Extraterritorial jurisdiction is the situation when a state extends its legal power beyond its territorial boundaries. Examples include where a state maintains jurisdiction over its citizens when they are overseas, and where certain criminal offences can be prosecuted in a state regardless of where they were committed (e.g. piracy and child sex offences). Extraterritorial jurisdiction and its application is one of the most hotly debated issues in the area of human rights generally, and within the area of business and human rights.
The UN Guiding Principles on Business and Human Rights (UNGPs) recognise the principle of extraterritorial jurisdiction. Specifically, Commentary to UNGP 2 states that:
“At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis. Within these parameters some human rights treaty bodies recommend that home States take steps to prevent abuse abroad by business enterprises within their jurisdiction.
There are strong policy reasons for home States to set out clearly the expectation that businesses respect human rights abroad, especially where the State itself is involved in or supports those businesses. The reasons include ensuring predictability for business enterprises by providing coherent and consistent messages, and preserving the State’s own reputation.
States have adopted a range of approaches in this regard. Some are domestic measures with extraterritorial implications. Examples include requirements on “parent” companies to report on the global operations of the entire enterprise; multilateral soft-law instruments such as the Guidelines for Multinational Enterprises of the Organisation for Economic Co-operation and Development; and performance standards required by institutions that support overseas investments. Other approaches amount to direct extraterritorial legislation and enforcement. This includes criminal regimes that allow for prosecutions based on the nationality of the perpetrator no matter where the offence occurs. Various factors may contribute to the perceived and actual reasonableness of States’ actions, for example whether they are grounded in multilateral agreement.”
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As such, the commentary to Guiding Principle 2 draws a distinction between two types of extraterritoriality:
Domestic measures with extraterritorial implications: For example, requirements on ‘parent’ companies to report on operations globally (i.e. including on the activities of their subsidiaries), or the contractual applicability of standards of international finance institutions; and
Direct extraterritorial legislation: For example, criminal laws that allow for prosecution based on the nationality of the perpetrator regardless of where the offence occurs.
Some commentators have criticised the position articulated in the UNGPs for insufficiently reflecting the duty of a “home” state to a transnational corporation (TNC) to protect against abuses occurring on the territory of a “host” state. The notion that states have extraterritorial human rights obligations is also one basis upon which calls are made for an international treaty on business and human rights to be developed.
A number of human rights treaty bodies have also recommended that home states take steps to prevent abuse abroad by business enterprises within their jurisdiction. For example, the Committee on Economic Social and Cultural Rights (CESCR) stated in General Comment No 24 on State Obligations under ICESCR in the Context of Business Activities that “States Parties are required to take the necessary steps to prevent human rights violations abroad by corporations domiciled in their territory and/or jurisdiction (whether they are incorporated under their laws, or have their statutory seat, central administration or principal place of business on the national territory), without infringing the sovereignty or diminishing the obligations of the host States under the Covenant”.
General Comment No 24 further states that “the extraterritorial obligation to protect requires States Parties to take steps to prevent and redress infringements of Covenant rights that occur outside their territories due to the activities of business entities over which they can exercise control, especially in cases where the remedies available to victims before the domestic courts of the State where the harm occurs are unavailable or ineffective”.
The Committee on the Elimination of Racial Discrimination has also urged states to take appropriate measures to prevent adverse impacts on the rights of indigenous peoples from corporations registered in their state. For example, it has recommended that Canada “take appropriate legislative measures to prevent transnational corporations registered in Canada from carrying out activities that negatively impact on the enjoyment of rights of indigenous peoples in territories outside Canada, and hold them accountable.”
To influence the behaviour of private actors abroad without the direct use of extraterritorial jurisdiction, States can make use of import or export controls or require “parent” companies to report or exercise due diligence on the global operations of the entire enterprise. For example, The UK Modern Slavery Act 2015 obligates all large businesses, globally, who operate in the UK market, to provide an annual, board-approved, publicly available statement that describes what they are doing to eliminate modern slavery in their operations and supply chains. States can make use of the multilateral soft-law instruments, such as the OECD Guidelines for Multinational Enterprises, and performance standards required by institutions that support overseas investments. They can also adopt direct extraterritorial legislation and enforcement, to prosecute perpetrators, irrespective of where the offence occurs.
Extraterritorial jurisdiction relates to the following Sustainable Development Goals
C. M. O’Brien, ‘The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A case of extraterritorial overreach?’, DIHR Matters of Concern Human Rights Research Papers No.2016/04.
M. Langford et al (eds.), Global Justice, State Duties. The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law (2014, CUP).
D. Augenstein and D. Kinley, ‘When human rights ‘responsibilities’ become ‘duties’: the extraterritorial obligations of states that bind corporations’, Ch. 11 in S. Deva and D. Bilchitz (eds.), Human Rights Obligations of Business (2013, CUP) 271-294.
R. McCorquodale and P. Simons, ‘Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70: 4 Modern Law Review 598.
This point aims at awareness-raising the Belgian diplomacy on the issues of social responsibility, sustainable development and the problem of companies involved in human rights violations. It briefly mentions that “at the present, diplomats do not always have the necessary tools or knowledge on “human rights and business” in particular, to inform and guide the companies in question in order to ensure that their extraterritorial activities take account of their impact on human rights.”
