to violate human rights in
another state because the government’s main concern is to assist its corporations
to make money. This is a powerful argument from someone who worked for
many years as a diplomat.
2
In fact, most of the governments of industrialised states explicitly or implicitly
acknowledge that one of theirkey foreign relations priorities is to assist theirown
corporationsto ‘wincontracts in foreign markets and lobbyagainst regulatoryand
political barriers’ in other states.
3
This does not mean that a state intends to allow
n
Robert McCorquodale is Professor of International Law and Human Rights at the Schoolof Law,
Universityof Nottingham, UK and PenelopeSimons is a n AssociateProfessor at the Faculty of Law,
Universityof Ottawa, Canada.Wetha nk those whohave provided us with help and advice during the
writing of this article, especially Robert Cryer and Sarah Joseph.We are also indebted to the anon-
ymous reviewersof this article for their helpful comments and suggestions.
1 J.Le Carre
Ł,TheConstant Gardener(London: Hodder and Stoughton,20 01) 497 (it is also a ¢lm with
the same name, released in 2005).
2 John Le Carre
Łnotes that the reality is worse thanwhat he describes i n his book:ibid 568.
3 UK Foreign and Commonwealth O⁄ce,‘StrategicInternational Policy Priorities for the UK’i n
UK International Priorities: A Strategy for the FCO (December 2003), section 4, see http://
www.fco.gov.uk/Files/k¢le/FCOStrategyFullFinal,0.pdf (last visited 5 March 2007). Similar
statements have been made by, for example, the Australian government (Advancing the National
r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(4)MLR 598^625
corporations to act in another state in a way that violates human rights. Never-
theless, a state, by its actions or omissions, may facilitate, or otherwise contribute
to, a situation in which such violations by a corporation occur. As will be shown,
this facilitation may range fromthe provision of ¢nancing and other services by
export credit agencies to the negotiation and rati¢cation of bilateral investment
agreements that assist extraterritorial investment by corporate nationals. It also
includes the failure by a state to prevent actions by its corporate nationals (includ-
ing privatized state corporations) that violate human rights, both within and
outside its territory.
The growth of transnational corporations (TNCs)
4
operating across more than
one state, has raised questions about how international law would deal with these
entities. This is partly because the distribution of power and control of TNCs are
arranged in ways that defy territorial bounda ries, with a‘parent’cor poration being a
‘national’ in one state and its various subsidiaries being ‘nationals’ in those states
where t hey operate.
5
Despite the wealth of documents, reports and academic litera-
ture that have suggested that corporations should have direct international legal lia-
bility for such violations, there is ^ as yet ^ noi nternational human rights law to this
e¡ect.
6
This is due to the fact that international human rights lawhas developed to
protect individuals from oppressive and abusive actions of the state. It thus imposes
the legal obligations to protect human rights on states alone, and has not yet devel-
oped so as to regulate e¡ectively the activities of corporations, or other non-state
actors, which violate hu man rights in their extraterr itorial operations.
7
There are clear human rights legal obligations on a state to place an e¡ective
restraint on activities within its territory that violate human rights.
8
However,
the reality is that for many states, particularly non-industrialised states, the
economic powero fa TNC operating within that state (the‘host state’) is such that
Interest White Paper, 2005 at http://www.dfat.gov.au/ani/foreword.html (last visited 5 March
2007); theUnited States of America government (StrategicPlan for FiscalYears2004^2009 (20 04) at
http://www.state.gov/s/d/rm/rls/dosstrat) (last visited 5 March 2007); and the Canadian Govern-
ment (Opening the Doors to theWorld: Canada’s Market Access Priorities 2006, at http://www.international.
gc.ca/tna-nac/cimap-en.asp)(last visited5 March 2007).
4 There is no common de¢n ition of TNCs (or even the acceptance of the use of that term) ^ se e the
discussion in R. McCorquodale with R. Fairbrother,‘Human Rights and Global Business’ in
S. Bottomleyand D. Kinley (eds), CommercialLaw and Human Rights(Aldershot: Ashgate, 2002).
5 F. A. Mann,‘The Doctrine of International JurisdictionRevisited After TwentyYears’ in Collected
Courses of theHague Academyof International Law (Dordrecht:Martinus Nijho¡, 1985)56.
6 There is a considerable body of literatureon this area: a few examples are: Normson the Responsi-
bilitiesof Transnational Corporations and Other BusinessEnterpriseswith Regardto Human Rights, (2003)
UN Doc E/CN.4/Sub.2/2003/12/Rev.2a nd Commentaryon the Norms on the Responsibilities ofTrans-
national Corporations and Other Business Enterpriseswith Regardto Human Rights,(2003)UNDocE/
CN.4/Sub.2/2003/38/Rev.2; OECD, ‘The OECD Guideli nes for Multinational Enterprises’,
OECD Declaration and Decisions on International Investment and Multinational Enterprises: BasicTexts
(DAFFE/IME, 2000); A. Clapham, Human Rights Obligations of Non-State Actors (Oxford: OUP,
2006); P. Alston (ed),Non-StateActorsand Human Rights (Oxford: OUP, 2005); and S. Rees and S.
Wright(eds ), Human Rights, Corporate Responsibility: A Dialogue (Sidney: Pluto Press, 2000).Note
that the position maybe di¡erent within international humanitarian law and international crim-
inal law.
7 For a discussion of this, see R. McCorquodale and R. LaForgia,‘Taking O¡ the Blindfolds:Tor-
ture by Non-StateActors’ (2001)1 Human Rights Law Review18 9.
8 See, for example, the terms of Article 2 of both the InternationalCovenant on Economic, Social
and Cultural Rights1966 and the International Covenanton Civil and Political Rights 1966.
RobertMcCorquodale and Penelope Simons
599
r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(4)MLR 598^625
To continue reading
Request your trial