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Extraterritorial jurisdiction

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 debated issues in the area of human rights generally, and within the area of business and human rights.

The UN Guiding Principles recognise the principle of extraterritorial jurisdiction. Specifically, Commentary to UN Guiding Principle 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.

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What National Action Plans say on Extraterritorial jurisdiction