A/HRC/28/65
country’s development, the political relevance of which can significantly influence the
judicial process.45
45.
Implementing national legislation is essential to ensuring that States hold TNCs
accountable abroad. Indeed, member countries of the Organisation for Economic Cooperation and Development (OECD) have already made voluntary commitments in this
regard by developing a code of conduct. The European Union has also developed a
resolution for European corporations operating in developing countries. Under international
law, however, States are generally not liable for the conduct of non-State actors, unless the
non-State actors are de facto agents of the State, or were acting “on the instructions of, or
under the direction or control of, that State in carrying out the [wrongful] conduct”.46 To
date, there is no international jurisprudence on the issue of home State accountability for
TNC actions.
46.
Some States have failed to take vigorous steps to ensure that victims have access to
judicial remedies for human rights abuses that have arisen extraterritorially owing to the
activities of businesses or their subsidiaries. By creating or allowing these obstacles and
barriers to remain, States have failed in their duty to protect human rights by ensuring
access to effective remedy through the judicial process. 47
3.
Obligation to fulfil
47.
Besides being responsible for the activities of TNCs operating abroad, governments
have also a duty to support and cooperate in ensuring the fulfilment of the right to food in
poorer countries.48 General comment No. 12 suggests that developing States that do not
possess the necessary resources for the full realization of the right to food are obliged to
actively seek international assistance, and wealthier States have a responsibility to help
(para. 38). The Right to Food Guidelines request that assistance be provided by States in
situations of emergency or widespread famine.
C.
Holding transnational corporations accountable
1.
Interpretative efforts
48.
International obligations with extraterritorial dimensions are enunciated in a number
of international treaties49 that emphasize the importance of international cooperation among
States to ensure the protection of human rights. At the same time, international human
rights instruments refer to how non-State actors have duties to uphold human rights
standards. For example, the Universal Declaration of Human Rights states in its preamble
— and binding provisions in universal and regional human rights documents also indicate
45
46
47
48
49
14
Ibrahim Kanalan, “Horizontal effect of human rights in the era of transnational constellations: on the
accountability of private actors for human rights violations”, p. 19.
General Assembly resolution 56/83. See also Smita Narula, “The right to food: holding global actors
accountable under international law”, Colombia Journal of Transnational Law, No. 44 (2006), pp.
752–753.
The Third Pillar case studies include Canada, France, Germany, the Netherlands, Switzerland, the
United Kingdom and the United States of America.
General comments No. 12, paras. 36 and 37, and No. 15, para. 32. See Ziegler et al., The Fight for the
Right to Food.
The Charter of the United Nations (arts. 55 and 56); the Universal Declaration of Human Rights
(arts. 22 and 28); the Covenant (arts. 2, para. 1, and 11, paras. 1 and 2); the Convention on the Rights
of the Child (arts. 4 and 24, para. 4); and the Convention on the Rights of Persons with Disabilities
(art. 32).
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