It is well accepted that host states have a duty to protect human rights from the adverse impacts of business conduct. It is also commonly accepted that some host states (arguably, many) lack the capacity or will (or both) to regulate effectively to prevent and remedy human rights violations. More controversial is the claim that the state duty to protect attaches to the home state where the parent entity of a transnational or multinational enterprise is based (domiciled). The home state is then said to have (or, depending on who you ask, it should have) an obligation to regulate and adjudicate to prevent and remedy transnational human rights violations arising from the operations of the corporate enterprise.[1] This type of regulation or adjudication is very often described as ‘extraterritorial’, a terminology that has been adopted in various texts, including the General comment No. 24 (2017) on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities (see III.C. Extraterritorial Obligations). The choice of phrase is not surprising as it follows the wording of the 2013 Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, drafted by the expert members of the ETO Consortium.

The 2011 Guiding Principles on Business and Human Rights also use the language of extraterritoriality, notably in the Commentary to Principle 2, but take a different approach, suggesting that the exercise of home state jurisdiction is encouraged but not required (a permissive approach). The Commentaries distinguish between domestic measures with extraterritorial implications and direct extraterritorial legislation, following the distinction made in a keynote speech in Stockholm in 2009 where Prof John Ruggie described extraterritorial jurisdiction as “the elephant in the room that polite people have preferred not to talk about.”

While extraterritoriality is frequently invoked in the business and human rights context, the purpose of this blog is to draw attention to the problematic nature of this terminology, whether used to refer to the scope of the jurisdictional reach of state regulation or the adjudicative jurisdiction of courts, or whether invoked to claim the existence of state obligations. My key points are these: first, the definition of extraterritorial is notoriously unclear and so contributes greatly to confusion rather than providing essential clarity – and so, certainty – as to the nature and scope of the relationships to which state jurisdiction or obligations attach. Secondly, as a binary, invocation of the word extraterritorial serves to reinforce the impermeable boundaries of state territorial sovereignty, rather than encouraging recognition of and responsibility for pre-existing and interdependent cross-border relationships.

The problem of imprecision was noted by Professor Andreas Lowenfeld in 1996, when he observed that efforts to satisfactorily define ‘extraterritorial jurisdiction’ were ‘doomed to failure.’[2] As I have explored elsewhere,[3] it is possible and indeed necessary to clarify the nature of cross-border harms in a meaningful way when discussing environmental damage, by, for example, distinguishing between transboundary border-crossing harms that cause damage within the territory of another state, and global commons harms that impact areas beyond the jurisdiction of any state, as well as common concern harms that impact us all. Harm arising from the movement of hazardous technologies associated with foreign direct investment across borders should then be distinguished and described as transnational harm.  There is no place in this analysis for a word like ‘extraterritorial’ which simply points without precision outside the territory of the regulating state. Yet in recent practice, the seductiveness of the idea of ‘extraterritorial obligations’ has led to it being invoked in the Philippines climate petition to argue in support of the existence of the right of a state to exercise jurisdiction to investigate climate harms felt within its own territory by its own people.[4] While clearly the nature of carbon major defendants creates complexities, the language of extraterritoriality is not helpful here and arguably both confuses and risked undermining the urgent claims of the petitioners (fortunately, the Philippine Human Rights Commission has pursued the investigation).

My claim here is that in the business and human rights context more precise use of terminology to describe the nature of the relationships at issue should similarly provide greater clarity and certainty. As the exercise of adjudicative jurisdiction by a home state court over alleged human rights violations in a host state follows a pre-existing cross-border relationship that arises from the nature of the transnational corporate form, it would be most appropriate to describe this as an exercise of transnational jurisdiction. This could be distinguished from an exercise of adjudicative jurisdiction over a foreign corporation with which the adjudicating state has no meaningful connection, and with regard to harms that arise entirely within a third state. While this example could be described as involving an exercise of extraterritorial jurisdiction, it would be more fruitful to focus on language that could justify such an assertion of jurisdiction, such as an exercise of universal jurisdiction over violations of erga omnes or jus cogens norms. Similar clarification would be in order in the context of state obligations.

