One of the problematic and big issues in the context of business and human rights is the regulatory framework. See also: Aldrich, George H., The Jurisprudence of the Iran-United States Claims Tribunal (Oxford, Clarendon Press, 1996), p. Uruguay, the Human Rights Committee (HRC) expanded the interpretation of Article 2 of the ICCPR to include what.
In the context of the European Court of Human Rights, the concept of extraterritorial obligation based on state control has been consistently applied in several cases.
Jurisdiction based on ‘effective control’ or ‘foreseeable consequence” over persons
The government of the Kingdom against Virginia constituted a violation of Article 3 of the European Convention on Human Rights. First, the decision in this case is based on physical control over a legal entity,48 meaning that Britain is responsible for a German citizen because of his physical presence in the United Kingdom. It implies that Britain is also responsible for any foreseeable consequences arising within any other jurisdiction.49 In the case of Ng v.
Canada, the HRC held that Canada's extradition of the defendant to the United States to face trial in California, where he is likely to face the death penalty, constitutes a violation of Article 7 of the ICCPR. Control over a person as a basis for extraterritorial obligation has also been applicable in the case of issuing visas. Uruguay, all presented to the Human Rights Committee, concluded with the opinion that the refusal of the Uruguayan government to renew the passports of its citizens living abroad is a clear violation of human rights.50 Therefore, Uruguay is responsible for the human rights protection of its nationals, as Living abroad.
50. 21 & 22. In the Xhavara case, involving Albanian nationals who had tried to enter Italy illegally when their ship sank after a collision with an Italian warship, the ECtHR held that since Italy was a party to the bilateral agreement with Albania authorizing the Italian Navy to board and search Albanian ships to encourage illegal immigrants, this made Italy liable in the incident.52 In the Öcalan case, the Court concluded that the arrest of the PKK leader by members of the Turkish forces of security at Nairobi airport effectively brought Mr. Öcalan under Turkish authority, due to the informal arrangements that already existed between Turkey and Kenya.53. These illustrations show that the degree involved in 'control over a person' or 'foreseeable' consequence is less than that for cases requiring 'effective' control over individuals.
Jurisdiction based on Decisive Influence Standards
The key issue here is the degree of control and how it should be exercised. In this case, the court had to determine whether the prisoners in the breakaway region of Transnistria in Moldova fell within Russia's jurisdiction due to Russian support for the rebel forces there, and conversely, whether the prisoners could fall under Moldova's jurisdiction. Here, the Court stated that the fact that Moldova had lost effective control over the separatist regime did not relieve the State of its positive obligations to take all diplomatic, economic, judicial or other measures within its power to secure the applicants' release.54 V in other words, the reduction of the actual power to act has not fulfilled its positive obligations.
However, since the forces of the Moldavian Republic of Transnistria (MRT) were under the 'effective control, or at least the decisive influence' of Russia, the forces survived 'thanks to the military, economic, financial and political support' provided. from that country,55 the ECtHR found that Russia was responsible for the harm caused by the authorities to the petitioners in the breakaway region of the MRT.56 The court also attributed responsibility to Russia for failing to take foreseeable actions to prevent the abuses in question.57 . 54 Heijer, Maarteen den and Lawson, Rick, “Transnational Human Rights and the Concept of 'Jurisdiction'”, ESF Exploratory Workshop on Transnational Human Rights Obligations in the Field of Economic, Social and Cultural Rights (Tilburg: 2008). 56 Russia refused to exercise control over the MRT as it only had a peacekeeping mission (military deployment) to maintain peace and stability in the region and its presence is approved by Moldova.
57 Ibid; Narula, Smita, "The Scope of the International Covenant on Economic, Social and Cultural Rights," ESF Research Workshop on Transnational Human Rights Obligations in the Field of Economic, Social and Cultural Rights (Tilburg, The Netherlands: 2008), p. 58 Narula, Smita, "The Scope of the International Covenant on Economic, Social and Cultural Rights," ESF Research Workshop on Transnational Human Rights Obligations in the Field of Economic, Social and Cultural Rights (Tilburg, The Netherlands : 2008), p. It is clear that in many cases home country support is essential for the survival of MNCs in the host country.
