Cross-border Conduct of Multinational Corporations vs. Human Rights Protection: an analysis of the present international situation

Transcription

1 Cross-border Conduct of Multinational Corporations vs. Human Rights Protection: an analysis of the present international situation Master Thesis International and European Public Law Human Rights Author: Loes Hellemons (A.P.) ANR: Supervisors: prof. dr. mr. N.M.C.P. Jägers dr. S.F. van den Driest Department: Law School, Tilburg University Date: July 2013

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3 Table of Contents List of abbreviations... iv Chapter I Introduction General introduction Cause of research: Kiobel v. Royal Dutch Petroleum Co Case facts Argumentation plaintiffs and defendants The value of the Kiobel case Research- and sub questions... 8 Chapter II Framework extraterritorial jurisdiction Introduction Extraterritorial jurisdiction Classical bases for exercising extraterritorial jurisdiction Keystones of international public law Conclusion Chapter III The extraterritoriality of human rights Introduction To what extent do states owe their human rights obligations abroad? The extraterritoriality of civil and political rights The extraterritoriality of economic, social and cultural rights To what extent do states owe their human rights obligations abroad when a MNC is the violator? State-related corporations MNCs Conclusion Chapter IV Conclusion Bibliography... vi iii

4 List of abbreviations ATS CaT CERD CESCR CP-rights Council CRC ECJ ECtHR ESC-rights ETO principles Framework GI-ESCR HRC IBHR ICC ICCPR ICERD Alien Tort Statute Convention against Torture Committee on the Elimination of Racial Discrimination Committee on Economic, Social and Cultural Rights Civil and Political Rights Human Rights Council Committee on the Rights of the Child European Court of Justice European Court of Human Rights Economic, Social and Cultural Rights Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights United Nations Protect, Respect and Remedy Framework The Global Initiative for Economic, Social and Cultural Rights Human Rights Committee International Bill of Human Rights International Criminal Court International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination iv

5 ICESC ICJ IFI(s) ILC Ltd. MDG(s) MNC(s) MOSOP OP SRSG Statute UDHR U.K. UN U.S. International Covenant on Economic, Social and Cultural Rights International Court of Justice International Financial Institution(s) International Law Commission (Private) Limited Corporation Millennium Development Goal(s) Multinational Corporation(s) Movement of the Survival of Ogoni People Optional Protocol Special Representative of the Secretary-General Alien Tort Statute Universal Declaration of Human Rights United Kingdom United Nations United States (of America) v

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7 Chapter I Introduction 1.1 General introduction Economic globalisation is a well-known phenomenon which can be described as the expansion and intensification of relations and consciousness across world-time and worldspace. 1 It refers to an interconnected world; a world in which state boundaries become vague and distances between people become shorter. The post-1980 era is characterised by an expansion and acceleration of global exchanges, which led to a more globalised world. 2 In this perspective, the interdepency between states is more and more utilised to cross borders: by individuals, but for sure by multinational corporations (further: MNCs). Apart from positive effects of globalisation, the conduct of MNCs beyond state borders also results in the insecurity concerning effective human rights protection all over the world. States have widely agreed upon the fact that they have to protect human rights of individuals against corporate violations within their territorial jurisdiction. This includes, amongst others, adopting the necessary and effective legislative and other measures to refrain corporations from any activities that might cause harm to the realisation of human rights. 3 However, as a result of globalisation, MNCs expanded their businesses through their subsidiaries around the world. Subsidiaries of MNCs are often established in developing countries and are thus falling under the jurisdiction of this host state. Unfortunately, most of the developing countries can not comply with their human rights obligations under international law. Home states are often unable or unwilling to provide an effective legal system for human rights protection; or even worse home states are the main perpetrator of human rights violations in which the MNC has aided or abetted. It is even argued that the economic power of MNCs occasionally exceed the power of a host state. 4 When it comes to effective human rights protection of civil, cultural, economic, political and social rights in these host states, MNCs have a large and profound impact on the 1 Steger 2013, p Ibid., p Joseph and McBeth 2010, p Tomuschat 2008, p