Strand 7: Strengthening of Coherence in International Policy
Action Point 7.2 (pages 47-48)
The Ministry of Foreign Affairs will:
Through the Directorate of Human Rights: …
Create and coordinate a working group aimed at generating material for the annual meetings held by the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights. The working group will meet periodically with the purpose of generating proposals within the framework of this process, which will partially consist in carrying consultations with the civil society to gather material and draft a proposal concerning this matter. …
Pillar 2: The Corporate Responsibility to Respect Human Rights
Strand 2: Promotion of Corporate Due Diligence in the Field of Human Rights
Action Point 2.1 (pages 59-60)
The National Contact Point for OECD Guidelines (NCP) of the Ministry of Foreign Affairs will adopt a series of measures to strengthen its duties. For this, it will:
Renew and strengthen the Mirror Committee, a body composed by representatives from the business community, unions, NGOs, and academia -with the support of Chile’s National Human Rights Institute (NHRI). The Committee’s main role is advising the NCP and supporting his/her work, including the dissemination and treatment of the cases he/she receives. This role will be strengthened by renewing the Committee to enhance the promotion of a Responsible Corporate Behaviour among national stakeholders
Submit, in conjunction with the Directorate of Human Rights of the Ministry of Foreign Affairs, before the Mirror Committee of the National Contact Point, the existing relationship between the OECD Guidelines for Multilateral Enterprises and the UN Guiding Principles on Business and Human Rights.
Prepare, in conjunction with the NHRI, an Agreement of Good Intentions with the purpose strengthening communication between both organisations, share information about potential specific situations and infringement of the Guidelines, specifically regarding the chapter on human rights, and carry out joint execution of the same in dissemination and training activities.
Organise, in conjunction with the Directorate of Human Rights of the Ministry of Foreign Affairs, dissemination and training activities, covering both instruments, for different national stakeholders, by including the mediation/conciliation role of the National Contact Point in the resolution of disputes with multilateral enterprises. Activities include the preparation of a briefing leaflet covering the relationship between OECD Guidelines and the Guiding Principles.
Keep Trade Offices periodically updated, both at a national and international level, as well as the Chilean Embassies abroad and future Chilean diplomats, about OECD Guidelines, through official messages, teleconferences, visits to Embassies/Regional Offices and coordination of the Chilean Diplomatic Academy. …
“… there are certain cases under Czech law where Czech citizens and nationals can be prosecuted for violations of human rights abroad. These include the criminal-law tenets of personality and universality [Sections 6, 7 and 8 of Act No 40/2009, the Criminal Code.]. As a result, the Czech Republic has laid solid foundations and is systemically conditioned for human rights protection.”
Criminal liability of legal persons in the field of human rights [page 11]
“While the state carries primary responsibility for human rights protection in its territory, in today’s interconnected age the stringent application of the principle of territoriality is impossible. The Czech Republic has decided that – whether unilaterally or on the strength of an international treaty – it will prosecute certain unlawful conduct by Czech nationals irrespective of where this conduct occurs. As such, it is assuming responsibility for the conduct of its nationals (including businesses) abroad, thus making it possible to fill in the regulatory gap to some extent in those cases where such conduct is not punishable under another country’s law.
Current state of play: …
Czech law allows a Czech citizen or a legal person established in the Czech Republic to be prosecuted even if they committed their crime abroad.
Foreign nationals and legal persons perpetrating a crime to the benefit of a Czech legal person may also be prosecuted.
Under Czech law, the most serious human rights violations can be prosecuted regardless of the perpetrator’s nationality or where such violations occurred. [The criminal acts listed in Section 7(1) of Act No 40/2009, the Criminal Code]
The Czech Republic is party to a number of international treaties on legal assistance and on the prosecution of various types of international criminal activity, including the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
Task:
Evaluate the impacts and practical application of the new text of the Act on the Criminal Liability of Legal Persons. If it transpires that the legislation still has loopholes impeding or preventing the prosecution of serious violations of human rights, propose amendments to the law.
Coordinator: Ministry of Justice
Deadline: 31 December 2018”
“The state can protect human rights by (not exhaustive):
Enforcing laws (including law with extraterritorial implications) that enable rather than constrain businesses to respect human rights. …”
2.3 Actions taken
Extraterritorial legislation [page 15]
“Direct extraterritorial legislation and enforcement includes criminal regimes that allow for prosecutions based on the nationality of the perpetrator no matter where the offence occurs. The Danish Government wishes to engage in the discussion on extraterritorial legislation as proclaimed in the UNGPs and as recommended by the Danish Council for CSR. Acknowledging the complexity of the issue, the Government has taken the following initiatives:
At an international level the Danish Government actively promotes the discussion on extraterritorial legislation, in particular the need for joint solutions. The Government has recommended that the Council of Europe should take the lead on the issue of extraterritoriality. The Council of Europe would be an excellent point of departure for this discussion as it covers virtually the entire European continent and focuses on the protection of human rights. Furthermore the Council of Europe is already working on these issues through its Steering Committee for Human Rights.
The Government has recommended that the second annual UN Forum on Business and Human Rights could focus on the issues of extraterritoriality as this is a challenge for every country to implement.”
2.4 Planned actions
Extraterritorial legislation [page 16]
“To further engage in the issue of extraterritorial legislation, the Danish Government has planned the following initiative:
At national level the Government will put together an inter-ministerial working group which will discuss the need for and feasibility of legislation with extraterritorial effect in areas of particular relevance. The group will look at what other countries have done and are doing in this area with the purpose of learning what works and what does not work. Finally, the group will examine the need for judicial prosecution of severe human rights impacts as recommended by the Danish Council for CSR.”
