— From the Perspective of States Regulating the Extraterritorial Human Rights Obligations of Transnational Corporations

 

 

Abstract: The extraterritorial application of international human rights conventions is the legal basis for states to regulate the extraterritorial human rights obligations of transnational corporations.In recent years, it has been increasingly challenged by the new trend of the United Nations governing the human rights responsibilities of transnational corporations. A study of existing international rules and practices shows that the extraterritorial application of international human rights conventions depends on the extraterritorial jurisdiction of the States Parties, which mainly includes the actual control over extraterritorial territories and individuals as well as the execution of authority outside the territories. In view of the above, if human rights violations by individuals or transnational corporations occur in areas outside their home territories or are authorized and orchestrated by the home state, the home state shall bear the corresponding human rights responsibilities. Given the restrictive scope of the above-mentioned extraterritorial application of international human rights conventions, the international cooperation obligation and the “do no harm” principle may become a new legal basis for states to fulfill their extraterritorial human rights obligations in the future, thereby expanding the basis for the extraterritorial application of international human rights conventions to deal with more serious issues of human rights violations by transnational corporations. However, on the whole, the current identification and codification of states regulating the extraterritorial human rights obligations of transnational corporations should respect the existing rules of international human rights law and should not add any new human rights obligations on states.

 

Keywords: extraterritorial application · human rights responsibilities of transnational corporations · extraterritorial human rights obligations

 

As an important part of the human rights responsibility of industry and commerce, the regulation of transnational corporations’ extraterritorial business activities has increasingly attracted the attention of the international community. In this regard, the United Nations has been committed to the human rights responsibility of transnational corporations since the 1970s. It has not only adopted a series of resolutions and general comments, but also promoted the codification of international human rights law. Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Transnational Corporations and Other Business Enterprises (Second Revised Draft) (hereinafter referred to as the Legal Instrument on Regulating Transnational Corporations in International Human Rights Law) adopted in October 2020 has broken through the conservative provisions¹ on extraterritorial human rights responsibilities in the Guiding Principles for Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework(hereinafter referred to as the Guiding Principles), intending to make up for the weak protection of human rights in the host country by strengthening the legal obligations and responsibilities of the home state to transnational corporations, which represents the latest trend of the United Nations in the governance of human rights issues of transnational corporations. The legal instrument requires states and enterprises to fulfill the obligation of prevention against extraterritorial human rights risks and bear relevant legal responsibilities, which inevitably touches on the discussion of the legal basis of the extraterritorial application of international human rights conventions.

 

For a long time, the international community has mainly standardized the human rights issues of transnational corporations from the perspective of the human rights responsibilities of industry and commerce, while ignoring the obligations of States, let alone extraterritorial issues. Moreover, the Legal Instrument on Regulating Transnational Corporations in International Human Rights Law has established the extraterritorial human rights obligations of States, but which human rights obligations and the extent to which they have extraterritorial effects need to be further explored because there are no uniform provisions on the extraterritorial application of various International Human Rights Conventions. In view of the Chinese representatives’ consistent position of “not creating new international obligations for States Parties” on the regulation of transnational corporations by an international human rights law,² we should analyze the extraterritorial application of International Human Rights Conventions within the framework of the existing international rules, so as to support China to adhere to the principles of international law in the compilation of the above-mentioned instruments and also to make choices in line with national interests. In this regard, this paper will start by identifying the basis for the extraterritorial application of International Human Rights Conventions, put forward the new challenges it faces, and look forward to the future trend of the extraterritorial application of International Human Rights Conventions on the basis of exploring the existing rules of extraterritorial application in combination with international practice, so as to provide a theoretical, regulatory and practical basis for the definition and development of the extraterritorial human rights obligations of states regulating transnational corporations and the compilation of international legal instruments.

 

 

 

The state’s obligations to regulate the extraterritorial acts of transnational corporations are based on the extraterritorial application of International Human Rights Conventions. Therefore, it is necessary to identify the relevant legal basis first, so as to lay the foundation for defining the state’s extraterritorial human rights obligations.

