The Ruggie Rules: Applying Human Rights Law to Corporations

Raoul Wallenberg Institute Human Rights Library

Volumn 39, Issue , 2012, Pages 51-83

  Knox, John H ^a  

^a WAKE FOREST UNIVERSITY   (United States)

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EID: 85179412448     PISSN: 13883208     EISSN: None     Source Type: Book Series    
DOI: 10.1163/9789004225794_003     Document Type: Chapter

References (111)

1. The Statute provides jurisdiction to US courts for “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”. 28 U.S.C. § 1350.
2. See Human Rights Commission Res. 2005/69, U.N. Doc. E/CN.4/2005/135 (2005), pp. 268–270, para. 1(a).
3. Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc. E/ CN.4/2006/97 (2006), para. 54 (hereafter ‘2006 Interim Report’).
4. Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev. 2 (2003) (hereafter ‘Draft Norms’). See also Sub-Commission on the Promotion and Protection of Human Rights, Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/38/Rev. 2 (2003); D. Weissbrodt and M. Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’, 97 Am. J. Int’l L. (2003) p. 901.
5. Sub-Commission Res. 2003/16, U.N. Doc. E/CN.4/Sub.2/2003/L.11, at p. 52 (2003).
6. 2006 Interim Report, Am. J. Int’l L. note 3, para. 55.
7. Draft Norms, Am. J. Int’l L. note 4, para. 1. The Norms define “other business enterprise” to include “any business entity, regardless of the international or domestic nature of its activities” (para. 21).
8. Am. J. Int’l L., paras. 2–9.
9. Sub-Commission Res. 2003/16, Am. J. Int’l L. note 5, pmbl. (“the Norms, as explicated by the Commentary, … reflect most of the current trends in the field of international law, and particularly international human rights law, with regard to the activities of transnational corporations and other business enterprises”). See also Weissbrodt & Kruger, supra note 4, p. 913 (describing the Norms as a “restatement of international legal principles applicable to companies”).
10. Sub-Commission Res. 2003/16, supra note 5, paras. 5–7. By itself, monitoring of compliance with standards does not indicate whether the standards are legal (since non-legal standards may also be monitored), but it may help to promote the general practice necessary to support the requirements of customary international law. See L. C. Backer, ‘Multinational Corporations, Transnational Law: the United Nations’ Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility in International Law’, 37 Colum. Hum. Rts. L. Rev. (2005) p. 287, at pp. 380–382 (suggesting that the Norms would affect customary international law through changing corporate behaviour directly, bypassing the need for formal state consent).
11. See D. Kinley and R. Chambers, ‘The UN Human Rights Norms for Corporations: The Private Implications of Public International Law’, 6 Hum. Rts. L. Rev. (2006) p. 447, at p. 491.
12. International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, 999 UNTS 171, Articles 2 and 3; International Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966, 999 UNTS 3, Articles 2 and 3.
13. Slavery Convention, 25 September 1926, 60 LNTS 253, Article 2; ICCPR, supra note 12, Article 8. See also Abolition of Forced Labour Convention (ILO 105), 25 June 1957, 320 UNTS 291, Articles 1 and 2.
14. The following several paragraphs draw on a more detailed account of private duties under human rights law in J. H. Knox, ‘Horizontal Human Rights Law’, 102 Am. J. Int’l L. (2008) p. 1, at pp. 18–31. See also J. K. Cogan, ‘The Regulatory Turn in International Law’, 52 Harv. Int’l L.J. (2011) p. 321 (examining the rise of indirect private duties in international law generally); M. Hakimi, ‘State Bystander Responsibility’, 21 Eur. J. Int’l L. (2010) p. 341 (examining state duty to protect human rights).
15. ICCPR, Eur. J. Int’l L., note 12, Article 2(1).
16. Human Rights Committee, General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004);
17. S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary 24 (2000);
18. M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 36–38 (1993).
19. See e.g. Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 12, The Right to Adequate Food, U.N. Doc. E/C.12/1999/5 (1999), para. 15 (interpreting the International Covenant on Economic, Social and Cultural Rights); Z v. United Kingdom, 34 Eur. H.R. Rep. 3 (2002), para. 73 (European Convention on Human Rights); Commission Nationale de Droits d’Homme et des Libertes v. Chad, Comm. No. 74/92, 2000 Afr. H.R.L. Rep. 66, 68 (1995), para. 20 (African Charter on Human and Peoples’ Rights); Velasquez Rodriguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4 (1988), para. 172 (American Convention on Human Rights).
