Dec 16, 2008 - Tilburg Law School. ABSTRACT ... law) and 'tort' (as regulated by private international law) conceals how both systems ..... 39 Fadeyeva v Russia Application No 55723/00, Merits and Just Satisfaction, 9 June 2005; applied by.
Torture as Tort? Transnational Tort Litigation for Corporate-Related Human Rights Violations and the Human Right to Remedy
Daniel Augenstein Associate Professor Tilburg Law School
ABSTRACT
One area of particular concern to the more recent business and human rights debate is that of access to justice and effective remedies for third-country victims of corporate-related human rights violations. The article makes a contribution to this debate by reflecting, from a European perspective, on the relationship between victims’ attempt to vindicate their rights through transnational tort litigation and state obligations to redress corporate-related human rights violations. It argues that domestic courts adjudicating on transnational corporate human rights accountability must comply with the state’s international human rights obligations to ensure access to justice and effective civil remedies.
KEYWORDS: human rights, corporate accountability, transnational tort litigation, extraterritorial human rights protection, access to justice, European Convention on Human Rights
1
1. INTRODUCTION
In an early important contribution to the debate on transnational corporate accountability for human rights violations, Scott complained about the tendency of lawyers ‘to organise the normative world of human rights in terms of (unduly) dichotomous ways of thinking’.1 On the one hand, the ‘(stylised) restrained conservative’ maintains that ‘international human rights standards are a matter of public law (vertical) applicability wherein corporate conduct is regulated through indirect state responsibility which attaches only to corporate harm caused within a state’s own territorial space’. On the other hand, the (stylised) activist radical insists that international human rights standards are (not only, but) also a matter of private law (horizontal) applicability wherein corporate conduct may be regulated through direct liability which is capable of attaching to harm caused by corporate conduct outside the state’s own territorial space.2 Thus dichotomising human rights into ‘torture’ (as regulated by public international law) and ‘tort’ (as regulated by private international law) conceals how both systems of norms are engaged in a ‘two-way normative traffic’ through which one becomes translated into, and accommodated within, the other.3 Scott’s call for mutual translation and cross-fertilisation chimes with the increasing interpenetration between the domains of the public and the private, and the domestic and the foreign, that structure the operation of law in the international order of states.4 The privatisation of state functions and the transnational economic regulation of business activities erode the substance of public authority that states wield over their territory – including their capacity to protect human rights.5 As public international law becomes supplemented (if not supplanted) by private legal ordering 1
Scott, ‘Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate
Accountability for Human Rights Violations’ in Scott (ed.), Torture as Tort (2001) 45. 2
Ibid. 46.
3
Ibid. 61.
4
See Philip Jessup’s seminal study on the emergence of Transnational Law (1956) and more recently
Zumbansen, ‘Transnational Law, Evolving’ in Smits (ed.), Encyclopaedia of Comparative Law (2012) 899. 5
De Feyter, Human Rights: Social Justice in the Age of the Market (2005). 2
that operates in relative autonomy from the state,6 the human rights impacts of ‘multinational’ corporations (MNCs) call for public intervention into a globalised private sphere.7 At the same time, the use of private litigation to subject cross-border economic activities of non-state actors to international human rights principles stretches the doctrinal contours of private international law to its limits and awakes the discipline from its political inertia.8 These developments notwithstanding – some fifteen years after Scott’s intervention, access to justice and effective remedies for victims of corporate-related human rights violations remains a pressing concern. According to the UN Guiding Principles on Business and Human Rights (UNGPs), ‘states should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy’. In particular, states should ‘ensure that they do not erect barriers to prevent legitimate cases from being brought before the courts in situations where judicial recourse is an essential part of accessing remedy or alternative sources of remedy are unavailable’. This also applies to transnational tort litigations for corporate-related human rights violations where ‘claimants face a denial of justice in a host state and cannot access home state courts regardless of the merits of the claim’.9 However, as the UN High Commissioner on Human Rights noted in May 2016, while ‘the realities of global supply chains, cross-border trade investment, communications and movement of people are placing new demands on domestic legal regimes and those responsible for enforcing them’, many of these regimes ‘focus primarily on withinterritory business activities and impacts’.10 Consequently, the quest of third-country
Michaels & Jansen, ‘Private Law Beyond the State? Europeanisation, Globalisation, Privatisation’
6
(2006) 54 American Journal of Comparative Law, 844. 77
Ralph G. Steinhardt, ‘The Privatisation of Public International Law’, (1991) 25 George Washington
Journal of International Law & Economics 523. 8
Muir-Watt, ‘Private International Law Beyond the Schism’, (2011) 2 Transnational Legal Theory 347.
9
Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United
Nations’ Protect, Respect and Remedy’ Framework, A/HRC/17/31, 21 March 2011, para 26. 10
Human Rights Council, Improving accountability and access to remedy for victims of business-
related human rights abuse, A/HRC/32/19, 10 May 2016, para 5. 3
victims for corporate human rights accountability remains often ‘elusive’.11 The UN Human Rights Council has voiced similar concerns regarding ‘legal and practical barriers … for victims of business-related human rights abuses, which may leave those aggrieved without opportunity for effective remedy’.12
The barriers third-country victims of corporate-related human rights violations encounter when seeking redress in the home states of ‘multi-national’ corporations are well known and need not be repeated here in any detail. They include structural complexities within business entities (such as the doctrine of separate legal personality); difficulties in establishing jurisdiction and navigating foreign civil liability regimes (including time limitations and the allocation of the burden of proof); nonjusticiability and immunity doctrines; and obstacles in enforcing judgments and obtaining satisfactory remediation.13 What is of interest for the present purpose is how, from a systemic perspective, many of these barriers can be explained in terms of an interplay between the different ways private and public international law carve out the legal space of human rights. As Scott sums up the received doctrinal wisdom, while private international law seeks to regulate cross-border legal relations between private (non-state) actors, public international law aims at ‘the regulation of states’ relations inter se – and, to that extent, [at the] regulation of states’.14 This functional distinction between public and private translates into two different approaches to the relationship between human rights and private litigation. Private (international) lawyers examine how tort litigation against MNCs can contribute to vindicating interests and values protected by human rights. Public (international) lawyers, by contrast, focus on obligations imposed on states to ensure access to justice and 11 12
Ibid. para 2. Human Rights Council, Business and Human Rights: Improving Accountability and Access to
Remedy, A/HRC/L.19, 29 June 2016. 13
See further Skinner, McCorquodale & de Schutter, The Third Pillar: Access to Judicial Remedies for
Human Rights Violations by Transnational Business (2013). Traditionally, the doctrine of forum non conveniens (according to which courts can prevent a case from moving forward in the jurisdiction where it has been filed if another jurisdiction is considered more ‘convenient’ for the parties and witnesses) constituted a significant obstacle to access to justice. While forum non conveniens is still used in major Western jurisdictions such as the United States and Canada, the European Court of Justice has barred its application within the framework of European private international law; see E. C. J., Case C-128/01, Owusu v. Jackson [2005] E.C.R. 1-1383. 14
Scott, supra n 1 at 51. 4
effective remedies for victims of corporate-related human rights violations. At the same time, these different approaches intersect in their joined interpretation of the legal space of human rights as co-extensive with state territory. The functional distinction between private law (as associated with ‘tort’) and public law (as associated with ‘torture’) thus becomes rooted in a legal and political conception of territorial authority that compartmentalises human rights within and between sovereign states.
