A/HRC/34/47 Subtheme 2. Jurisprudential and practical approaches to elements of extraterritoriality and national sovereignty 53. The first panellist indicated that a binding instrument should clarify the home State’s responsibility to impose an obligation on transnational corporations to comply with certain norms wherever they operated, for example, due diligence requirements for prevention of harm, disclosure and reporting requirements, as well as the courts’ jurisdiction in that State for corporate human rights abuses committed anywhere the business concerned operated. The International Court of Justice had clarified that a State’s obligations to respect human rights applied beyond the State’s territory when there was a link between the State and the activity taking place abroad. 54. The second panellist recalled that corporations had obligations under international law and asserted the need to close legal gaps. While States had obligations to protect citizens from corporate human rights violations, when they failed to meet those obligations or were too weak to do so, there was often no liability before international tribunals or domestic courts of other countries. Placing obligations on States to create national legal frameworks could also risk undermining human rights by resulting in differential standards. In the race to the bottom, corporations could relocate their operations to States with lesser protections. 55. The third panellist identified different levels for providing a reasonable opportunity for victims to obtain a remedy for human rights abuses committed by transnational corporations. Level 1 would comprise national and subnational legal systems. Level 2 would entail the engagement of an international or regional ombudsperson who could intervene on behalf of weaker plaintiffs against more powerful corporations or States. At level 3, which would be at the level of the home State or a country with a significant presence of assets held by transnational corporations, there would be a specific role for extraterritorial application of law. Level 4 — the international level — would include a role for an international court on transnational corporations and human rights. Level 5 would comprise a register of all pending cases concerning transnational corporations and human rights. 56. The fourth panellist suggested drawing lessons from the implementation of two international instruments designed to protect human rights from abuses by transnational corporations, namely, the International Code of Marketing of Breast-milk Substitutes and the WHO Framework Convention on Tobacco Control, both developed under the auspices of WHO. First, it was important to have the data to support the treaty provisions, especially data that demonstrated the ways Governments bore the costs of repairing the damage caused by human rights abuses committed by transnational corporations, for example, costs related to health care, water and sanitation, and the repair of environmental damage. Second, the panellist urged the use of the precedents set through the Framework Convention to protect the working group process from conflicts of interest and corporate interference (see art. 5 (3) of the Framework Convention) and to develop a civil and criminal liability regime (see art. 19). 57. The fifth panellist stressed the importance of holding transnational corporations accountable also for failure to prevent harm. The Rome Statute of the International Criminal Court excluded the consideration of crimes linked to the economy. However, the experience and rulings of the Permanent Peoples’ Tribunal demonstrated that crimes committed by transnational corporations could be adjudicated, including when they constituted crimes against humanity. 58. Some delegations stressed the importance of States adopting measures to protect human rights at the domestic level and noted that many were already regulating corporate 11