Corporate misconduct, human rights, and the challenges of extraterritorial solutions

This thesis evaluates two key extraterritorial techniques to bring human rights standards to bear on corporate misconduct, and does so through an analysis of the dilemmas they raise. The background to the research is the difficulty of imposing human rights standards on transnational business operating in ‘host’ countries where, for various reasons, such standards are not implemented locally, resulting in governance gaps. Tort litigation in the company’s ‘home’ state or ‘long arm’ regulation emanating from the home state are important alternative methods of establishing and enforcing human rights standards, but they engender controversy both in terms of their legitimacy under public international law and because there are a number of objections to their use that go beyond their technical legality. Concerns include intrusion into the exclusive jurisdiction of the host state to control this litigation or to determine and follow its own regulatory policy in this area, potential harm to economic development and the imposition of Western standards to non-Western contexts. In addition to these predominantly host state concerns, there are also concerns about extraterritoriality in this context from the perspective of home states. For example, the impact on access to effective remedies caused by the victims’ distance from the site of adjudication is often a concern. The thesis examines examples of the techniques being exercised in practice and the approaches of lawmakers and judges to the issues raised by extraterritoriality, and then evaluates whether these concerns raise true dilemmas. For those that do, it offers suggestions for how to adapt or refine extraterritorial techniques. From this perspective, the thesis advocates a nuanced approach that builds in sensitivity to the views of host states and local populations affected by these measures, the latter being the intended beneficiaries of the rights in question, without losing sight of the overriding goals of human rights protection that might on occasion point in a different direction.