8 realisation of these rights. 5 An added difficulty can be found in the regulation of such powerful MNCs. Only states are accepted as international legal persons capable of signing treaties and appearing before international courts, implying that MNCs are excluded from the jurisdiction of international (ad hoc) tribunals. 6 Furthermore, MNCs are expected to behave in line with international guidelines which are also valid when they operate outside their home state. However, successful attempts to enforce direct responsibility for corporate conduct are still not crystallised. The OECD, which elaborated Guidelines for Multinational Enterprises for example, has consistently emphasised that compliance with these Guidelines, which constitute no more than recommendations, is voluntary. 7 To sum up, it seems that under the current international system, MNCs which are violating human rights on foreign soil are covered with a blanket of impunity. 8 Regrettably, there are many examples of MNCs that are violating human rights on foreign soil. 9 However, the hypothesis of this research is that the non-territorial states which are party to international human rights treaties, have an important role to play to ensure that the MNCs are not left unpunished for violating internationally recognised human rights. It is the question whether the existing human rights legal framework is capable to deal adequately with MNCs and the effect of their human rights policies abroad. Since corporate conduct crosses border more often than not, it is important to know how the international community deals with the concept of extraterritoriality. In a recent case of the U.S. Supreme Court, the extraterritoriality of human rights was addressed. 1.2 Cause of research: Kiobel v. Royal Dutch Petroleum Co. In early October 2012, the U.S. Supreme Court opened its new term and was immediately challenged to render its judgment concerning a complex conflict between a multinational corporation and residents of Nigeria who alleged to be harmed by this corporation. This case is 5 Vandenhole 2009, p Brown ea. 2002, p. 251: e.g. Rome Statute, art. 25(1). 7 Tomuschat 2008, pp E.g. Rome Statute, art. 25(1). 9 See for example: which listed the most wanted corporate human rights violators of

9 not only a watershed case concerning the explanation of a specific American law and its extraterritoriality, it has also been the trigger in starting this research: a national court is finally challenged to explain the scope of extraterritoriality. In reviewing the case, several facts should be considered Case facts The Kiobel case involves a conflict between on the one hand the multinational corporation Shell (defendants) and on the other hand citizens of the Ogoni region in Nigeria (plaintiffs). When the claim was filed, the alleged companies (Royal Dutch Petroleum Co. and Shell Transport and Trading Company) were incorporated in the Netherlands and England. 10 Since 1958, these corporations of Shell have been engaged in wide-ranging oil drilling operations in the Ogoni region of Nigeria. 11 A group of Ogoni citizens formed the MOSOP, which protested against the harmful environmental effects of Shell s operations. In a response, the Nigerian government suppressed this group in order to stop the protests. Nigerian military and police forces thereby attacked Ogoni villages; beating, raping, killing and arresting residents and destroying or looting property. 12 According to plaintiffs, the corporations of Shell aided and abetted these atrocities by, among other things, providing the Nigerian forces food, transportation and compensation as well as by allowing the Nigerian military to use its property as a staging ground for attacks. 13 In 2002, plaintiffs filed a class action suit against the Dutch and British divisions of Shell in the U.S.. However, the U.S. Court of Appeals for the 2 nd Circuit rejected this claim in 2010, stating that under the law of nations it is impossible to sue corporations for human rights abuses. 14 The U.S. Supreme Court granted certiorari, implying that it would review the decisions that were made by lower courts in the specific case. More specific, they re-opened the case to answer the question concerning corporate liability under international law: 1. Whether the issue of corporate civil tort liability under the Alien Tort Statute (further: ATS), 28 U.S.C. 1350, is a merits question, as it has been treated by all courts prior to 10 Kiobel v. Royal Dutch Petroleum Co. 2013, pp Ibid., p Ibid. 13 Ibid. 14 Ibid., p. 3. 3

10 the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time; 2. Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations. Although the research of the U.S. Supreme Court was initially focused on corporate liability, it quickly changed to the subject of extraterritoriality during the first oral argument. Additionally, the court requested supplemental briefing on an additional question: Whether and under what circumstances the ATS allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. 15 The relevant law in this case, the ATS, is a centuries-old law that is established by the founders of America and is still in force. In cases similar to Kiobel, human rights counsels often appeal to paragraph 1350 of this law, which states that: [t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the U.S.. The founders of America have initiated this provision for a trinity of ancient wrongs, namely violations of safe conducts; infringements of ambassadors rights and piracy. 16 The Statute slept for nearly 200 years, but had its revival in 1980 when the U.S. Court of Appeals for the 2 nd Circuit broadened its application in the case of Filartiga v. Peña-Irala. 17 It decided that the Statute authorises private claims against individuals for violations of specific, universal and obligatory human rights norms that are violated on foreign soil. 18 Ever since this judgment, the ATS is no longer an antiquarian oddity; it appears that internationally recognised human rights are nowadays supplementing the original trinity of crimes Kiobel v. Royal Dutch Petroleum Co. 2013, p Supplemental Opening Brief Petitioners, p Filartiga v. Peña-Irala Van der Heijden 2012, p. 42; referring to Filartiga v. Peña-Irala Casto 2006, p

