Extraterritorial Human Rights Research Articles

The Obligation of Home States to Regulate Multinational Enterprises on Human Rights: Taking China as An Example

The world economy cannot develop without foreign investment or multinational enterprises. Meanwhile, the extraterritorial human rights responsibilities of MNEs have become the focus of attention in the world today. Certain transnational corporations pollute the environment, conduct commercial bribery, and violate the labor rights in host countries, which causes considerable damage to locals.At present, it is difficult to make a breakthrough in exploring the restriction of social responsibilities of MNEs, and the effect of host countries on the regulation of human rights responsibilities of MNEs is not good. Therefore, this paper will analyze how to better realize the human rights responsibilities of MNEs through the home-state approach. Taking China as an example, this paper will study China's methods of regulating the human rights liability of MNEs investing abroad and compare the regulatory means of other countries to propose improvement for China's regulation of MNEs as the home country, building a more complete, powerful and effective regulatory policy.

The extraterritorial human rights obligations of Japan in regard to Fukushima nuclear contaminated water

The extraterritorial human rights obligations of Japan in regard to Fukushima nuclear contaminated water

Extraterritorial Human Rights Obligations of Multinational Corporations' Home Countries

As multinational corporations pursue profits as organizations with significant influence, It is unavoidable that during their development process, they will infringe upon the human rights of the host country. To prevent such violations, certain scholars have suggested that multinational corporations should have human rights obligations in their home countries. This article will analyze whether the home country has a certain obligation to constrain the actions of multinational corporations that violate human rights from international treaties and past cases, and draw on some practical experience to propose suggestions for future development.

When identity meets strategy: The development of British and German anti-torture policies since 9/11

Since 9/11, considerable research has been done on US interrogation and detention operations, but comparatively little is known about the involvement of other traditionally liberal states’ intelligence agencies and their evolving perspectives on torture-related policies for foreigners abroad. Particularly, the United Kingdom and Germany provide interesting cases; despite similar levels of public and political pressure regarding their indirect involvement in Central Intelligence Agency’s operations, the two states took different strategic decisions in 2010 on whether to implement new extraterritorial human rights safeguards. While the United Kingdom introduced a new intelligence guidance for interrogations overseas, the German government opted for policy-continuance, which raises the question why the two states embarked on different policy trajectories, even if they found themselves in contextually similar situations and were subjected to the comparable accountability measures. By bridging insights from Rationalist and normative literature, the article addresses this conundrum by clearly outlining the states’ differing strategic preferences, and by dissecting the multi-layered composition of these interests. As a result, the article delineates how strategic constraints pertaining to the states’ national, international, or political elite level affect decision-makers’ policy responses.

Challenging the boundaries of accountability: strategic litigation and jurisdiction in European migration control policies

ABSTRACT Current European border policies both evade accountability and perpetuate the violation of human rights by state actors abroad. The ongoing case of S.S. v Italy offers an opportunity to challenge these existing migratory frameworks and reassess conceptions of jurisdiction. The court's decision will be crucial in determining whether extraterritorial exercises of sovereign power can still fall within a nation's jurisdiction. This paper argues that adopting the Functional Jurisdiction Model, which emphasises factual and legal elements over location, would increase accountability for state actions abroad. Although this approach may remain susceptible to existing efforts by states to avoid judicial scrutiny, it is essential to address current gaps in accountability and uphold human rights principles. The influence of international human rights law in shaping national policy cannot be ignored, and implementing a new understanding of jurisdiction can better protect the rights of migrants and ensure that sovereign authorities are held responsible for extraterritorial human rights abuses.

Extraterritorial, Universal, or Transnational Human Rights Law?

AbstractTraditionally, international human rights adjudication relied on the paradigm of extraterritoriality on the rare occasions when it was confronted with cross-border cases. This paradigm recognises only limited circumstances in which states bear extraterritorial human rights obligations. However, with globalisation, transboundary human rights cases have multiplied. This emerging litigation increasingly reveals that the paradigm of extraterritoriality is no longer fit to address global crises. Extraterritoriality demands effective control over a territory, or authority and control over a person, for a state to exercise jurisdiction outside its territory. Thus, several cases of cross-border human rights abuses are inevitably barred on jurisdictional grounds. This is particularly true for obligations of a global character, which are, by their very nature, completely unrelated to the control that states exercise over territories or people. It is therefore necessary to look beyond extraterritoriality. This article analyses the competing paradigms of universality and transnationality as they have been adopted by domestic courts. It argues that international human rights adjudication should reconceptualise extraterritoriality against the background of universality and transnationality to address global crises.

