Browsing by Author "Grönholm, Jessica"

This thesis addresses the role of home states in relation to extraterritorial human rights violations committed by their corporate nationals, more specifically transnational corporations (TNCs). This thesis examines the difficulties of holding TNCs directly accountable for the violations they commit. Secondly, this thesis explores whether and to what extent home states of TNCs can become responsible for extraterritorial human rights violations committed by TNCs domiciled in their territories. This thesis approaches the issue of home state responsibility from two separate points of view namely the law on state responsibility and international human rights law. Growing corporate power and its possible detrimental impact on the enjoyment of human rights has not gone unnoticed. TNCs’ corporate structures are as the name says, transnational, and their operations are commonly global. This in turn leads to a situation in which the operations of a TNC existing under the laws of one state may impact the lives of people located in other the countries hosting the operations of the TNC. Although some attempts have been made in the international legal sphere to keep corporations directly accountable for the human rights violations they commit, under the current state of international law, no legally binding provisions exist to keep corporations directly accountable. Focus has therefore been on states’ obligations to ensure the adequate protection of human rights and this thesis stresses the obligations of the home state. The two separate approaches to state responsibility examined in this thesis are built on very different premises. Firstly, the law of state responsibility provides the circumstances pursuant to which the acts of TNCs can become attributable to the home state as an act of state. As a general rule, private acts are not automatically imputable to the state, but may under certain circumstances be considered as such. This thesis explores the exemptions to this basic rule of non-attribution and the conditions when a state can be held responsible for the acts of TNCs. Pursuant to the rules of state responsibility, acts of TNCs may become attributable to the home state in four situations, namely when the TNC has the status of an organ of the state de facto or de jure; when the TNC has been authorized to exercise governmental authority; when the TNC has acted under the instructions, direction or control of the state and when the home state acknowledges and adopts the conduct as its own. However, as this thesis demonstrates the criteria for attribution of TNCs’ conduct to the state are rather strict and the practical usefulness of the law of state responsibility for the purposes of keeping home states responsible for human rights abuse is rather speculative. The second approach adopted in this thesis finds its basis in human rights law. It is widely acknowledged that states are under an obligation to respect, protect and fulfil human rights. Of these three aspects, the obligation to protect is central to this thesis as it concerns the state’s duty to protect human rights of individuals from infringements of non-state actors such as TNCs. The positive duties to protect human rights have traditionally been perceived to apply in the domestic territories of the state, and this thesis examines whether the home states of a TNC can be under an obligation to extend this protection to the human rights of people in third states and thus to control their corporate nationals by means of e.g. legislation. The recent developments in this field signal of a willingness to recognize and strengthen the duties of home states’ extraterritorial obligations. This is perhaps due to the fact that recent initiatives have on the one hand abandoned the idea of direct corporate accountability and relied solely on the permissibility of home state regulation, which is insufficient and gives rise to governance gaps. However, the work of various human rights treaty bodies signal of the possibility of recognizing such home state obligations and is also discussed in this thesis. Conclusively, the discussion in this thesis provides that home states can incur state responsibility under certain rather strict conditions. The conclusions also highlight that of the two approaches addressed in this thesis, international human rights law is perhaps a better tool in this regard. Nevertheless, the existence of legally binding norms is still an unresolved matter. Therefore the conclusions of this thesis observe the need to clarify the precise scope of the extraterritorial obligations of home states with regard to control of TNCs.