11 The aftermath of Filartiga developed a significant body of case-law defining the kind of violations, defendants and plaintiffs that are actionable under the ATS. In Doe v. Unocal Corp the District Court expanded the application of the ATS even more. In this case, Burmese citizens charged that the oil corporation was responsible for crimes of forced labour and torture. It was the first case in which it was possible to sue MNCs under the ATS. 20 After this case, the ATS has been used often as an avant-garde tool which allows foreign nationals to bring claims before U.S. Courts for torts committed by business entities in violations of international law. From 2002 to 2012, up to 150 ATS cases have been filed against corporations in federal courts of which the majority have resulted in rulings favourable for the corporate defendants. 21 Only a handful of cases filed against MNCs have survived preliminary motions and approximately a dozen cases have been settled Argumentation plaintiffs and defendants In the specific case of Kiobel, it is the reach of the ATS that is contested. The case facts clearly indicate a so-called foreign-cubed case, meaning that all elements (plaintiffs, perpetrator(s) and the crime scene ) are foreign of nature. It is the question whether this U.S. law can be invoked and whether the U.S. Supreme Court is capable to render its judgment, in the case of a foreign corporation violating the human rights of foreign nationals on the territory of another state. Plaintiffs and supporters of plaintiffs view argue that this question must be answered in the affirmative. 23 They state that it is in line with international law that a domestic law like the ATS enforces specific, universal and obligatory norms of international law. 24 Earth Rights International is supporting this view, affirming that granting extraterritorial scope to a domestic law does not contravene with any international rule; it implements rights that are universally accepted and that are derived from obligations that are owned by all states. 25 Furthermore, they 20 Stephens 2008, p. 15; referring to Doe v. Unocal Corp Childress 2012, p Stephens 2008, p The U.S. Supreme Court requested for supplemental briefing for re-argument, to receive more opinions about the issue of extraterritoriality. Any person with an intense interest in the specific case, but not a party to the case, may file a brief on behalf of a part of in support of neither party. This is called Amicus Curiae, literally meaning friend of the Court. Filed briefs in the case of Kiobel can be found on 24 Amicus Curiae Yale Law School Center for Global Legal Challenges, p Amicus Curiae Earth Rights International, p

12 advocate that because of the erga omnes character of human rights, it is in the interest of all states to prevent human rights violations. 26 The U.S. is just offering a juridical forum to allow the victims to obtain effective remedies or violations that are so obvious and abhorrent that it is acknowledged in the international community that the specific corporations must be punished and that the victims must have effective recourse. 27 Bearing these arguments in mind, the nature of internationally recognised human rights and the collective drive to guarantee these rights strengthen the lawfulness of the extraterritorial application of the ATS in international law. Counterarguments were given by defendants, supporters of their view and the justices of the U.S. Supreme Court. Their main argument rests on the fact that extraterritorial application of the ATS would be in conflict with international law, since it does not respect the sovereign rights of other states. It is presumed that U.S. law does not violate international law and therefore the ATS should not apply to conduct on foreign soil. 28 Defendants rely on the presumption against extraterritoriality, implying that U.S. law should not apply to conduct outside its borders. 29 This presumption reduces the possibility that U.S. law will apply extraterritorially and subsequently will interfere with conduct occurring on the territory of another state. It is acknowledged that the ATS applied to piracy, but according to the U.S. Supreme Court: [t]his does not typically impose the sovereign will of the U.S. onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. 30 According to the Supreme Court: [a] court must carefully consider whether it grants extraterritorial application to a domestic law, since possibilities of international discord are so evident and retaliative action so certain. 31 The government of the U.S. adds that in cases like Kiobel where everything is foreign and there is no meaningful connection to the U.S the ATS should not apply extraterritorially: [e]specially in these circumstances, the U.S. cannot be thought responsible in the eyes of the international community for affording a remedy for the company s actions, while the nations directly concerned could. 32 The U.S. Supreme Court adds that even when claims in a similar case touch and concern the territory of the U.S., they must do so with 26 Amicus Curiae Navi Pillay, p Ibid., pp Supplemental Brief for Respondents, p Ibid., p. 11; referring to Morrison v. National Australia Bank 2010, p Kiobel v. Royal Dutch Petroleum Co. 2013, p Ibid.,, p Amicus Curiae United States, p. 5 and p

13 sufficient force to displace this presumption against extraterritoriality. 33 In this relevant case, the mere presence of an office in the states and trades on the national stock exchange, does not suffices to touch upon the interests of the U.S.. 34 In line with this argumentation, the justices of the U.S. Supreme Court ruled on 17 February of this year that the plaintiffs in Kiobel could not invoke the ATS. This specific law does not apply to situations in which a foreign corporation violated the human rights of foreign victims on the territory of another state. 35 It decided that the ability of U.S. courts to hear claims of extraterritorial human rights violations under the ATS should be limited The value of the Kiobel case The Supreme Court has ordered that the Kiobel case is not its business, which led to many reactions of human rights counsels. According to Human Rights First: [i]t does not only deny 30 years of precedents, it immediately shuts the door to justice for a large category of foreign individuals who really have nowhere else to go to receive redress for international human rights violations. 36 The Center for Constitutional Rights agrees and states that: [t]he ATS was a powerful tool for the legal redress, this ruling will make a difference in the lives of many victims of corporate-linked human rights violations all over the world. 37 The U.S. Supreme Court rejected the possibility to apply this law extraterritorially to foreigncubed cases. This judgment is leading concerning the explanation and scope of the ATS, a specific American law. It does not, however, result in the dismissal of extraterritoriality in international law. In contrast, this judgment will make judges and governments re-consider the inquiry concerning extraterritoriality. The controversial outcome of Kiobel makes us wonder if national courts are authorised to hear claims of human rights violations committed on the territory of another state, and if they are to what extent they may rule over extraterritorial cases. Possibly, it will even provoke other victims of corporate-linked human rights abuses to go to foreign courts. To sum up, the Kiobel case has put the inquiry concerning extraterritoriality of 33 Kiobel v. Royal Dutch Petroleum Co. 2013, p Kiobel v. Royal Dutch Petroleum Co. 2013, concurring opinion of Justice Breyer, pp Kiobel v. Royal Dutch Petroleum Co. 2013, p R. Wala 2013, Senior Counsel at Human Rights First. ( 37 P. Weiss, Vice-President of the Center for Constitutional Rights. ( 7