 

Different from the traditional international law mainly regulating the relations between states, the international human rights law aims to adjust the relations between states and individuals. Therefore, there was a certain debate on the extraterritorial application of the law at the beginning of the formulation of the International Human Rights Conventions. Taking the International Covenant on Civil and Political Rights as an example, it provides that “each State party to the present Covenant undertakes to respect and ensure that all individuals within its territory and subject to its jurisdiction enjoy the rights recognized in the present Covenant” in Article 2.1. At the beginning of its codification, the draft convention only adopted the expression of “applicable within jurisdiction.” Since the United States and several other countries refused to undertake human rights obligations outside their territories, it was suggested to add the restriction of “territory” before “jurisdiction.” However, this proposal was opposed by France and China. After several amendments, the scope of application of the Covenant was finally determined as the expression “within its territory and subject to its jurisdiction.”³ Since then, the Human Rights Committee’s interpretation of the Article clearly understood the word “and” between “territory” and “jurisdiction” as a parallel conjunction, that is, a State that is party to the Convention has obligations to individuals within its territory and subject to its jurisdiction, but not limited to individuals within its territory and subject to its jurisdiction.⁴ In this regard, the Human Rights Committee’s General Comment No. 31 points out that the “jurisdiction” clause of the Covenant means that “States Parties are required by Article 2.1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.”⁵

 

It can be seen that the extraterritorial application of similar conventions represented by the International Covenant on Civil and Political Rights is mainly the study of the extraterritorial jurisdiction of a State Party, aiming to find out whether extraterritorial individuals and groups belong to the extraterritorial jurisdiction of a state, and have the right to require the state to fulfill its international human rights obligations. Under the framework of international law based on the principle of sovereignty, it is a relatively difficult issue to recognize the jurisdiction of a state outside its territory. Although this provision does not deny that States Parties bear responsibility for extraterritorial violations of human rights, it is clear that this situation is exceptional and objectively limits the extraterritorial application of International Human Rights Conventions. In this regard, although the International Covenant on Economic, Social and Cultural Rights does not explicitly stipulate the scope of application,⁶ it is questionable whether it can be widely applied extraterritorially, because the Protocol to the Covenant limits the scope of extraterritorial jurisdiction from the perspective of individual communications. Article 1 of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights clearly stipulates that “communications may be submitted by or on behalf of individuals under the jurisdiction of a States Party claiming to have been injured as a result of a violation by that State Party of any economic, social and cultural rights provided for in the Covenant”. In addition, Article 1 of the European Convention on Human Rights also limits the scope of application: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” Principle 9 of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights also clearly stipulates the scope of the obligation of “the state to exercise authority or effective control”.⁷ Considering that the implementation of international human rights obligations abroad involves the realization of a state’s human rights standards abroad, it is necessary to respect the sovereignty of other states, so there are certain restrictions on the extraterritorial application of International Human Rights Conventions.

 

In conclusion, although some conventions clearly stipulate the scope of extraterritorial application with “jurisdiction” as the core, because human rights mainly depend on domestic protection and extraterritorial application is exceptional. Therefore, extraterritorial jurisdiction and relevant rules and practices need to be further explored, so as to provide guidance for states to fulfill their extraterritorial human rights obligations.

 

 

In recent years, due to the bottleneck in the development of human rights responsibilities of industry and commerce, the United Nations began to focus on regulating the business activities of enterprises through national obligations, which not only puts forward new requirements for States Parties to International Human Rights Conventions, especially home states to fulfill their extraterritorial human rights obligations, but also poses new challenges to the extraterritorial application of International Human Rights Conventions.

 

First, the provisions on the extraterritorial human rights responsibilities of the home state in the Legal Instrument on Regulating Transnational Corporations in International Human Rights Law have raised new issues in the extraterritorial scope of application of international human rights conventions. Throughout the early codification process of the legal instrument, there have been two views on the scope of national human rights obligations. Although the final text needs further discussion, the trend of surpassing the existing “territory and jurisdiction” in international human rights conventions and expanding the extraterritorial human rights obligations of States Parties has begun to take shape. Among them, the zero-draft and revised drafts of the Legal Instrument on Regulating Transnational Corporations in International Human Rights Law have no restrictions on the scope of human rights responsibilities of States Parties, requiring “State Parties shall ensure that their domestic law provides for a comprehensive and adequate system of legal liability for human rights violations or abuses in the context of business activities, including those of transnational character.”⁸ As the broad extraterritorial obligations implied in this provision have been questioned, the Legal Instrument on Regulating Transnational Corporations in International Human Rights Law (Second Revised Draft) imposes certain restrictions on the scope of application, requiring: “States Parties shall regulate effectively the activities of all business enterprises domiciled within their territory or jurisdiction, including those of a transnational character. For this purpose States shall take all necessary legal and policy measures to ensure that business enterprises, including but not limited to transnational corporations and other business enterprises that undertake business activities of a transnational character, within their territory or jurisdiction, or otherwise under their control, respect all internationally recognized human rights and prevent and mitigate human rights abuses throughout their operations.”⁹ This clause limits the state’s extraterritorial human rights obligations to the “jurisdiction,” but increases the state’s regulatory obligations for enterprises under its control outside the territory.¹⁰ In this regard, it was necessary to explore whether the expansion of this scope of application has the basis of international human rights law and other international laws, and clarify under what circumstances the state can control the extraterritorial business activities of transnational corporations, resulting in corresponding human rights obligations.