The article takes a European perspective to elaborate the implications of this territorialisation of the legal space of human rights for the relationship between ‘torture’ and ‘tort’. It discusses the so-called Brussels I Regulation that harmonises EU member states’ private international law alongside the European Convention on Human Rights and Fundamental Freedoms (ECHR). This is not to suggest that the European approach is the most authoritative or indeed the most suitable to address today’s business and human rights predicament. However, the challenges raised through the discussion are also pertinent to other attempts to ensure transnational corporate
accountability
for
human
rights
violations.
In
a
nutshell,
the
compartmentalisation of human rights bears out the assumption that, as a general rule, perpetrators and victims of corporate-related human rights violations will reside in the same territory and be subject to the authority of the same state. For that reason, it fails to satisfactorily address a core concern in the business and human rights domain, namely human rights obligations of the home state of the parent or controlling company of MNCs to prevent and redress human rights violations committed in the host state of corporate investment.
Section two shows how private international law that allocates jurisdiction to domestic courts in transnational tort litigations for corporate-related human rights violations is constrained by rules of public international law that allocate jurisdiction in the relationship between states inter se. Section three argues that the ensuing territorialisation of corporate human rights accountability is corroborated by the European Court of Human Rights which has traditionally confined human rights obligations to a qualified territorial relationship between public authorities and victims of corporate-related human rights violations. Against this background, section four highlights one area of potential cross-fertilisation between ‘torture’ and ‘tort’ not 5
considered by Scott’s original contribution. It argues that third-country victims attempting to vindicate their human rights in a European home state of MNCs come under that state’s territorial authority and control within the meaning of Article 1 ECHR. Consequently, domestic civil courts adjudicating on transnational corporate human rights accountability must comply with the state’s international human rights obligations to ensure access to justice and effective civil remedies.
2. THE PUBLIC IN PRIVATE INTERNATIONAL LAW
When viewed through the lens of private international law, the principal reason for home states’ reluctance to accept jurisdiction over ‘foreign’ corporations is that the latter are considered to lack a sufficiently close connection to the forum. Private international law determines the competence of domestic courts to hear disputes involving a foreign element on the basis of a nexus between the parties, the subject matter, and the state in which the case is brought.15 In the European Union, this general rule finds an expression in the Brussels I Regulation that establishes the necessary nexus by requiring that the defendant of a civil action must be ‘domiciled’ in one of the EU member states.16 A corporation is considered to be domiciled in a member state if it has its statutory seat, its central administration, or its principal place of business there.17 If none of these conditions is fulfilled – as will usually be the case with foreign subsidiaries and contractors of EU-based MNCs – the jurisdiction of domestic courts is determined by the private international law of the member states (so-called residual jurisdiction), which largely restates the ‘domicile’ requirement of the Brussels I Regulation.18
This leads to an impasse for third-country victims seeking redress in the European Union for corporate-related human rights violations involving EU-based MNCs. On the one hand, while domestic courts generally have jurisdiction over (parent) companies domiciled in an EU member state, it proves difficult to establish liability of 15 16
Zerk, Multinationals and Corporate Social Responsibility (2006) 113-120. Article 4, Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12
December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ 2012 L351/1 (‘Brussels I’). 17
Article 63 Brussels I.
18
Nuyts et al., ‘Study on Residual Jurisdiction – General Report’, European Commission (2007). 6
these companies in substantive law for human rights violations committed by their subsidiaries and contractors in third countries. On the other hand, while third-country victims often encounter obstacles in obtaining effective redress in their own states (i.e. the host countries of EU corporate investment), member state courts will as a general rule decline jurisdiction in cases directly brought against these foreign subsidiaries and contractors in the European Union.
The requirement that the corporate defendant must be domiciled in an EU member state is often justified in view of the function of private international law to regulate cross-border legal relations between private parties in an equitable way. The nexus between the corporate defendant and the forum serves the legitimate (commercial) interest of private litigants, ensures an economical juridical process, and avoids conflicting judgments in different states.19 Within these functional constraints, private international law can to some limited extent respond to concerns with redressing corporate-related human rights violations committed outside the state’s territory. One way to overcome legal barriers in cases brought against constituent parts of MNCs not domiciled in the forum state is the doctrine of forum necessitatis that allows domestic courts to assert jurisdiction when there is no other forum available in which the plaintiffs could pursue their claims. In the European Union, forum necessitatis jurisdiction has been considered to flow from member states’ human rights obligations to ensure access to justice under Article 6 of the European Convention of Human Rights.20 A 2009 proposal by the European Commission to include forum necessitatis into the Brussels I Regulation also made explicit reference to the ‘right to a fair trial or the right to access to justice’.21
19
See, for example, Dicey, Morris & Collins on the Conflict of Laws (2012, 15th edn.) 4-5.
20
Nuyts, supra n 13 at 66; see further infra, section four.