4. Access to remedy
4.2 Recommendations from the Council for CSR on access to judicial and nonjudicial remedy
Recommendations on judicial remedy [page 20]
“In terms of legislation with extraterritorial effect, the Council recommended that the Danish government, in addition to the international work, consider introducing relevant national legislation for particularly gross violations. A balance should be established between, on the one hand, the need to prosecute particularly gross violations and maintain an overwhelming sense of justice, and, on the other, the possibilities of examinating violations in practice.”
Appendix 1, GP 2 continued
State Duty to Protect, Extraterritorial legislation [page 24]
“At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis. Within these parameters some human rights treaty bodies recommend that home States take steps to prevent abuse abroad by business enterprises within their jurisdiction….. Other approaches amount to direct extraterritorial legislation and enforcement. This includes criminal regimes that allow for prosecutions based on the nationality of the perpetrator no matter where the offence occurs. Various factors may contribute to the perceived and actual reasonableness of States’ actions, for example whether they are grounded in multilateral agreement.”
Status in Denmark, (initiatives implemented before the UN ratification of the Guiding Principles) [page 24-25]
“According to the Criminal Code, acts committed outside the Danish territory are subject to Danish criminal jurisdiction in certain specified cases. Criminal liability presupposes that the Danish pe-nal provision that may be violated also applies to acts committed abroad (extraterritorial applicability). The question of whether a penal provision has extraterritorial applicability is not generally regulated by law. Instead, the question depends on interpretation in each case of the particular penal provision. Generally, the penal provisions in the Criminal Code have extraterritorial applicability. Conversely, other penal provisions generally only apply to acts committed within the Danish territory.”
Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles) [page 25]
“The Government has recommended to the Council of Europe that Drafting Group on the Human Rights and Business under the Council of Europe should take the lead on the issue of extraterritoriality. The Council of Europe would be an excellent point of departure for this discussion as it covers virtually the entire European continent and focuses on the protection of human rights. Furthermore, the Council of Europe is already working on these issues through its steering committee for human rights.
The Government has recommended that the second annual forum on Business and Human Rights could focus on the issues of extraterritoriality as this is a challenge for every country to implement individually.
The Government has put together an interministerial working group which will discuss the need for and feasibility of legislation with extraterritorial effect in areas of particular relevance. The group will look at what other countries have done and are doing in this area with the purpose of learning what works and what does not work. Finally, the group will examine the need for judicial prosecution of severe human rights impacts as recommended by the Danish Council for CSR.”
Appendix 1, GP 26
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 34]
“At international level the Danish Government actively promotes the discussion of legislation with extraterritorial application, in particular the need for joint solutions (see UNGPs 2).”
1.1 Human rights in Finnish legislation [page 13-14]
“…on an international level states implement human rights conventions differently. This affects international business activities and their regulation. The international preparation and development of the UN principles deal with the legal regulation of cross-border business activities. The concept of human rights is very extensive, and the creation of more binding regulation for non-state actors (such as companies) would require specifying their obligations in relation to the obligations of states. The challenges of such regulation are related to features such as the general definition of the criminal liability of legal entities, the territorial application of criminal legislation, protection of the accused, definition of the civil liability for damages, functionality of legal redress, and territorial limitations of jurisdictions. Due to these challenges, the matter requires that further examination and analyses be made on both the national and international level.
For continuing both the national and international discussion, it would be essential to further clarify features such as the applicability of national legislation to international business activities. For this reason, the working group proposes that as a follow-up measure,
a report be commissioned on Finnish legislation in relation to the regulation and guidance of international business activities, particularly to prevent serious human rights violations and to remedy any existing violations.
Principal responsible party: Ministry of Justice, Ministry of Employment and the Economy and Ministry for Foreign Affairs, schedule by mid-2015.”
Most international CSR standards refer to the UN instruments that are part of what is known as the “International Bill of Human Rights”, … Under this charter, States have an obligation to protect all human rights, which are considered indivisible (see the Vienna Declaration of 1993), in their home territories and abroad.
Actions Underway [page 16]
The French Government and French businesses are committed to addressing their actions’ adverse impacts on populations in regions in which they operate, in France and abroad, in accordance with the country’s obligation to provide protection under the ICESCR.
The European Framework
6. The Council of Europe [page 17]
The NAP cites article 13 of Recommendation CM/Rec(2016)3 on human rights and business of March 2016: “Member States should (…) apply such measures as may be necessary to require, as appropriate, business enterprises domiciled in their jurisdiction to respect human rights throughout their operations abroad;(…)” .
10. The Reinforcement of Legislation [page 23]
The NAP cites the 7 July 2014 law on orientation and programming related to development and international solidarity policies, through which France “shall also encourage businesses with their headquarters in France and with offices abroad to implement the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles on Business and Human Rights”.
Actions to be Implemented [page 33]
Ensure the [Voluntary Guidelines on the Responsible Governance of Tenure of Land] VGGT and [the Principles of Responsible Investment in Agriculture and Food Systems] RAI are respected by French economic actors abroad. Training on the implementation of these principles and directives will be offered to government employees (in embassies and economic services) and agencies.
