Being Indirect - a Viable Way to Assess Legal Responsibility for Corporations’ Human Rights Violations Abroad?

Sammanfattning: This thesis investigates the issue whether States have a responsibility to regulate domestic companies, when those companies are violating human rights abroad. The assessment concerns the rights contained in the European Convention of Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). The first sub-issue of the thesis is whether these treaties can have extraterritorial application. The answer here presented is affirmative and concludes that both the ECHR and the ICCPR can apply extraterritorially. This derives partly from jurisprudence, where researched case law contains at least two exceptions to the more general rule of territorial application of theses treaties. However, the conclusion is mainly based on an independent analysis of the term 'jurisdiction' according to the rules in the Vienna Convention on the Law of Treaties. This analysis was necessary since both treaties required the victim of a violation to be 'within the jurisdiction' of the responsible State. The interpretation focused on the requirement of the Vienna Convention to follow the 'object and purpose' of a treaty when interpreting a term. According to this, the thesis concludes that case law interpreting 'jurisdiction' is only relevant when 'jurisdiction' is used to determine responsibility. Case law that determines State jurisdiction, or domestic or international court jurisdiction, is therefore distinguished. Moreover, the 'object and purpose' of human rights treaties, requires the interpretation to be as beneficial as possible for the individual. According to this, the thesis presents the idea that there is a broader general exception to territorial jurisdiction, which confers responsibility to a State for everything it can control when the State is acting directly abroad. This theory is presented as the 'control entails responsibility´ theory. The second sub-issue of the thesis is to determine whether this conclusion can be applied also on situations when the State is not acting directly abroad&semic e.g. when a company incorporated in the State is acting abroad and by those actions violating human rights. The possible responsibility to invoke in this situation would be a due diligence responsibility&semic i.e. a positive obligation to ensure rights. This thesis presents both a brief survey of what such due diligence responsibility entails domestically, and a more detailed investigation of what it could entail when applied extraterritorially. The investigation showed that the 'control entails responsibility´ theory needed to be modified to be applied extraterritorially. Having a positive obligation in regard of all the conduct a State could possibly control extraterritorially was found unrealistic. Instead, positive obligations could only be implied when there was a direct and immediate link between the extraterritorial act and the alleged violation of an individual's rights. Besides this, the degree of control in the 'control entails responsibility´ proposition was qualified so that no impossible or disproportionate burden should be imposed on the responsible State. This modified theory was then applied on the specific situation of home State responsibility of when a company, incorporated in that State, is violating human rights abroad. The requirement of a direct and immediate link was met due to the 'duty of care' that a State has for the acts of its corporation. Regarding the impossible burden, the measures that a State possible could be asked to take consist of legislating, monitoring and allowing litigation. The appreciation of what could be an impossible burden excludes the control mechanism, but went to consider legislating and allowing litigation. Although this assessment should be performed on a case-by- case basis, the thesis concludes that it is possible that a State can be asked to legislate for, and allow litigation against its corporations violating human rights abroad. This would clearly be the most beneficial for the individual and also be consistent with the idea that exceptions to human rights must be provided for explicitly. Finally, there was a need to see whether home States could also be responsible when subsidiaries of a company, incorporated in that State, is violating human rights abroad. Again, it was necessary to assess which possibilities the home State has to control the behaviour of the subsidiary. Only where the State had sufficient control, the victim of the violation could benefit from the human rights protection of that State. The conclusion was that a State could control subsidiaries in possibly three ways. The first way, which could be applied under all circumstances, was to oblige the parent company to impose a 'code a conduct' and a control mechanism towards its subsidiary. The second way was to regulate the subsidiary directly, but that could only be the case when the subsidiary was seen to be the same entity as the parent company due to the principle of 'breaching the corporate veil'. The third way could only be applied when the violations abroad could be seen as a direct result of the action of the parent company in the home State. Then the State has the possibility of controlling that act of the company directly. Regarding control of subsidiaries, the obligation is still of due diligence quality. Therefore, the qualified degree of control should be assessed in the same case-by-case basis as when a company was directly violating human rights abroad. It would then also only entail imposing legislation and allowing litigation in that State. As presented above, the thesis thus concludes that responsibility possibly could also be assessed with help of one of the three ways of linking a subsidiary to the home State of its parent company. Regarding the first way it could however be questioned whether there was a direct and immediate link present, and therefore one of the two other options might be a more viable way.