Beyond Territoriality: Symposium on Jurisdictional “Hooks” for (Extraterritorial) Human Rights Obligations – ‘Not-a-State’, a Duty-bearer Nonetheless: Attaching Obligations to Corporations

Beyond Territoriality: Symposium on Jurisdictional “Hooks” for (Extraterritorial) Human Rights Obligations – ‘Not-a-State’, a Duty-bearer Nonetheless: Attaching Obligations to Corporations

[Gamze Erdem Türkelli is an assistant research professor in international law, human rights and sustainable development at the Law and Development Research Group, University of Antwerp, the principal investigator of the ERC Starting Grant 2023 funded GENESIS project and a member of the Academic Circle on the Right to Development of the UN Special Rapporteur on the Right to Development.]

In the latest of the growing string of climate change litigation against corporations, Hugues Falys, a Belgian farmer is taking TotalEnergies, the number one refiner and distributor of fossil fuels in Belgium, to the Commercial Court of Tournai. Falys is joined in ‘The Farmer Case’ by non-governmental organisations FIAN, Greenpeace and the Ligue des droits humains. The case is filed on the basis of extra-contractual civil liability for the alleged losses Hugues Falys has suffered as a result of climate change. Less than a year before, on 19 May 2023, 12 Italian citizens from regions of Italy most affected by climate change, joined by Greenpeace Italy and ReCommon had filed petition against fossil fuel company ENI and its two shareholders, the Ministry of Economy and Finance and public investment bank Cassa Depositi e Prestiti (CDP) to the Civil Court of Rome under Italian Civil Code Art. 2043. These new cases come after the Hague District Court ordered in 2021 that Royal Dutch Shell (including the companies and legal entities that together form the Shell group) to reduce its emissions by 45% by the year 2030 relative to 2019. Both cases, like the Milieudefensie v. Shell case, invokes human rights claims. In its Urgenda judgment, the Dutch Supreme Court had already ascertained that the substantive rights under Article 2 of the European Convention on Human Rights (ECHR) on the right to life and its Article 8 on the right to private and family life were threatened by climate change. On 9 April 2024, the European Court of Human Rights (ECtHR) affirmed this reading in the context of Article 8 in Verein Klimaseniorinnen Schweiz and Others v. Switzerland that ‘effective respect for the rights protected by Article 8 of the Convention requires that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades’ (para 548). Similarly to the Shell case, the ENI case also references the United Nations Guiding Principles on Business and Human Rights (UNGPs) and the human rights duties of businesses. The Shell case was ultimately decided by the Hague District Court under the unwritten “standard of care” contained in Book 6 Section 162 of Dutch Civil Code, triggering the company’s duty of care. The judgment is currently being appealed by Shell, a company that is no stranger to litigation in Dutch Courts for environmental pollution and allegations of human rights violations related to its business dealings directly or through its subsidiaries.

A common thread in all these cases and judgements is that while the courts and applicants rely on treaty-based human rights and environmental law claims, ultimately the obligation that the company is alleged to have breached is a norm of domestic law (for instance, Belgian, Dutch or Italian civil law or US state or federal laws). Similarly, cases on alleged business-related human rights violations in value chains such as the Total Energies case in France are based on obligations pronounced under domestic law, in this case through the law on the duty of vigilance adopted in 2017. This specific domestic legislation makes a clear reference to risks and possible violations of “human rights and fundamental freedoms, health and security of persons as well as environment, resulting from the activities of the business enterprise or the businesses it controls”. (Loi No. 2017-399 Art. 1er) Nonetheless, the duty-bearing relationship in the technical sense is instigated by the duty proscribed by the vigilance law and not (international) human rights or environmental law. This reliance on domestic law (or “municipal law” as the International Court of Justice called it in Barcelona Traction) is perhaps unsurprising given the sustained inertia of international law in tackling political, social, ecological, economic and technological challenges that defy its traditional territory-based statist conceptions, particularly when it comes to rectifying power imbalances between states, as well as between states, individuals and non-state actors.

How international law in general and human rights law in particular should deal with ‘not-a-state’ actors (NSAs) (echoing the now famous ‘Not-a-Cat’ Syndrome analogy of Alston) is an ongoing debate. Reckoning with plural and diverse nature of duty-bearing also requires tackling the question of whether corporations can be attached direct (human rights) obligations under international (human rights) law, on what basis and with what scope given the growing number of business-related human rights harms causing ever wider human rights protection gaps across borders.

Given that corporations are enabled by the edifices of international (economic) legal regimes to conduct activities and make decisions to maximize profits across global value chains and that these activities and decisions impact rights-holders across different legal jurisdictions, why should international legal regimes for the protection of human rights not apply similarly and across legal jurisdictions to these activities and decisions to empower impacted rights-holders without distinction?

Of course, it is no accident, as others have laid out much more eloquently than I will be able to do justice, that international legal regimes that regulate and to a large part, protect economic activity across borders, including when conducted by private businesses, disadvantage host states and their populations. International law-making processes such as the legally binding instrument currently being drafted still reflect competing state visions around whether corporate duties to respect human rights are to be directly termed ‘obligations’ or use the softer and less binding wording on ‘responsibility’ in line with the UNGPs. The latest draft legally binding instrument is all but silent on the direct duties of corporations and seems to be heading in the direction of pronouncing limited regulatory obligations for home states. Perhaps unsurprisingly, many developing countries whose citizens bear the brunt of business-related human rights abuses would like to see stronger language while textual suggestions that will serve to dilute the bindingness of the corporate duty to respect human rights have been put forth mostly by the world’s biggest economic powers that are home states to large transnational companies. 