III- Access to Remedy
Introduction [page 46]
The NAP cites the 2013 Recommendation of the Commission Nationale Consultative des Droits de l’Homme (CNCDH, France’s national human rights institution), which recommended a series of measures to “allow for the responsibility of parent companies for acts committed abroad by their subsidiaries, in order to align French law to UNGP 26”. Such measures include among other: “In criminal matters, the competent authorities should conduct a reflection on the extension of the extraterritorial jurisdiction of French criminal courts. French courts should be able to recognize themselves as competent vis à vis certain offenses committed abroad by French companies without being subject to the obligation of double incrimination”, and “In civil matters, extending the notion of extraterritoriality to parent companies for human rights violations committed abroad by their subsidiaries”.
1. Judicial Mechanisms – At the National Level
1.4 Proceedings
The NAP describes French courts’ international jurisdiction over legal persons in civil matters, and the scenarios in which victims can seize French courts, depending on where the company is headquartered and where the harm occurred, as well as French courts’ jurisdiction in criminal matters, including for acts committed abroad.
2. Non-Judicial Mechanisms – At the International Level
2.3 The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) [page 57]
The NAP recalls obligations under the ICESCR to respect, protect and fulfill ESCR on the national territory and in countries where France has a presence, notably through public and private actors conducting economic, commercial, and financial activities abroad.
Appendix
The positions adopted by the different groups of the National CSR Platform
Proposals by the civil society and trade union groups [page 61]
Civil (and possibly criminal) liability and a duty of vigilance should be introduced for French parent companies and outsourcing companies that commit human rights violations in France or abroad over the course of their activities or those of their subsidiaries or subcontractors. Under this regime, the burden of proof would be on companies, enabling victims to trace the abuse to the highest level of the chain of responsibility.
France should comply with and implement its international commitments to monitor transnational private actors operating in France and abroad (by applying its extraterritorial obligations under the ICESC, for instance).
4.1 Access to justice and the courts for injured parties
Civil remedies in Germany [page 36]
“Germany’s judiciary works independently and efficiently. Anyone who considers that his or her rights have been infringed in Germany by the actions of an enterprise can make claims before the civil courts. Anyone, moreover, who considers that his or her rights have been infringed abroad by the actions of a German enterprise, can bring an action in Germany, normally at the court with local jurisdiction for the registered office of the enterprise. Germany’s international civil procedure law also contains additional provisions whereby the German courts may be seized of matters relating to certain offences committed abroad, provided that a sufficient domestic connection can be demonstrated (e.g. specific jurisdiction for tort under section 32 of the German Code of Civil Procedure).”
II. Initial priorities for the Business and Human Rights Implementation Group [page 19]
“xv. Review how best to ensure remedy for potential victims overseas of human rights abuses by Irish companies, with a focus on barriers to justice, including legal, procedural or financial barriers.”
IV. Italian ongoing activities and future commitments
Internationalization of companies
“In the management of financial instruments of development cooperation, with particular regard – but not limited to – facilities to Italian companies participating in joint ventures in partner countries, whose regulatory basis lies in Art. 27 of Law No. 125/14, standards on respect for human rights are introduced. In the implementing regulations approved by the Joint Committee referred to in Art. 21 of Law No. 125/14 on 28 April 2021 (Resolution 22/21), and which follows the adoption of CICS Resolution No. 5 of 11 June 2020, the presence of certifications on social responsibility issued on internationally recognized bases (ISO 26000, SA 8000), as well as formal adherence by the applicant company to the UN principles of the Global Compact will be considered a preferential qualification.” (p. 52)
ANNEX 1 – Accountability Grid and Assessment Tools for the Implementation of the NAP
“51. In the framework of the monitoring action foreseen in the present NAP, the following priorities are established:
(ii) identify any gaps or barriers that prevent or render less than fully effective access to judicial remedies for victims of business-related abuse, especially with respect to extra-territorial violations, including on the basis of the relationship between primary and subsidiary companies.” (p. 68)
3.2. Pillar 2: Corporate Social Responsibility to Respect Human Rights
Policy Actions
b) Human Rights Policy commitments
ii. Encourage recruitment agencies to provide any required repatriation, legal and psychological support to migrant workers who have suffered or been subjected to abuse abroad;
CHAPTER FOUR: IMPLEMENTATION AND MONITORING [Page 23]
4.1. ANNEX 1: SUMMARY OF POLICY ACTIONS
STRATEGIC OBJECTIVE
POLICY ACTIONS
KEY ACTORS
Strategic Objective 1:
Enhance existing policy, legal, regulatory and administrative framework for ensuring respect of human rights by business through legal review and development of specific guidance for business
Strengthen oversight mechanisms of recruitment agencies involved in the recruitment of Kenyans for employment in businesses abroad.
Take appropriate measures to promote safe and fair labour migration including agreements on free exchange of information, and more stringent regulation of employment agencies and explore measures for providing legal and psychosocial support services to victims of labour abuse.
Ministry of Foreign Affairs, Ministry of Labour and Social Protection; National Employment Authority, COTU, FKE
“The UNGPs stipulate that a state’s obligation to protect against human rights abuses by companies includes the duty to take appropriate judicial, administrative, legislative or other steps to ensure that when such abuses occur within their territory or jurisdiction those affected have access to effective remedy. Remedy can include offering apologies, rehabilitation, compensation or sanctions as well guarantees of non-repetition of the abuse.
Among states’ obligations is an obligation to publicise information about existing mechanisms, including information on how they work and the support available to access them. The UNGPs state that a mechanism is a routinised, state-based or non-state-based, judicial or non-judicial process through which a grievance or complaint concerning business-related human rights abuse can be raised and remedy can be sought. The UNGPs distinguish between state-based mechanisms (judicial or non-judicial) and non-state-based mechanisms.
