The home state duty to regulate TNCS abroad
MATTERS OF CONCERN is a working paper series focusing on new and emerging research on human rights across academic disciplines. It is a means for DIHR staff, visiting fellows and external researchers to make available the preliminary results of their research, work in progress and unique research contributions. Research papers are published under the responsibility of the author alone and do not represent the official view of the Danish Institute of Human Rights.
The notion that states have extraterritorial human rights obligations is one basis upon which calls are made for an international treaty on business and human rights. In particular, it has been claimed that “home” states of transnational corporations (TNCs) have a duty to protect against abuses occurring on the territory of a “host” state that may be breached by a failure to regulate TNCs’ extraterritorial activities. At the same time, advocates of such a duty often criticise the UN Guiding Principles (UNGPs) for failing to reflect this obligation to its full extent.
This paper challenges such claims. It first summarises arguments made by “extraterritoriality advocates”. It then proceeds to dispute them, with reference, in turn, to the issues of jurisdiction; attribution and responsibility; and positive obligations by demonstrating, in respect of each, a lack of legal authority and flaws in the analysis of extraterritoriality advocates for the conclusions they advance.
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