20. General Comment No. 31, supra note 16, para. 8; Velasquez Rodriguez, ibid., para. 172; A. Reinisch, ‘The Changing International Legal Framework for Dealing with Non-state Actors’, in P. Alston (ed.), Non-state Actors and Human Rights (Oxford University Press, 2005) p. 37, at p. 79.
21. See e.g. Convention on the Elimination of All Forms of Racial Discrimination (CERD), 21 December, 1965, 660 UNTS 195, Article 5(f); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 18 December 1979, 1249 UNTS 13, Article 13(b); Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO 182), 17 June 1999, 2133 UNTS 161.
22. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19, Violence Against Women (1992), U.N. Doc. A/47/38 (1992). The most active regional tribunal in the specification of indirect private duties is the European Court of Human Rights. For descriptions of its work in this area, see A. Clapham, Human Rights Obligations of Non-state Actors (Oxford University Press, 2006) pp. 349–420; A. Mowbray, The Development of Positive Obligations Under the European Convention on Human Rights (Hart Publishing, Oxford, 2004).
23. Declaration on the Elimination of Violence Against Women, General Assembly Res. 48/104 (1993). See also Report of the Special Rapporteur on Violence Against Women, Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women; The Due Diligence Standard as a Tool for the Elimination of Violence Against Women, U.N. Doc. E/CN.4/2006/61 (2006) para. 29 (arguing that customary international law now requires states “to prevent and respond to acts of violence against women with due diligence”).
24. Although for historical reasons international criminal law and human rights law are often treated as distinct fields, there is a great deal of overlap between them. In essence, international criminal law establishes direct private duties that correlate to particular human rights, especially the right to life. See Knox, supra note 14, pp. 24 and 27–31.
25. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, Article 1.
26. Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, Article 17.
27. The preference for local resolution of human rights issues appears in many forms, including the requirement that claimants to human rights tribunals and quasi-tribunals first exhaust available local remedies. See e.g. Optional Protocol to the ICCPR, 16 December 1966, 999 UNTS 302, Article 2.
28. CEDAW, supra note 19, Article 2(3) (emphasis added). For equivalent language, see International Convention on the Rights of Persons with Disabilities, 13 December 2006, 46 ILM 443, Article 4(e).
29. CESCR, General Comment No. 15, The Right to Water, U.N. Doc. E/C.12/2002/11 (2002), para. 23 (emphasis added). For examples of similar statements, see Special Representative of the Secretary-General, State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties; an overview of treaty body commentaries, U.N. Doc. A/HRC/4/35/Add. 1 (2007), paras. 18–38.
30. See e.g. Report of the Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, U.N. Doc. A/HRC/12/26 (2009) (reviewing the effects of the shipbreaking industry on human rights).
31. J. Paust, ‘Human Rights Responsibilities of Private Corporations’, 35 Vand. J. Transnat’l L. (2002) p. 801, at p. 810.
32. E.g. ICCPR, supra note 12, Article 2(1); ICESCR, supra note 12, Article 2(1); CERD, supra note 19, Article 2; CEDAW, supra note 19, Article 2; Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, Article 2(1); European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221, Article 1(1); American Convention on Human Rights, 22 November 1969, 1144 UNTS 123. The African regional human rights treaty does include some private duties, but those duties are converse (i.e. owed by the individual to the state), rather than correlative (owed by the individual in respect of other individuals’ human rights). African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217. See Knox, supra note 14, pp. 14–18.
33. Universal Declaration of Human Rights, GA Res. 217A (III), U.N. Doc. A/810, at p. 71, pmbl.
34. See J. Zerk, Multinationals and Corporate Responsibility: Limitations and Opportunities in International Law (Cambridge University Press, 2006) pp. 276–277. Some international instruments, notably the UN Global Compact and the OECD Guidelines for Multinational Enterprises, do call on corporations to respect human rights, but those instruments do not purport to be legally binding.
