Holding States Responsible for National Corporates’ Extraterritorial Human Rights Violations: Possibility or Absurdity?

Sammanfattning: Almost four decades have passed since the European Court of Human Rights introduced the concept of positive obligations. Positive obligations mean that the member states must take affirmative action in order to secure the rights and freedoms provided for by the European Convention on Human Rights. Since then, the scope of positive obligations has extended tremendously, and today all substantive rights generally contain positive obligations. The reason behind the development is to maintain the full effectiveness of human rights enforcement within the European context, and it has been enabled, inter alia, through dynamic interpretation and because the European Convention on Human Rights is considered a living instrument.  The fact that European companies operating transnationally, i.e. in a non-European context, sometimes through its commercial activities violates human rights has given rise to discussion in legal doctrine on whether the scope of positive obligations should be further extended so that the member states to the European Convention on Human Rights will incur state responsibility for national corporates’ extraterritorial human rights violations. Thus, the purpose of the thesis is to examine whether the European Court of Human Rights can and should proceed with such expansion. An expansion creates methodological and technical problems as it challenges the traditional notion of jurisdiction, however, it is not impossible. Whatever the European Court of Human Rights will decide to do, the thesis will provide arguments both for why home state responsibility for national corporates’ extraterritorial activities that violates human rights can and should be imposed, as well for why it is beyond its (the European Court of Human Rights) competence.