14 human rights high on the agenda of the international community. By virtue of the Kiobel case, one must reconsider the existing conditions of extraterritoriality in international law. 1.3 Research- and sub questions Research question What is the current state of affairs in international law regarding the extraterritoriality of states obligations, in the light of human rights violations committed by Multinational Corporations? Sub questions - What standards does the legal framework of jurisdiction provide concerning the policy on extraterritorial jurisdiction? - Which keystones of international public law must be taken into account when analysing the scope of extraterritorial jurisdiction? - To what extent do states owe their human rights obligations abroad under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights? (Further: ICCPR, ICESCR) - To what extent do states owe their human rights obligations under the ICCPR and ICESCR abroad when a MNC has committed the crime? - To what extent are states required to regulate MNCs when they are involved in human rights violations on foreign soil? Approach and Methods of Research This research aims to provide a clear overview of the extraterritoriality of human rights, especially when it involves MNCs that are violating human rights. The extent in which states should protect human rights against MNCs beyond their state borders requires clarification, since 8

15 it does not uphold one straight answer. The current state of affairs regarding the extraterritoriality of human rights should be reviewed and therefore this research consists of several sources that are consulted to come to a final conclusion. Whereas chapter II will provide a theoretical framework with legal rules and binding case-law, chapter III will particularly focus on nonbinding guidelines and documents that are issued to solve the ambiguities concerning the precise content of extraterritorial obligations of states. Furthermore, many human rights experts/authors have issued their opinion regarding this subject; it is also worth considering these, to outline as extensive as possible how things are standing in international law. Readers should keep in mind that this contribution admits a reproduction of the current state of affairs in international law, but that the provided arguments and documents are not exhaustive. The legal framework concerning jurisdiction and more specific concerning extraterritorial jurisdiction will be discussed in chapter II. This chapter deals with the general application of extraterritorial jurisdiction and will answer the question under which circumstances it is reasonable for states to exercise extraterritorial jurisdiction. This will be followed by chapter III which will provide an extended analysis concerning how far human rights obligations reach beyond state borders. This research focuses especially on the human rights derived from the ICCPR and ICESCR. The reason for this is twofold. Firstly, both Covenants have an impressive account of state parties (167 and 160 states respectively). By virtue of this fact, we can abstract that both Covenants contain global accepted human rights, both in the sphere of civil and political as well as economic, social and cultural rights. Secondly, as a result, a widespread view can be established concerning the extraterritoriality of these human rights. The second part of chapter III will answer the question to what extent these extraterritorial human rights obligations are applicable when a third party is the violator. The research will focus on the extraterritorial conduct of MNCs, related to the measures states should (or should not) take to prevent extraterritorial human rights violations by corporate conduct. Finally, a conclusion will be drawn in chapter IV. 9

16 Chapter II Framework extraterritorial jurisdiction 2.1 Introduction While discussing whose business it is when a crime occurs, the legal framework of jurisdiction must be addressed. The theory of jurisdiction decides which court can render its judgment over the case and which law should be guiding. Furthermore, this theory can elucidate why a state should exercise jurisdiction over an occurrence, or maybe why it should not. Answering questions concerning which state must or can exercise jurisdiction are not always straightforward. When discussing a case which fully occurs within a state s territorial borders and contains no foreign elements, it is (most of the times) logical that this state has the competence to judge the issue. However, this is not always the case. When considering which state has jurisdiction when it involves a Belgian corporation whose conduct affects the enjoyment of human rights in France, jurisdictional doctrines come to the fore. With such cross-border cases it is important to know which doctrines and principles are present in international law to dissolve possible jurisdictional issues. The current theory behind extraterritorial jurisdiction will elucidate under which circumstances it is correct to conclude that a state s court is capable to consider a case with foreign elements. 2.2 Extraterritorial jurisdiction Jurisdiction refers to a state s competence under international law to regulate the conduct of natural and juridical persons. 38 It can be said that the assertion of jurisdiction mainly occurs within the territorial boundaries of a state. The idea is that every state should be able to regulate activities within its own territory in accordance with its own policies and priorities. 39 Already in 1927, the ICJ underscored the complete and absolute character of territorial jurisdiction: [n]ow, the first and foremost restriction imposed by international law upon a State is that it may not exercise its power in any form in the territory of another State. In this 38 Crawford 2012, p Zerk 2010, p