21
‘Commission Green Paper on the Review of Council Regulation (EC) No. 44/2001 on Jurisdiction
and the Recognition and Enforcement of Judgments in Civil and Commercial Matters’, COM (2009) 175 final (21 April 2009). This proposal was rendered obsolete by the decision not to extend the scope of the Brussels I Regulation to non-EU defendants, which would have removed these defendants from the residual jurisdiction of the member states; see further Augenstein & Jaegers, ‘Judicial remedies: the issue of jurisdiction’ in Alvarez Rubio & Yiannibas (eds.), Human Rights in Business: Removal of Barriers to Access to Justice in the European Union (2017) 7, 16-22. 7
Another way to overcome jurisdictional hurdles for third-country victims is to join the proceedings again foreign defendants with those against an EU-based parent company in a member state court. The most publicised case in this regard is currently pending in the Netherlands. In a 2010 interlocutory judgment, the District Court of The Hague accepted jurisdiction over Royal Dutch Shell Plc (domiciled in the Netherlands) and its Nigerian subsidiary, the Shell Petroleum Development Company of Nigeria Ltd (SPDC) in a tort litigation for human rights violations caused by oil spills in the Nigerian Bodo community. Not only were the claims against both companies connected and had the same legal basis (tort of negligence under Nigerian law). It was also foreseeable for the Nigerian subsidiary that it might be sued in the Netherlands in connection with the alleged oil spills. In January 2013, the District Court dismissed the claims against Royal Dutch Shell Plc and all but one claim against SPDC. At the same time, the Court held that the mere possibility of the Dutch parent company being liable was sufficient to attract a foreign subsidiary to the Dutch jurisdiction.22 On appeal, all claims against Royal Dutch Shell Plc and its Nigerian subsidiary were reinstated.23
Nevertheless, these examples are rather exceptional and far from suggesting any systematic concern of European private international law with the extraterritorial protection of human rights against corporate-related violations. The problem is, as Horatia Muir Watt notes, that states’ domestic (and domesticated) private international law still ‘subscribes to a map of the world which is clearly out of touch with the global political economy’ because it fails ‘to capture abuses of economic domination whenever such domination occurs “extraterritorially”’.24 However, it is not 22
District Court The Hague, Oguru-Efanga v Shell, ECLI:NL:RBSGR:2013:BY9850 (30 January 2013);
Dooh
v
Shell,
ECLI:NL:RBSGR:2013:BY9854
(30
January
2013);
Akpan
v
Shell,
ECLI:NL:RBSGR:2013:BY9854 (30 January 2013). 23
Court of Appeal The Hague, Oguru-Efanga v Shell, ECLI:NL:GHDHA:2015:3588 (17 December
2015); Dooh v Shell, ECLI:NL:GHDHA:2015:3586 (17 December 2015); Akpan v Shell, ECLI:NL:GHDHA:2015:3587 (17 December 2015). The question of Shell’s liability has not been answered on appeal but will be subject to further litigation, see Gerechtshof Den Haag, ‘Dutch Courts have jurisdiction in case against Shell Nigeria oil spills’ (18 December 2015). 24
Muir Watt, supra n 8 at 385. In a similar vein, U.S. private international law requires the presence of
‘minimum contacts’ between the business entity and the forum; see generally Zerk, supra n 15 at 118119. Furthermore, the introduction of a presumption against extraterritoriality and the restriction of personal jurisdiction in more recent cases brought under the Alien Tort Claims Act suggests a shift 8
merely private international law that thus becomes ‘complicit in preventing the assertion of transnational corporate social responsibility’ by keeping ‘corporate liability within the limits of compartmentalised, local law’.25 The legal barriers thirdcountry victims of corporate-related human rights violations encounter when seeking redress in European home states of MNCs are not only due to the functional exigencies of regulating cross-border litigations between private parties. They are also an expression of the delimitation of jurisdiction in public international law that protects the sovereign authority states wield over their territory and people therein.
When viewed through the lens of public international law, the territorialisation of corporate human rights accountability is a consequence of the way in which the international order of states imposes itself on the global political economy. While from an economic perspective, MNCs operate as globally integrated business entities, from a legal perspective they are made up of a plurality of independent companies. A ‘multi-national’ corporation does not have a single legal identity with associated rights and duties but consists of separate legal persons connected with each other through relationships of control.26 Domestic law generally accords to these separate legal persons the nationality, and therewith subjects them to the territorial authority, of the states in which they do business..27 Seen in this light, the term ‘multi-national’ connotes the attribution of different nationalities to constituent parts of MNCs by virtue of their location in different state jurisdictions. This sequestration of MNCs into ‘corporate citizens’ with multiple nationalities, in turn, shapes the allocation of jurisdiction to states in public international law. towards a more territory-based understanding of jurisdiction that brings the U.S. approach closer to the criterion of ‘domicile’ applied in the European Union; see Kiobel v Royal Dutch Petroleum Co., 133 S.Ct.1659 (2013); Daimler AG v Bauman, 11-965, 571 U.S. (2014). 25
Muir-Watt, supra n 8 at 386.
26
On the different legal forms of ‘multi-national’ corporations, see Muchlinski, Multinational Enterprises
and the Law (2007, 2nd edn.) 45-79. 27
As a matter of public international law, for the purposes of diplomatic protection, companies have
the nationality of a state according to criteria determined by that state’s domestic law; see I. C. J., Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3, at para 70. Whereas common law countries generally accord nationality to companies on the basis of their formal incorporation in the territory of the state, the decisive criterion in many civil law countries is the seat of the company’s management and control centre; see further Lowe, ‘Jurisdiction’ in Evans (ed.), International Law ( 2003) 329, 340. 9
Jurisdiction in public international law connotes ‘the collection of rights held by a state, first in its capacity as the entity entitled to exercise control over its territory and second in its capacity to act on the international plane, representing that territory and its people’.28 Alongside prescriptive jurisdiction (the state’s authority to prescribe legal rules), adjudicative jurisdiction (the authority of state courts to decide disputes referred to them) is ‘an aspect of sovereignty’ that regulates states’ legal competence to assert authority in matters not exclusively of domestic concern,29 in accordance with a recognised legal basis and subject to a standard of reasonableness. 30 As a legal corollary of sovereignty, jurisdiction in public international law protects the state’s authority over its territory by delimiting the rights of other states to prescribe, adjudicate and enforce rules in relation to conduct outside their borders.31 Accordingly, as Crawford notes, ‘the starting point in this part of the law is the presumption that jurisdiction (in all its forms) is territorial, and may not be exercised extra-territorially without some specific basis in international law’.32 This presumption of territorial jurisdiction, in turn, ties corporate human rights accountability to state territory and impedes third-country victims’ access to justice in European home states of MNCs. To return to Scott’s plea to explore patters of mutual translation and crossfertilisation between ‘torture’ and ‘tort’. In one sense, the differences between private and public international law in approaching transnational corporate human rights accountability can be explained by virtue of a functional distinction between, on the one hand, regulating cross-border disputes between private parties and, on the other hand, regulating the public relationship between states inter se. Yet in another sense, these different approaches intersect in their joined interpretation of the legal space of human rights as co-extensive with state territory. States’ private international law that 28
Crawford, Brownlie’s Principles of Public International Law (2012, 8th edn.) 448.
29
Ibid. 456.