The second point is more nuanced, yet is suggested by Lowenfeld’s claim that when the phrase ‘extraterritorial jurisdiction’ is used, the ‘authors or editors or sponsors are attempting to communicate an attitude before the audience has read or heard a single phrase.’[5]  The concern here is that, as the opposite of ‘territorial’, the word ‘extraterritorial’ is associated with acts that are at a minimum illicit, and may even be illegal. The inclination to associate extraterritorial with illicitness if not illegality arises from the deeply held yet rarely articulated belief that effective statehood is premised upon impermeable sovereign boundaries. An exercise of extraterritorial jurisdiction by its very nature is therefore a violation of host state sovereignty. This observation may seem counterintuitive in light of the extensive efforts that have been made by many to    claim extraterritoriality as a state obligation particularly over human rights. Notably, even the authors of the Maastricht Principles were aware of this difficulty, and Mark Gibney has suggested that the discussion of terminology should not be necessary as ‘“human rights” should convey the understanding that all people have human rights and all states have the responsibility to protect those rights – for all people.’[6]

As I have argued elsewhere,[7] the invocation of the territorial/extraterritorial boundaries of statehood reinforces in our imagination a view of the world as made up of autonomous individual, independent, and bounded sovereign states that can thrive on their own with no help from others. Yet reality is very different. In a time of climate and biodiversity crisis, with impacts felt most egregiously by the most vulnerable, it is long past time for us to work actively to acknowledge the ecological interconnectedness and interdependence of our world. One way to do this is by adopting language that fosters shared responsibility for existing relationships across borders, together with a duty to co-operate with others, rather than risk inadvertently undermining responsibilities through the invocation of impermeable sovereign walls.

[1] Many academic contributions examine this issue. For a sample of my own writings on point, see: Sara L Seck, “Conceptualizing the Home State Duty to Protect Human Rights”, in Karin Buhman, Mette Morsing, & Lynn Roseberry, eds., Corporate Social and Human Rights Responsibilities: Global Legal and Management Perspectives, (Palgrave Macmillan, 2011) 25-51; Sara L Seck, “Canadian Mining Internationally and the UN Guiding Principles for Business and Human Rights” (2011) 49 Canadian Yearbook of International Law 51-116; Sara L Seck, “Transnational Business and Environmental Harm: A TWAIL Analysis of Home State Obligations” (2011) 3(1) Trade, Law & Development 164-202: http://www.tradelawdevelopment.com/index.php/tld/issue/archive; Sara L Seck, “Unilateral Home State Regulation: Imperialism or Tool for Subaltern Resistance?” (2008) 46:3 Osgoode Hall Law Journal 565 -603, online: https://digitalcommons.osgoode.yorku.ca/ohlj/vol46/iss3/5 ; Sara L Seck, “Home State Responsibility and Local Communities: The Case of Global Mining” (2008) 11 Yale Human Rights & Development Law Journal 177-206, online: https://digitalcommons.law.yale.edu/yhrdlj/vol11/iss1/10.

[2] Seck, 2008 Yale HRDLJ, ibid at 10 (fn 46) citing Lowenfeld at 16. See Andreas Lowenfeld, International Litigation and the Quest for Reasonableness: Essays in Private International Law (1996).

[3] Seck, 2011 Trade, Law & Development, note 1 at 173-182. See also Sara L Seck, Blog Post, “Kiobel and the E-word: Reflections on Transnational Environmental Responsibility in an Interconnected World” (July 5, 2013), posted on Law at the End of the Day: http://lcbackerblog.blogspot.ca/2013/07/sara-seck-on-kiobel-and-e-word.html

[4] Sara L Seck, “Revisiting Transnational Corporations and Extractive Industries: Climate Justice, Feminism, and State Sovereignty” (2017) 26:2 Transnational Law & Contemporary Problems 383-413.

[5] Seck, 2008 Yale HRDLJ note 1 at 10 (fn47) citing Lowenfeld at 16.

[6] Sara L Seck, “Moving Beyond the E-word in the Anthropocene”, Daniel S Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala, eds, The Extraterritoriality of Law: History, Theory, Politics (Routledge, 2019) 49-66, at 57, citing Mark Gibney, “On Terminology: Extraterritorial Obligations” in Malcolm Langford, Wouter Vandenhole, Martin Scheinin, and Willem van Genugten (eds), Global Justice, State Duties: The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law (Cambridge: Cambridge University Press, 2013) 32-47 at 32.

[7] Seck, ibid. See further Sara L Seck, “Relational Law: Re-imagining Tools for Environmental and Climate Justice” (2019) 31:1 Canadian Journal of Women and the Law, special issue, 151-177 (forthcoming).

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