Transnational Business and Human Rights Litigation: An Imperialist Project?

Abstract Business and human rights litigators have increasingly attempted to hold to account parent companies incorporated in the west for the extraterritorial human rights abuses committed by their subsidiaries and supply chains in the global south. This has met with the criticisms of judges and scholars calling out such attempts as imperialists. The purpose of this article is to address this anti-imperialist critique in the context of the accountability of multinational enterprises. The anti-imperialist critique is based on three fallacies. First, the equal sovereign fallacy: the assumption that developing and developed states are equally able to hold multinationals to account. Second, the transnational commerce fallacy: the acceptance of the transnational use of western laws protecting a particular market or economy, but the refusal to apply the laws aimed at preventing or remediating human rights abuses committed by commercial actors extraterritorially. Third, the public/private divide fallacy: to consider multinational enterprises as purely private actors while ignoring that they were hybrid entities regulated by both private and public laws during colonial times.

Pandemics, Planetary Health and Human Rights

Global solidarity and international cooperation are key to addressing compound global crises – such as climate change, biodiversity loss and pandemics – effectively. It remains unclear, however, to what extent, and on what legal basis, solidarity and international cooperation constitute legal obligations of States under different branches of international law. Questions also persist about the extent to which and how States’ obligations of international cooperation are differentiated; what common and differentiated obligations entail in practice for States at different levels of development; and how potential conflicts between different types of obligations (e.g. territorial and extraterritorial human rights obligations) must be addressed. This article seeks to unpack these questions from the perspective of international human rights law, giving due consideration to relevant principles and provisions of international environmental agreements. It builds on international law scholarship that has explained how and why the provisions of the UN Charter should be interpreted as creating genuine membership duties, including an obligation to cooperate to realise human rights. Further, it builds on more recent scholarship that has explored how this obligation applies in connection with climate change and biodiversity, and on a nascent body of scholarship on the covid- 19 crisis, human rights and international law. The aim of the article is to explore the role of the principle of solidarity and the duty to cooperate to realise human rights in devising more effective and holistic responses to compound global crises.

Seeing reason or seeing costs? The United States, counterterrorism, and the human rights of foreigners

It is well known that in the wake of 9/11, the United States committed various extraterritorial human rights violations, that is, human rights violations against foreigners outside of its territory. What is less known is that the United States has gradually introduced safeguards that are, at least on paper, meant to prevent its counter-terrorism policies from causing harm to foreigners abroad or, at least, to mitigate such harm. Based on three case studies on the development of safeguards related to torture, targeted killing, and mass surveillance, we show that two mechanisms, coercion and strategic learning, deployed either on their own or in combination, can account for the development of such safeguards. By contrast, we found no evidence of a third mechanism, moral persuasion, having any direct effect. In other words, US policymakers opt to introduce such safeguards either when they face pressure from other states, courts, or civil society that makes immediate action necessary or when they anticipate that not introducing them will, at a later date, result in prohibitively high costs. We did not find evidence of US policymakers establishing safeguards because they deemed them morally appropriate. From this we conclude that, although the emerging norm that states have extraterritorial (and not just domestic) human rights obligations may not have been internalized by key US policymakers, it nevertheless has a regulative effect on them insofar as the fact that relevant others believe in the norm restricts their leeway and influences their cost–benefit calculations.

Extraterritorial Sanctions, Transnational Corporate Activity, and State’s Duty to Protect

Unilateral (extraterritorial) economic sanctions, that are often imposed on states and non-state actors by another state, are incompatible with international human rights law. Major powers use their dominant positions in the global economy to attempt influence the political behaviour of states by imposing economic measures against them. Nevertheless, the principal Business and Human Rights instruments as well as other International Law instruments do not address extraterritorial sanctions and their negative impacts on the operation of foreign business entities and the consequent human rights violations. These sanctions threaten a wide range of rights and freedoms enshrined in international human rights law and cause irreparable collateral damage. This paper is a critical inquiry into the relationship between extraterritorial sanctions, their negative impacts on the operation of the business entities in sanctioned state, and sender state’s extraterritorial human rights obligations. In order to answer this question, the paper will explore state’s duty to protect in more details in the context of imposition of extraterritorial sanctions.