30
For a discussion of the recognised bases of jurisdiction in public international law see Lowe, supra n
27 at 336-351; on the role of reasonableness in allocating jurisdictional competences between states see Ryngaert, Jurisdiction in International Law (2008). 31
The concept of jurisdiction thus fulfils ‘one of the fundamental functions of public international law’,
namely ‘the function of regulating and delimiting the respective competences of states’; see Mann, ‘The Doctrine of Jurisdiction in International Law’ 111 Recueil des Cours (1964) 1, 15. 32
Crawford, supra n 28 at 456. 10
allocates jurisdiction to domestic courts in transnational tort litigations for corporaterelated human rights violations is constrained by the rules of pubic international law that allocate adjudicative jurisdiction in the relationship between states inter se.
3. THE PRIVATE IN PUBLIC INTERNATIONAL LAW Another way to explore the relationship between ‘torture’ and ‘tort’ is to consider the normative import of international human rights law on the transnational regulation of corporate conduct impairing human rights. If the previous section discussed how public international law frames the allocation of jurisdiction to domestic courts in transnational private litigation, the focus of the present and the following section is on state obligations incurred through international human rights law to prevent and redress corporate-related human rights violations.
The text of the European Convention on Human Rights does not suggest that it would directly impose obligations on non-state actors, including corporations. Article 1 ECHR only requires states to ‘secure’ human rights to ‘everyone within their jurisdiction’. Correspondingly, Article 34 ECHR only permits applications to the Court by individuals claiming to be a victim of a violation by a state. In line with the prevailing approach in general international law, corporations only incur duties to protect human rights through domestic legislation implementing states’ international human rights obligations.33 This means, on the one hand, that the European Court of Human Rights (ECtHR) treats corporations more akin to private individuals (as bearers of human rights entitlements) than to public authorities (as bearers of human rights obligations). It entails, on the other hand, that the ECHR ensures corporate compliance with human rights only indirectly via (negative and positive) state obligations.
33
According to the UN Human Rights Committee, for example, obligations under the International
Covenant on Civil and Political Rights ‘are binding on states parties and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law’; Human Rights Committee, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, General Comment No 31, CCPR/c/21/Rev.1/Add.1326, 29 March 2004, para 8. 11
Negative obligations require states to abstain from unjustified interference with, and thereby to respect, human rights. Positive obligations require states to ensure the effective protection of human rights even in the face of events for which they do not bear direct responsibility. Negative and positive state obligations come to bear on corporate-related human rights violations via the doctrines of direct attribution and third-party responsibility. Negative obligations require states to respect human rights in relation to corporations acting as state agents; positive obligations require states to protect human rights in relation to corporations acting as third parties. While, in the first case, acts of corporations are attributed to the state so that the latter is considered to directly interfere with human rights, in the second case the state violates its human rights obligations by failing to take all reasonable and appropriate measures to protect individuals against corporate abuse.
For negative human rights obligations to arise, corporate conduct must be directly attributable to the state so that the act of a private business entity can be treated as an act of the state itself. Under the domestic law of many EU member states and under European Union law, corporate conduct is attributed to the state by virtue of state ownership or by virtue of the corporation exercising public functions.34 The European Court of Human Rights uses a combination of different criteria to determine on a case-by-case basis whether corporate activities can be considered an act of the state, including the corporation’s legal status and the rights conferred by this status; the corporation’s institutional and operational independence from the state; and the nature of the corporate activity and the context in which this activity is carried out. 35 34
In Germany, for example, legal entities under private law which are wholly state owned are directly
bound by fundamental rights, whereas in mixed legal entities this only applies to the public shareholder. For the UK Human Rights Act 1998 to apply to private entities, these entities have to satisfy the ‘public function test’ of s. 6(3)(b), according to which a ‘public authority includes any person certain of whose functions are functions of a public nature’. In Foster, the European Court of Justice held that a nationalised private energy provider can be considered an ‘organ of the state’ if, ‘whatever its legal form [it] has been made responsible, pursuant to measures adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals; E. C. J., Case C-188/89 A. Foster and Others v. British Gas plc [1990] ECR I-3313, para 20. 35
Yershova v Russia Application No 1387/04, Merits and Just Satisfaction, 8 April 2010: applied by
Alisic and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the Former Yugoslav Republic of Macedonia Application No 60642/08, Merits and Just Satisfaction, 16 July 2014. 12
However, cases of direct attribution are comparatively rare as the ECtHR sets a high threshold for overcoming the distinction between public authorities and private corporations36 – a distinction that flows from the liberal separation between the state and the market society,37 and that is entrenched in the basic structure of public international law.38
Failing direct attribution, states can still incur positive obligations to protect human rights in the relationship between non-state actors. In Fadeyeva, the ECtHR elaborates the distinction between negative and positive state obligations and the conditions under which states are required to secure human rights against corporate abuse.39 The applicant lived in vicinity of the largest Russian steel plant owned and operated by a private corporation. Pollution levels from the plant had for many years exceeded permitted levels and were found to cause the applicant severe health problems. The applicant had applied numerous times to be resettled outside the plant’s ‘sanitary security zone’ that separates the industrial site from the town’s residential areas: The Court notes that, at the material time, the Severstal steel plant was not owned, controlled, or operated by the state. Consequently, the Court considers that the Russian Federation cannot be said to have directly interfered with the applicant’s private life or home. At the same time, the Court points out that the state’s responsibility in environmental cases may arise from a failure to regulate private industry. Accordingly, the applicant’s complaints fall to be analysed in terms of a positive duty on the state to take reasonable and appropriate measures to secure the applicant’s rights under Article 8(1) of the Convention. …
36
See further Augenstein & Dziedzic, ‘State Obligations to Regulate and Adjudicate Corporate
Activities under the European Convention on Human Rights’ (2017) EUI Department of Law Research Paper 2017/15, 8-9. 37
Walzer, ‘Liberalism and the Art of Separation’ (1984) 12 Political Theory 315.
