The State Duty to Protect against Human Rights Violations through Transnational Business Activities

Abstract

Transnational corporations are currently not formally bound by international human rights obligations. Instead, states have a duty to protect individuals against human rights abuses by third parties, including corporations. While it is undisputed that this obligation extends to all individuals living on the territory of the respective state, the extraterritorial scope of the duty to protect remains contested. This is especially the case for human rights violations through transnational business activities. The state on whose territory the violation occurs has a duty to protect human rights by adopting and implementing labour and environmental laws applicable in that state. However, it is less clear if and to what extent the state of the main seat of the mother company or the global ordering company — the ‘home state’ — also has a human rights duty to regulate transnational business activity. This article argues that such a duty can be based on existing human rights doctrine and standards of general international law such as the ‘no harm’ rule and the due diligence principle. It argues that states have a duty to regulate transnational business activities of corporations over which they exercise jurisdiction if human rights violations caused by such activities are predictable and preventable. In its final part, the article assesses various approaches in state practice which could be seen as instruments in the fulfilment of the duty to regulate transnational business activities.