17 sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. 40 Although this territorial view of jurisdiction is profound, the current approach of international public law does take some exceptions into account. By virtue of functional jurisdiction, for example, a state may exercise authority over areas that are not specifically the state s territory. In this light, one can think of the continental shelf or an exclusive economic zone. 41 The concept of extraterritorial jurisdiction is the second exception to the territorial thought of jurisdiction. A state can have the authority to exercise jurisdiction outside its own territory, implying that persons, subject matters and situations on foreign soil can fall under its jurisdiction. Whenever an occurrence falls under the jurisdiction of a state, this state can automatically decide what measures to take. This can vary between enforcement, adjudicative and prescriptive measures. Enforcement jurisdiction is the capacity of a state to actually apply its laws. Passing the state s boundaries while continuing the performance of your enforcement function is only justifiable by virtue of international customary law, treaty law or an international agreement. 42 This form of cross-border jurisdiction is acknowledged among states; one can think of the competence of the Dutch policy to cross the Belgian border in case of the hot pursuit of drug traffickers. 43 However, when reverting to the inquiry of this research, it means that a state cannot investigate a crime, or enforce its judgment or judicial process concerning a MNC incorporated in a foreign state, without the permission of the latter. 44 Difficulties may arise when the territorial state mostly a developing country is not willing to agree, because of the powerful influence of the MNC in this host state. Secondly, prescriptive jurisdiction is the competence of a state to regulate people, property and transactions under its jurisdiction; a state may prescribe conduct through the passage of its own 40 The case of the S.S. Lotus 1927, See Bossuyt and Wouters 2005, p. 334: for more information concerning functional jurisdiction and the regulation about jurisdiction over the high seas, Antarctica and other global commons. 42 Langford ea. 2013, p Ibid., p International Bar Association 2008, p

18 laws and regulations. 45 It is, however, far from self-evident that one state is able to prescribe conduct to the territory of another one. A good example of prescriptive jurisdiction with crossborder effect is the U.K. Broadcasting Act of 1990, which makes it an offence under U.K. law to broadcast from the high seas in a manner which interferes with domestic broadcasting services. 46 Adjudicative jurisdiction, at last, is the authority of national courts to consider suits and resolve the legal issues that are raised based on domestic or international law. Regarding adjudicative jurisdiction in the extraterritorial sphere, one can state that this form represents the most common aspect of jurisdiction in situations involving a foreign element; this occurs either where criminal procedures may lead to convictions for acts committed abroad or where civil courts declare themselves competent to adjudicate in proceedings which relate to extraterritorial situations. 47 In practice, it occurs more often than not that prescriptive and adjudicative jurisdiction apply together. When a state adopts legislation with an extraterritorial scope of application, it is not so unusual that this state automatically allows its domestic courts to adjudicate on claims based on that legislation. 48 And as de Schutter argues, it is hardly conceivable for a state to influence situations outside the national territory by the adoption of extraterritorial legislation, while at the same time denying its courts the power to accept jurisdiction over cases relating to such situations, to which such legislation is applicable. 49 In line with this theory, direct extraterritorial jurisdiction must be distinguished from domestic regulations with an extraterritorial effect. The former implies the direct assertion of jurisdiction over the foreign conduct of corporations. In the field of anti-corruption, for example, State X may assert jurisdiction over a foreign national in respect of a corrupt course of conduct taking place partly in state X and partly in state Y. 50 The latter refers to the use of domestic measures with extraterritorial implications to help influence the behavior of private actors abroad without 45 Dixon 2007, p Ibid., p De Schutter 2006, p De Schutter 2010, p De Schutter 2006, p Zerk 2010, p