 

Second, the United Nations human rights bodies put forward a series of obligations and requirements for states to regulate the extraterritorial acts of transnational corporations in documents such as general comments, and strengthened international supervision. Taking the Committee on Economic, Social and Cultural Rights as an example, in its General Comments No. 8, 12, 14, 15, 19, 22, 23 and 24, it mentioned that states parties have certain extraterritorial obligations with regard to the right to health, the right to water, the right to food, the right to work, the right to social security, the right to sexual and reproductive health and the right to just and good working conditions. For example, General Comment No. 15 points out that States Parties must respect the enjoyment of the right to water by the people of other states, take measures to prohibit their citizens and corporations from violating the right to water of individuals and groups in other states, and promote the realization of the right to water in other countries in accordance with the supply of water resources.¹¹ In its General Comment No. 22, the committee makes it clear that states should ensure that transnational corporations (such as pharmaceutical companies operating globally) do not violate the sexual and reproductive health rights of people in other states extraterritorially, such as contraceptive testing or medical testing without consent.¹² The above general comments are not legally binding, but the practice of some treaty bodies and special rapporteurs constantly monitoring the home states of transnational corporations in accordance with the above standards gives these international documents a certain authority. For example, the Committee on Economic, Social and Cultural Rights expressed clear concerns in its 2016 concluding observations on the UK national report. The committee recommended that the United Kingdom take appropriate legislative and administrative measures to ensure that companies or their subsidiaries within its jurisdiction are legally liable for damage to economic, social and cultural rights caused by extraterritorial project activities.¹³ In addition, the working group on business and human rights established by the special procedures expressed concerns about the extraterritorial violations of human rights by transnational corporations in Canada and the United States in their state visit reports. Among them, after its visit to Canada, the working group raised the issue of extraterritorial human rights violations by Canadian corporations and the victims’ inability to obtain effective relief; ¹⁴ for the United States, it said that it should take measures to address regulatory gaps or legal or factual obstacles that prevent victims from seeking judicial relief.¹⁵ The recommendations or opinions of the above-mentioned United Nations human rights bodies put forward a broader obligation for States Parties to respect and protect extraterritorial human rights, which is consistent with the zero-draft and revised draft of the Legal Instrument on Regulating Transnational Corporations in International Human Rights Law in terms of extraterritorial human rights obligations, but the above views have also been resisted by some States Parties to some extent, because many states believe that respecting and protecting extraterritorial human rights is a soft law rule and moral obligation.

 

The new trend of the United Nations seeking to regulate the human rights responsibilities of transnational corporations has created new issues for the extraterritorial application of International Human Rights Conventions. It is necessary to identify the extent to which the existing rules and practices of international human rights law support the extraterritorial jurisdiction and human rights obligations of States Parties, and to what extent they can provide exploration space for expanding extraterritorial application, and subsequently help the domestic academic and practical circles to objectively understand the extraterritorial application of International Human Rights Conventions. By neither blindly denying the state obligation to regulate the extraterritorial acts of transnational corporations, nor blindly following the view of unlimited expansion of such obligation, we can gradually promote the protection of extraterritorial human rights, take into account the fair treatment of transnational corporations, and coordinate with economic development.

 

 

In the past few decades, the development of international human rights law and state responsibility system in international law has gradually provided a rule framework for the extraterritorial application of International Human Rights Conventions. Moreover, it has provided a legal basis for states to regulate the extraterritorial human rights obligations of transnational corporations by clarifying the extraterritorial jurisdiction of States Parties.

 

 

In practice, the state’s effective control over extraterritorial territories and individuals is regarded as the realization of extraterritorial jurisdiction, and the rules of International Human Rights Conventions are gradually recognized by international or regional human rights institutions. The relevant effective control rules began with the actual control of a state over extraterritorial territory such as “occupation.” Since then, due to the diversity of armed conflicts and the complexity of the control degree, they have gradually expanded to the situation of a state’s control over extraterritorial individuals, thus expanding the extraterritorial human rights obligations of States Parties.