35. Human Rights Commission, Dec. 2004/116, U.N. Doc. E/CN.4/2004/127 (2004), pp. 332–333.
36. Report of the United Nations High Commissioner on Human Rights on the responsibilities of transnational corporations and related business enterprises with regard to human rights, U.N. Doc. E/CN.4/2005/91 (2005) (hereafter ‘2005 OHCHR report’).
37. J. G. Ruggie, ‘Business and Human Rights: The Evolving International Agenda’, 101 Am. J. Int’l L. (2007) p. 819, at p. 822, note 17.
38. 2006 Interim Report, Am. J. Int’l L., note 3, para. 55.
39. Am. J. Int’l L., para. 59.
40. Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie: Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, U.N. Doc. A/HRC/4/35 (2007), para. 44, (hereafter ‘2007 Mapping Report’).
41. As Ruggie himself noted, in the course of describing multi-stakeholder initiatives such as the Kimberley Process Certification Scheme, as soft law approaches “strengthen their accountability mechanisms, they also begin to blur the lines between the strictly voluntary and mandatory spheres for participants.” John Ruggie: Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, para. 61.
42. See D. McBarnet, ‘Corporate Social Responsibility Beyond Law, Through Law, for Law: the New Corporate Accountability’, in D. McBarnet, A. Voiculescu and T. Campbell (eds.), The New Corporate Accountability: Corporate Social Responsibility and the Law (Cambridge University Press, 2007) p. 9, at pp. 25–27.
43. See M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’, 52 International Organization (1998) p. 887, at p. 903.
44. See generally J. G. March and J. P. Olsen, Rediscovering Institutions: The Organizational Basis of Politics (Free Press/Macmillan, 1989).
45. See R. Mares, ‘Global Corporate Social Responsibility, Human Rights and Law: An Interactive Regulatory Perspective on the Voluntary-Mandatory Dichotomy’, 1 Transnat’l Legal Theory (2010) p. 221, at pp. 238–239.
46. International Council on Human Rights Policy, Beyond Voluntarism: Human Rights and the Developing Legal Obligations of Companies (2002) p. 3.
47. Although this is a widespread view, it may be mistaken. It is possible to read the language of the ATS, which refers to torts “committed in violation of the law of nations”, as including tortious actions taken in violation of indirect as well as direct duties imposed by international law. Including indirect duties would not open the door to vast numbers of claims, because the Supreme Court has limited the scope of claims to those for violations of international legal norms with no less “definite content and acceptance among civilized nations than the historical paradigms [such as piracy] familiar when [the ATS] was enacted” in the late 18th century. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004).
48. 2006 Interim Report, supra note 3, para. 66.
49. See J. Ruggie, ‘Treaty Road Not Travelled’, Ethical Corporation (6 May 2008) pp. 42–43.
50. Special Representative of the Secretary-General, Protect, Respect and Remedy: a Framework for Business and Human Rights, U.N. Doc. A/HRC/8/5 (2008), para. 9 (hereafter ‘2008 Framework Report’);
51. Special Representative of the Secretary-General, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy’ Framework, U.N. Doc. A/HRC/17/31 (2011) (hereafter ‘Guiding Principles’).
52. 2008 Framework Report, supra note 50, para. 82; Business and Human Rights: Towards Operationalizing the “Protect, Respect and Remedy” Framework, U.N. Doc. A/HRC/11/13 (2009), para. 87; Guiding Principles, supra note 50, para. 25.
53. Joint Civil Society Statement on the Draft Guiding Principles on Business and Human Rights (31 January 2011), available at .
54. Human Rights Council Res. 17/4, U.N. Doc. A/HRC/RES/17/4 (2011), paras. 1 and 6(a).
55. The instrument could also address other issues, such as the extraterritorial scope of states’ duty to protect, an issue discussed below.
56. Amnesty International, A Call for Action to Better Protect the Rights of Those Affected by Business-Related Human Rights Abuses (14 June 2011), available at ;
57. International Federation of Human Rights (FIDH), International Commission of Jurists (ICJ), Human Rights Watch (HRW), International Network for Economic, Social and Cultural Rights (ESCR-Net), Rights & Accountability in Development (RAID), Joint Civil Society Statement on Business and Human Rights to the 17th Session of the UN Human Rights Council (15 June 2011), available at .
