An Evaluation of Two Key Extraterritorial Techniques to Bring Human Rights Standards to Bear on Corporate Misconduct. Jurisdictional Dilemma Raised/Created by the Use of the Extraterritorial Techniques

This article evaluates two key extraterritorial techniques to bring human rights standards to bear on corporate misconduct, and does so through an analysis of the jurisdictional dilemma they raise. The background to the article is the difficulty of imposing human rights standards on transnational business operating in ‘host’ countries where, for various reasons, such standards are not implemented locally, resulting in governance gaps. Civil litigation in the company’s ‘home’ state and ‘long arm’ regulation emanating from the home state are important alternative methods of establishing and enforcing human rights standards, but they engender controversy both in terms of their legitimacy under public international law and because there are a number of objections to their use that go beyond their technical legality. Concerns include intrusion into the exclusive jurisdiction of the host state to control this litigation or to determine and follow its own regulatory policy in this area, and the related concern about home state imperialism/neocolonialism. The article evaluates whether these concerns raise true dilemmas. For those that do, it offers suggestions for how to adapt or refine extraterritorial techniques.


Introduction
The background to this article is the well-documented difficulty of bringing human rights standards to bear on corporate misconduct in so-called 'host' countries 1 where, for various reasons, such standards are not upheld locally. Two key extraterritorial techniques, namely civil litigation in the company's 'home' state and 'long arm' regulation from the home state are important alternative methods of implementing human rights standards, but they engender controversy both in terms of their legality under public international law and because there are a number of objections to their use that go beyond their technical legality. The purpose of this article is to evaluate the techniques using the framework of the jurisdictional dilemma that intersects for both.
The extraterritorial application of law in any field can be a breach of the public international law principle of non-intervention 2 and, whether or not this is the case, can have serious political implications. In terms of political effects, first it can be viewed as an attempt by the regulating state to impose its policies upon the target state. This can lead to allegations of imperialism and neocolonialism, particularly when the target state is a former dependency that was subjected to imperial/colonial power. Second, the target state's exclusive territorial sovereignty may be infringed by the extraterritorial law. This can lead to conflict and state protest, for example through the use of diplomatic protests; non-recognition of laws; blocking legislation or even retaliatory measures, which can be deployed when states consider that another state's jurisdictional claim has gone too far.
There are different degrees of extraterritoriality, however. The United Nations Guiding Principles on Business and Human Rights (UNGPs) distinguish direct extraterritorial jurisdiction from domestic measures The difficult choice examined in this article is that presented both to home state judges in the tort cases under consideration when deciding whether or not to accept jurisdiction over the case 7 and to home state lawmakers debating whether to adopt the extraterritorial regulatory mechanisms. 8 It is assumed that in making the choice between these two actions, they take account of the host state's perspective.
When faced with a dilemma, one has to balance the gains and losses of each alternative or 'pole' of the dilemma in order to navigate one's way through it. Given that impunity for business-related human rights abuse that takes place in host states is commonplace, there are arguably strong reasons in favour of using the extraterritorial techniques. In practice, however, judges frequently do not accept jurisdiction over extraterritorial cases 9 and lawmakers have rejected draft laws designed to regulate the conduct of  10 This can be explained in part at least by the perceived undesirability of extending adjudication and regulation extraterritorially. Does the protection of the host state's exclusive jurisdiction merit this? There is no broad-brush answer, but rather there are nuances related to which technique is being used, which right is being protected and the roles of both home and host states in the abuse that this article explores.
The international policy background is as follows. The UNGPs address the permissive question of whether states may adopt extraterritorial measures to regulate corporate behaviour overseas of businesses domiciled in their territory and/or jurisdiction. 11 More recently, the Office of the UN High Commissioner for Human Rights has produced guidance to improve accountability and access to remedy for victims of business-related human rights abuses, 12 which draws out the challenges particular to cross-border cases and the importance of international co-operation, and makes policy recommendations to states in this regard. 13 Neither of these works addresses the legal and political ramifications for host states of home states adopting such extraterritorial measures, however, which is the contribution made by this article. The subject is highly topical in light of the current treaty negotiations at the UN Human Rights Council on a binding instrument on business and human rights.
The first substantive section (Section 2) introduces the two extraterritorial techniques. The article continues (in Section 3) by addressing the broad question of the impact on host state sovereignty of globalisation and global business structures. This is followed by a discussion (in Section 4) of whether state sovereignty is ceded in respect of norms of international human rights law and (in Subsections 4.1 and 4.2) of the legality and, beyond this, the propriety of the home state's incursion and the posited host state objection to this. Section 5 suggests ways in which the objections underlying the dilemma may be confronted in order to minimise the dilemma.