38
Simons, ‘International law’s invisible hand and the future of corporate accountability for violations of
human rights’ (2012) 3 Journal of Human Rights and the Environment 5. 39
Fadeyeva v Russia Application No 55723/00, Merits and Just Satisfaction, 9 June 2005; applied by
Ledyayeva and Others v Russia Application Nos 53157/99, 56850/00, 53695/00, Merits and Just Satisfaction, 26 October 2006. 13
The Court concludes that the authorities in the present case were certainly in a position to evaluate the pollution hazards and to take adequate measures to prevent or reduce them. The combination of these factors [including the exercise of public control over the plant’s industrial activities] shows a sufficient nexus between the pollutant emissions and the state to raise an issue of the state’s positive obligations under Article 8 of the Convention.40
The recognition of positive state obligations mitigates the fact that the European Convention does not directly bind corporations as non-state actors. As de Schutter says: Although we may be trained, as international lawyers, to think that the international responsibility of a state may not be engaged by the conduct of actors not belonging to the state apparatus unless they are in fact acting under the instructions of, or under the direction or control of, that state in carrying out the conduct, the private-public distinction on which this rule of attribution is based is mooted (though not contradicted) by the imposition of positive state obligations ..: Once a situation is found to fall under [its] ‘jurisdiction’ ... the state must accept responsibility not only for the acts its organs have adopted, but also for the omissions of these organs, where such omissions result in an insufficient protection of private persons whose rights or freedoms are violated by acts of other non-state actors.41 However, whereas negative obligations constitute duties of result, positive obligations merely impose duties of (diligent) conduct on the state – to do what is reasonable and appropriate in protecting human rights.42 Moreover, the fact that private
40
Fadeyeva, supra n 39 at paras 89, 92.
41
De Schutter, ‘Globalisation and Jurisdiction: Lessons from the European Convention on Human
Rights’ (2005) 9 Centre for Human Rights and Global Justice Working Paper 22. 42
As the Court notes in Fadeyeva, ‘direct interference by the state with the exercise of Article 8 rights
will not be compatible with paragraph 2 unless it is “in accordance with the law”. The breach of domestic law in these cases would necessarily lead to a finding of a violation of the Convention. However, where the state is required to take positive measures, the choice of means is in principle a matter that falls within the contracting state’s margin of appreciation. There are different avenues to ensure “respect for private life”, and even if the state failed to apply one particular measure provided 14
corporations are also entitled to human rights protection under the European Convention means that at the justification stage their rights are balanced against, and can outweigh, the human rights of individual applicants.43
More importantly for the present purpose, the functional distinction between public and private resurfaces in cases of corporate-related human rights violations committed outside the state’s territory. The ECtHR’s Grand Chamber judgment in Al Skeini – now the leading case on the extraterritorial application of the European Convention – outlines a number of constellations in which a state may exceptionally incur extraterritorial human rights obligations.44 At the risk of oversimplification, these constellations can be subsumed under two broad categories: acts ‘performed’ outside the state’s territory; and acts ‘producing effects’ outside the state’s territory. 45 Neither category is suitable to ensure transnational corporate accountability because both are premised on a qualified territorial relationship of authority and control between the state incurring the obligation and the victim of corporate-related human rights violations. Establishing extraterritorial jurisdiction through acts ‘performed’ outside the state’s territory requires state agents to exercise effective authority and control over persons and/or an area located on the territory of another state.46 Accordingly, traditional variations of the ‘control over persons’ test (such as the detention or abduction of individuals) and the ‘control over an area’ test (such as military occupation) are premised on the physical presence of (home) state agents on foreign soil. In the standard business and human rights scenario, by contrast, the extraterritorial human rights violation is committed by a non-state actor operating in the host state of corporate investment. Moreover, it has been argued that positive extraterritorial obligations to protect human rights in the relationship between private actors should by domestic law, it may still fulfil its positive duty by other means’; Fadeyeva, supra n 39 at paras 95, 96. 43
See further Emberland, The Human Rights of Companies: Exploring the Structure of ECHR
Protection (2006). 44
Al-Skeini and Others v United Kingdom Application No 55721/07, Merits and Just Satisfaction, 07
July 2011. 45
For a more detailed analysis, see Augenstein & Dziedzic, supra n 36 at 21-31.
46
Al Skeini, supra n 44 at paras 134-138. 15
be limited to situations in which the state is in full and effective control of the area where the putative violation takes place. One important rationale behind this limitation is a concern with the effectiveness of international human rights law. As Milanovic puts it: In order to be realistically complied with, the obligation to respect human rights [i.e., negative obligation] requires the state to have nothing more than control over the conduct of its own agents. It is the positive obligation to secure or ensure human rights which requires a far greater degree of control over the area in question, control which allows the state to create institutions and mechanisms of government, to impose its laws, and punish violations thereof.47 While this concern has its merits, it arguably fails to account for cases of human rights violations involving ‘multi-national’ corporations. In the constellations of interest here, the parent- or controlling company of Europe-based MNCs will be domiciled in an EU member state and thus be under that state’s full and effective territorial control. The European Court of Human Rights has furthermore recognised that ‘a contracting state’s jurisdiction under Article 1 may extend to acts of its authorities which produce effects outside its territory’.48 The best-known examples of ‘extraterritorial effects’ cases concern the extradition or deportation of an individual to a country where she faces substantial risks of being subjected to serious human rights violations (non-refoulement).49 Significantly, the protection of non-refoulement extends to threats to human rights that emanate from private (non-state) actors abroad. In J.K. and Others v. Sweden, for example, the applicants successfully argued that their deportation to Iraq would amount to a violation of Article 3 ECHR. The applicant and his family found themselves targeted by al-Qaeda for having offered construction and transport services to American clients in Iraq. The ECtHR, sitting as Grand Chamber, held that Article 3 also applies ‘where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving state are
47
Milanovic, Extraterritorial Application of Human Rights Treaties (2011) 210.
48
Al Skeini, supra n 44 at para 133.