Vicarius Christi: Extraterritoriality, pastoral power, and the critique of secular international law

AbstractSince the end of the Cold War, the content, scope, and extent of extraterritorial human rights obligations has become a pressing concern for international lawyers. On one end of the debate, mainstream scholarship argues that jurisdiction is primarily territorial, identifying a limited range of situations in which jurisdiction (and responsibility) is triggered. On the other end, critical scholars suggest that Empire still haunts jurisdiction. By reconstructing the history of this doctrine, they show that the imperial reach has always been extra-territorial and that the intimate linkage between state, territory, and population is of a rather recent and tenuous origin. In both of these narratives, however, lies the assumption that jurisdiction operates as a secularized power. Even if empires/states were once religious, faith’s legacy remains confined to the past. In this article, conversely, I trace a critical genealogy of Christian authority as a jurisdictional structure, in which territoriality was never presumed. After all, one cannot forget that Catholicism and Universalism were forged in the same etymological crucible. By drawing from Foucault’s analysis of pastoral power, I argue that international law has deep roots in Christianity’s claims of governmentality upon ‘men and souls’ instead of over defined territories.

Global Obligations to Ensure the Right to Health: Strengthening Global Health Governance to Realise Human Rights in Global Health

The COVID-19 pandemic is reframing human rights in global health governance. International organisations have long sought to bring nations together in responding to global health threats; however, the United Nations (UN) system has faced limited compliance with its governance frameworks amidst increasing nationalism. In the pandemic response, the World Health Organization (WHO) is confronting isolationist obstacles to global solidarity, undermining efforts to advance human rights in global health. These structural impediments in a challenged global health governance landscape have raised an imperative to clarify extraterritorial human rights obligations, including global obligations of states and international organisations. In strengthening global health governance to realise human rights in global health, this article examines the changing landscape of extraterritorial human rights obligations in global health through strengthened WHO leadership and coordination across the larger system of international organisations, re-centring global human rights obligations in global health governance. These global obligations provide a path to overcome nationalist challenges in the pandemic response, strengthening institutions of global governance to advance global health, global equity, and global solidarity.

Extraterritorial human rights obligations to “civilize” intellectual property law: Access to textbooks in Africa, copyright, and the right to education

AbstractPrinted textbooks remain crucial for education, particularly in developing countries. However, in many of these countries, textbooks are unavailable, too expensive, or not accessible in local languages. Cheaply (translating and) reproducing textbooks would be a strategy. However, reprography is highly regulated under copyright law. Copyright also adds to the cost of textbooks. The availability, accessibility, and acceptability of learning materials constitute elements of the right to education under international human rights law (IHRL). Extraterritorial state obligations (ETOs) under IHRL—obligations of states, in appropriate circumstances, to observe the human rights of those beyond their borders—could assume a key function in “civilizing” intellectual property (IP) law. This Article demonstrates the significance of ETOs for IP law by focusing on the issue of how ETOs under the right to education of IHRL prescribe requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well‐known typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept is introduced and 20 typical ETOs relevant in this context are identified. The discussion relates to the situation in developing countries more generally, focuses, however, on Africa.

Odgovornost države za kršenje ljudskih prava u slučaju prekogranične ekološke štete - novo shvatanje eksteritorijalnosti u primeni međunarodnih ugovora o ljudskim pravima?

The paper provides an in-depth analysis of the issue of extraterritorial application of human rights treaties in the specific context of transboundary environmental harm. The classic criteria for extraterritorial jurisdiction established through the landmark judgments of the European Court of Human Rights are revisited and compared with the extensive extraterritoriality threshold introduced by the Inter-American Court of Human Rights in its 2017 advisory opinion on environment and human rights. The author examines the features, requirements and limits of the new extraterritoriality threshold which is based on the effective control over intraterritorial activities that result in extraterritorial human rights' violations. The paper attempts to offer arguments for perceiving the new extraterritoriality threshold as a general standard of international human rights, as well as to examine whether it represents a (mis)interpretation of the duty to prevent transboundary environmental harm as a well-established rule of international environmental law. The author also discusses the prospects of expanding the application of the new jurisdictional threshold to other areas not necessarily linked to environmental degradation.