58. J. G. Ruggie, Presentation of Report to United Nations Human Rights Council (30 May 2011), available at .
59. See also J. G. Ruggie, Recommendations on Follow-up to the Mandate (11 February 2011), available at .
60. D. Kinley, J. Nolan and N. Zeral, ‘“The Norms Are Dead! Long Live the Norms!” The Politics Behind the UN Human Rights Norms for Corporations’, in McBarnet, Voiculescu and T. Campbell, supra note 41, p. 459.
61. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 157 (2d Cir. 2010) (Leval, J., concurring in judgment).
62. Security Council Res. 827, U.N. Doc. S/RES/827 (1993); Security Council Res. 955, U.N. Doc. S/RES/955 (1994).
63. The two military charters for trials of war criminals appear to contemplate only prosecutions of individuals. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, 82 UNTS 279, Article 6; Charter of the International Military Tribunal for the Far East, 19 January 1946, Article 5. Historical evidence indicates that the Nuremberg prosecutors considered bringing actions against corporations under Control Council Law No. 10, which has somewhat broader language than the charters, although it, too, does not explicitly provide jurisdiction over corporations. In the event, no such prosecutions were attempted. See J. A. Bush, ‘The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said’, 109 Colum. L. Rev. (2009) p. 1094, at pp. 1098 and 1149–1160.
64. To take one example, the Genocide Convention was adopted in 1948, 50 years before states agreed to create the International Criminal Court.
65. VIII Trials of War Criminals Before the Nuernberg Military Tribunals (1952) pp. 1132–1133 and 1140.
66. Cf. S. R. Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’, 111 Yale L.J. (2001) p. 443, at pp. 477–478, and Doe VIII v. Exxon Mobil Corporation, __ F.3d __, 2011 WL 2652384 (D.C. Cir. 2011), p. 74 (citing Farben as support for direct corporate duties under customary law), with Brief of Amicus Curiae Professor James Crawford in Support of Conditional Cross-Petitioner, p. 9, on petition for a writ of certiorari in Presbyterian Church of Sudan v. Talisman Energy Inc., and Kiobel, 621 F.3d at 134–136 (majority opinion) (emphasising that the tribunal did not have jurisdiction over corporations). See also Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1017 (7th Cir. 2011); Doe VIII v. Exxon Mobil, in this footnote, p. 75 (pointing to Allies’ decision at the end of World War II to break up German corporations that had aided the Nazi regime as evidence that the corporations were viewed as having violated customary international law).
67. France proposed such an extension during the negotiation of the Rome Statute, but it was not adopted. See Andrew Clapham, ‘The Question of Jurisdiction Under International Criminal Law over Legal Persons: Lessons Learned from the Rome Conference on an International Criminal Court’, in M. T. Kamminga and S. Zia-Zarifi (eds.), Liability of Multinational Corporations Under International Law (Kluwer Law International, 2000) p. 139.
68. A. Ramasastry and R. C. Thompson, Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave Breaches of International Law (2006), available at .
69. See e.g. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).
70. For a description of a settlement, see I. Wuerth, ‘Wiwa v. Shell: The $15.5 Million Settlement’, 13 ASIL Insights (2009) p. 14. The pending cases include Sarei v. Rio Tinto, PLC, 625 F.3d 561 (9th Cir. 2010) (alleging that Rio Tinto committed war crimes and crimes against humanity in the course of mining operations on Bougainville in Papua New Guinea);
71. Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009) (alleging that Pfizer carried out medical tests on Nigerian children without their consent); In re South African Apartheid Litigation, 617 F.Supp.2d 228 (S.D.N.Y. 2009) (alleging violations by many companies in connection with the apartheid regime in South Africa).
72. Decisions assuming that the ATS may reach corporate conduct without examining the issue separately from other types of non-state conduct include Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002), vacated, 395 F.3d 978 (9th Cir. 2003);
73. Wiwa v. Royal Dutch Shell Petroleum Co., 226 F.3d 88 (2d Cir. 2000).
74. Decisions holding that corporations may be liable include Flomo, 643 F.3d at 1017-21; Doe VIII v. Exxon Mobil, supra note 77; Sinaltrainal v. Coca-Cola Co., 578 F.2d 1252, 1263 (11th Cir. 2009); Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702, 753 (D. Md. 2010); In re XE Services Alien Tort Litigation, 665 F. Supp. 2d 569, 588 (E.D. Va. 2009). Decisions denying such liability include Kiobel, 621 F.3d at 111; Doe v. Nestle, S.A., 748 F.Supp.2d 1057, 1143–1144 (C.D. Cal. 2010). To complicate matters, the issue of corporate liability under the ATS does not necessarily turn on whether corporations are directly liable under international law, both because courts could interpret the ATS to include indirect as well as direct duties, see supra note 45, and because some courts have based corporate liability under the statute on their reading of US law rather than international law. See e.g. Doe VIII v. Exxon Mobil, supra note 77, at p. 84 (“domestic law, i.e., federal common law, supplies the source of law on the question of corporate liability”).