19 the direct use of extraterritorial jurisdiction. 51 One must remember that using direct extraterritorial jurisdiction over the foreign conduct of a MNC must be justified by virtue of one of the following classical bases for exercising such jurisdiction Classical bases for exercising extraterritorial jurisdiction In international law, the following classical bases for exercising extraterritorial jurisdiction are widely accepted. Firstly, exercising jurisdiction by virtue of the principles of subjective and objective territoriality. It can appear that a wrongful act was commenced in state X but completed in state Y, or vice versa. One can think of the well-known example of a gun that is fired on the territory of state X, but hits its target on the territory of state Y. In cases like these, more than one state may claim jurisdiction over the wrongful act. 52 Subjective territoriality gives state X jurisdiction when preparatory activities were executed in its state, but the act was completed in state Y. Objective territoriality determines that state X possesses jurisdiction over a crime, despite it was commenced in state Y, because the act was executed on the territory of state X. Secondly, a state can apply extraterritorial jurisdiction based on the active personality principle, implying the state s authority to act against its own nationals wherever they are. 53 This can cover crimes under domestic law with a limited period of imprisonment, or crimes which involve a higher sentence. In case of the latter, it is normal that the requirement of double criminality must be met, implying that the committed act must be defined as crime in both the home state as well the host state. 54 The reversal of this principle is the passive personality principle. This principle is related to the nationality of the victim and implies that a foreign national can be tried in state X when the act was against a national of this state. This principle is acknowledged among states as a ground for extraterritorial jurisdiction; however it must be said that it is farreached and at least inefficient to adjudicate or prescribe conduct. Besides the fact that both the home state of the perpetrator as the state in which the act was committed provide a better forum for the case, it seems to be unfair to subject a defendant to the domestic law of the victim s home 51 Zerk 2010, p Ibid., p Cassese 2005, p REDRESS/FIDH 2010, p

20 state, since no one can be presumed to know the law of a state that is thousands of miles away. 55 Nowadays, the use of the passive personality principle is renewed in the context of fighting terrorism. States may use it to claim jurisdiction over persons harming their nationals abroad through acts of terrorism. 56 The last important option to exercise extraterritorial jurisdiction is justified by the notion of universal jurisdiction. This form is neither linked to the preparation or effect of the crime, nor to the nationality of the perpetrator or victim. The idea behind this principle is that some crimes are so offensive and such a threat to international peace and security, that all nations are regarded as having an interest in their prevention and enforcement. 57 Under the principle of universal jurisdiction a state is entitled to start proceedings in respect of certain serious crimes, irrespective of the location of the crime and irrespective of the nationality of the perpetrator or the victim. 58 The crimes that are subject to universal jurisdiction under international law are crimes against humanity, war crimes, torture, genocide, slavery and piracy, as those crimes are defined in customary law. 59 An example of universal jurisdiction can be found in art. 5(2) of the Convention against Torture, stating that: [e]ach State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him. This principle is also known as aut dedere, aut prosequi; the state on which territory the offender is present has to choose between trying the offender, or extradite him/her to the home country Keystones of international public law The fact that a state satisfies one of the aforementioned jurisdictional requirements does not imply that this state is automatically allowed to exercise extraterritorial adjudicative or prescriptive jurisdiction. The assertion of extraterritorial jurisdiction goes hand-in-hand with principles of sovereignty and non-intervention; accepted principles in international public law. Prescribing conduct to an extraterritorial situation and allowing your national courts to judge an extraterritorial case, does not always comply with these two principles. 55 Watson 1993, p Chehtman 2010, p Zerk 2010, p Kamminga 2001, pp Cryer ea. 2010, p

21 By virtue of a 1986 case of the ICJ concerning Nicaragua and the U.S., both principles of state sovereignty and non-intervention are clarified in relation to a state s authority to exercise jurisdiction. 60 With reference to art. 2 of the UN Charter, the ICJ underscored that it is the duty of every state to respect the territorial sovereignty of others. 61 The legal concept of State sovereignty in customary international law, extends (besides its territory) to the internal waters and territorial sea of every State and to the air space above its territory; the Court has no doubt that these prescriptions of treaty-law merely respond to firmly established and longstanding tenets of customary international law. 62 This means that the state s ability to make authoritative decisions concerning its internal affairs belongs to international customary law. Secondly, the principle of non-intervention must be taken into account. This principle is a corollary of the principles of equality of states and the right to self-determination. The ICJ states that: [t]he principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. 63 Since both described principles can be defined as customary principles with universal application, it is comprehensible that states must attempt to avoid or minimise jurisdictional conflicts with other states. 64 Furthermore, almost every state requires a sufficiently close nexus with the occurrence, for example the condition that the accused is a resident of the state. Prior to a recent amendment to U.K. law, for example, suspects of genocide and crimes against humanity who were living in the U.K. since the 1990s and were deemed not to be resident, and other suspects present in the U.K. 60 Case concerning military and paramilitary activities in and against Nicaragua Ibid., Ibid., Ibid., De Schutter 2006, p