The two key extraterritorial techniques to bring human rights standards to bear on corporate misconduct
Civil litigation, primarily in this instance through cases in tort law, provides remedies to victims in the form of compensation for physical injury and property damage caused by the defendant company's negligence or foresight. 14 Sometimes more importantly to the claimants, it provides for the formal, public, legal accountability of the defendant. Tort law can also be viewed as a mechanism for behavioural regulation, using financial penalties to dissuade private actors from acting in a socially undesirable fashion. Thus although civil litigation does not generally use human rights language, it arguably implements human rights standards, by providing a cause of action against companies for harming private interests including those denominated as human rights under public international law and thereby regulating corporate behaviour. Despite this regulatory outcome, it is not an instrument of regulatory policy per se, but rather it is the decision of the court (or the negotiated settlement) in individual cases. The phenomenon of civil litigation in this context has happened as a result of lawyers attempting inventive litigation strategies to try to get a remedy for their clients. Thus, at the executive level, it has not come about as a result of the weighing up of the objectives of this type of litigation against the policy concerns implicit in these extraterritorial matters being the subject of litigation. 15 Examples of cases include Lubbe v Cape, 16 in which the company operated an asbestos factory in South Africa to low standards of health and safety, allegedly resulting in workers and people in the local communities becoming sick through exposure to asbestos dust and Choc v Hudbay Minerals, 17 in which the victims are claiming direct negligence in tort by the company for its subsidiary's actions in Guatemala, which resulted in human rights abuses including a shooting, a killing and gang rapes against members of the Q'eqchi' Mayan Community. The regulatory mechanisms referred to in this article are legislative provisions that prescribe conduct for corporations using penalties or disincentives for non-compliance and/or incentives for compliance. 18 Some also contain injunctive mechanisms whereby the prescription of certain behaviour can be enforced. Specific home state regulation of corporate misconduct impacting on human rights abroad is relatively rare, however. Examples include a law requiring companies to conduct human rights due diligence 19 and human rights reporting requirements that form part of company law 20 and securities regulation. 21 Of the two extraterritorial mechanisms under consideration, regulatory mechanisms engender less controversy than civil litigation. 22 This is because those mechanisms that have been enacted into law are modest in their extraterritorial requirements, mandating no more than that corporate nationals 23 of a certain size or that are listed on a national stock exchange report for example on their efforts to ensure that slavery and human trafficking do not occur in their overseas operations 24 or on their use of certain metals mined in the Democratic Republic of Congo and neighbouring countries. 25 The rules require reporting from foreign entities of activities that take place outside the home state territory, but enforcement takes place in the home state. Draft regulations that made greater demands on companies, requiring them to refrain from abusing human rights in their overseas operations (including through subsidiaries, associates etc),  26 In contrast, the civil litigation considered in this article involves direct adjudication over actions that take place in the host state. These cases have a connection to the home state, typically the domicile of the parent company, but the claimants are host state nationals and the harmful events have taken place in the host state. 27 There are usually allegations against the host state subsidiary or associate company, making it a co-defendant alongside the home state parent company. The fact that these allegations form the factual basis of extraterritorial civil litigation means that it is unlikely that host state courts will adjudicate over the particular wrongdoing. 28 But the application of private international law rules may lead to host state law being applied in the home state court. The article will return to the differences between litigation and regulation in this context below. First, there will be a discussion of the challenges to the notion of state sovereignty based on globalisation and the powerfulness of transnational business.

The validity of the 'sovereignty' objection in a globalised world
Criticism of extraterritoriality in the business and human rights context frequently makes reference to extraterritorial jurisdiction as an infringement of host state sovereignty. 29 This seems to cover both legal and ideological infringements. Thus, in the literature, 30 and in one of the cases, 31 the charge of infringing sovereignty is made interchangeably with that of imperialism. Some commentators question the validity of these objections, however, asking the extent to which sovereignty is sacrosanct in a globalised world. 32 Authors such as Claudio Grossman and Daniel Bradlow chart the twin developments of the growth in activities whose causes or effects transcend national boundaries and the increasing number of actors on the international level. 33 They argue that 'whatever the international legal status of states might be, the sovereign has less power, measured in terms of control over human, natural, financial and other resources, than those corporations that it is supposedly regulating.' 34 Michael Osborne picks up this point: [t]he very meaning of 'sovereignty' [has] evolved from the venerable Westphalian understanding to a broader conception of popular sovereignty -albeit still mediated, in the ordinary course, through a nation-state. 35 A conclusion on whether sovereignty has been lost, reconstituted, is in need of reinterpretation or a mix of all three is not needed here. 36 For the purposes of this article, it is clear that the transboundary nature of global business coupled with the relative lack of power of many host states when compared to that of 26 See, for example, Australian and Canadian Bills, supra notes 5 and 10. The Australian draft law would have provided for direct regulatory jurisdiction over actions that took place in host states. 27 There may however be allegations of wrongful behaviour in the home state, for instance decisions made at headquarters that result in harm occurring in the host state. 