Jochen von Bernstorff

Extraterritoriale menschenrechtliche Staatenpflichten und Corporate Social Responsibility

Rubrik: Abhandlungen
Archiv des Völkerrechts (AVR)

Jahrgang 49 () / Heft 1, S. 34-63 (30)

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The article focuses on the responsibility of states for abusive practices of transnational corporations. While the positive human rights obligations of the host state of a foreign investment to protect its citizens appear to be undisputed, the question of whether or not the home state of the respective investor is also under an obligation to protect foreign citizens (of the host state) seems less clear. The article examines the jurisprudence concerning the so called extraterritorial obligations under the relevant human rights treaties and comes to the conclusion that – as of now – the criteria for the extraterritorial application of human rights conventions developed by the courts and treaty bodies cannot easily be reconciled with the assumption of an existing extraterritorial obligation to protect foreign citizens from corporate abuse. Nonetheless, home states can be involved indirectly in human rights abuses of domestic companies operating abroad through the establishment of an accommodating environment for such practices, e.g. through diplomatic interventions, or on the basis of bilateral investment treaties or export credit guarantees. Such behavior could under specific circumstances amount to aiding or assisting in the commission of an internationally wrongful act in the sense of Article 16 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts of the UN International Law Commission. In addition, the article draws attention to the general legal obligation of states to co-operate in the promotion of human rights under the UN Charta in the context of corporate abuse.

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