22 who were refused residency status but who could not be removed for human rights reasons, were effectively immune from prosecution. 65 In 2009, the government of the U.K. enacted a law to extend the definition of resident. The ICC Act 2001 implements the Rome Statute of the ICC and the definition now includes those with indefinite permission to remain in the U.K. or those who have made an application for such permission; those who have leave to be in the U.K. for work or study; those who have made an asylum claim; illegal entrants and those detained within lawful custody in the U.K.. 66 In some states the presence of the defendant within the jurisdiction is necessitated to ground the courts adjudicative extraterritorial power. 67 For example, both legal systems of Canada and South Africa require the presence of the accused as a condition for asserting jurisdiction. It is evident that residency and presence can be one of the factors in deciding whether to commence extraterritorial jurisdiction proceedings. 68 Another commonly used requirement to prevent an unintended clash between two sovereigns and their laws can be found in the concept of subsidiarity. This principle is a functional principle aimed at granting jurisdiction to a subsidiary body when the main body fails to exercise its primacy jurisdiction, especially in relation with the assertion of universal jurisdiction. 69 On the one hand this principle takes into account the principle of state sovereignty and on the other hand it is respecting universal jurisdiction. The concept gives priority to courts in the territorial or national state. Jurisdiction based on nationality or territoriality is the guideline, jurisdiction by virtue of the universality principle can only be exercised when the territorial or national state is unable or unwilling to assert jurisdiction. When applying this principle it is a clear weighing of interests; on the one hand a state has to avoid posing its sovereign will on the conduct occurring on another territory, on the other hand is the fighting of crimes in the interest of all states. Sometimes this can lead to an expansive interpretation of the principle of state sovereignty, for example when a forum state declines to exercise universal jurisdiction over one suspect based on the fact that the home state has shown itself (or has pretended to be) willing and able to prosecute human rights violators. 70 In 2005, the German Federal Prosecutor rejected a complaint against 65 REDRESS/FIDH 2010, p ICC Act 2001, p Crawford 2012, p Lawyers Committee for Human Rights 2002, p Philippe 2006, p Kaleck 2009, pp

23 the former U.S. Secretary of Defense Donald Rumsfeld, arguing that the U.S. authorities, though not investigating specifically against Rumsfeld nor the specific crimes referred to in the complaint, were investigating the complex as a whole and therefore German authorities, under the principle of subsidiarity, could not exercise jurisdiction in that specific case. 71 The abovementioned principles of a sufficient close nexus and subsidiarity are mostly activated in cases of universal jurisdiction. Where the principle of universal jurisdiction tends to solve the impunity of severe crimes, one may wonder how universal the concept of universal jurisdiction is. By virtue of these two principles we can already state that it can only be exercised under certain circumstances. Universal jurisdiction is controversial and is therefore separated in two categories: pure and conditional universal jurisdiction. 72 Conditional universal jurisdictional refers to universal jurisdiction that is exercised when the accused has its presence in the state that is seeking to exercise jurisdiction. Asserting pure universal jurisdiction, on the other hand, is controversial since it may show a lack of international courtesy. 73 The last requirement on the use of extraterritorial jurisdiction is seen as an overreaching condition; the claim to exercise extraterritorial jurisdiction must pass the so-called reasonableness test. When applying extraterritorial jurisdiction the forum state can underestimate the interest of another state. So in order to pay attention to foreign concerns, states can subject their extraterritorial conduct to a reasonableness test. 74 Nowadays, the international community has indicated when a claim for extraterritorial jurisdiction can be considered to be reasonable. For instance, a regulation satisfies the test, when the regulation is based on national or territorial connections with the act; when the regulation is flexible, principle-based and outcome oriented; and when there is international consensus that the regulated activity is wrongful, undesirable or offensive. 75 Malone considers that customary international law requires jurisdiction to be exercised only in a reasonable manner with respect to another state if its interest are clearly greater REDRESS/FIDH 2010, pp Cryer 2010, pp Ibid., p Claes ea. 2010, p Zerk 2010, pp Malone 2008, p

24 2.3 Conclusion This chapter has dealt with the current legal framework of extraterritorial jurisdiction. Even though the concept of jurisdiction has been widely seen as territorial, there are several bases upon which states have agreed that the exercise of extraterritorial jurisdiction is justifiable. Concerning MNCs which are violating human rights on foreign soil, the forum state can claim extraterritorial jurisdiction under the circumstances that: the act was initiated or executed on its territory; the perpetrator or victim is a national of that state; or when it involves such egregious crimes that it is in the interest of the whole state community to punish the perpetrators. Based on this knowledge, we can conclude that at least a minimum link between the case and the state that is seeking to exercise jurisdiction is required. Even in case of the most egregious crimes universal jurisdiction we have seen that there is often a residency requirement that must be satisfied. Demanding such a jurisdictional link before approving the exercise of extraterritorial jurisdiction originates from several keystones of international public law. The two most important keystones can be found in the principles of sovereignty and non-intervention, which must be denoted as principles of international customary law. They are mainly based on the thought of international courtesy. Every state should make authoritative decisions concerning its internal affairs and should avoid interference which could lead to international discord. In the utmost strict conclusion of this theory, we must consider whether the international legal system is adequate to regulate powerful MNCs, because the focus on sovereignty may be too high. Notwithstanding this legal theory, we must acknowledge that the concept of jurisdiction is getting more flexible. Initially, there was only the notion of jurisdiction in a pure territorial context which has already been expanded with the abovementioned possibilities to exercise extraterritorial jurisdiction. From current practice we see that the principles of extraterritorial jurisdiction are also gaining more flexibility. This is, for example, noticeable in the area of anticorruption law. By virtue of the OECD Anti-bribery Convention, states are required to claim jurisdiction over MNCs which committed bribery offences partly within the state s territory. 77 According to the commentary on this convention, this jurisdictional provision should be 77 Zerk 2010, p. 34; referring to OECD Convention 1999, art. 4(1). 18