49
See, for example, Soering v United Kingdom Application No 14038/88, Merits and Just Satisfaction,
07 July 1989. 16
not able to obviate the risk by providing appropriate protection’.50 Relatedly, states can be under an obligation to regulate and control private actors on their own territory in order to prevent and redress human rights violations committed outside their borders. Rantsev concerned the death of a woman who had been illegally trafficked by a non-state actor from Russia to Cyprus to work as a prostitute.51 The applicant, Ms Rantseva’s father, complained inter alia that the failure of Russian public authorities to protect his daughter from human trafficking and to investigate her removal from Russian territory amounted to a violation of Article 4 ECHR. The Russian Government submitted that the application was inadmissible ratione loci because the relevant events took place outside its borders. In particular, Russia had no ‘actual authority’ over the territory of the Republic of Cyprus. The Court instead focussed on Russia’s responsibility for acts and omissions within its own territorial jurisdiction – an examination which was ‘not predicated on the assertion that Russia was responsible for acts committed in Cyprus or by the Cypriot authorities’. 52
Nevertheless, both in non-refoulement cases (where the threat to human rights emanates from a private actor abroad) and in the Rantsev scenario (where a private actor within the state’s territorial jurisdiction contributes to human rights violations that materialise in a third state), the necessary jurisdictional link is established through the victim’s presence on (home) state’s territory: ‘liability is incurred in these cases by an action of the respondent state concerning a person while he or she is on his territory, clearly within its jurisdiction’.53 In the standard business and human rights scenario, by contrast, a constituent part of the corporate perpetrator will be domiciled within the
50
J. K. and Others v Sweden Application No 59166/12, Merits and Just Satisfaction, 23 August 2016,
para 80. 51
Rantsev v Cyprus & Russia Application No 25965/04, Merits and Just Satisfaction, 07 January
2010. 52
Ibid. para 107. On the merits, the Court found Russia in violation of its procedural obligations under
Article 4 ECHR to investigate the alleged human trafficking. 53
Bankovic & Others v Belgium & Others Application No 52207/99, Admissibility, 12 December 2001,
para 68. The individual’s presence on the territory of the state incurring the obligation also explains why these cases, while included in the ECHR’s factsheet on extraterritoriality, do not amount to an exercise of extraterritorial jurisdiction proper; see E. Ct. H. R., ‘Factsheet: Extra-Territorial Jurisdiction of States Parties to the European Convention on Human Rights‘ (February 2016). 17
state’s territorial jurisdiction while the victim is located on the territory of the host state of corporate investment.
Private international law circumscribes the scope of corporate human rights accountability on the basis of a territorial nexus (‘domicile’) between the state and the corporate perpetrator (‘defendant’) of human rights violations. International human rights law, by contrast, focusses on qualified territorial relationship of authority and control between the state and the individual victim of corporate-related human rights violations. There is some case law to suggest that the ECtHR is prepared to recognise positive state obligations absent territorial control,54 and to dispense with the requirement that the applicant in extraterritorial effects cases must be located on the state’s territory.55 Yet overall, the Court still holds on to a ‘primarily territorial’ interpretation of the European Convention, according to which ‘jurisdiction is presumed to be exercised normally throughout the state’s territory’. 56 This approach falls short of establishing extraterritorial obligations of the home state of the parent or controlling company of Europe-based MNCs to prevent human rights violations committed in the host state of corporate investment.57 The justification for this territorialisation of human rights obligations the Court offered in its (at the time hotly debated) admissibility decision in Bankovic echoes the constraining role of public international law in transnational tort litigations for corporate-related human rights violations discussed in the previous section: As to the ‘ordinary meaning’ of the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. While international law 54
At least in an intra-territorial scenario, see Ilascu & Others v. Moldova & Russia Application No
48787/99, Merits and Just Satisfaction, 08 July 2004, para 331; applied by Sargsyan v Azerbaijan Application No 40167/06, Merits, 16 June 2015. 55
See, for example, Nada v Switzerland Application No 10593/08, Merits and Just Satisfaction, 12
September 2012. 56 57
Al Skeini, supra n 44 at para 131. According to the UN Treaty Bodies, by contrast, a state’s (capacity to exercise) control over
business entities domiciled in its territory is sufficient to trigger extraterritorial human rights obligations even if the individual is permanently located outside the state’s borders; see Committee on Economic, Social and Cultural Rights, General Comment No. 24 on State Obligations under the International Covenant on Economic, Social and cultural Rights in the Context of Business Activities, E/C.12/GC/24, 23 June 2017, para 28; see further infra, section 5. 18
does not exclude a state’s exercise of jurisdiction extra-territorially, the suggested bases of jurisdiction … are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant states.58
4. TRANSNATIONAL TORT LITIGATION AND THE HUMAN RIGHT TO REMEDY As seen, the ECtHR’s approach to extraterritorial human rights protection is premised upon a qualified territorial relationship between the state and the victim of corporaterelated human rights violations – insomuch as the latter must be located in a foreign area under state’s territorial control (acts ‘performed’ outside the state’s territory) or on the state’s own territory (acts ‘producing effects’ outside the state’s territory). While this approach does not easily lend itself to establishing extraterritorial state obligations to prevent corporate-related human rights violations, it can be of help to third-country victims seeking redress in EU member state courts.
As public institutions of the state, domestic courts adjudicating cases between private parties are directly bound by the European Convention on Human Rights. Kurshid Mustafa and Tarzibachi, for example, had been involved in a private law dispute with their landlord corporation over the installation of a satellite dish on their tenancy building.59 The Swedish Court of Appeal found against the applicants and ruled that their tenancy agreement should be terminated, as a consequence of which they were evicted from the flat. The applicants petitioned the Strasbourg Court alleging a violation of Article 10 ECHR. The Swedish government submitted that there had been no interference by a public authority as the case concerned a dispute between private parties over a contractual obligation. The ECtHR, by contrast, stressed that ‘Article 10 applies to judicial decisions preventing a person from receiving transmissions from telecommunications satellites’.60 This brought the judgment of the Swedish court under the purview of European human rights supervision: ‘In the present case ... the applicant’s eviction was the result of the [domestic] court’s ruling. The Court finds that the responsibility of the respondent
58
Bankovic, supra n 53 at para 59.
59
Khurshid Mustafa and Tarzibachi v. Sweden Application No 23883/06, Merits and Just Satisfaction,
16 December 2008. 60
Ibid. para 32. 19
state within the meaning of Article 1 of the Convention for any resultant breach of Article 10 may be engaged on this basis’.61 To the extent that the European Convention applies extraterritorially, states are also duty-bound to protect the human rights of third-country victims in proceedings brought before their domestic courts.
In Ben El Mahi, the Morocco-based applicants complained about the publication of Muhammed cartoons in privately owned Danish newspapers. They alleged that the state’s failure to supress the publication of the caricatures (which also circulated in Morocco) violated their human rights under the European Convention. The ECtHR declared the application inadmissible for lack of jurisdiction: Here the applicants are a Moroccan national resident in Morocco and two Moroccan associations which are based in Morocco and operate in that country. The Court considers that there is no jurisdictional link between any of the applicants and the relevant member state, namely Denmark, or that they can come within the jurisdiction of Denmark on account of any extraterritorial act. Accordingly, the Court has no competence to examine the applicants’ substantive complaints under the Articles of the Convention relied upon.62 The case of White versus Sweden concerned a similar factual scenario and was decided within days after Ben El Mahi. The applicant lived in Mozambique and complained that two publications in Swedish newspapers associating him with various crimes (including the murder of Prime Minister Olof Palme) violated his right to private and family life (Article 8 ECHR). Different from the applicants in Ben El Mahi, Mr White had brought private prosecution for defamation against the newspapers in Sweden before turning to the Strasbourg Court. The responsible editors were acquitted by a Swedish District Court, a judgment that was upheld on appeal. Without further ado, the ECtHR found the applicant to be under Swedish jurisdiction, simply noting that ‘this complaint is not manifestly ill-founded … [nor] inadmissible on any other grounds’.63 With both the applicants in Ben El Mahi and White located outside the state’s territory, the decisive difference appears to be that
61
Ibid. para 34.
