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Thank you for joining ESCR-Net and the New Tactics online community for a dialogue on Corporate Accountability Beyond Borders. While governments are the primary duty-bearers for upholding human rights, businesses can have disproportionate impacts on all human rights, in all economic sectors, everywhere—supporting or undercutting domestic government actions.

As business operations and potential impacts have moved beyond borders, some governments have fought to protect against possible abuse by exerting their laws extraterritorially and by creating new rules, such as those to route out bribery, corruption, human trafficking or sexual tourism. Even so, individuals and communities whose human rights are put at threat by business have faced stiff obstacles to justice at home, and have been repeatedly turned away in these companies’ home countries. Subsequently, UN human rights treaty bodies, regional and national courts are increasingly recognizing the need for national governments to actively protect against human rights abuses committed by their companies, no matter where they occur.

This online dialogue is a space to share experiences using extraterritorial avenues for justice in preventing, punishing and providing remedy for business-related human rights abuses. We are discussing the obstacles and challenges faced by practitioners, sharing some important victories and discussing the legal and policy justifications for extending human rights protection beyond borders. We hope that this dialogue will serve as a resource for frontline communities, human rights practitioners, legal experts, governments, businesses and other stakeholders in filling the current gap in the active protection of human rights.

Corporations around the globe are turning increasingly more transnational, and aspects of their production occur in countries different from their origin/headquarters. International law endows states with the ability to use their jurisdiction to prevent/protect against human rights violations committed by third parties within their territory. In this dialogue, practitioners discussed the legal as well as non-judicial tactics that can be used to hold companies (based in their home-country) available for abuses they commit abroad.

Judicial Mechanisms

Advocacy for legal solutions within the corporations’ home-country regarding its human rights violations abroad is critical and can improve lives. Judicial mechanisms include:

• State secrets precedent presents an obstacle to advancing corporate accountability, for it allows states to block the release of information in lawsuits, if such information could constitute a threat to national security.
• Lawsuits against company complicity with repressive governments – Yahoo! Inc. provided private information of email users to the Chinese government, which in turn detained and prosecuted human rights advocates and journalists. The activists filed suits against Yahoo! Inc.
• Developing internal codes of conduct – Google has developed an internal code of conduct, but most online corporations have not yet developed extensive guidelines.
• Foreign Investment and Host-State Arbitration – this post features various resources on the topic
  • Ecuador’s class action lawsuit against Texaco
• Examples of extra-territorial lawsuits – this post features examples of lawsuit tactics and cases worldwide.

Beyond Judicial Mechanisms

Although much of the debate surrounding corporate social responsibility revolves around legal issues, civil society actors are not limited to legal instruments when confronting corporations about human rights violations.

• Boycotts and campaigns – boycotts and campaign occur within the market framework, as they appeal to consumers to change their behavior and in turn push corporations to change their practices to maintain profit.
  • Student activism – Killer Coke
  • Worker’s Rights Consortium Example
  • Challenges:
    • hard to leverage small brands or brands that are not commonly known (“household brands”)
    • civil society is often thought of as the “global corporate responsibility police force” -  while it can leverage power in particular cases, it does not have the capacity to act in that role in all cases at all times
• Conflict Minerals Law
• Unions Example – are there ways to utilize unions to change corporate practices?
• Appealing to Investor Responsibility – Investors are becoming an increasingly more important actor in issues of corporate responsibility.
• Utilizing international human rights mechanisms to make domestic impact - Universal Periodic Review

Opportunities for Developing New Tactics

Regulating the trade of conflict minerals – the Dodd-Frank Wall Street Reform and Consumer Protection Act endows government with the power to break up companies and oversee businesses in order to protect consumers.

• Legislation in the works in California demanding transparency regarding conflict minerals in the Congo

Disrupting the Commodity-Chain – this post features an example of how consumers can mobilize to pressure supply chains that utilize slave labor in Brazil to comply with human rights.

Resources

• Corporate Accountability for Human Rights Abuses: A Guide for Victims and NGOs on Recourse Mechanisms
• The Business and Human Rights Resource Center - a key resource in the field includes a page devoted exclusively to extraterritorial jurisdiction here.
• Extraterritorial Obligations Consortium
• A Guide for Integrating Human Rights into Business management
• Human rights and business – including  Country Risk Assessments
• New Tactics Resource: Human Rights and the Corporation: The development of the Human Rights Compliance Assessment.
• Country-specific reports regarding access to justice for human rights abuses involving corporations: Netherlands, Poland, and South Africa published by ICJ.

Articles and Papers Regarding Extraterritorial Jurisdiction

• The Right to Food: Holding Global Actors Accountable Under International Law
• Extraterritorial Jurisdiction: Lessons for the Business and Human Rights Sphere from Six Regulatory Areas
• Extraterritorial Jurisdiction as a tool for improving the Human Rights Accountability of Transnational Corporations
• Extraterritorial Jurisdiction in the European Union – A Study of the Laws and Practice in the 27 Member States of the European Union