Too often, when multi-national corporations violate human rights there is little, if any, accountability – especially if the violations occur in a foreign country. This gap in human rights protection highlights the need for accountability for rights violations caused by a company operating abroad.
In November 2013, a group of over 140 civil society organizations issued a joint statement calling for a legally binding instrument to address corporate human rights violations through the Treaty Alliance. Last year, the UN Human Rights Council made unprecedented progress by passing Resolution 26/9, which established an Open-ended Intergovernmental Working Group on transnational corporations (TNCs) and other business enterprises with respect to human rights.
The Working Group is tasked with the elaboration of a legally binding instrument to regulate, in international human rights law, the activities of transnational corporations (TNCs) and other business enterprises. This week, this Working Group is meeting for the first time in Geneva.
In order to meaningfully enhance human rights and environmental protection in international human rights law, it is imperative that extraterritorial obligations (ETOs) are incorporated into the legally binding instrument on business and human rights.
ETOs are obligations that a State has toward people living outside of its own boundaries. While it is generally accepted under human rights law that States have the obligation to respect, protect, and fulfill human rights obligations within their borders, it has also been established that States have certain human rights obligations toward people living outside their borders as well. This means that not only do the host-States in which TNCs operate have human rights obligations with respect to business activity, but their home-States have certain ETOs as well. However, ETOs are not always fulfilled or enforced, especially when it comes to regulating business activity.
Codifying ETOs in an international, legally binding instrument can help to ensure their implementation and bring about more comprehensive human rights and environmental protection by both the home-States and host-States of TNCs.
Because human rights and environmental protection are universal concerns that demand international cooperation to be effectively addressed, and because all States are duty-bound by the UN Charter to cooperate internationally for the promotion of universal respect for human rights, it is appropriate to incorporate ETOs into the international legally binding instrument on business and human rights.
A model for incorporating ETOs into a legally binding instrument can be found in the Maastricht Principles on the Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights. Drafted by a group of experts in international and human rights law, the Maastricht Principles clarify the existing principles of international law with respect to ETOs and lay out the legal definition, scope, and content of these obligations. They thus provide a workable legal basis for their codification in a legally binding instrument.
Non-governmental organizations with ECOSOC consultative status may participate in the work of the Intergovernmental Working Group. CIEL is participating and has submitted a report urging the Working Group to seize this moment to codify ETOs as an integral part of international human rights law, using the Maastricht Principles as a guide.
The meeting of the Open-ended Intergovernmental Working Group is an important legislative moment in the history of globalization. It is time for international human rights law to acknowledge that the human rights obligations of States do not end at their national borders, but extend into their entire sphere of influence, including their business activities abroad.
Read CIEL’s submission to the Working Group.
Originally posted on July 9, 2015.