 

 

The rules of human rights obligations arising from the effective control of states over extraterritorial territories were first established by the European Court of Human Rights in the Cyprus v. Turkey case. Since then, they have been affirmed by the United Nations human rights treaty bodies and further reflected in the advisory opinion of the International Court of Justice. In this case, the European Court of Human Rights held that, in view of Turkey’s effective overall control over Northern Cyprus, Turkey should bear human rights responsibility not only for the acts of Turkish soldiers or officials in Northern Cyprus, but also for the acts of local authorities supported by Turkey.¹⁶ According to Article 1 of the European Convention on Human Rights: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention,” Turkey’s jurisdiction must be extended to all substantive rights set forth in the Convention and the protocols it has ratified and violations of human rights attributable to Turkey. In the Loizidou v.Turkey case, the European Court of Human Rights also confirmed this extraterritorial jurisdiction standard, holding that the “jurisdiction” of the State Party is not limited to the territory of the State Party, and its human rights responsibilities under the Convention also apply to areas under the effective control of the State Party outside the territory.¹⁷

 

Since then, the relevant United Nations agencies have made a series of determinations on the rule of “effective control of extraterritorial territories” around the issue of Israel’s human rights responsibilities in the occupied Palestinian territory. In 1998, in its country-specific concluding observations on Israel, the Human Rights Committee clarified that, in view of the long-standing existence of Israel in the occupied territories and the exercise of effective jurisdiction by its security forces in the occupied territories, the Committee considered that the International Covenant on Civil and Political Rights should be fully applicable to the occupied territories and other areas under Israel’s effective control.¹⁸ In 2003, the Committee on Economic, Social and Cultural Rights made similar comments in its country-specific concluding observations on Israel. With regard to Israel’s insistence that the International Covenant on Economic, Social and Cultural Rights does not apply to areas outside its sovereign territory and jurisdiction or to the population of the occupied territories other than Israelis, the Committee reiterated that the obligations of States Parties under the International Covenant on Economic, Social and Cultural Rights apply to all territories and populations under its effective control.¹⁹ In 2004, in its Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice reaffirmed that the International Covenant on Civil and Political Rights applies to acts committed by a state in the exercise of jurisdiction outside its territory; the International Covenant on Economic, Social and Cultural Rights applies to territories over which States Parties have sovereignty and to territories over which they have jurisdiction.²⁰ The above recognition of the extraterritorial application rules of International Human Rights Conventions means that once the State Party has achieved occupation and other effective control, it should implement the human rights standards of International Human Rights Conventions locally, including the obligation to regulate transnational corporations.

 

 

Making a general survey of various armed conflicts around the world, it is relatively rare for a state to occupy territory outside its own territory, but other international and domestic military operations are more frequent. In order to guarantee the human rights of the people in war, the definition of extraterritorial jurisdiction by the United Nations and regional human rights institutions has gradually expanded from the standard of occupation or control of territory to the standard of control over extraterritorial individuals, that is, the state should apply the International Human Rights Conventions to individuals, whose corresponding human rights the state exercises effective extraterritorial control over and protect.

 

For example, in the case of Al-Skeini and others v. the UK, the communication concerned the killing of six Iraqi civilians by British forces in Iraq. Among them, five people were shot and killed by a British army unit while on patrol, and the other one was detained and abused in the British army camp, resulting in death. In this regard, the European Court of Human Rights held that since Britain had the power and responsibility to maintain security in the relevant areas of Iraq, and having exercised power and control over the victims through soldiers in security operations, it had established a jurisdictional link between the dead and Britain.²¹ In the case of Coard et al. v. The United States, the Inter-American Commission on Human Rights made the following interpretation of Article 1 of the American Convention on Human Rights on “all individuals under the jurisdiction”: an individual under national jurisdiction refers to an individual affected by the extraterritorial acts of a state (usually the acts of its state workers abroad), and the individual is located in the territory of another state, but under the control of the former.²² In principle, investigations and decisions on violations of convention obligations are not based on the nationality or presence of the victim in a particular region, but on the specific situation of whether the state places the person under its power and control.²³

 

The views of the above-mentioned countries on the application of International Human Rights Conventions to individuals under extraterritorial control have also been recognized by the United Nations human rights bodies. The Human Rights Committee considered that the obligations of the Covenant “also apply to all persons within the power or effective control of the armed forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained.”²⁴ The Committee on the Elimination of Discrimination Against Women considers that “the obligations of a State Party shall apply without discrimination to citizens or non-citizens who are within or outside the territory of the state but are under the effective control of the state... The State Party shall be responsible for all its actions affecting human rights, whether or not the affected individuals are within the territory of the state.”²⁵ The establishment of this standard once again proves that the core meaning of “jurisdiction” in International Human Rights Conventions is the authoritative relationship between the state and the individual, but not the traditional territorial or personal jurisdiction.²⁶