28 This may have been unlikely in any event. There may of course be parallel litigation in the home and host states, potentially brought by different claimants regarding the same harmful events. This is rarely seen in practice however -the gold miners' silicosis litigation against Anglo American South Africa Ltd is an example. UK law firm Leigh Day and Co. worked with the South African Legal Resources Centre and South African advocates to bring claims in both South Africa and the UK, see Meeran, supra note 15, p. 39. This concern is of course not confined to business and human rights cases. The provisions in the Recast Brussels Regulation (Regulation (EU) No. 1215/2012) that allow foreign plaintiffs to sue in the courts of the European Union Member State in which the defendant is domiciled gives jurisdictional footing to any tortious claim for harm that takes place overseas, provided that the domicile requirement is met. The question here is whether extraterritorial civil litigation in the business and human rights field should be encouraged or even mandated as a state policy, given the particular injustice faced by victims in these cases. Host states may be less concerned about their sovereignty when transnational business, supported by home states and protected by the company law principles of separate personality and limited liability, is often able to evade accountability for its actions at the domestic level and barely needs to concern itself with regulation at the international level. But this does not provide a carte blanche to home states to regulate and adjudicate extraterritorially. The historical context of state sovereignty is relevant too. In this light it may be questioned whether (developing country) host state sovereignty is the same as (developed country) home state sovereignty. Antony Anghie examines the background to the development of public international law including through the Mandate System of the League of Nations. 37 The Mandate System sought to convert colonial territories into sovereign states necessary for the claims to universality of international law. But what was, in his view, transferred was empty sovereignty that lacked political and economic power over the territory in question. Anghie's position fits under the umbrella of scholarship identified as Third World Approaches to International Law (TWAIL). 38 The underlying viewpoint is that public international law is an instrument of colonialism. Sara Seck applies Anghie's thesis to the business and human rights context, arguing that, given that host state sovereignty is already 'impoverished', [t]his suggests that any claim that third-world sovereignty will be infringed by first-world home state regulation is suspect to the extent that it denies the on-going history of infringement that dates from the colonial encounter to the neo-colonialism of today's economic order. 39 Acknowledging that 'ongoing history of infringement', the fear being articulated is that the use of extraterritorial techniques may continue -and perhaps further consolidate -the historical violation of third world sovereignty. 40 Or, in other words, arguments about sovereignty fail to recognise that international law and international institutions create power imbalances between home and host state, and host state and foreign corporation. But even if host state sovereignty is impoverished in comparison to that of home states, it is still capable of being infringed and, one could argue, is even more in need of protection given the imperialist history of relations between home and host state and the risk of old patterns being repeated. This is a live issue: the impoverishment of host state sovereignty is still pertinent in light of concerns about the impact on host states' sovereignty of their obligations to foreign investors under bilateral investment treaties, which they frequently enter under pressure from home states. 41 This leads scholars such as M. Sornarajah to challenge the present system of international law that allows the protection of corporate assets in the host state through investment agreements without inquiring into the duties owed by these corporations to host states. 42 A second wave of TWAIL scholarship introduces a new emphasis on how states treat their citizens. 43 Although the need for true state sovereignty for third world states is reasserted, the focus is on 'the destinies of the peoples of the third world states, as opposed to the states themselves'. 44 Through this lens, Chilene Nwapi makes a powerful point:

Rachel Chambers
Utrecht Law Review | Volume 14 | Issue 2, 2018 | Special Issue: Accountability of Multinational Corporations for Human Rights Abuses it is submitted that any argument that home state litigation of transnational corporate crimes is imperialistic and that it would erode the sovereignty of third world states (…) may well serve to encourage home states to look away from the egregious and unethical conduct of their corporations operating in the third world. 45 He goes further, saying it is possible to argue that home state concerns about their violations of third-world sovereignty are 'self-righteous and nothing but excuse disguisedly calculated to evade responsibility.' 46 This second assertion is difficult to prove. 47 The first assertion is relevant to an examination of the sources of complaint about the infringement of host stage sovereignty. This complaint can indeed be used to dissuade home states from taking action in relation to their companies. In one instance, concerns about sovereignty were raised by the corporate lobby as part of the parliamentary debate about a proposed regulatory mechanism, and could indeed have been a factor that encouraged the home state to reject the draft law, thus 'looking away' from its corporate nationals' misconduct. 48 Scrutiny should be applied when home states invoke host state concerns about exclusive jurisdiction and sovereignty as a reason not to adopt extraterritorial techniques, 49 an issue that will be returned to below in the section on host state opinion. 50 Turning now to the jurisdictional dilemma, at first sight, it seems intractable. The need for home states to exercise at least some degree of extraterritorial oversight over their corporate nationals to avoid a situation of impunity is widely acknowledged; 51 this necessarily entails some degree of incursion into the domestic affairs of the host state. 52 But how strong are the grounds for objecting to this incursion into domestic affairs whether as an impermissible infringement of exclusive jurisdiction or as an imperialist/neocolonialist act? The following sections address these questions.