75. In June 2011, the plaintiffs in Kiobel, one of the decisions denying corporate liability, requested the Supreme Court to review the decision. Petition for Writ of Certiorari, available at .
76. E.g. Presbyterian Church of Sudan v. Talisman Energy, Inc., 2010 WL 2568101, on petition for a writ of certiorari from the Supreme Court to the US Court of Appeals for the Second Circuit (2010) (brief of amicus curiae Professor James Crawford); Presbyterian Church of Sudan v. Talisman Energy Inc., on petition for writ of certiorari (2010) (brief of amicus curiae Professor Malcolm N. Shaw); Sarei v. Rio Tinto PLC, 2009 WL 6023779 (9th Cir. 2009) (motion for leave to file amicus curiae brief of international law professors); Balintulo v. Daimler AG, 2009 WL 7768620 (2d Cir. 2009) (letter brief of amici curiae international law professors).
77. Doe v. Nestle, 748 F.Supp.2d at 1141.
78. See generally D. Cassel, ‘Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts’, 6 Nw. J. Int’l Human Rts. (2008) p. 304;
79. C. Keitner, ‘Conceptualizing Complicity in Alien Tort Cases’, 60 Hastings L.J. (2008) p. 61.
80. Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Clarifying the Concepts of “Sphere of Influence” and “Complicity”, U.N. Doc. A/HRC/8/16 (2008) para. 42.
81. Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009), cert. denied, 131 S. Ct. 79, 122 (2010). The Talisman court largely adopted a concurring opinion in an earlier case.
82. See Khulumani v. Barclay National Bank Ltd., 504 F.3d 254, 275–277 (2d Cir. 2007) (Katzmann, J., concurring).
83. Talisman, 582 F.3d at 259. See Flores v. Southern Peru Copper Co., 414 F.3d 233, 248 (2d Cir. 2003) (“[I]n order for a principle to become part of customary international law, States must universally abide by it”).
84. E.g., Brief of Amicus Curiae International Commission of Jurists, at 15–16, Presbyterian Church of Sudan v. Talisman Energy, Inc., on petition for a writ of certiorari from the Supreme Court to the US Court of Appeals for the Second Circuit (2010) (citing Rome Statute, supra note 24, Articles 25(3)(d) and 30).
85. Brief of Amicus Curiae International Law Professors, at 17–20, Presbyterian Church of Sudan v. Talisman Energy, Inc., on petition for a writ of certiorari from the Supreme Court to the US Court of Appeals for the Second Circuit, 2010 WL 1787371 (2010).
86. Petition for Certiorari, at 17, note 25, Presbyterian Church of Sudan v. Talisman Energy, Inc., 2010 WL 1602093 (2010); Brief of Amicus Curiae International Law Professors, supra note 102, at 23–24.
87. J. G. Ruggie, Remarks for ICJ Access to Justice Workshop (29 October 2009), available at <198.170.85.29/Ruggie-remarks-ICJ-Access-to-Justice-workshop-Johannesburg-29-30-Oct-2009.pdf>.
88. Report of the International Bar Association Task Force on Extraterritorial Jurisdiction (2008) p. 11; Restatement (Third) of Foreign Relations Law of the United States (1987), § 402, comment b.
89. Subsidiaries and supply chains raise complications. See O. de Schutter, Extraterritorial Jurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations (2006) pp. 29–45, available at <198.170.85.29/Olivier-de-Schutter-report-for-SRSG-re-extraterritorial-jurisdiction-Dec-2006.pdf>.