The traditional conception of international law has a disconnected view of the rights available to and the duties owed by various non-state actors under international law. Coupled with international law’s infamous propensity for fragmentation, law governing economic activity (investment, trade, intellectual property and finance) across borders often remains completely dissociated from law governing human rights and environmental protections. As such, traditional conceptions of international law use legal constructs such as jurisdiction or international legal personality, which are relevant at the enforcement stage of obligations but not their initial attribution, only selectively. For instance, international legal personality or subjecthood of companies are not questioned when they choose to sue host states in Investor – State Dispute Settlement (ISDS) structures under Bilateral Investment Treaties (BITs) to protect what they allege to be their entitlements, but become an issue when rights-holders demand the protection of their rights and entitlements against corporations. At this point, it is worth echoing McBeth that human rights obligations themselves are ‘distinct from the current enforcement system of international human rights law’ (p. 7), which remains not only state-centric but territorial state-centric. This territorial state-centricity is so deeply engrained in some enforcement systems that even enforcing rights claims against a non-territorial state -let alone demanding accountability from non-state actors- is met with resistance as illustrated by the disappointing inadmissibility decision of the ECtHR in the case of Agostinho and Others v. Portugal and Others.

Insisting that human rights law continues to concern primarily or exclusively the relationship between individuals and their domestic states is increasingly recognized as being outdated by scholars, by legal practitioners and human rights defenders. Hence, the wealth of scholarship on human rights beyond borders and the numerous strategic litigation processes launched at the domestic, regional and international levels. An exclusive domestic State-individual human rights nexus patently fails to address contemporary human rights protection gaps that have emerged over the last fifty years due to the increasing impact of not-a-state entities on individuals and communities directly or indirectly through their acts, omissions, and decisions in essentially beyond-borders issues like the climate crisis. Yet, what should replace the outdated view is far from settled. 

Here, I call -despite the setbacks and disappointments- for a continued insistence on scholarship and practice that pushes the boundaries of the law to invigorate with emancipatory potentialß and put forth a three-pronged argument. First, corporations should bear direct human rights (and environmental) obligations under international law. Second, these obligations are a function of their participation in the international legal order. As such, these obligations should be assigned in ways commensurate with the impacts corporations have on human beings and the environment as a consequence of their participation in the and the benefits they derive from the international legal order. Third, direct obligations are not immediately conditioned on the existence of direct enforcement avenues under international law.

The fact that corporations are private entities or ‘specialised economic organs, and not democratic public interest institutions’ has been oft reiterated to argue that ‘their responsibilities cannot and should not simply mirror the duties of States’ (para. 53). The scope of the direct obligations attached to corporations may of course differ from that of obligations attached to states under international law, but that differentiation is ultimately linked to the scope of the duty and not to its nature as a direct obligation.

Similarly, scholars have proposed attaching legal or moral obligations to corporations in their sphere of influence or leverage but these debates are ultimately linked more closely to the scope and the content of the obligation attached than the act of attaching the obligations themselves. As I have argued elsewhere (pp. 44 – 48), the basis for attaching direct (human rights) obligations to corporations and other non-state entities that do not fall under traditional categories of human rights duty-bearers is in fact much more elementary: Participation (I echo here Rosalyn Higgins’ astute observation that international law is not a space of objects and subjects ‘but only participants’ (p. 50)). Corporations, as ‘privileged insiders of the international legal system’ (p. 3)  routinely participate in international law-making and enforcement, for instance by seeking to influence treaty negotiations or the elaboration of soft law, and through trade or investment litigation. The fact of being an active participant in international legal processes that aim to shape, enforce or circumvent legal norms presupposes capacity (a notion that has been explored by O’Connell as early as 1970 and Clapham in 2006) and intent. 

Corporations that demonstrate the capacity and intent to make use of international legal norms that facilitate the mobility of capital across borders and operate transnationally are also the authors of acts, omissions or decisions with impacts on human beings and the environment that -like capital- cross borders. The privileges corporations seek to secure or sustain through their participation in international legal processes do not currently give rise to commensurate obligations for the human and ecological impacts that result from the exercise of their capacity and intent. I argue that direct obligations under international law for corporations should follow from their ‘participating in setting the rules of the game, by engaging in practices favorable or detrimental to the realization of human rights and by exerting influence on other actors (state and non-state) with the intent and the purpose to benefit from such influence’ (Erdem Türkelli, 2020, p. 259). 

Finally, the current inexistence of international legal avenues for the enforcement of direct obligations for companies, particularly in imposing international legal responsibility for business-related human rights violations, is not a barrier to assigning direct obligations to corporations. The enforcement of direct obligations for corporations under international law would initially, as Bernaz notes, likely depend on (home and host) states, both domestically and/or through multilateral means. Furthermore, enforcement for human rights obligations is a dynamic process. Over time, many UN human rights treaties acquired direct individual complaints procedures through optional protocols in addition to domestic enforcement. Hence, there is no reason to foreclose the possibility for the multilateral enforcement of direct human rights obligations for corporations in the future.

If we recognize the legal fictions fueling the static conceptions of the law as what they are – fictions-, we might succeed in unlocking the emancipatory potential of human rights as claims to justice, including by individuals and communities impacted by corporate practices. Assigning direct human rights and environmental law obligations to corporations will counterbalance the privileges they enjoy under other areas of international law. It will also counterweigh the powerful position enjoyed by corporations vis-à-vis individual and community rights-holders and allow rights-holders to seek accountability when their rights are violated, irrespective of the type of actor causing the harm. This is the only way for international law to remain true to the promise of the Universal Declaration of Human Rights: ‘the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’. 

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