Incursion into host state exclusive jurisdiction
The question of the legality of regulatory and adjudicatory interference by one state in the domestic affairs of another state will be addressed first. The precise scope of the legal duty of non-intervention in a state's domestic affairs is unclear. 53 Exclusive domestic jurisdiction over a particular issue is ceded when that issue becomes the subject of public international law norms however. What does this mean for the extraterritorial techniques to bring human rights standards to bear on corporate misconduct? Is a host state's exclusive jurisdiction ceded in such a way as to permit home state intervention through domestic adjudication and/or regulation that protects host state citizens' rights as denoted in international human rights law? This is a question both of public and of private international law. To answer it requires some historical perspective on international human rights law. The development of international human rights law following the adoption of the UN Charter and the Universal Declaration on Human Rights (UDHR) reduced the scope of domestic exclusive jurisdiction by setting limits for a state's legitimate treatment of its own population. 54 The extent of this is the subject of debate, given that the human rights language of the UN Charter was vague, simply binding states to work together to promote human rights, and the UDHR was a non-binding resolution of the UN General Assembly. At the very least, as Johan Van Der Vyver says, 'it is fair to conclude that, in those formative years, the [UN] succeeded in mustering universal support for the affirmation of faith in human rights'. 55 45 Ibid., p. 55. 46 Ibid., p. 56. 47 There are of course reasons of self-interest why states do not regulate extraterritorially, prominent among which is the view that it will place corporate nationals at a competitive disadvantage vis-à-vis their foreign counterparts. 48 See for example the debate in the Canadian legislature about Bill C-300, supra note 10, which was to contain modest extraterritorial measures had it been adopted. In the years since the adoption of the UN Charter and the UDHR, states have agreed on standards for the protection of human rights and the UN has promulgated a number of treaties and declarations. States can accept binding obligations through voluntary ratification of these covenants and conventions. 56 Some argue that the Charter and the UDHR collectively also create customary international law, either related to the whole UDHR or, at the very least, to certain articles and protections within the UDHR. 57 More contentious is the question of whether other human rights standards, such as those contained in the two covenants, are customary international law. 58 But the combination of the Charter, the UDHR and the treaties creates a web of standards, expectations and monitoring bodies that can be termed international policy of protecting human rights, some of which amount to customary international law. 59 This situation has prompted Johan Van Der Vyver to conclude: [s]tate sovereignty is thus no longer an absolute right. Even insofar as it remains a prominent principle in international relations, its implementation has, at least de facto if not de jure, become subordinate to the values embedded in the human rights doctrine. 60 Even if Van Der Vyver is correct and it is accepted among states that the human rights doctrine sets limits on the state's legitimate treatment of its own population, the question remains whether through the doctrine it can be implied that host states have consented to third party state intervention through (domestic) extraterritorial regulation and adjudication to uphold these rights. There are two aspects to this question: the legality of the third party state's intervention and the validity of the stance taken by the host state, if it takes issue with the use of the extraterritorial technique. The legality of the third party (home) state's intervention will be examined first.

The legality of the home state's intervention
A distinction between adjudication and regulatory mechanisms must be made here. The power of the host state court to adjudicate tort claims concerning foreign actors and/or activities is governed structurally by private international law. Domestic private international law, informed in some states by international agreements to which they are party such as the Recast Brussels Regulation, 61 provides the rules. 62 So long as these rules are followed, ensuring that the court has the requisite connections to the dispute, the court will have adjudicative jurisdiction, meaning that its 'intervention' is in principle lawful. 63 On the question of regulation, the commentary to the UNGPs provides that states are not generally prohibited from regulating the extraterritorial activities of business domiciled in their territory and/or jurisdiction, provided there is a recognised jurisdictional basis for so doing. 64 It continues '(…) some human rights treaty bodies recommend that home states take steps to prevent abuse abroad by business enterprises'. 65 The jurisdictional bases recognised in public international law apply to extraterritorial extensions of regulation by the state, and in particular to criminal law regulation. For example, there are certain human rights that the international community as a whole has a legal interest in protecting, 66 making the exercise of universal 56 67 There are other potentially relevant legal bases for the exercise of extraterritorial jurisdiction over corporations. States may extend their regulation over events with a foreign element under the international law principles of subjective and objective territoriality. These allow the home state to regulate wrongful activities that are commenced or consummated in the home state, even if they are completed elsewhere, such as when a criminal conspiracy takes place in the home state. An exception to the territorial principle of jurisdiction is nationality: if the parent company operating through a foreign branch, not a legally separate affiliate, commits the human rights abuse in the host state then the home state is allowed to prosecute or extend the territorial reach of its regulation on the basis of nationality. These are jurisdictional bases for a state to extend its regulation extraterritorially (prescriptive jurisdiction) but not to enforce this regulation extraterritorially. Enforcement of the regulation must occur in the home state.
To summarise, there are a limited number of jurisdictional bases for the home state's extraterritorial extension of its regulation. 68 Two of these are of fairly minor relevance to the corporate misconduct here under consideration however. In relation to the nationality exception, transnational business is not usually conducted through foreign branches, but rather through subsidiaries, associate and affiliate companies that, in accordance with company law, are separate legal entities of different nationality to the parent company. In relation to the universal jurisdiction exception, the human rights abuses in which businesses are commonly implicated are breaches of economic, social and cultural rights and, to a lesser extent, civil and political rights rather than the breaches of erga omnes obligations that found the lawful exercise of universal jurisdiction. Of potentially greater relevance to the corporate misconduct at hand, and the extraterritorial techniques that address this misconduct, are the objective and subjective territoriality principles. These principles could be engaged by conduct that falls within the territorial jurisdiction of the home state, for instance, decision making / instructions to overseas affiliates by parents companies that are put into effect in the host state.
There are other situations in which states have agreed to the extension of criminal law extraterritorially in order to protect human rights in third states. The fight against impunity for certain serious human rights violations has led to agreement under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, for instance, that states 'prosecute or extradite' alleged perpetrators present on their territory, no matter where the crime has taken place. 69 Although not a human rights instrument per se, the UN Convention against Corruption requires states to criminalise bribery of foreign public officials and thus applies to conduct overseas. 70 Similar commitments have not been made by states in the field of human rights regulation of companies, however.
