Abstract
The regulation of home country to govern business and human rights has been commonly debated. It is argued that home states regulations have a potential role to play in the regulation of multinationals on business and human rights. It particularly can fill the gap due to the extraterritorial nature of MNC operations which requires an integrated regulatory approach and it can also provide alternative forum for victims to human rights violation by corporation to seek justice. The question is in what sense home states should be responsible for violations of human rights by subsidiaries in host countries. What are the justifications and what are the limitations? This article tries to answer those questions by highlighting the debates over the duty bearer, a right or obligations of home countries to impose extraterritorial regulations to other countries.
References
Books & Book Chapters Aldrich, George H., The Jurisprudence of the Iran-United States Claims Tribunal (Oxford, Clarendon Press, 1996) Brownlie, Ian, Principles of Public International Law, Fourth ed. (Oxford, Clarendon Express, 1990) Clapham, Andrew, “Rights and Responsibility : A Legal Perspective,” From Rights to Responsibilities: Rethinking Intervention for Humanitarian Purposes, eds. O. Jutersonke and K. Krause, vol. PSIS Special Study 7 (Geneva: Programme for Strategic and International Security Studies, 2006) Francioni, Francesco, “Exporting Environment Hazard through Multinational Enterprise: Can a State of Origin Be Held Responsible?,” International Responsibility for Environmental Harm, eds. Francesco Francioni and Tullio Scovazzi (London: Graham & Trotman, 1991) International Law Commission, Draft Articles on Diplomatic Protection with Commentaries, ifty-eight session sess., UN GA A/61/10, 2006 Lawson, Rick A., “The Concept of Jurisdiction in the European Convention on Human Rights,” Globalisation and Jurisdiction, eds. Piet jan Slot and Mielle Bulterman (Leiden: Kluwer Law International, 2004) Lowe, Vaughan, “Jurisdiction,” International Law, ed. Malcolm D. Evans, Second ed. (Oxford: Oxford University Press, 2006) Malanczuk, Peter, Akehurst’s Modern Introduction to International Law, Seventh Revised ed. (London, Rautledge, 1997) Nigh, Douglas, “Who’s on First? Nation-States, National Identity and Multinational Corporations,” International Business: Institutions and the Dissemination of Knowledge, eds. Brian Toyne and Douglas William Nigh (South Carolina: University of South Carolina Press, 1999) Rammeloo, Stephann, Corporation in Private International Law; a European Perspective (Oxford, Oxford University Press, 2001) Skogly, Sigrun I., Beyond National Borders: States’ Human Rights Obligations in International Cooperation (Antwerpen, Intersentia, 2006) Waagstein, Patricia Rinwigati, Corporate Human Rights Responsibility: Continuous Search for A Regulatory Framework (Uppsala: Uppsala University, 2009) Wallace, Cynthia Day, The Multinational Enterprise and Legal Control: Host State Sovereignty in an Era of Economic Globalization (The Hague, Martinus Nijhoff Publisher, 2002) Journal, Index, Periodic Kokkini-Iatridou, D. and Waart, P.J.I.M de, “Foreign Investment in Developing Countries - Legal Personality of Multinational Corporations in International Law,” Netherland Yearbook of International Law 14 (1993) Restatement of the Third Law: The Foreign Relations Law of the United States Restatement of the Law, ed. The American Law Institute, vol. 1 (St Paul, American Law Institute Publishers, 1986), Section 213 on Nationality of Corporation. Law, Regulations, Instruments Committee on Economic, Social, and Cultural Rights, General Comment 14, the Right to the Highest Attainable Standard of Health, Twenty-second session, 2000 sess., U.N. Doc. E/C.12/2000/4, 2000. Committee on Economic, Social, and Cultural Rights, General Comment 15, the Right to Water, Twenty-ninth Session, 2003 sess., U.N. Doc. E/C.12/2002/11, 2002, para. 34. Committee on Economic, Social, and Cultural Rights, General Comment 12, Right to Adequate Food, Twentieth session, 1999 sess., U.N. Doc. E/C.12/1999/5, 1999, para. 36.The Maastricht Guidelines on Violation of Economic, Social, and Cultural Rights, 1997 United Nations High Commissioner for Human Rights, Report of the United Nation High Commissioner for Human Rights on the Sectoral Consultation Entitled ‘Human Rights and the Extractive Industry’, pt. E/CN.4/2006/92, U.N.Doc.E/ CN.4/2006/92, 19 December 2005 Cases European Court of Human Rights, Cyprus V. Turkey, Appl. No. 25781/94, Jugdment of 10 May 2001 European Court of Human Rights, Bankovic A.O. V. Belgium and 16 Other Contracting States, Appl. no. 52207/99; adc.dec., judgment of 12 December 2001 European Court of Human Rights Saddam Hussein V. Albania, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey, Ukranine, and the United Kingdom, Fourth Section Decision as to the Admissibility of Application no. 23276/04 on 14 March 2006 European Court of Human Rights, Markovic and Others V. Italy, Application No. 1398/03, judgment on 14 December 2006 European Court of Human Rights, Bankovic A.O. V. Belgium and 16 Other Contracting States, Appl. no. 52207/99; adc.dec., judgment of 12 December 2001 European Court of Human Rights, Xhavara and Others V. Italy and Albania, Application No. 39473/98, 2001 International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina V. Serbia and Montenegro), Judgment, 26 February 2007, para. 430. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004, Reports of Judgment, Advisory Opinion and Order of 9 July 2004 International Court of Justice, The Barcelona Traction, Light, and Power Company, Limited (Belgium V. Spain), Judgment, 1962, I.C.J. Report 19. International Court of Justice Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) Human Rights Committee, Consideration of Resports Submitted by States Parties under Article 40 of the Covenant; Concluding Observation of the Human Rights Committee, Israel, Seventy-eight sess., CCPR/CO/78/ISR, 21 August 2003 Permanent Court of International Justice, Nationality Decrees Issued in Tunis and Marocco (French Zone) on November 8th, 1921, 1923, PCIJ, Ser. B., No. 4.
Recommended Citation
Waagstein, Patricia Rinwigati
(2019)
"Justifying Extraterritorial Regulations of Home Country on Business And Human Rights,"
Indonesian Journal of International Law: Vol. 16:
No.
3, Article 4.
DOI: 10.17304/ijil.vol16.3.771
Available at:
https://scholarhub.ui.ac.id/ijil/vol16/iss3/4