 

In practice, this extraterritorial rule has been applied to the obligation of States Parties to regulate the extraterritorial operation of transnational corporations. For example, in its country-specific concluding observations on Australia, the Human Rights Committee expressed concerns about Australia’s transfer of refugees or asylum seekers to the privately contracted Nauru and Papua New Guinea migration management center and the poor human rights situation in the center. The Committee believes that Australia has decisive control and influence over the operation of the overseas migration management center, including institution setting, provision of funds and service projects, which have constituted effective control. Therefore, the individuals of the center are under the jurisdiction of Australia, and the country undertakes corresponding human rights obligations in accordance with the International Covenant on Civil and Political Rights.²⁷

 

To sum up, if a state has effective control over the extraterritorial territory or individuals, it will actually realize the conditions of extraterritorial jurisdiction, and thus produce extraterritorial human rights obligations.²⁸ For the human rights issue of transnational corporations, if the extraterritorial institutions or business activities of transnational corporations occur in the areas effectively controlled by their home states, or the home states realize effective control over extraterritorial individuals through the activities of transnational corporations, then the home states should apply International Human Rights Conventions and regulate the extraterritorial violations of the transnational corporations.

 

 

In practice, the extraterritorial implementation of state authority by a State Party is also regarded as the realization of extraterritorial jurisdiction, so the International Human Rights Conventions apply. In this case, if the extraterritorial acts of transnational corporations can be attributed to the home state according to the state responsibility system, they are regarded as the acts of that State Party and their home state should bear human rights responsibility. The establishment and application of this rule are jointly shaped by the development of international human rights law and state responsibility system.

 

The initial discussion on whether the extraterritorial acts of state organs need to comply with International Human Rights Conventions took place in the Case of Burgos v. Uruguay tried by the Human Rights Committee in 1981.²⁹ This case involved the arrest and torture of Uruguayan national security personnel in Argentina. According to Article 4 of the draft articles of the Responsibility of States for Internationally Wrongful Acts , it is indisputable that the acts of state security personnel can be attributed to the state, but the question of whether the state shall bear responsibility for such extraterritorial acts in violation of international human rights law has aroused controversy. In this regard, the Human Rights Committee considers that the extraterritorial exercise of authority by States Parties should be regarded as a situation of extraterritorial jurisdiction. It is inconceivable that an act committed by a state at home constitutes a violation of International Human Rights Conventions, but does not bear responsibility because the act occurs outside the territory, which is a violation of the prohibition of abuse of rights in Article 5 of the Convention. Although some members of the Human Rights Committee believe that it is inappropriate to take the “abuse of rights clause” as the legal basis for the extraterritorial application of International Human Rights Conventions, and it is more reasonable to adopt the purposeful interpretation of International Human Rights Conventions, there is no dispute about the main conclusion that the extraterritorial acts of the “agents” of the State Party fall within the extraterritorial jurisdiction of the State Party. This case once again proves that if a state violates human rights due to the exercise of state authority, it should bear corresponding legal responsibility, regardless of where the act occurs and whether the victim is a national of the state.

 

The establishment of the “precedent” of the application of international human rights conventions to the extraterritorial acts of state organs means that all extraterritorial acts attributable to the state should be bound by the international human rights conventions. If the extraterritorial infringement of transnational corporations is recognized as a state act under specific circumstances, the state should be responsible for it. According to the state responsibility system, the extraterritorial acts of transnational corporations that can be attributed to States Parties mainly include two categories.

 