The National Baseline Assessment (NBA) concluded that several improvements are possible in terms of access to remedy. Aside from commissioning a study into the calibre of Dutch law in the light of the UNGPs, the previous NAP did not specifically deal with the right to effective remedy. The action points below therefore largely reflect the analysis (the NBA) carried out by the Netherlands Institute for Human Rights. Earlier policy evaluations were also taken into account and information was gathered during consultations about the options available for improving access to remedy in the Netherlands. Improved and more effective access to remedy requires an ecosystem of remedy, meaning that affected parties must have access to a variety of channels for various forms of remedy. The instruments should run in tandem, as not all violations require the same remedy. For example, legal recourse is probably the best way to deal with serious human rights violations, whereas a complaints mechanism may provide quicker and better remedy for less severe violations of labour rights. The proposed due diligence legislation will strengthen this ecosystem, creating a stronger legal basis on which to call European businesses to account regarding any violations. The due diligence legislation will also require businesses to comply with step 6: setting up a complaints mechanism. These efforts to strengthen both state-based and non-state-based mechanisms will lead to the creation of an ecosystem for remedy for affected parties.” p. 62.
Improving the provision of information to affected parties
“Ideally, human rights abuses, including violations of labour rights, should be addressed where they take place and effective remedy is offered locally. Yet in some circumstances a mechanism in the Netherlands may be the best recourse, for example if there is no effective local mechanism or if a Dutch enterprise is involved in the violation. However, victims and their representatives may not always have a clear picture of the possibilities for remedy in the Netherlands. Consultations with civil society organisations on the revision of the NAP made it clear, for example, that affected parties were not always aware of the possibility of accessing regular legal aid in cases of international liability.
The government will produce an accessible digital guide describing the judicial and non-judicial remedies available to parties abroad who have been affected by Dutch companies (through their international supply chains). This guide will clearly describe the possibilities for initiating a judicial or non-judicial process and what support, such as legal aid, is available. The guide can follow Germany’s example. In response to consultations, the guide will where possible take account of the additional hurdles faced by marginalised groups and unequal power relationships. This will include a gender perspective.” p. 63.
ACTION POINTS PILLAR 3
Aim
Responsible party
Timeline
Improving information provision to affected parties
Develop and actively disseminate an accessible digital guide for rightsholders, in several languages
Improve information on the options for access to remedy in the Netherlands.
BZ
2022-2023
p.64
Legal Aid
“Access to the Dutch legal system depends partly on the costs to the affected parties of starting civil proceedings. Discussions with human rights lawyers and NGOs representing victims have made it clear that they know little or nothing about existing legal aid opportunities. Regular legal aid can help with legal costs. Non-Dutch victims can also have recourse to it when claiming damages against parent companies in the Netherlands.
The government will pursue efforts to increase knowledge of and access to current legal aid options, and will monitor how often requests for legal aid in international liability cases are rejected and on what grounds. An evaluation in 2025 will thus be able to state whether the current legal aid options form an obstacle for rightsholders.” p. 73.
Improving access to judicial mechanisms
Applicable law: Rome II
“If a court considers itself competent to rule on a case of international civil law, the question arises which law is to be applied. The Rome II Regulation states that the applicable law is determined on the basis of where the damage has occurred. In cases of human rights violations abroad the applicable law is thus the law of the country concerned. The NBA expressed concern that if foreign law applies in a dispute, victims may have recourse to fewer remedies than under Dutch law. The European Parliament has also called for Rome II to be amended to address this problem. A study commissioned by the European Commission into experiences, problems and the application of the Rome II Regulation was published in October 2021. It is up to the European Commission to review the Regulation. The government would support a broad review of Rome II, which should include discussions on the applicable law in cases of human rights violations in international value chains.” p. 74.
Grounds for jurisdiction of Dutch courts
“The law of international jurisdiction often takes as its point of reference the jurisdiction of the court in the defendant’s country of domicile. This is also the case for Dutch and European rules on international jurisdiction. Another point of reference for Dutch and European rules on international jurisdiction is the place where the human rights violation took place or where the immediate damage occurred. Therefore, if a company established in the Netherlands is named in a case pertaining to a human rights violation the Dutch courts are competent to hear the claim. This is also the case if the violation took place outside of the Netherlands. The Dutch court is not necessarily competent to hear the complaint if the violation concerns a company established outside the Netherlands and if the violation took place and damage occurred outside the Netherlands. Some countries, however, do not have an accessible or adequately functioning legal system and victims thus risk being deprived of legal remedy. The government is actively pursuing this concern in international bodies such as the Hague Conference on Private International Law.
The NBA also notes that in cross-border civil proceedings that have thus far been pursued in the Netherlands, the defendants included Dutch partners as well as subsidiaries based in other countries. As far as is known no legal proceedings have as yet been conducted in the Netherlands involving damage caused by partners in the value chain of Dutch companies other than foreign subsidiaries, that is, non-group company liability. In this connection the Council of Europe has made recommendations about the grounds for jurisdiction of national courts, and these have been enshrined in Dutch law. The fact that no proceedings have taken place may indicate that the rules surrounding this are unclear and that claimants do not consider such cases to be winnable. In line with the NBA, the government is planning to review how these grounds of jurisdiction are applied and whether it would be appropriate to tighten them up in instructions, for example.” pp 74 and 75.