62
Ben El Mahi v Denmark Application No 5853/06, Admissibility, 11 December 2006.
63
White v Sweden App no 42435/02, Merits, 19 December 2006, para 16. 20
Mr White’s attempt to vindicate his rights in Sweden had brought him under that state’s jurisdiction within the meaning of Article 1 ECHR.
Of particular relevance for third-country victims of corporate-related human rights violations seeking redress in European home states of MNCs are Article 6 ECHR that requires states to ensure that individuals have access to court to vindicate their civil rights protected under domestic law;64 and Article 13 ECHR that guarantees an effective remedy before a national authority to everyone who claims that their rights under the European Convention have been violated.65 In Markovic, the Grand Chamber of the European Court of Human Rights had to decide whether individuals located outside the state’s territory could benefit from Article 6 ECHR when attempting to bring civil proceedings in the domestic courts of that state.66 The facts of the case relate to the same events as those considered by the Court in Bankovic, namely the 1999 NATO airstrikes on the Former Republic of Yugoslavia. In 2000, the applicants had brought a civil action for damages against the Italian government in the Italian courts. The Italian Court of Cassation eventually dismissed the action for lack of jurisdiction because the claimants were not entitled under Italian law to seek reparation from the Italian state for damages incurred as a result of an alleged violation of public international law. In Strasbourg, the applicants complained that the Court of Cassation’s ruling violated their human rights under Article 6 ECHR in conjunction with Article 1 ECHR. The Grand Chamber first distinguished Markovic from Bankovic: [In Bankovic, the Court] did not find any ‘jurisdictional link’ for the purposes of Article 1 of the Convention between the victims of the act complained of and the respondent states and held that the action concerned did not engage the latter’s responsibility under the Convention. … However, as regards the complaint under Article 6 taken in conjunction with Article 1 of the Convention, the Court notes that in Bankovic and Others the respondent government stressed that it was possible for proceedings to be brought in
64
Golder v United Kingdom Application No 4451/70, Merits and Just Satisfaction, 21 February 1975.
65
Silver and Others v United Kingdom Application Nos 5947/72, 6205/73, 7052/75, 7061/75, 7107/75,
7113/75, 7136/75, Merits, 25 March 1983, para 113. 66
Markovic and Others v Italy Application No 1398/03, Merits, 14 December 2006. 21
the Italian domestic courts, thus implying that the existence of a jurisdictional link could not be excluded for future complaints made on a different basis. …The Court does not share the view of the Italian and British governments that the subsequent institution of proceedings at the national level does not give rise to any obligation on the part of the state towards the person bringing the proceedings.67 On that basis, the Court unanimously held that the applicants came within Italy’s human rights jurisdiction: If the domestic law recognises a right to bring an action and if the right claimed is one which prima facie possesses the characteristics required by Article 6 of the Convention, the Court sees no reason why such domestic proceedings should not be subjected to the same level of scrutiny as any other proceedings brought at the national level. Even though the extraterritorial nature of the events alleged to have been at the origin of an action may have an effect on the applicability of Article 6 and the final outcome of the proceedings, it cannot under any circumstances affect the jurisdiction ratione loci and ratione personae of the state concerned.68 The Court’s conclusions are rather far reaching: ‘Once a person brings a civil action in the courts or tribunals of a state, there indisputably exists, without prejudice to the outcome of the proceedings, a “jurisdictional link” for the purposes of Article 1’. Accordingly, ‘if civil proceedings are brought in the domestic courts, the state is required by Article 1 of the Convention to secure in those proceedings respect for the rights protected by Article 6’.69
At the merits stage, the ECtHR gave some further indication as to what is required by the European Convention in such cases. On the one hand, the protection of Article 6 ECHR extends only to disputes over civil rights and obligations ‘which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) rights and obligations in the substantive law of the contracting state’.70 Moreover, the right to access to court is
67
Ibid. paras 50-53.
68
Ibid. paras 53-54.
69
Ibid. para 54.
70
Ibid. para 93. 22
not absolute but can be restricted in domestic law, provided the limitation does not impair the essence of the right and pursues a legitimate aim through proportionate means.71 Yet on the other hand, the ECtHR cautioned that undue restrictions of access to court in domestic law may result in a denial of justice incompatible with Article 6: It would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a state could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons.72 In Arlewin, the ECtHR reviewed a domestic court’s decision to decline jurisdiction in private international law in the light of the European Convention.73 The applicant complained that the refusal of Swedish courts to accept jurisdiction in a defamation case he had brought against a television program that was produced in Sweden but broadcasted by a company domiciled in the UK violated his rights under Article 6 ECHR. The Strasbourg Court agreed: [T]here were strong connections between Sweden, on the one hand, and the television program and the UK company responsible for the program contents and involved in its broadcasts, on the other. These circumstances are sufficient to conclude that there was a prima facie obligation on the Swedish state to secure the applicant’s rights, including the right to access to court.74 The ECtHR further noted that ‘the possible access of the applicant to a court in a different country, namely the United Kingdom, does not affect Sweden’s responsibility as such under Article 1, but is rather a factor to consider in determining whether the 71
Ibid. para 99. Examples of legitimate restrictions of Article 6 ECHR include limitation clauses and
other procedural requirements that promote legal certainty and an effective judicial process; see for example Stubbings and Others v United Kingdom Application Nos 22083/93, Merits and Just Satisfaction, 22 October 1997. 72
Markovic, supra n 66 at para 97.
73
Arlewin v Sweden Application No 22302/10, Merits and Just Satisfaction, 01 March 2016.
