Home States' Duty to Protect Human Rights - To what extent is Sweden requiring Swedish corporations to comply with human rights extraterritorially?

Sammanfattning: It has been argued that multinational corporations benefit from impunity when it comes to human rights violations due to inadequate corporate regulation in host states as well on the international level. Thus, there are three purposes of this thesis: first to examine to what extent states’ duty to protect human rights can be utilised to hold corporations accountable for human rights violations in their global activities. In this context, the thesis examines to what extent states’ due diligence obligations can be extended to corporate nationals’ extraterritorial activities. If that is the case, states would be more implied to regulate corporate activities in order to avoid liability under international law. Second, human rights due diligence-legislation is examined as an example of how corporate nationals’ extraterritorial activities can be regulated. Third, the thesis uses all previous information to examine to what extent Sweden is requiring Swedish corporations to respect human rights in their activities abroad. In order to answer the research questions, current state of international law is established through studying the sources of international law - primarily human rights treaties, jurisprudence and other legitimate sources of interpretation. By applying the doctrine of state responsibility, states responsibility for corporate actions is examined. The thesis concludes that it is well known under international law that states have a duty within its territory to protect individuals’ human rights against corporate-related harm. States can fail their obligation to protect in two ways; (1) when a human rights violation committed by a corporation is attributed to the state and (2) when the state fails to protect individuals’ human rights. In regard to the former, state attribution is hard to establish since multinational enterprises (MNCs) rarely have a close relationship to the home state and since the degree of control the state must exercise (effective control) is set very high. One way of mending that would be to lower the threshold to overall control. In regard to the later, states have a due diligence obligation. Due diligence requires states to take all reasonable measures to prevent human rights violations, to conduct investigations in a serious manner and make sure victims of human rights violations have access to effective remedies. If states fail to do that, states might be held liable for failure to protect. International customary law and non-judicial monitoring human rights bodies present compelling arguments for recognizing extraterritorial due diligence obligations to protect human rights. According to the do not harm-principle states are required to prevent actors from using their territory to conduct business which cause harm on another state’s territory. In addition, the General Comments by the Committee on Economic, Social and Cultural Rights (CESCR) suggest that State Parties are under an obligation to regulate corporate extraterritorial activities. However, the European Court of Human Rights (ECtHR) has not yet recognized the duty to protect extraterritorially based on corporations’ nationality. In conclusion, states due diligence obligations do, to a certain extent, increase corporate compliance since states risk being responsible if not regulating corporations’ activities. In the context of economic, social and cultural rights the duty to protect contributes to a greater extent to corporate compliance compared to the ECHR. The thesis concludes that Swedish domestic law lacks an adequate regulation on corporate impact on human rights in their extraterritorial activities. Moreover, improvements could be done either by modifying the sustainability report or by introducing human rights due diligence legislation. By not regulating Swedish corporations’ global activities, Sweden risks being portrayed as indifferent when it comes to making sure that its companies respect human rights globally.