90. See State Responsibilities to Regulate and Adjudicate Corporate Activities Under the United Nations Core Human Rights Treaties: An Overview of Treaty Body Commentaries, U.N. Doc. A/HRC/4/35/Add.1 (2007), paras. 81–92;
91. Corporate Responsibility Under International Law and Issues in Extraterritorial Regulation: Summary of Legal Workshops, U.N. Doc. A/HRC/4/35/Add. 2 (2007).
92. The word “and” might suggest that a state owes duties only to individuals who are both within its territory and subject to its jurisdiction. See M. J. Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’, 99 Am. J. Int’l L. (2005) p. 119, at pp. 122–125. The dominant interpretation, however, has been that the language should be read disjunctively, to require each party to respect and ensure the rights of those within its territory and those subject to its jurisdiction. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, (July 9), para. 111;
93. T. Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Derogations’, in L. Henkin (ed.), The International Bill of Rights (Columbia University Press, 1981) p. 72, at p. 74;
94. T. Meron, ‘Extraterritoriality of Human Rights Treaties’, 89 Am J. Int’l L. (1995) p. 78, at p. 79.
95. General Comment No. 31, supra note 16, para. 10. See Legal Consequences of the Construction of a Wall, ibid., para. 111; D. McGoldrick, ‘Extraterritorial Application of the International Covenant on Civil and Political Rights’, in F. Coomans and M. T. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) p. 41, at pp. 63–65.
96. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), 1996 ICJ Rep. 595, 616 (July 11).
97. CESCR General Comment No. 3, The Nature of States Parties Obligations (1990) para. 14 (“[I]nternational cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard”).
98. General Comment No. 12, supra note 17, paras. 36–38; General Comment No. 14, The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.12/2000/4 (2000), paras. 38–42; General Comment No. 15, supra note 27, paras. 30–36; General Comment No. 17, The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author, U.N. Doc. E/C.12/GC/17 (2006), paras. 36–38;
99. General Comment No. 18, The Right to Work, U.N. Doc. E/C.12/GC/18 (2006), paras. 29–30;
100. General Comment No. 19, The Right to Social Security, U.N. Doc. E/C.12/GC/19 (2008), paras. 52–58;
101. General Comment No. 21, Right of Everyone to Take Part in Cultural Life, U.N. Doc. E/C.12/GC/21 (2009), paras. 56–59.
102. Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship Between Climate Change and Human Rights, U.N. Doc. A/HRC/10/61 (2009), paras. 86 and 99 (emphasis added).
103. See M. Craven, ‘The Violence of Dispossession: Extra-Territoriality and Economic, Social, and Cultural Rights’, in M. A. Baderin and R. McCorquodale (eds.), Economic, Social and Cultural Rights in Action (Oxford University Press, 2007) p. 71, at p. 77.
104. Ruggie did describe the law as unsettled in some of his reports, e.g. 2008 Framework Report, supra note 50, para. 19; 2009 Operationalizing Report, supra note 56, para. 15. But, at the same time, he described the treaty bodies as suggesting that states are not required to regulate corporations extraterritorially.
105. See e.g. M. Wabwile, ‘Re-Examining States’ External Obligations to Implement Economic and Social Rights of Children’, 22 Can. J.L. & Juris. (2009) p. 407, at pp. 425–428 (arguing that states’ reports to the Committee on the Rights of the Child suggests growing acceptance of extraterritorial obligations).
106. See OHCHR Report on the Relationship Between Climate Change and Human Rights, supra note 127, paras. 84–87 and 99 (describing duty of international cooperation in relation to climate change).
107. See e.g. J. B. de Mesquita, P. Hunt and R. Khosla, ‘The Human Rights Responsibility of International Assistance and Cooperation in Health’, in M. Gibney and S. Skogly (eds.), Universal Human Rights and Extraterritorial Obligations (University of Pennsylvania Press, 2010) p. 104 (describing the views of the special rapporteur on the right to health).
108. Special Representative of the Secretary-General, Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework, U.N. Doc. A/HRC/14/27 (2010), para. 47.
109. Guiding Principles, Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework, note 50, p. 7. The Commentary also reiterates that “[a]t present States are not generally required” to regulate the extraterritorial activities of businesses domiciled in their territory”.
110. Ruggie, Recommendations on Follow-up to the Mandate, supra note 66, pp. 4–5.
111. De Schutter, Recommendations on Follow-up to the Mandate, note 109, p. 21.