25 interpreted broadly so that an extensive physical connection to the bribery act is not required. 78 Another example can be found in international environmental law. In this law area it is fairly common for states to require from national business entities to report on environmental issues that are affecting all subsidiaries within the company, including foreign subsidiaries. 79 By virtue of these domestic regulations with extraterritorial effect, it is possible that a national business entity is obliged to notify authorities in other countries of possible transboundary environmental risks of projects within the territory of the regulating state. 80 Both the use of domestic regulations with extraterritorial effect as the use of direct extraterritorial jurisdiction over foreign conduct, are evolved in several areas of law. In this light, it is interesting to see how international human rights law is responding to the ongoing problem of MNCs violating human rights on foreign soil. This chapter has construed the theory behind extraterritorial jurisdiction; the following chapter will elucidate how this theory is applied in the area of international human rights law, and more specific in the area of corporatelinked human rights abuses in a cross-border perspective. We will discover how the outer limits of jurisdictional clauses are interpreted in international human rights law. 78 Ibid.; referring to OECD Convention 1999, p Ibid., p Ibid., p

26 Chapter III The extraterritoriality of human rights 3.1 Introduction The conceptualisation of human rights has been guaranteed in several international human rights treaties. Since 1945, a set of international human rights treaties have conferred legal form on inherent human rights and developed the so-called body of international human rights. 81 The ICCPR and ICESCR, as one of the core treaties of this body, provide us a clear view on the legal standards of human rights law. By virtue of their legal framework, they demonstrate what commitments states have to meet to guarantee both CP-rights as well as ESC-rights. When a state becomes a party to a human rights treaty through ratification, it automatically accepts obligations and duties under international law to respect, protect and fulfill the rights captured in the Covenant. The obligation to respect means the duty to refrain from interfering in the enjoyment of human rights. The secondary level, the obligation to protect, entails a duty to take positive steps to prevent violations of individual s rights by third parties, like MNCs. 82 The obligation to fulfill human rights requires the state to create the legal, institutional and procedural conditions that individuals need in order to realise and enjoy their rights in full. 83 Furthermore, with ratification of a human rights treaty, states affirm that they comply with their treaty obligations in good faith, by virtue of the international rule of pacta sunt servanda.. 84 Since it is acknowledged that state parties to both Covenants must guarantee the human rights that are documented in these treaties, it is a subject of discussion whether and how far these obligations reach beyond their territorial borders. 3.2 To what extent do states owe their human rights obligations abroad? States are more and more engaged in cross-border operations with the result that a state can take Gondek 2009, p Kälin and Künzli 2010, p Vienna Convention on the Law of Treaties, art

27 actions that may affect the human rights of individuals living outside the state s borders. Nowadays, it is debatable to what extent states have to guarantee the enjoyment of human rights in such cross-border situations. Regarding the obligation to respect, it means that a state must refrain from interfering with the enjoyment of human rights outside its own territory. An appropriate example of this is the duty of one state not to destroy the water resources in another state. 85 In practice, this obligation does not result in too many problems and it seems to be accepted that a state does not interfere with the human rights of individuals on foreign soil. Authors give the explanation that this obligation is the least controversial in its extraterritorial application, since it is a negative obligation rather than a positive one and also implies a continuing respect for state sovereignty. 86 But what is the current state of affairs regarding the two other obligations acknowledged under treaty law? To what extent does a state have to take positive steps to guarantee human rights of individuals which are not residing within its state borders? UN supervisory bodies provide a helping hand in this question, since they play an important role in establishing the normative content of human rights and in giving a concrete interpretation of treaty provisions. 87 With their formation of general comments and concluding observations on human rights issues, they give an explanation of how treaty provisions should be interpreted and what measures states should take to reach the most desirable situation of human rights protection. Although a supervisory body is the most authoritative interpreter of a treaty and it has a lot of specific treaty knowledge, its work is not legally binding. 88 Notwithstanding this nonenforceable character of the work of supervisory bodies, they did (and still do) expound the extraterritoriality of civil, cultural, economic, political and social rights The extraterritoriality of civil and political rights The extraterritorial applicability of the Covenant on civil and political rights is far developed and its jurisdictional scope is worded in art. 2(1): [e]ach State Party undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in 85 Gondek 2009, p Gibney and Skogly 2011, p. 197; referring to Coomans and Kaminga 2004, p Mechlem 2009, p Gondek 2009, p