Spreading Weeds beyond Their Garden: Extraterritorial Responsibility of States for Violations of Human Rights by Corporate Nationals
McCorquodale, Robert, Proceedings of the Annual Meeting-American Society of International Law
In his novel The Constant Gardener, John Le Carre shows a government knowingly allowing its corporations to violate human rights in another state because the government's key priority is to assist its corporations to make money. Indeed, a British diplomat says these words: "[The British] Foreign Office isn't in the business of passing judgment on the safety of non-indigenous drugs, is it? [We are] supposed to be greasing the wheels of British industry, not going around telling everybody that a British company in Africa is poisoning its customers." (1) This is a work of fiction, though, as Le Carre (a former British diplomat) notes in the book, the reality is often worse. Indeed, the governments of most industrialized states confirm that one of their key foreign relations priorities is to assist their own corporations to "win contracts in foreign markets and lobby against regulatory and political barriers [in those markets]." (2) So it may be possible to find a basis for a state being responsible under international human rights law for the extraterritorial actions of its corporate nationals that violate human rights.
There are two introductory points to clarify. First, the general international law of state responsibility does apply to human rights obligations and the international human rights bodies have so applied it. (3) Under customary international law (4) states are responsible for the actions of executive, legislative, judicial and other state organs and officials, including police, military, immigration and similar officials, (5) even where those actions are committed outside the scope of the state official's or organ's apparent authority, (6) and contrary to the state's law. (7) Accordingly, international human rights supervisory bodies have consistently found a state responsible for actions and omissions of its organs or officials, even when acting outside their official authority, such as in cases of violations of human rights in detention and for torture. (8) In addition, consistent with the general position of attribution, states have been found responsible for a violation even where, under the state's constitutional system, that state does not have direct control over the organ or official who violated the human right concerned. (9)
Second, despite the corporate structure of most TNCs, (10) with subsidiaries incorporated in different states (and hence in different jurisdictions), (11) the parent corporation, which is usually located in an industrialized state, (12) can be held liable for actions of its subsidiaries. (13) indeed, it has been argued that if "the function of the parent company [is] to provide expertise, technology, supervision and finance [then if] injuries result from negligence in respect of the parent company functions, then the parent company should be liable." (14) Therefore, the possibility of including actions of a non-national subsidiary of a corporate national within the parameters of state responsibility is a seed able to be planted.
OBLIGATION TO PROTECT
While the acts of private persons, groups or organisations (non-state actors) are not generally attributable to the state, (15) the human rights supervisory bodies have held that states have a general responsibility to protect those within their jurisdiction from the actions of non-state actors, including corporations, which violate human rights. Indeed, all the major global and regional human rights treaties place an obligation on states party to the treaty to adopt legislation or other measures to "ensure" or "realise" the rights in the human rights treaty, whether immediately or progressively. (16)
This responsibility is clearly expressed by Inter-American Court of Human Rights in Velasquez Rodriguez v. Honduras, (17) where it held that the international responsibility of a state may arise:
[N]ot because of the act itself, but because of a lack of due diligence
to prevent the violation or to respond to it as required by [the human
rights treaty] . …