Even if none of the jurisdictional bases or treaty provisions are present, it is not necessarily the case that the principle of non-intervention will be breached by extraterritorial regulation. While it can be said for certain that enforcement jurisdiction is essentially a domestic affair, 71 regulation without extraterritorial enforcement is unlikely to receive approbation as a breach of public international law. 72 Most, if not all, of the regulatory mechanisms in this field are so modest in their extraterritoriality that they come a long way from breaching the principle of non-intervention. The human rights reporting laws are a prime example. But even the more intrusive mechanisms such as the draft law considered by the Australian Government that would have prescribed conduct for the overseas subsidiaries of Australian companies is unlikely to meet the threshold for 'coercion' needed for such a breach. 73 74 In order to try to answer this, there will now be an examination of the role of the home state in the human rights abuse, and an assessment of the relevance of the home state's role to the question of the legality of its intervention, which will inform the answer to the question whether extensions of the law bringing human rights standards to bear on corporate misconduct are politically acceptable to host states.

The relevance of the home state's underlying conduct
To explore the concern about the extraterritorial techniques being an infringement of host state exclusive jurisdiction involves scrutinising the role of both the host and home state in the corporate misconduct. The host state's role will be examined below. Turning to the home state, if it supports the company in question through assistance such as the provision of export credit or political risk insurance, or by negotiating and agreeing favourable terms for its investment in the host state through a bilateral investment treaty, some would argue that this creates responsibility on the state's part to properly regulate the company, wherever it operates, and to provide access to a remedy if the company is accused of human rights abuse. Robert McCorquodale takes this argument one stage further and considers whether the home state could be held legally responsible in these circumstances. 75 Noting that states may incur responsibility under international law for the acts of non-state actors when their acts can be attributed to the state, including because the state is complicit in the activities of the non-state actor, he argues that active support by the home state of a company's activities overseas may amount to such complicity. 76 For the company to incur international responsibility its activities would have to be human rights violations that also constitute internationally wrongful acts, meaning that this applies to a very narrow subset of violations, however. 77 He contends '[t]his active support can lead to the state being internationally responsible for the consequences of a corporate national's activities.' 78 If McCorquodale is correct and the home state can be held legally responsible for certain corporate misconduct in which it plays a part, then it must be entitled to regulate the company's overseas operations to try to prevent this misconduct. But the level of home state active support varies from, at one end of the continuum, 100% state ownership of the business to, at the other end, a more minor role such as diplomatic and consular support for the business. The level of active support that could expose the home state to potential legal responsibility for the company's actions would, it is submitted, need to be very high, but the premise that there may be international law consequences for the home state if it fails to act in relation to its corporate nationals and their associates is potentially an important one for this evaluation of the legality of the home state's intervention. Also potentially relevant are extraterritorial obligations (ETOs). If, as is argued by some, 79 the home state is in certain circumstances obliged under international human rights law to protect the human rights of persons outside its territory, this clearly legitimises its intervention into the domestic affairs of the host state, in the same way that the risk of incurring state responsibility under international law would.  81 arguing that the law may be changing especially as far as economic, social and cultural rights are concerned. Their argument has been accepted by the human rights committees, e.g. the latest General Comment from the Committee on Economic Social and Cultural Rights says that 'States Parties are required to take the necessary steps to prevent human rights violations abroad by corporations domiciled in their territory and/or jurisdiction (…) without infringing the sovereignty or diminishing the obligations of the host States under the Covenant.' 82 (Emphasis added). What it means to adjudicate/regulate extraterritorially without infringing sovereignty is left unanswered. But the support that the Committee gives for home state efforts to regulate and adjudicate with respect to economic, social and cultural rights is important given the frequency with which these rights are impacted by corporate misconduct. It also provides a counterpoint to the opinion which will be discussed below that extraterritorial techniques for implementing economic, social and cultural rights have a greater potential to infringe host state exclusive jurisdiction than extraterritorial techniques that address egregious human rights violations amounting to violations of norms of international criminal law. A further point on the legality or propriety of home state intervention is discussed in the next subsection, namely when the home state has a pretext for its intervention.

Home state pretext for intervention
The question here is whether home states truly seek to protect human rights through their extraterritorial measures or whether they use these as a pretext to pursue other national policies, such as the protection of domestic jobs, by increasing labour costs overseas for their corporate nationals operating extraterritorially. Host states have reason to be wary in view of the controversy over the insertion of a 'social clause' into the World Trade Organisation legal order and the subsequent introduction of protectionist measures by certain states under the guise of social protection. 83 Additionally, host state recipients of aid from industrialised states and/or loans from international institutions exhibit caution about the attachment of what they consider to be 'conditions' for this assistance. 84 Sigrun Skogly links this caution back to the policies of the United States in particular which, under President Carter, aimed to prevent financial support from the US being provided to countries where widescale human rights violations took place. Under American influence, these policies were subsequently adopted by the international finance institutions. Host states, she says, are concerned that home states 'will use the regulation of corporations as another form of conditions regarding their domestic policies.' 85 The fear is that this represents an illegitimate interference with internal affairs.