Amending the law of evidence
“The NBA also notes that the high costs associated with complex international cases may form an obstacle to starting proceedings.” p. 75.
Principle 2 – States sets expectation for respecting human rights
Slovenia strives to ensure that enterprises registered in Slovenia respect human rights on Slovenian territory and abroad, and to monitor respect for human rights by economic operators. (pg. 10)
In Slovenia, economic operators are expected to proactively ensure human rights protection throughout their business operations in accordance with the UN Guiding Principles, the OECD Guidelines for Multinational Enterprises, and the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. (pg. 11)
The Government encourages enterprises operating abroad to report on their global operations, particularly on their operations in official development assistance recipients. Enterprises provide human rights due diligence reports as part of their financial or sustainability reports. (pg. 11)
The Spanish NAP makes no explicit reference to extra-territorial jurisdiction. However the NAP makes numerous references to the appliacbility of laws, standards, and policies to businesses operating abroad.
Guiding Principle 3
Measure 4
“The Regulations will be implemented and the Directives will be transposed, and the adaptation of the Spanish legal system to the Recommendations and the Opinions made by the EU regarding the Guiding Principles will be studied. This, will be done taking into account the reports published by the European Commission on the legal framework for human rights and the environment applicable to European companies operating outside the EU (2010), and on responsible management of the supply chain (2011) and other relevant reports.”
Measure 9
“The Government will train the personnel of the State Foreign Service, in accordance with Law 2/2014, of March 25, of the Action and of State the Foreign Service, as well as to the agencies in charge of the internationalization of business abroad about the responsibility of companies to respect human rights and due diligence and redress procedures, and will incorporate the Guiding Principles into the Annual Plans for External Action and the Brand Spain. Likewise, through its Diplomatic Missions, Permanent Representations and respective Sectorial Offices, especially the Economic and Commercial Offices, as well as through the Consular Offices, Technical Cooperation Offices and Training Centers of Spanish Cooperation AECID abroad, will disseminate tools and guidelines according to the characteristics of each country.
Guiding Principle 4
Measure 1
“Within one year after the approval of this Plan, a Working Group will be created within the framework of the Strategic Plan for the Internationalization of the Spanish Economy, which will develop a specific Action Plan to examine the coherence of policies to support business internationalization, and its alignment with the Guiding Principles. The Working Group, which will present its conclusions to the Government, will study how cooperation for development, official credit agencies, export credit and official insurance or investment guarantee agencies of all administrations are able to condition, modulate or revise its support for investment based on the exercise of the responsibility to respect human rights by the beneficiary companies, both inside and outside of Spanish territory.”
Measure 3
“Regarding public sector companies, the Government will promote the principles of Socially Responsible Investment, and must value this investment, in particular, from the perspective of respect for human rights, both within and outside Spanish territory.”
Measure 4
“The Government will support the inclusion of human rights considerations in financial institutions for regional and international development.”
Guiding Principle 5
Measure 1
“The Public Administrations will exercise an adequate supervision of the possible impact on human rights when contracting the services of companies, both within and outside of Spanish territory. This supervision must take into account the criteria of the specialized institutions, in accordance with the application of the Spanish CSR Strategy.”
Guiding Principle 7
Measure 1
“The Government, through its representations abroad, will inform companies about the risks involved in their business activities and relationships, especially in areas affected by conflicts.”
Guiding Principle 8
Measure 1
“The Ministries of the Treasury and Public Function; Foreign Affairs and Cooperation; Economy, Industry and Competitiveness; Energy, Tourism and Digital Agenda will train and provide support on the Guiding Principles through their dependent agencies, to departments, government agencies and other state institutions that encourage and support the creation of businesses, business competitiveness and commercial and financial business practices in order to promote the coherence of policies and processes with the Guiding Principles and the international standards of human rights mandatory for Spain.”
Guiding Principle 9
Measure 1
“The Government will promote the inclusion of references to the respect of human rights in agreements on trade, investment or other related business activities signed by Spain that affect the scope of the Guiding Principles. Likewise, the Government will promote the inclusion of such references in the agreements entered into by the European Union with third-party States.”
Guiding Principle 10
Measure 1
“Spain will promote the effective implementation of the Guiding Principles within the framework of the mandate and activities of the United Nations Human Rights Council.”
Measure 2
“Spain will promote the inclusion of non-member states of the OECD to the Declaration on International Investment and Multinational Enterprises.”
Measure 3
“Spain will promote greater involvement of the International Labor Organization in the application of the Guiding Principles.”
Measure 4
“Spain will support the development of strategies on the implementation of the Guiding Principles within the framework of the European Union.”
Guiding Principle 27
Measure 1
The Monitoring Commission will carry out a study on the current regulatory body, the mechanisms of extrajudicial claim for the receipt of complaints and mediation along the existing parties and the possible needs expressed by them. Within one year from the approval of this Plan, and based on the recommendations derived from the aforementioned study, recommendations may be made on the extension of existing extrajudicial mechanisms or on the creation of new ones in accordance with the criteria established in Principle No. 31
1 The State duty to protect human rights [page 11]
“States should also set out the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.”
Criminal law provisions to protect human rights
“Sweden has a number of criminal law provisions for the protection of human rights regardless of the context in which an offence is committed, including in the business context. Through these criminal provisions Sweden also fulfils its international commitments in relevant respects. Examples include: …
“Criminalisation of international crime also provides for protection of life, health and property. The Act on criminal responsibility for genocide, crimes against humanity and war crimes (2014:406) entered into force on 1 July 2014.
