ABSTRACT
The SRSG’s ‘critical distinction’ between ‘direct extraterritorial jurisdiction’ and ‘domestic measures with extraterritorial implications’ obscures another critical distinction, namely that between extraterritorial obligations imposed on states by virtue of international human rights law and states’ domestic policy rationales to protect human rights against extra-territorial corporate violations. While the UNGP’s marginalisation of the former is the upshot of the SRSG’s (negative) assertion that states ‘are not generally required… to regulate the extraterritorial activities of businesses’, their championing of the latter relates to his (positive) assertion that states are not ‘prohibited from doing so, provided there is a recognized jurisdictional basis’.51 However, the question whether states are permitted to assert extraterritorial authority over corporate perpetrators of human rights violations is not reducible to the question whether they are obligated to protect third-country victims against corporate violations. Whereas extraterritorial jurisdiction in general international law is a function of state sovereignty and concerns the state’s entitlement to exercise jurisdiction abroad,52 extraterritorial jurisdiction under international human rights treaties is a function of protecting the rights of the individual and concerns the state’s obligations when exercising jurisdiction abroad. Put differently, whereas the former establishes whether the state has jurisdiction to act extraterritorially, the latter establishes whether an extraterritorial act brings the individual within the state’s jurisdiction for the purpose of the state’s extra-territorial obligations under international human rights law.53