First, extraterritorial acts authorized by the state — Article 5 of the draft articles on the Responsibility of States for Internationally Wrongful Acts stipulates that “The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.” In practice, public and private enterprises such as transnational corporations may be authorized to become agents of the state. However, “to determine state responsibility, the conduct of an individual or entity attributable to the state must be related to government functions rather than other private or commercial activities carried out by the subject.”³⁰ In practice, there is no clear boundary for what constitutes activity exercising government power and giving full play to government functions. It is often decided according to a specific society, history and tradition, but it should at least include law enforcement activities, military operations and activities of providing public services, as well as traditional government public functions. Since the above functions constitute the elements of government power, even if they are authorized to private subjects, the government should also bear responsibility for them.³¹ As a private subject, if a multinational company exercises the elements of government power in its business activities reflecting the will of the state, its activity should be regarded as state activity, and the state should bear the relevant responsibility for the activity of the multinational company.³² However, such acts of exercising the elements of government power must be clearly authorized by domestic law, and the acts of transnational corporations that do not comply with the authorization procedures and contents stipulated by law cannot be attributed to the state. In reality, there are numerous cases in which transnational corporations are authorized to exercise government power, and they are not limited to activities in the territory. For example, in the Case of Hyatt International Company v.Government of the Islamic Republic of Iran, an autonomous foundation established by the state was involved, which owned the property for charitable purposes under the close supervision of the government and had the power, including the identification of the seized property. The foundation’s management of the confiscated property obviously involved the use of government power, so it belongs to the subject of exercising the elements of government power stipulated in Article 5 of the draft articles on the Responsibility of States for Internationally Wrongful Acts.³³ As another example, private security companies assume the security functions in national prisons according to contracts and prison regulations, and exercise public powers such as detention according to judicial decisions and relevant regulations. It is also common for such security companies to be stationed overseas to perform peacekeeping operations. In another example, airlines are authorized to exercise immigration management and quarantine functions and powers to some extent. For transnational corporations authorized by the state to exercise the elements of government power, their violations of international human rights law should be borne by the state.

 

Second, extraterritorial acts under the command or control of the state — Article 8 of the draft articles on the Responsibility of States for Internationally Wrongful Acts provides that “if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.” Compared with the activity explicitly authorized by the state, the activity under the command and control of the state is more complex and difficult to attribute responsibility, because it needs to prove not only the fact that the state has the right of control, but also the activity that the state actually exercises the right of control. In practice, even the activities of state-owned transnational corporations cannot be automatically recognized as state acts, because state-owned enterprises and the state are independent and separate entities. The fact that a state-owned multinational company is established or controlled by the state is not in itself a sufficient condition for attributing its business activities to the state. Only when it is proved that the company’s activity is directly controlled and commanded by the state can it be attributed to the state. For example, in the Case of Leo Hertzberg et al. v. Finland, the United Nations Human Rights Committee said that because the Finnish government controls 90 percent of the shares of the Finnish Broadcasting Company and puts the company under the special control of the government, the Finnish government should bear human rights responsibility for the actions of the company.³⁴ In this case, Finland’s assumption of state responsibility fundamentally depends on the fact that it uses its controlling position to achieve actual control.³⁵ Therefore, the application of this imputation principle to state-owned or private transnational corporations needs to be particularly cautious and strict, because to prove that the state has achieved control over transnational corporations, it is necessary to prove the relationship between the instructions or instructions received by the company and the exercise of business acts and specific acts commanded, and it is necessary to analyze them according to the actual situation in each case, because the “three terms ‘instruction’, ‘command’ and ‘control’ are separate, it is not enough to prove only one of them.”³⁶

 

Although it is somewhat difficult to verify the above imputation principle in practice, it can provide a certain legal basis or restrictive interpretation for the obligations of states parties to regulate extraterritorial enterprises under their control in the Legal Instrument on Regulating Transnational Corporations in International Human Rights Law (Second Revised Draft). If this jurisdictional provision is understood from the system of state responsibility, it actually attributes the acts of transnational corporations to the state, and emphasizes that the state undertakes international human rights obligations for the acts of transnational corporations under its control. Of course, according to the existing practice and interpretation, the application of this principle is restrictive in practice and can only be applied to the extraterritorial operation of a very few transnational corporations.

 

 

The collation and analysis of the relevant rules and practice for the extraterritorial application of International Human Rights Conventions shows that at present, the States Parties’ responsibility for extraterritorial human rights of transnational corporations is relatively limited. However, in practice, the United Nations continues to explore new theories of the extraterritorial application of International Human Rights Conventions and constantly seeks to strengthen the prevention and punishment of extraterritorial human rights violations by transnational corporations. Facing future development, there are two legal bases for the extraterritorial application of International Human Rights Conventions, which are worthy of further investigation.

 

 

In recent years, based on the development of academic research and practice, the obligation of international cooperation on human rights has been gradually put forward as the basis for supporting countries to fulfill their extraterritorial human rights obligations. Such obligations originate from the principle of universality of human rights and are intended to emphasize that respecting and protecting basic human rights should become a universal common obligation of all countries. In this regard, Article 1 of the Vienna Declaration and Programme of Action solemnly declares: “The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond question. In this framework, enhancement of international cooperation in the field of human rights is essential for the full achievement of the purposes of the United Nations.”

