A/HRC/28/65 — duties for private actors, while the Guiding Principles on Business and Human Rights (A/HRC/17/31), endorsed by the Human Rights Council in its resolution 17/4 in 2011, elaborate on the responsibility of business enterprises to respect human rights. 49. Another consideration supporting the necessity of extraterritoriality is the principle of non-discrimination. It is a fundamental part of human rights law, and the logical extension of the universality principle. If States are able to treat individuals in other countries differently from the way they may treat individuals in their own territory, this is discriminatory practice and goes against the principles of universality of rights enjoyment.50 2. Judiciary 50. The application of extraterritorial obligations is supported indirectly by the International Court of Justice, in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The Court observed that: “while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory”.51 At the regional level the American Convention on Human Rights extends to persons “subject to [the] jurisdiction” of the State party, and the InterAmerican Commission on Human Rights held that in relation to the American Convention, “jurisdiction [is] a notion linked to authority and effective control, and not merely to territorial boundaries”. The European Court of Human Rights has also indicated that “as an exception to the principle of territoriality, a Contracting State’s jurisdiction under article 1 may extend to acts of its authorities which produce effects outside its own territory”.52 51. There are a number of cases involving TNCs and right to food violations at the domestic level; however, in many of these cases, claims are either based on tort or criminal law rather than human rights legislation, or decisions focus on the involvement of the Government in the violation of rights, and not the company. The case against Nigeria submitted through the African Commission on Human Rights is an example thereof.53 Another example is the case brought to the Inter-American Commission on Human Rights on behalf of indigenous Guarani people living in the Oriente region in Ecuador against the oil exploitation activities by their own Government and Texaco.54 52. There are many relevant domestic court decisions in Brazil, India, Namibia, South Africa and Uganda. Examples can be found also from Australia, Canada and the United Kingdom of Great Britain and Northern Ireland in which TNCs were held responsible under tort law for complicity in human rights violations abroad. In the United States of America, under the Alien Tort Claims Act, TNCs can be held accountable for complicity in the violation of human rights outside of the United States. However, in 2013 the United States Supreme Court in Kiobel v. Royal Dutch Petroleum case created a most significant barrier to accessing judicial remedies for human rights violations that occur in a host State. 55 53. In the European Union, the notion of extraterritorial jurisdiction is not as problematic when businesses are domiciled in the European Union. The situation in Switzerland is similar.56 Barriers exist across all jurisdictions, despite differences in legislation, the approaches of courts, human rights protections at the national level and 50 51 52 53 54 55 56 Skogly, “Right to adequate food”, pp. 341–342. I.C.J. Reports 2004, p. 136, para. 109. Ibid. African Commission on Human and Peoples’ Rights, SERAC v. Nigeria, para. 65 ff. See J.E. Viñuales, “The ‘dormant environment clause’: assessing the impact of multilateral environmental agreements on foreign investment disputes?”, p. 4. Skinner, McCorquodale and De Schutter, “The Third Pillar”, p. 5. Ibid., p. 6. 15