ABSTRACT
The subject-based approach to international human rights law disentangles the triangular relationship between states, corporate human rights abusers and victims of human rights violations mediated by state territory into de-territorialised relationships between the state and the victim and the state and the perpetrator constituted by state power and control. By de-centring human rights obligations from state territory, this approach is instrumental in addressing a constellation of human rights violations of particular concern to ‘business and human rights’, namely where the corporate perpetrator (or a constituent part of it), is located on the state’s territory while the victim resides on the territory of another state.71 In these cases, the influence and control a state asserts over a corporate human rights abuser within its territorial borders constitutes an assertion of state power in relation to third-country victims that attracts a corresponding human rights obligation to protect against extraterritorial corporate violations. The territorial location of the corporate perpetrator thus not only determines whether states are permitted to protect human rights against extraterritorial corporate abuse (the SRSG’s distinction between ‘direct extraterritorial jurisdiction’ and ‘domestic measures with extraterritorial implications’). It is also decisive for establishing a state’s human rights obligations under international law to protect third-country victims against corporate-related human rights violations. Moreover, the territorial location of the corporate perpetrator influences the scope of such positive extraterritorial human rights obligations. With regard to corporate actors residing outside the state’s territory, that state’s positive human rights obligations are delimited by its legal competence to exercise extraterritorial jurisdiction as it cannot be considered ‘reasonable’ or ‘appropriate’ to require states to take positive steps to protect human rights in violation of general international law.72 Such concerns are mitigated by corporate presence within the state’s territorial jurisdiction, which entails that its extra-territorial positive human rights obligations to protect third-country victims against corporate violations will be both more stringent and encompassing.
