Extraterritoriality and the Construction of International Governance Frameworks for Business and Human Rights

Nabih Haddad

Master’s candidate at the School of International Affairs, Pennsylvania State University

Research Associate, The National Forum on Higher Education for the Public Good The University of Michigan, Ann Arbor, Michigan.

Introduction• What is Extraterritoriality?

Extraterritoriality is a "situation in which state powers (legislative, executive or judicial) govern relations of law situated outside the territory of the state in question" (Salmon, 2001: 491)

• Implications for business and human rights within global frameworks

Introduction (cont’d)• United Nations “Protect, Respect and Remedy”

Framework for Business and Human Rights (UN Framework)• First Global Standard for Business and Human Rights

• Organisation for Economic Co-operation and Development’s Guidelines for Multinational Enterprises (OECD Guidelines)• Recommendations on Corporate Social Responsibility

(CSR) measures for Multinational Corporations (MNC)

Introduction (cont’d)• Both global policy frameworks provide a space for

extraterritoriality• The ability to project domestic legal frameworks

beyond a states territorial limits• Aim to regulate MNC• Enforce global standards

Extraterritoriality• Controversial• A colonial legacy

Bhopal Disaster• December, 1984• Methyl isocyanine gas leaked from the Union

Carbide India plant, a subsidiary of the US Union Carbide Plant

• In just a few days, more than 3,000 people died• In total, this gas exposed about 500,000 people

Bhopal Disaster (cont’d)

• Why did this happen?• Chemical reaction of leaked gas• Union Carbide denied the blame• Poor regulations• Corporate neglect

Bhopal Disaster (cont’d)• Grievances of victims• Not handled well, only $550 awarded per person• The spread of “gas victims’ colonies”

Bhopal Disaster (cont’d)

• One of the worst industrial disasters in history• Illustrated the inability of legal systems to deal

with a large scale tragedy• Massive and transnational

The United Nations (UN) Framework

• Aimed to construct a global policy framework to address human rights abuses

• Most successful – The UN Framework• Prevents adverse Human Rights effects by

international buinsess

United Nations (Cont’d)

• Three Pillar Approach

• the state duty to protect human rights• corporate responsibility to respect human rights• access to effective remedies for those adversely

affected by business activities

United Nations (Cont’d)

• In 2011, the United Nations Human Rights Council (UNHRC) endorsed the Guiding Principles on Business and Human Rights (Guiding Principles)

• Policy Framework that would “operationalize” the UN Framework

Guiding Principals

• 31 total guiding principals• Extraterritorial provisions• Guiding principal 2• Allows for the exercise for extraterritorial jurisdiction

Extraterritorial Jurisdiction: Home State Regulation

• International norm creator• University of Western Ontario Professor, Sara Seck,

expert on transnational business and human rights• TWAIL perspective

Conclusion• These 2 global frameworks provide a space for

extraterritorialism• Suggest a shift• Domestic to international law

• Aim to use this as an international norm creator ultimately pushing for human rights