Is there evidence of this in practice or is it merely a theoretical concern? Some commentators argue that political motivation lies behind Alien Tort Statute judgments. 86 The harshest critics say that this transnational 33 In an article specifically addressing host state sovereignty concerns, Olivier De Schutter notes the traditional understanding that when a state adopts regulations that seek to influence situations extraterritorially, it competes with the sovereignty of the territorially competent state and should only do this in exceptional circumstances. 89 He argues however that theoretically extraterritorial regulation of corporate misconduct facilitates the role of the host state in regulating foreign investors. By ensuring that foreign direct investment contributes to human development and benefits local communities, he continues, extraterritorial regulation enhances rather than restricts the exercise by the host state of its sovereignty. 90 The policies being implemented through the extraterritorial techniques may not be aligned with host state policies however, if for instance these policies include minimalist labour protection as an incentive to foreign investment. 91 It is also at least debateable whether host states value the assistance of home states to help them to regulate the conduct of foreign investors. The drafting of the UN Draft Code of Conduct for Transnational Corporations in the 1970s and 80s and the current business and human rights treaty negotiations underway in the UN Human Rights Council illustrate that certain host states have sought multilateral agreement to help them to regulate foreign direct investment. But multilateral agreement is very different to a unilateral exercise of extraterritorial jurisdiction: the desire for one cannot be taken as acceptance of the other. Even when multilateral agreement is proposed, concerns about infringement of host state sovereignty are raised and addressed, notably in the provisions of the UN Draft Code of Conduct. 92 The fear of infringement of sovereignty remains a prescient one in the current treaty negotiations. At the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights meeting in 2015, some host states expressed concern that if the proposed treaty were addressed to domestic enterprises, in addition to transnational corporations, their sovereignty might be infringed. 93 The discussion in this subsection brings the article's focus from the legality and political acceptability of the home state's intervention to the validity of the stance taken by the host state. For the purpose of the following subsections, it is assumed that the host state objects to the use of the extraterritorial techniques. The validity of this stance in legal and policy terms will be explored next.

The validity of an oppositional stance taken by the host state
This first subsection analyses whether the type of right being addressed by the extraterritorial technique is relevant to the question of the validity of the host state's stance. The role of the host state in the violation is considered next. Last there is a discussion of host state objections that have occurred in practice. It is submitted that the level of infringement of host state exclusive jurisdiction of the extraterritorial techniques under consideration varies, depending on the human rights violation that the regulation or adjudication seeks to address. 94 There is a distinction here between rights of immediate realisation and rights of progressive realisation, the latter being a subset of economic, social and cultural rights. For example, if the right to life is violated (e.g. a member of a private security force shoots and kills an unarmed protester) and a foreign company is complicit in this violation, it is arguably disingenuous to talk about an infringement of the host state's exclusive jurisdiction for the company's home state to regulate and adjudicate over the company's role in this violation, if the host state does not. To put it another way, it is difficult to argue that the host state has a right not to adjudicate over the company's role in the human rights violation and that this is a function of its exclusive jurisdiction. This is because under the state duty to protect, the host state has a duty to investigate suspicious deaths such as this. The role of the company would form part of a proper investigation. If the host state fails in its duty to protect, it should not be able to argue that other states with connections to the company cannot take on the responsibilities under that duty. As August Reinisch puts it, 'states will have a hard time justifying their disregard of human rights in rejecting the extraterritorial acts of others'. 95 The situation is different where, for example, the foreign company operates to poor standards of health and safety resulting in workers suffering from industrial disease. The rights engaged include the right to health 96 and the right to safe and healthy working conditions. 97 The host state's obligation under the state duty to protect these rights of progressive realisation is the subject of an evolving debate. One prominent commentator described it as the obligation to take all measures that can reasonably be adopted to ensure that these rights are not abused as a consequence of the conduct of corporate actors, i.e. an obligation of means not an obligation of result. 98 Thus, international human rights law allows states some leeway in terms of domestic regulatory and adjudicative jurisdiction to protect their citizens and uphold these rights. Substantive determination of national policy choices is left to the host state, 99 with greater deference to the means etc. of the state than is afforded for rights of immediate realisation.
Economic self-determination can be argued to include the sovereign prerogative of host states to determine their national economic policy including, if they wish to make it, the decision to take an active advantage of the ability to attract investment capital through minimalist labour rights protection. 100 This is recognised in the different context of recent environmental protection treaties, in which developing states are given more time than their developed state counterparts to implement environmental standards. Host states can give economic, social and cultural rights of progressive realisation content commensurate with their level of economic development -they are in agreement with home states about the menu of human rights that need satisfying and the core minimum requirements for these, but they differ in their policy about the weight to be attributed to those rights and the priority in which they will be addressed. Returning to the case of the foreign company operating to poor standards of health and safety resulting in workers suffering from industrial disease, although the relevant rights might be engaged, there may be no human rights violation on the host state's part for failing to protect those rights. There may just be different approaches by the home and host states to rights content. Thus, it can be argued that it is more likely that home state intervention through extraterritorial regulation or adjudication would amount to infringement of the host state's exclusive jurisdiction over the relevant rights. But domestic jurisdiction is not unfettered: There are more radical viewpoints than the one adopted in this article. Reinisch for example does not differentiate between types of rights, as has been done above. 102 Drawing on the legal steps taken to prevent bribery and corruption, he examines the extraterritorial 'prosecution' of human rights violations exemplified by ATS litigation and the tort law cases described in this work. He argues that there is a shared interest among states in preventing human rights violations, not only by states but also by non-state actors. 103 If the host state is bound by international agreements to ensure human rights then, he argues, any opposition to extraterritorial enforcement would be hard to justify. The host state would be under an obligation to take action itself. 'If it refused to do so and coupled this refusal with a rejection of action by other states to enforce the same treaty rights extraterritorially, this non-co-operation would be qualified as an act of bad faith.' 104 Reinisch's position rests on the assumption that by agreeing to be bound by international agreements to ensure human rights, the state is agreeing to the extraterritorial enforcement of those rights by other states within its territory if it fails to enforce them. As already discussed, this may be controversial. There is an important difference between international human rights monitoring and unilateral monitoring or intervention by home states, which is not captured.