Under Swedish law, jurisdiction is extensive and Swedish courts are therefore often able to adjudicate in cases concerning offences committed abroad. Normally, for this to occur, the perpetrator would need to have some ties to Sweden and the offence would need to be subject to criminal liability under the law of the place where it was committed. However, such restrictions do not apply to the most serious crimes, i.e. certain specified crimes such as crimes under the Act on criminal responsibility for genocide, crimes against humanity and war crimes and, in general, all crimes with a minimum sentence of imprisonment for four years, for example, exceptionally gross assault (Chapter 2, Penal Code).”
2 National Action Plan on Business and Human Rights 2020-23
2.3 Pillar 3: access to remedy
2.3.1 Foundational principle
Guiding Principle 25
The Federal Council also acknowledges its responsibility to facilitate access to Swiss grievance mechanisms where business enterprises based in Switzerland are involved in human rights abuses abroad, and those affected in the host state have no appropriate access to effective remedy. In such instances, due consideration must be given to a smart mix of judicial and non-judicial mechanisms.
2.3.2 Operational principles: state judicial mechanisms
Guiding Principle 26
Domestic judicial mechanisms (the courts) may be used to determine matters involving business-related human rights abuses. The federal government intends to ensure the effectiveness of these mechanisms by devising measures to reduce legal, practical and other hurdles that could prevent those affected from gaining access to remedy. These measures should pay particular attention to the additional obstacles that women may face.
In this context, it is necessary to consider the extra-territorial dimension of any judicial mechanisms. The Federal Council therefore supports efforts to achieve a better understanding of the relevant frameworks in different countries, and encourages international processes. Under certain circumstances, it is possible under Swiss law for individuals who believe that their rights have been violated by Swiss companies to bring an action or appeal before Swiss courts. Whether Swiss courts have jurisdiction to hear and determine such cases and the governing law must be assessed on a case-by-case basis with reference to applicable legal provisions.
Administrative measures for outbound investment (page 10)
‘The Taiwan government will continue, on the basis of UNGPs, to initiate discussions regarding the issue of administrative measures for outbound investment as applied to business and human rights, and will also set up an inter-ministerial coordination mechanism at the central government level to study actions taken by other nations, and to discuss the necessity and feasibility of enacting legislation that has binding force overseas in specified fields such as anti-discrimination, labor rights, and environmental preservation in a company’s overseas investment activities.
The aforementioned discussions must also address measures to strengthen regulations, supervisory mechanisms, and other such concrete actions involving Taiwan’s screening of FDI into foreign nations. This must be done in order to ensure that companies’ overseas investment activities do not violate international human rights regulations and standards.’
This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, The State duty to protect, UNGP7, Actions planned (pages 46-47).
V. Access to remedy
B. Actions taken
Judicial remedy
Extraterritorial jurisdiction (page 18)
‘With respect to any human rights abuses that occur overseas, Taiwan already has laws and regulations which provide that such abuses are subject to the jurisdiction of Taiwan’s judicial authorities no matter where the abuses have taken place. For example, if a responsible person or an employee of a company engages overseas in human trafficking, drug dealing, or piracy (as referred to in Article 5 of Taiwan’s “Criminal Code”), or offers a bribe to a public servant from Taiwan or a foreign nation in connection with cross-border trade, investment, or other business activities (as referred to in Article 11 of the “Anti-Corruption Act”), the offense will be subject to the jurisdiction of Taiwan’s judicial authorities regardless whether the offense is punishable or not under the law of the land where the crime is committed.
In addition, the “Regulations Governing the Handling of Companies’ Overseas Investments” provide that when the Taiwan government reviews an investment application, if it discovers that a company has violated the provisions of an international treaty in the course of its overseas investment activities, the application will be rejected. Also, the Taiwan government imposes corporate social responsibility requirements when it grants approval for a company to invest overseas, and at the same time will require the company to abide by the legal requirements of the host jurisdiction.’
This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, Access to remedy, UNGP25, Actions taken (pages 53-54).
C. Actions planned
Strengthening of extraterritorial jurisdiction (pages 20-21)
Cross-border litigation occasionally arises due to: (a) human rights violations or environmental destruction caused in Taiwan by foreign multinational corporations engaged in business activities in Taiwan; or (b) human rights violations or environmental destruction caused overseas by Taiwanese corporations (or by multinational corporations controlled by a Taiwanese corporation) engaged in business activities overseas. With respect to such litigation, our government needs to conduct research on how to provide victims with effective remedy channels. The scope of such research should include, without limitation, the following:
Study how to enact rules governing Taiwan’s jurisdiction over cross-border litigation, including litigation filed in Taiwan by foreign nationals not domiciled in Taiwan (but note that, in doing so, we must act in line with the principles of substantive fairness, jurisprudence, and procedural economy).
Study the legality and feasibility of using measures other than fines to deal with the corporate criminal liability of Taiwanese and multinational corporations.
Multinational corporations often use overseas duty-free countries to establish subsidiaries, so we need to study whether the parent companies of multinational corporations are required to bear joint and several liability for indemnification of aggrieved parties when subsidiaries infringe upon the rights of other parties.
Cross-border actions for damages are sometimes filed in connection with environmental destruction caused overseas by multinational corporations, so we need to study whether there is a need to amend related laws and regulations (e.g. environmental protection legislation) to provide for an extended period of prescription.