 

In fact, by collating and analyzing the relevant documents on international human rights, we can find that the obligation of international cooperation has long been stipulated not only in the Charter of the United Nations and the Universal Declaration of Human Rights, but also in some international treaties on human rights. Among them, Article 1.3 of the Charter of the United Nations clearly states that one of the purposes of the United Nations is “to promote international cooperation... To promote and stimulate respect for human rights and fundamental freedoms for all mankind.” The universality of human rights values accords with the spirit of the Charter of the United Nations and should be respected by individuals and states. Article 55 of the Charter stipulates that “the United Nations shall promote: (c) universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”; Article 56 provides that “member states undertake to take joint and individual actions to cooperate with the organization in order to achieve the purposes contained in Article 55.” In international human rights treaties, taking the International Covenant on Economic, Social and Cultural Rights as an example, Article 2.1 in the Covenant provides that “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, vith a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” In Article 14 of its General Comment No. 3 in 1990 on the Nature of States Parties’ Obligations, the Committee on Economic, Social and Cultural Rights affirmed: “The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the United Nations, with wellestablished principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard.” ³⁷ In addition, the Committee on Economic, Social and Cultural Rights has explained states’ obligations to international cooperation in the context of specific human rights issues. For example, in its general comments on the right to health and the right to water, the Committee considered that there were no territorial restrictions on the human rights obligations of the states concerned and that, in particular, economic and technical cooperation and assistance should be provided to developing countries to enable them to fulfill their core obligations.³⁸ Of course, the above-mentioned obligations of international cooperation are not limited to the obligation to provide development assistance, but should also be included in a broader theme.³⁹ Therefore, in its General Comment No. 15 on The Right to Water, the Committee on Economic, Social and Cultural Rights goes on to make it clear that the principle of international cooperation requires states parties to refrain from taking action to directly or indirectly interfere with the enjoyment of the right to water by the people of other countries.⁴⁰ In addition, such international cooperation obligations are different for developed and developing countries, but economic development does not exempt a country from its international cooperation obligations.⁴¹

 

In addition, in recent years, the Committee on Economic, Social and Cultural Rights has also made an in-depth interpretation of the obligation of international cooperation in light of the national practice of the human rights responsibilities of transnational corporations and the development of the extraterritorial application of International Human Rights Conventions. In its General Comment No. 23, the Committee points out that the States Parties should take measures, including the adoption of legislation, to clearly stipulate that its nationals and enterprises located in its territory and/or jurisdiction must respect the right to just and favorable working conditions in all extraterritorial operations; this responsibility is particularly important in countries with advanced labor law systems, as home state enterprises can help improve the standards of working conditions in host countries. The States Parties should adopt appropriate measures to ensure that non-state actors of a States Party are held accountable for extraterritorial violations of just and good working conditions and that victims have access to remedies. The States Parties should also provide guidance to employers and businesses on how to respect this right extraterritorially.⁴² In addition, the efforts of home states to regulate the extraterritorial violations of human rights by transnational corporations should also be extended to the field of effective accountability and remedy. Improvement in international cooperation can reduce the positive and negative effects of jurisdiction conflicts, which may cause legal uncertainty, or lead the victims to choose the place of litigation, or make them unable to obtain remedies. In this regard, the Committee welcomes the state’s active use of the obligations of international cooperation set out in all international documents to strengthen state responsibility and enable the victims of the convention rights with access to relief in multinational cases.⁴³

 

Although the above provisions and contents on the obligation of international cooperation are relatively clear, there is no universal or practical support in practice, mainly due to the fact that states have not yet reached an agreement on whether international cooperation obligations are binding in the field of human rights. Developed countries claim that the obligation of international cooperation is only a moral obligation, and the provisions on international cooperation in the Convention only play a declarative role; otherwise, the contracting states will fall into a situation that cannot be foreseen when they ratify the Convention; they also stress that the primary responsibility for the realization of rights remains within a country.⁴⁴ Developing countries insist that the obligation of international cooperation is a legal obligation and that the provisions on international cooperation in the Convention clearly stipulate that developed countries have the obligation to provide assistance to the international community and cooperate with other countries to promote the protection of human rights. Although the nature of the obligation of international cooperation is still vague, according to the existing practice, it still has the rationality and potential to support the state to fulfill its extraterritorial human rights obligations, which is worthy of further development and attention.

 

 

In addition to the international cooperation obligation of human rights, the principle of do no harm in international law can also be used as the source of state regulation on extraterritorial human rights obligations of transnational corporations.