To summarise this subsection, the potential level of intrusion into host state exclusive jurisdiction will vary depending on the type of human right being brought to bear on corporate misconduct by the extraterritorial technique. The type of human right affects the requirements of the host state under international human rights law's protect and (in the case of economic, social and cultural rights of progressive realisation) fulfil obligations. If the host state is in clear breach of these, it is arguably more difficult for it to adopt a position of opposition to home state extraterritorial measures. Another factor that affects the legitimacy of the host state opposition towards these measures is its own role in the human rights abuse. This will be the subject of the next subsection.

The relevance of the host states' underlying conduct
If the host state is the principal actor in a human rights violation and the company is a secondary actor such as a conspirator, can a host state validly object to the home state adjudicating over the company's role in the human rights violation if the host state does not do so? The military junta formerly in charge of Burma that was accused, in conjunction with its corporate partners, of gross human rights violations presumably disapproved of the proceedings against these companies in the United States, France and Belgium. 105 But the state where the harm has occurred may not be well placed to act impartially over human rights complaints against it brought by its own citizens, particularly if the scale of the abuse is egregious. 106 Hence, in the analogous field of ICL, the provisions of the UN Convention Against Torture and the Rome Statue allow for extraterritorial prosecutions, by Member States and the ICC respectively. An assertion of exclusive jurisdiction over events occurring on the national territory when the host state is the perpetrator of the violation and there is no legal process to hold those responsible to account, is difficult to sustain.
Utrecht Law Review | Volume 14 | Issue 2, 2018 | Special Issue: Accountability of Multinational Corporations for Human Rights Abuses Section 4.2 has thus far demonstrated that home state intervention can be justified, both legally and in policy terms but that host state concerns about intrusion into exclusive domestic jurisdiction deserve more careful examination in light of the full picture -i.e. the type of rights violation and the role of the host state (if any) in the violation. Another important factor when considering the use of these extraterritorial techniques is the viewpoint of the host state.

The viewpoint of the host state
There is no established method for home states to consult with host states regarding proposed extraterritorial regulation. Therefore, with one notable exception, 107 it is difficult to know how host states view these extraterritorial regulatory mechanisms in practice. It may be possible to glean host state opinion from contributions to multilateral discussions, as noted above with respect to the treaty negotiations, but this is at a general level rather than in relation to specific mechanisms.
There are established methods by which host states can convey their views about extraterritorial civil litigation such as amicus curiae briefs as well as more informal means such as letters or declarations. A survey for the Office of the UN High Commissioner for Human Rights of state views on extraterritorial civil litigation 108 as expressed in ATS amicus briefs shows that host states rarely intervene in this way. 109 It is interesting to note that the ATS cases in which the host state governments protested about the use of home state adjudication as an intrusion into its domestic affairs, concerned allegations of gross human rights violations by the host state, in which the company was complicit. 110 In one of these cases, the regime accused of the gross human rights violation was still in power. 111 By contrast, in one of the only cases 112 for which coincidentally one of the same host states, under a different government, gave positive approval for home state adjudication of a tort law claim, the South African Government sanctioned the adjudicatory jurisdiction of the English court in a case in which health and safety failings caused sickness and death. 113 Host state objections to the extraterritorial techniques based on exclusivity of jurisdiction on these occasions did not follow the logic about the type of human rights violation described in the preceding paragraphs. The desire to avoid extraterritorial scrutiny of host state human rights violations is arguably a factor that overrides other ones.
One recent development indicates that, contrary to the notion that extraterritorial civil litigation creates an incursion into host state domestic affairs, at least one host state is seeking to mandate through bilateral treaties that home states make their legal systems available for extraterritorial civil litigation. The Indian Draft Model Investment Treaty 2015 requires that investors be subject to civil actions for liability in the judicial process of their home state, for acts and omissions that take place in the home state causing significant damage, injury or loss of life in the host state. Furthermore:

Ways to confront the jurisdictional dilemma
The section will draw on 'reasonableness' factors for home states to consider, in order to avoid or minimise actual or perceived interference in the domestic affairs of other states through their use of extraterritorial techniques. These were proposed by experts in a consultation which took place as part of the Ruggie mandate. 115 The first of these factors is improved consultation and co-operation between states in relation to their unilateral measures. 116 This proposal is commended and it is submitted that the consultation should extend to the host states that might be affected by the technique in question. Two parliamentary debates about draft laws in this field heard submissions about host state dilemmas from sources other than the host states themselves. 117 In the Bhopal litigation in the United States, the judge made an assumption about the opportunity presented by the case for the Indian judiciary to 'stand tall before the world and to pass judgment on behalf of its people'. 118 As noted by Sarah Joseph, this contention was ironic in view of the fact that the Government of India had argued as plaintiff in the litigation against the case being heard in India. 119 Even acknowledging the fact that host state opinion may change with the political regime, 120 assumptions should not be made about this without a factual basis. Cedric Ryngaert supports the proposition of consultation. 121 He talks about the possibility of overcoming the 'democratic deficit of extraterritoriality' by legislatures, courts and regulators commencing a dialogue with their foreign equivalents, 'either through institutionalised channels, or though amicus curiae briefs or statements of interest'. 122 He notes that business regulators on the one hand have day-to-day working contacts with their counterparts overseas, 'so that a measure of representation of foreign sovereign interests may seep into [their decisions]'. Courts on the other hand do not have organised contacts with foreign states or their representatives. He proposes a system of international jurisdiction in which courts, through transnational judicial networks, develop a more active working relationship with foreign regulators and courts. 123 'Such a relationship might further reciprocal understanding of each other's concerns and organically restrain jurisdictional assertions.' 124 Applied here this idea would have home state judges consulting their host state counterparts where there is discretion whether to exercise extraterritorial jurisdiction in a particular case, for example when the test of forum non conveniens is being applied. This proposal could extend to include legislatures when they are considering adopting extraterritorial measures that would affect identifiable host states.