74
Ibid. para 65. 23
lack of access to a court in Sweden, in the particular circumstances of the case, was proportionate under Article 6’.75 On the merits, the Court concluded that ‘the Swedish state had an obligation, under Article 6, to provide the applicant with an effective access to court’ because instituting defamation proceedings in the UK did not constitute a ‘reasonable and practicable alternative’.76
The impact of the human right to remedy on access to justice in transnational tort litigations offers an important and often neglected avenue for exploring the crossfertilisation between ‘torture’ and ‘tort’. If a victim of corporate-related human rights violations located outside the state’s territory attempts to bring civil proceedings in the domestic courts of that state, she comes under the latter’s human rights jurisdiction within the meaning of Article 1 ECHR. Accordingly, domestic courts have to give due consideration to the victim’s human right to remedy when deciding upon their jurisdiction in private international law.77 While Article 6 ECHR does not oblige states to create any particular remedy, ‘it can be relied upon by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1’.78 Specifically where the victim faces a flagrant denial of justice or where instituting civil proceedings in another state does not constitute a reasonable alternative, a domestic court’s decision to decline jurisdiction can amount to a violation of Article 6 ECHR (forum necessitatis jurisdiction).79
5. CONCLUSION
75
Ibid. para 65.
76
Ibid. para 73.
77
On the applicability of Article 6 ECHR to states’ private international law, see Prince Hans-Adam II
of Liechtenstein v Germany Application No 42527/98, Merits, 12 July 2001. 78 79
Markovic, supra n 66 at para 98. See further Kiestra, The Impact of the European Convention on Human Rights on Private
International Law (2014) 100-103. In Nait-Liman v Switzerland, the Grand Chamber of the European Court of Human Rights considered that international (customary and treaty) law does not presently impose an obligation on states to provide for a forum of necessity. At the same time, the judgment leaves no doubt that a domestic court’s assessment of the requirements of forum necessitatis jurisdiction are subject to European supervision under Article 6 ECHR; see Nait-Liman v Switzerland Application No 51357/07, Merits, 15 March 2018, at paras 84-89, 199-203. 24
Ensuring access to justice and effective remedies for third-country victims of corporate-related human rights violations has been of particular concern to the more recent business and human rights debate. The article sought to make a contribution to this debate by reflecting on the relationship between victims’ attempts to vindicate their rights through transnational tort litigation and state obligations to redress corporate-related human rights violations. Taking its cue from Scott’s call to explore patterns of mutual translation and cross-fertilisation between ‘torture’ and ‘tort’, the article argued that the functional distinction between private and public international law is rooted in a legal and political conception of territorial authority that compartmentalises human rights within and between sovereign states. This compartmentalisation bears out the assumption that, as a general rule, perpetrators and victims of corporate-related human rights violations will reside in the same territory and be subject to the authority of the same state. Section two showed how European private international law that allocates jurisdiction to domestic courts in transnational tort litigations for corporate-related human rights violations is constrained by the rules of public international law that allocate jurisdiction in the relationship between states inter se. Section three found the ensuing territorialisation of corporate human rights accountability corroborated in the ‘primarily territorial’ interpretation of the European Convention on Human Rights, which confines obligations to protect human rights in the relationship between private actors to a qualified territorial relationship between the state and the victim.
The interpretation of the legal space of human rights as co-extensive with state territory fails to satisfactorily address a core concern in the business and human rights domain – namely human rights obligations of the home state of the parent- or controlling company of MNCs to prevent and redress human rights violations committed in the host state of corporate investment. To close the ensuing protection gaps in international law, the UN Treaty Bodies have advocated a more progressive approach to extraterritorial human rights protection according to which a state’s exercise of authority and control over (constituent parts of) a corporation domiciled within its territory is deemed sufficient to establish a jurisdictional link with a victim located outside its borders. In 2011, the Committee on Economic, Social and Cultural Rights (CESCR) published a statement on human rights and the corporate sector in which it called upon states to ‘take steps to prevent human rights contraventions 25
abroad by corporations which have their main seat under their jurisdiction, without infringing the sovereignty or diminishing the obligations of the host states under the Covenant’.80 In its 2017 General Comment on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities, CESCR considers that Extraterritorial obligations arise when a State Party may influence situations located outside its territory, consistent with the limits imposed by international law, by controlling the activities of corporations domiciled in its territory and/or jurisdiction, and thus may contribute to the effective enjoyment of economic, social and cultural rights outside its national territory.81 The same approach informs a recent decision of the Human Rights Committee concerning Canada’s responsibility for human rights violations involving Canadian building companies in the occupied Palestinian territories: ‘there are situations where a state party has an obligation to ensure that rights under the Covenant are not impaired by extraterritorial activities conducted by enterprises under its jurisdiction’. 82 According to the Concurring Opinion of two Committee Members, the necessary jurisdictional link between the state and third-country victims could be established on the basis of ‘(a) the effective capacity of the state to regulate the activities of the businesses concerned and (b) the actual knowledge that the state had of those activities and their necessary and foreseeable consequences in terms of violations of human rights recognised in the Covenant’.83
The present article, by contrast, focussed on the jurisdictional link established in international human rights law through third-country victims attempting to bring civil proceedings in European home states of MNCs. It considered the role of the human right to remedy under the European Convention on Human Rights in ensuring access 80
Committee on Economic, Social and Cultural Rights, Statement on the obligations of States Parties
regarding the corporate sector and economic, social and cultural rights, E/C.12/2011/1, 12 July 2011, para 5. 81 82
Committee on Economic, Social and Cultural Rights, supra n 57 at para 28. Human Rights Committee, Basem Ahmed Issa Yassin et al. v. Canada, Communication No.
2285/2013, CCPR/C/120/D/2285/2013, 26 July 2017, para 6.5. The Communication was declared inadmissible because the authors had ‘not provided the Committee with sufficient information about the extent to which Canada could be considered responsible as a result of a failure to exercise reasonable due diligence over the relevant extraterritorial activities of the two corporations’ (para 6.7). 83
Concurring Opinion of Committee Members Olivier de Frouville and Yadh Ben Achour, ibid. para 10. 26
to justice in transnational tort litigations for corporate-related human rights violations – an area of potential cross-fertilisation between ‘torture’ and ‘tort’ not considered in Scott’s original contribution. Concluding his discussion of transnational corporate human rights accountability, Scott highlighted ‘two ways in which a human rightsrelated claim could be characterised in formulating a private law cause of action’: First of all, human rights could be cited as the direct cause of action such that, for instance, a company could be sued for a violation of the human right not to be tortured. Secondly, human rights could be indirectly pleaded in that, while they could be the purpose or object of the litigation, other legal categories [such as the tort of battery] would be invoked to vindicate the substance of human rights protections.84 The article argued that third-country victims seeking to vindicate their rights through transnational tort litigation in a European home state of MNCs come under that state’s territorial authority and control within the meaning of Article 1 ECHR. Accordingly, domestic courts adjudicating on transnational corporate human rights accountability must comply with the state’s international human rights obligations to ensure access to justice and effective civil remedies.
84
Scott, supra n 1 at 62. 27
