In his novel The Constant Gardener, John Le Carre shows a government knowingly allowing its corporations to violate human rights in another state because the government's key priority is to assist its corporations to make money. Indeed, a British diplomat says these words: "[The British] Foreign Office isn't in the business of passing judgment on the safety of non-indigenous drugs, is it? [We are] supposed to be greasing the wheels of British industry, not going around telling everybody that a British company in Africa is poisoning its customers." (1) This is a work of fiction, though, as Le Carre (a former British diplomat) notes in the book, the reality is often worse. Indeed, the governments of most industrialized states confirm that one of their key foreign relations priorities is to assist their own corporations to "win contracts in foreign markets and lobby against regulatory and political barriers [in those markets]." (2) So it may be possible to find a basis for a state being responsible under international human rights law for the extraterritorial actions of its corporate nationals that violate human rights.
There are two introductory points to clarify. First, the general international law of state responsibility does apply to human rights obligations and the international human rights bodies have so applied it. (3) Under customary international law (4) states are responsible for the actions of executive, legislative, judicial and other state organs and officials, including police, military, immigration and similar officials, (5) even where those actions are committed outside the scope of the state official's or organ's apparent authority, (6) and contrary to the state's law. (7) Accordingly, international human rights supervisory bodies have consistently found a state responsible for actions and omissions of its organs or officials, even when acting outside their official authority, such as in cases of violations of human rights in detention and for torture. (8) In addition, consistent with the general position of attribution, states have been found responsible for a violation even where, under the state's constitutional system, that state does not have direct control over the organ or official who violated the human right concerned. (9)
Second, despite the corporate structure of most TNCs, (10) with subsidiaries incorporated in different states (and hence in different jurisdictions), (11) the parent corporation, which is usually located in an industrialized state, (12) can be held liable for actions of its subsidiaries. (13) indeed, it has been argued that if "the function of the parent company [is] to provide expertise, technology, supervision and finance [then if] injuries result from negligence in respect of the parent company functions, then the parent company should be liable." (14) Therefore, the possibility of including actions of a non-national subsidiary of a corporate national within the parameters of state responsibility is a seed able to be planted.
OBLIGATION TO PROTECT
While the acts of private persons, groups or organisations (non-state actors) are not generally attributable to the state, (15) the human rights supervisory bodies have held that states have a general responsibility to protect those within their jurisdiction from the actions of non-state actors, including corporations, which violate human rights. Indeed, all the major global and regional human rights treaties place an obligation on states party to the treaty to adopt legislation or other measures to "ensure" or "realise" the rights in the human rights treaty, whether immediately or progressively. (16)
This responsibility is clearly expressed by Inter-American Court of Human Rights in Velasquez Rodriguez v. Honduras, (17) where it held that the international responsibility of a state may arise:
[N]ot because of the act itself, but because of a lack of due diligence
to prevent the violation or to respond to it as required by [the human
rights treaty] ... If the state apparatus acts in such a way that the
violation goes unpunished and the victim's full enjoyment of such
rights is not restored as soon as possible, the state has failed to
comply with its duty to ensure the free and full exercise of those
rights to persons within its jurisdiction. The same is true when the
state allows private persons or groups to act freely and with impunity
to the detriment of the rights recognised in the Convention. (18)
Thus in Herrera Rubio v. Colombia, the UN Human Rights Committee concluded that Colombia had violated the ICCPR because the state had failed to investigate effectively the murder or disappearance of the victims, even though those responsible may have not been state officials. (19) The European Court of Human Rights has held in several cases that the failure of the state's security forces to protect civilians during internal armed conflict, and the inadequacy of subsequent investigations by the state, amounted to a breach by the state of its obligations under the ECHR. (20)
So a state is considered to have an obligation to protect (also called an obligation to exercise due diligence) all persons within its jurisdiction from violations of human rights by anyone. Accordingly, states have been found to be in breach of their human rights obligations with respect to actions of corporations in some circumstances. These have included situations where corporations dismissed or victimized employees for joining a trade union, (21) the pollution of air and land by chemical and oil corporations, (22) and the use of indigenous peoples' land by corporations. (23) In all of these cases, the state was in breach of its obligations under the relevant human rights treaty because its acts or omissions enabled the corporation to act as it did. (24) This is a positive obligation on a state, demanding that state amend its laws to protect its inhabitants from actions of corporations and other non-state actors. (25) This development has enabled a significant development of the garden of international human rights law.
State responsibility can arise in relation to acts committed by state organs and officials outside of the territory of the offending state. (26) This includes actions where there are transboundary...