4
territory and/or jurisdiction. Nor are they generally prohibited from doing so,
provided there is a recognized jurisdictional basis. Within these parameters
some human rights treaty bodies recommend that home States take steps to
prevent abuse abroad by business enterprises within their jurisdiction.
There are strong policy reasons for home States to set out clearly the
expectation that businesses respect human rights abroad, especially where
the State itself is involved in or supports those businesses. The reasons include
ensuring predictability for business enterprises by providing coherent and
consistent messages, and preserving the State’s own reputation.
States have adopted a range of approaches in this regard. Some are
domestic measures with extraterritorial implications. Examples include
requirements on “parent” companies to report on the global operations of
the entire enterprise; multilateral soft-law instruments such as the Guidelines
for Multinational Enterprises of the Organisation for Economic Co-operation
and Development; and performance standards required by institutions
that support overseas investments. Other approaches amount to direct
extraterritorial legislation and enforcement. This includes criminal regimes
that allow for prosecutions based on the nationality of the perpetrator
no matter where the offence occurs. Various factors may contribute to
the perceived and actual reasonableness of States’ actions, for example
whether they are grounded in multilateral agreement.
B. Operational principles
General State regulatory and policy functions
3. In meeting their duty to protect, States should:
(a) Enforce laws that are aimed at, or have the effect of, requiring
business enterprises to respect human rights, and periodically to
assess the adequacy of such laws and address any gaps;
(b) Ensure that other laws and policies governing the creation and
ongoing operation of business enterprises, such as corporate law,
do not constrain but enable business respect for human rights;
(c)
Provide effective guidance to business enterprises on how to
respect human rights throughout their operations;
(d) Encourage, and where appropriate require, business enterprises
to communicate how they address their human rights impacts.