Another 'reasonableness' factor from Ruggie's expert consultation is that 'principle-based and outcomesoriented approaches to standards that apply extraterritorially, or have extraterritorial implications, may be less problematic than prescriptive, rules-based approaches'. 125 As the examples of human rights reporting for company law and securities law illustrate, generally the approach in this field is to adopt principlebased and outcome-orientated measures rather than prescriptive, rules-based regulatory techniques. A concern is that without prescription, measures can be abstract or generic and ultimately will fail in their objective of bringing human rights standards to bear on corporate misconduct. The reporting provisions from the UK Modern Slavery Act 126 are a case in point. The 'slavery and human trafficking statement' it mandates demands very little of companies either in terms of what must be reported or, as a result, what must be addressed substantively in order to paint a satisfactory picture to external stakeholders through the statement. It is therefore submitted that this factor could be relevant for lawmakers considering the 38 Rachel Chambers Utrecht Law Review | Volume 14 | Issue 2, 2018 | Special Issue: Accountability of Multinational Corporations for Human Rights Abuses adoption of extraterritorial techniques, but should be balanced against the need for the measures in question to be effective at bringing human rights standards to bear on corporate misconduct.
A final 'reasonableness' factor looks at whether there is a reasonable degree of international consensus on the wrongfulness of an activity. It suggests a need to focus extraterritorial measures on internationally agreed standards such as labour rights, rather than domestic standards such as those on consumer protection. This is a useful indicator for judges and legislators when considering extraterritorial techniques. The UK Principles for Assessing the Appropriateness of Extraterritorial Legislation 127 make a similar point, although they specify that the international consensus should cover not just the wrongfulness of the activity but also the power to exercise extraterritorial jurisdiction over it. This type of international consensus exists for anti-corruption measures and for breaches of obligations erga omnes that attract universal jurisdiction but, as discussed above, is not present for other human rights abuses. Therefore this added factor would not for the most part assist in addressing the jurisdictional dilemmas, unless international consensus could be built around the power to exercise extraterritorial jurisdiction over the relevant business-related human rights abuse. This type of consensus might develop following the adoption of unilateral regulation, as it did over bribery of foreign officials in the years following the enactment of the US Foreign Corrupt Practices Act, 128 which led to the eventual agreement of the UN Convention against Corruption.
The UK Principles for Assessing the Appropriateness of Extraterritorial Legislation include assessing the risk that an offence would not otherwise be justiciable and the vulnerability of the victim, as factors in favour of the exercise of extraterritorial jurisdiction. These two factors are both frequently present in the case of corporate misconduct: host states are frequently unwilling or unable to adjudicate and regulate, and victims are often vulnerable, economically and socially, all the more so because they have no access to a remedy for the corporate misconduct in question. Various tests can determine whether an offence would not otherwise be justiciable. Complementarity is one: under the Rome Statute for example, a case will be inadmissible when it is 'being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution'. 129 Exhaustion of local remedies is another, with the proviso that this does not apply when local remedies are unavailable, ineffective or unreasonably delayed. These tests are important because they address one of the premises underlying the jurisdictional dilemma, namely that host states are unwilling or unable to regulate or adjudicate. If the host state is willing and able to regulate or adjudicate, in a fashion that is neither ineffective nor unreasonably delayed, then there is no dilemma. But, as discussed earlier in the article, this is often not the position, and is less likely still when the host state is the primary actor perpetrating the abuse.
This work has shown that there are other reasonableness factors for home states to consider in order to avoid any actual or perceived interference in the domestic affairs of host states through their use of the extraterritorial techniques. They include: looking at support from the home state for the company in question and whether the home state could be argued to have extraterritorial obligations to protect noncitizens from human rights abuses by the company. Relevant to this line of enquiry are the rights bestowed upon the company under international investment law agreements between the home and host states. An implicit reasonableness factor is that home state motivation for regulating or adjudicating should be primarily to bring human rights standards to bear on corporate misconduct. There should be no ulterior motives such as protectionist ones.

Conclusion
This article has shown that in policy terms there are often grounds for the home state's use of extraterritorial techniques. While host state objections to these techniques based on the exclusivity of jurisdiction may be justified in relation to some incursions, this is not always the case. These objections hold greater weight when they are raised by the host states themselves in response to the extraterritorial techniques (in contrast