 

The principle of do no harm originates from Roman law and is a concrete embodiment of the principle of mutual respect for sovereignty among states when applied to international law. The earliest international practice to apply the principle of do no harm was the Trail Smelter Arbitration in 1941. In this case, the air pollutants continuously discharged by the mineral smelting enterprises in Trail, Canada had a harmful impact on the trees and land on the US border. Therefore, the United States filed for arbitration with Canada. After the hearing, the interim international arbitration tribunal held that no country has the right to use or allow the use of its territory to cause damage to the territory or people’s property of another country, even if such damage is caused by harmful smoke.⁴⁵ Since then, in the Corfu Channel Case, the International Court of Justice established the principle of do no harm as a general principle of international law, holding that every state shall have the obligation not to knowingly use its territory to commit acts contrary to the rights of other states.⁴⁶ The judgment also holds that the principle of do no harm applies not only between directly adjacent states, but each state should pay attention to the rights of other states.

 

After years of development, the principle of do no harm has been widely recognized as customary law in international environmental law. In this regard, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of justice reiterated that states have a general obligation to ensure that activities within their jurisdiction or under their control do not cause damage to the environment of other states or areas beyond their jurisdiction, which has become a part of international environmental law.⁴⁷ In its General Comment No. 24 On the Implementation by States of Their Obligations (under the International Covenant on Economic, Social and Cultural Rights) in Business Activities, the Committee on Economic, Social and Cultural Rights also pointed out that customary international law prohibits states from allowing their territory to be used to cause harm to the territory of other states, a requirement that has become particularly important, at least in international environmental law,⁴⁸ so as to demonstrate the legitimacy of the relevant extraterritorial human rights obligations of the state. Moreover, in its compilation of the Draft Principles on the Allocation of Loss in the Case of Trans-boundary Harm Arising out of Hazardous Activities, the International Law Commission also stipulates that states should take necessary measures to ensure that victims of transboundary harm arising out of hazardous activities within their territory or under their jurisdiction or control receive prompt and adequate compensation.⁴⁹

 

In view of the fact that the principle of do no harm established in the Trail Smelter Arbitration has become customary international law, it produces the obligation of the state to respect and protect human rights extraterritorially in national human rights law,⁵⁰ which provides certain theoretical support for the human rights obligation of the state to regulate the extraterritorial acts of transnational corporations. In this regard, the Guiding Principles on Extreme Poverty and Human Rights adopted by the Human Rights Council also clearly puts forward the obligation of the state to avoid the foreseeable risk of undermining the enjoyment of human rights by the extraterritorial poor,⁵¹ and further confirms that the principle of do no harm extends to human rights 

law.⁵² In addition, the Committee on Economic, Social and Cultural Rights specifically points out in its General Comment No. 23 that this principle applies to States Parties’ extraterritorial human rights obligations to regulate transnational corporations, and states parties should avoid obstructing the right of people of other countries to enjoy just and good working conditions through acts or omissions. The reason is that because the overseas branches of transnational corporations can enjoy the support of the headquarters group located in the territory of their home states through various ways, their human rights violations in the host countries may also lead to the human rights responsibility of the home states for violating the principle of do no harm. It is obviously unfair for a country to obtain benefits from the overseas branches of its transnational corporations through taxation, but refuse to regulate them and remedy the damage caused by them. Therefore, certain measures should be taken to prevent transnational corporations from using their territory to commit extraterritorial violations of human rights; otherwise, there is a risk of violating the principle of do no harm. However, the application of this principle only stays at the theoretical level and still needs more practice for support in the future.

 

 

In conclusion, with the continuous advancement of globalization and the development of human rights responsibilities of industry and commerce, a state’s regulation on the extraterritorial human rights obligations of its transnational corporations has gradually become the focus issue of the international community, and caused disagreement among countries. Although the view that states have extraterritorial human rights obligations relating to their transnational corporations accords with the development trend of the United Nations on this issue, the determination of a state’s obligations and the compilation of international legal instruments still need to respect existing international laws. According to the relevant rules, the extraterritorial human rights obligations of states to transnational corporations fundamentally depend on the scope of application of the international human rights conventions, especially the extraterritorial jurisdiction of a state. In practice, state control over extraterritorial territories and individuals and the implementation of state authority are regarded as the realization of extraterritorial jurisdiction and should comply with international human rights obligations. As for the business activities of transnational corporations that cannot be covered by the above rules, the international community can further explore and expand the scope of extraterritorial application of the international human rights conventions by advocating the obligation of international cooperation and the application of the principle of do no harm. However, generally speaking, the extraterritorial human rights obligations of states to transnational corporations should start from the current rules and practice of international human rights law and give consideration to the fairness of economic development while promoting the protection of human rights.