A/HRC/4/35
page 6
12.
Beginning with the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW), adopted in 1979, and including the Convention on the Rights of the
Child (CRC) and the recently adopted Convention on the Rights of Persons with Disabilities,
business is addressed more directly. CEDAW, for example, requires States to take all
appropriate measures to eliminate discrimination against women by any “enterprise” (art. 2 (e)),
and in the context of “bank loans, mortgages and other forms of financial credit” (art. 13 (b)).
The treaties generally give States discretion regarding the modalities for regulating and
adjudicating non-State abuses, but emphasize legislation and judicial remedies.
13.
The treaty bodies elaborate upon the duty to protect. General comment No. 31 of the
Human Rights Committee (HRC) is one recent example. It confirms that under the ICCPR “the
positive obligations on States parties to ensure Covenant rights will only be fully discharged if
individuals are protected by the State, not just against violations of Covenant rights by its agents,
but also against acts committed by private persons or entities”.8 It further explains that States
could breach Covenant obligations where they permit or fail “to take appropriate measures or to
exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by
private persons or entities”.
14.
The human rights treaty bodies express concern about State failure to protect against
business abuse most frequently in relation to the right to non-discrimination, indigenous peoples’
rights, and labour and health-related rights. But the duty to protect applies to all substantive
rights. The Committees tend not to specify the precise content of required State action, but
generally recommend regulation through legislation and adjudication through judicial remedies,
including compensation where appropriate.
15.
Current guidance from the Committees suggests that the treaties do not require States to
exercise extraterritorial jurisdiction over business abuse. But nor are they prohibited from doing
so.9 International law permits a State to exercise such jurisdiction provided there is a recognized
basis: where the actor or victim is a national, where the acts have substantial adverse effects on
the State, or where specific international crimes are involved.10 Extraterritorial jurisdiction must
8
HRC, general comment No. 31, para. 8.
9
Some treaty bodies seem to be encouraging States to pay greater attention to preventing
corporate violations abroad. For example, CESCR has suggested that States should take steps to
“prevent their own citizens and companies” from violating rights in other countries. CESCR,
general comment No. 15, para. 33.
10
Under the principle of “universal jurisdiction” States may be obliged to exercise jurisdiction
over individuals within their territory who allegedly committed certain international crimes. It is
unclear whether and how such obligations extend jurisdiction over juridical persons, including
corporations. See A/HRC/4/35/Add.2.
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