This information is also covered under Appendix 4: Overview of the implementation of the state duty to protect and the access to remedy, Access to remedy, UNGP25, Actions planned (page 54).
Appendix 3: Concrete actions taken by Taiwan to provide effective remedy systems
Extraterritorial jurisdiction (page 35)
Article 5 of Taiwan’s “Criminal Code” provides that if a company engages overseas in human trafficking, drug dealing, or piracy, the offense will be subject to the relevant provisions of Taiwan’s Criminal Code, and Taiwan’s judicial system has the power to prosecute and punish the offender.
Article 11 of the “Anti-Corruption Act” provides that a public servant who offers (in connection with cross-border trade, investment, or other business activities) to bribe a public servant from Taiwan, the Chinese mainland, Hong Kong, or Macao shall bear criminal liability, and the offender will be dealt with according to the provisions of the “Anti-Corruption Act” regardless whether the offense is punishable or not under the law of the land where the crime is committed.
Article 6 of the “Regulations Governing the Handling of Companies’ Overseas Investments” provides that the competent authority may withdraw approval of a company’s overseas investment if the investment: (a) has affected national security; (b) has had an adverse impact on the nation’s economic development; (c) has violated obligations imposed by an international treaty or agreement; (d) has infringed intellectual property rights; (e) has, by violating the Labor Standards Act, caused a major labor-management dispute that remains unresolved; or (f) has tarnished the nation’s image.’
3. The core content of the National Action Plan on Business and Human Rights
3.3 Action plan for human rights defenders
3.3.3 Action Plan (2019–2023)
Pillar 3 Duties of state enterprises and the business sector (Remedy)
No.
Issues
Activities
Responsible agencies
Time-frame (2019–2022)
Indicators (wide frame)
Compliance with National Strategy/ SDGs/UNGPs
3.
The proceedings
Enhance knowledge and skills for persons responsible for the law, regulation, and correct policy with justification for offenses outside the Kingdom
– Office of the Attorney General
2019–2022
Activities to enhance knowledge for the persons responsible for the law, regulation, and correct policy with justification for offenses outside the Kingdom
– National Strategy for Public Sector Rebalancing and Development
– SDG 16
– UNGPs Articles 24, 25, 26, 27, 28, 29 and 31
3.4 Action Plan on Cross Border Investment and Multinational Enterprises
3.4.1 Overview of the situation
The National Human Rights Commission of Thailand has received complaints regarding the impact of cross-border business operations of Thai entrepreneurs, such as a Thai private company that was granted a land concession for sugarcane cultivation and established a sugar factory in Cambodia and violated the human rights of the Cambodian people. The National Human Rights Commission of Thailand has investigated and has ruled that though the company is not the action maker, the impact is considered a part of their direct responsibility in the case of affecting human rights. In the case that a private company has entered into a Memorandum of Agreement with the Port Authority of the Union of Myanmar to operate a deep-sea port project in the Dawei Special Economic Zone Project in Myanmar, the National Human Rights Commission has investigated and found that the construction of infrastructure of the project caused human rights violation to the Myanmar people. The National Human Rights Commission of Thailand has recommendations for relevant government agencies to consider establishing mechanisms or defining the Investment Supervision to respect the basic principles of human rights by using The UNGPs as a framework.
3.4.3 Action Plan (2019–2022)
Pillar 1: State duties in protecting (Protect)
No.
Issues
Activities
Responsible agencies
Time-frame (2019–2022)
Indicators (wide frame)
Compliance with National Strategy/ SDGs/UNGPs
1.
Amendments of laws, regulations, policies and related measures
Study and discuss with various relevant sectors to consider guidelines for developing laws, policies or concrete mechanisms to investigate human rights violations outside the territory to provide protection and remedy and take cross-border responsibility that complies with international standards such as the OECD Guidelines for Multinational Enterprises
– Ministry of Foreign Affairs
– Ministry of Justice
2019–2022
Improved legislation, policies or mechanisms to investigate human rights violations outside the territory to provide protection and remedy and take cross- border responsibility that complies with international standards, such as the OECD Guidelines for Multinational Enterprises
– National Strategy for National Competitiveness Enhancement
– National Strategy for Public Sector Rebalancing and Development
The UK 2016 Updated NAP mentions extraterritoriality while discussing the existing UK legal and policy frameworks in section devoted to the State’s Duty to Protect Human Rights [page 6]:
“The UK is subject to international human rights obligations under customary international law and as a result of the international legal instruments we have signed and ratified. Human rights obligations generally apply only within a State’s territory and/or jurisdiction. Accordingly, there is no general requirement for States to regulate the extraterritorial activities of business enterprises domiciled in their jurisdiction, although there are limited exceptions to this, for instance under treaty regimes. The UK may also choose as a matter of policy in certain instances to regulate the overseas conduct of British businesses.”
There is no mention of extraterritorial jurisdiction in the U.S. NAP. The NAP itself “focuses on U.S. government initiatives relating to the conduct of U.S. enterprises operating abroad”. [page 6]
The UN Guiding Principles on Business and Human Rights (UNGPs) recognise the principle of extraterritorial jurisdiction. Specifically, Commentary to UNGP 2 states that:
in Canada from carrying out activities that negatively impact on the enjoyment of rights of indigenous peoples in territories outside Canada, and hold them accountable.”
Mongolia (2023-2027)
Taiwan (2020-2024)
Vietnam (2023-2027)