A/HRC/31/50
prospective instrument should clarify the existing obligations of States and fill gaps that
cannot be covered under domestic legal systems. The State would carry the same
obligations towards all businesses, but the prospective instrument would be an additional
means to ensure that corporations cannot manoeuvre States’ domestic jurisdiction to avoid
liability.
71.
One panellist noted that the conclusion drawn from the Guiding Principles had been
heavily criticized for not addressing jurisdictional limitations in order to enable
extraterritorial application, and that there were various options for operationalizing
extraterritorial obligations in order to close legal gaps. Specifically, the panellist noted that
extraterritorial obligations could be operationalized by creating prevention, disclosure and
reporting requirements, removing obstacles to the exercise of jurisdiction, such as forum
non conveniens, facilitating cross-border cooperation in investigations and mutually
recognizing national judgements. The panellist went on to say that, in operationalizing
extraterritorial obligations, the issue of scope did not arise and that there was no need to
define “transnational corporation” when there was a positive human rights obligation
regarding the duty to protect. The panellist specified that corporate activities could
undermine, among many others, the rights to self-determination and to a healthy
environment. The panellist noted that a global partnership to fight impunity could address
the imbalances, close the gaps and strengthen the capabilities of States in international law;
in this sense, the Maastricht Principles on Extraterritorial Obligations of States in the Area
of Economic, Social and Cultural Rights are a useful guide.
72.
One panellist noted that, in general, criminal sanctions were inadequately enforced
in home States and adequate civil legal representation was not available. The panellist
stressed that there was a need to address corporate veil and allow disclosure and access to
documentation in order to combat impunity. Specifically, there were significant
deficiencies in gaining access to remedies, even in the home States of corporations, and
extraterritorial jurisdiction may raise issues of sovereignty of host States. The panellist also
noted that many civil codes had clauses that could attribute liability under a tort-based
approach — where a legal duty of care is owed by a company —, which could be useful.
73.
A number of States highlighted the need to take into account the sovereignty of
States and address only impunity. Unilateral coercive sanctions imposed by States violate
and jeopardize human rights. Some delegations noted the need to balance the rights of
investors with ensuring human rights. One delegation noted that States could promote
human rights by requiring transnational corporations to report on how they address
violations and making sure legal systems include complaint mechanisms for issues arising
outside their territory. One delegation also noted the importance of ensuring access to
remedies for victims.
74.
One State asked the panellist whether States should provide an appropriate forum
under the private law principle of forum necessitatis. In response, some of the panellists
noted that private international law had limits and that the principle of forum of necessity
seemed unrealistic and very ambitious. Likewise, other panellist noted that an international
system for the protection of human rights could not replace national legal systems and that
host and home States must ensure the existence of legal remedies for victims.
75.
One business representative stressed the shortcomings of extraterritorial jurisdiction
and emphasized that access to remedy should be made at the local level. He called for
stronger commitments by Governments to deliver on their duty under international law to
provide access to remedy and suggested that the working group should elaborate on ways
of increasing pressure on Governments to become more active and improve their judicial
systems by more strongly monitoring the judicial performance within the United Nations
supervisory machinery.
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