The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A Rebuttal

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Abstract

Scholars have suggested that 'home' states of transnational corporations (TNCs) have a legal duty to protect against human rights abuses occurring in 'host' states that may be breached by failure to regulate TNCs' extraterritorial activities. This article challenges the claim that such a duty of home states to regulate TNCs' extraterritorial human rights impacts can be said currently to exist as a matter of law. The article first summarizes the general structure of arguments made in favour of such a 'home state duty to regulate'. It then considers the foundations and meanings of extraterritorial jurisdiction in public international law and international human rights law; requirements and conditions of attribution and state responsibility for the conduct of non-state actors; and the scope and limits of 'positive obligations' to ensure the effective enjoyment of human rights, domestically and extraterritorially, as they relate to prevention of human rights abuses by TNCs.

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Methven O’brien, C. (2018). The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A Rebuttal. Business and Human Rights Journal, 3(1), 47–73. https://doi.org/10.1017/bhj.2017.29

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