Indirect Accountability for Extraterritorial Human Rights Violations

Abstract This article examines how states and international organizations can be held to account for extraterritorial human rights violations. I develop and investigate the potential of what I call an “indirect accountability” mechanism. In indirect accountability relationships, accountability fora do not directly hold states and international organizations that commit extraterritorial human rights violations to account as these are frequently immune to direct accountability claims. Instead, they hold them to account indirectly by addressing accountability claims to an implicated third party, expecting that the third party will upload the accountability claims to the state or international organization. After conceptualizing the mechanism and its scope conditions, I conduct two brief qualitative case studies using the method of deductive process tracing to explore the potential of the mechanism. The first case study traces efforts to indirectly hold the United States to account for violating foreigners’ privacy rights in the context of mass surveillance. The second case study traces attempts to indirectly hold the United Nations Security Council to account for violating the due process rights of blacklisted terror suspects. Both case studies provide support for the mechanism.

The Duty of Care of the Parent Company: A Comparison between French Law, UK Precedents and the Swiss Proposals

AbstractIn 2017, France established a due diligence statutory obligation for French parent companies to monitor extraterritorial human rights and environmental abuses committed by their off-shore affiliates. Switzerland is also considering adopting a similar law for Swiss parent companies. These obligations are comparable to the duty of care that, according to recent case law, British parent companies owe towards their subsidiaries’ neighbours. This article compares and contrasts the newly introduced French due diligence statutory obligation, the UK precedents, and two alternative Swiss legislative proposals on the due diligence and duty of care of parent companies.

Migrant boats on the high seas and their interception through psychologically coercive measures: Is there a case to extraterritorially apply human rights law?

During the last few years, States in the Pacific Rim as well as in the Mediterranean have engaged in the interception of migrant boats on the high seas assuming that since these interceptions take place outside their territorial boundaries, they are not governed by human rights law. In their attempts to intercept these boats, in some incidents, these States have employed non-physical, psychologically coercive means, such as warning shots, obliging migrant boats to give up any attempts to continue their journey. This article examines whether the use of such psychologically coercive means to change the boats’ change of route in the absence of initial physical contact between these boats and navy vessels, can constitute instances of effective control establishment and give rise to extraterritorial human rights law application.

International Cooperation on Migration Control: Towards a Research Agenda for Refugee Law

Abstract This article sets out by reviewing the interplay between policy and law when it comes to measures aimed at deterring migrants and refugees. The current trend towards international cooperation represents a significant turning point, it is argued, creating important challenges for existing strategies of refugee and human rights lawyers. On this basis, and with a view to recent scholarship, the article explores three different avenues to address the current generation of deterrence. The first involves a step back to re-examine other bases for establishing extraterritorial human rights jurisdiction. Secondly, it is argued that existing efforts to establish state responsibility in the context of deterrence suffer from a Global North bias, and that more attention should be paid to the concurrent responsibility of partner states in regions of transit and origin, as well as the legal structures and litigation possibilities in these jurisdictions. Third and finally, the article makes a plea to move beyond narrow legal analysis in favor of more inter-disciplinary approaches highlighting the wider political and sociological dynamics pertaining to this area.

Operation Condor on Trial: Justice for Transnational Human Rights Crimes in South America

AbstractIn May 2016, an Argentine federal court concluded a momentous trial, convicting 15 defendants of illegal kidnappings and torture committed against over 100 victims of Operation Condor, and ofasociación ilícita(‘illicit association’: conspiracy to commit a criminal offence) to perpetrate these violations. Operation Condor was the codename given to a continent-wide covert operation devised in the 1970s by South American regimes to eliminate hundreds of left-wing activists across the region. The Operation Condor verdict of 2016 broke new ground in human rights and transitional justice, for its innovative focus on transnational crimes and for holding state agents accountable for extraterritorial human rights violations. By analysing this pioneering case, the article brings the question of cross-border crimes into academic debate. As borders become more porous, scholars and practitioners can no longer afford to side-line the topic of accountability for transnational crimes.

Extraterritorial State Obligations Beyond the Concept of Jurisdiction

This Article discusses the extraterritorial human rights obligations of states and proposes a new approach for conceptualizing them. While extraterritorial state obligations within the concept of state jurisdiction are indisputably recognized, a more comprehensive perspective beyond jurisdiction is generally lacking. This Article aims to fill that gap. First, it discusses the traditional notions of extraterritorial state obligations and demonstrates their weaknesses. Second, a new concept of extraterritorial state obligations borrowing elements from systems theory is then suggested. The Article argues that comprehensive and general extraterritorial state obligations mainly build upon the normative idea of human rights. Human rights have universal validity and prescribe obligations that are independent of the jurisdiction of a state. What matters is that states can violate human rights beyond their jurisdiction and can influence violations of human rights committed by other actors. Finally, this Article outlines the scope and content of extraterritorial human rights obligations of states.