Jurisdiction based on the capacity to influence
Determining the ability to influence is done deductively based on the geographical proximity of the country in question, relevant events and the strength of political and other ties. Here, the determination of the strongest connection applies the principle of reasonableness commonly applied in the US antitrust context under section 403(2) of the Restatement (Third) of the United States Foreign Relations Act. 61 If the event occurred far from the territory of the home country, the exercise of jurisdiction will be considered unreasonable.62 This does not mean that human rights violations that occur in other countries will not trigger the responsibility of the home country, but rather that this decision depending on the location of the MNC's act or omission.
61 Rewording the Third Law: The Foreign Relations Act of the United States Rewording the Law, ed. 62 Ryngaert, Carlo, “Discussion Paper” ESF explanatory workshop on transnational human rights obligations in the fields of economic, social and cultural rights ( Tilburg: 2008). In addition to geographical proximity, the determination of the influence capacity must also be based on legal criteria, determined by international law.
Subsequently, the former's failure to create the right conditions under which that company can receive aid, or the failure to redress violations by the entity, may give rise to the state's responsibility for due diligence. 66 Restatement of the Third Act: The Foreign Relations Act of the United States Restatement of the Act, ed. 67 Ryngaert, Carlo, “Discussion Paper” ESF explanatory workshop on transnational human rights obligations in the field of economic, social and cultural rights (Tilburg: 2008).
THE CONCEPT OF INTERNATIONAL ASSISTANCE AND COOPERATION
SOME LIMITATIONS
EXTRATERRITORIAL REGULATION VERSUS PRINCIPLE OF NON-INTERFERENCE
If such a situation arises, human rights clauses can then be used as a justification for overriding the principle of non-intervention. There are two ways to approach this issue: by emphasizing the dichotomy between internal and international jurisdiction; and through a deeper understanding of the concept of non-intervention. The right to intervene for humanitarian purposes has been reformulated in the context of 'responsibility to protect', where intervention is no longer seen as a right, but rather as a duty of states, when other states are unwilling and unable to protect its own citizens from avoidable catastrophes – including the violation of human rights.
In this case, the protection of the victim can be seen as an extraordinary justification that exceeds the principle of non-intervention. This does not mean that every case involving human rights violations or threats automatically leads to the 'obligation to intervene'; only that such an obligation, based on the degree of need, is used as a last resort when the state in question fails to protect the victim.79 It should be interpreted in the broad and positive sense interpreted by the International Commission on Intervention and State Sovereignty . .80. The UK government, for example, proposes various factors to be used in balancing the state interest and the victim's need, such as the seriousness of the offence, the degree of danger, the vulnerability of victims, the existence of international obligations, the form of violence and the reputation of Great Britain before the international community.
Interestingly, one of the considerations for the failure of the Australian Code in 2000 was not due to the possible objection of the host country, but rather the fear that the home state's extraterritorial regulation would be seen by other countries – especially developing countries – as . To conclude, the redefinition of the concept of sovereignty to include human rights protection has opened the door to an expanded understanding of extraterritorial jurisdiction. Theoretically, the principle of non-intervention can be violated if the foreign state has an overriding interest pursued on the basis of human rights.
ARE HUMAN RIGHTS A DOMESTIC OR INTERNATIONAL ISSUE?
CONCLUSION
In the context of the regulatory framework, MNC regulation is actually much less extraterritorial in nature than the term suggests. 85 Dominic McGoldrick, “The Principle of Non-Intervention: Human Rights”, The United Nations and Principles of International Law: Essays in Memory of Micael Akehurst, eds. The question is no longer which state interest deserves protection, but whether there is a need to protect human rights.
Therefore, initiatives designed to implement established human rights principles should not automatically be considered interference, even if an initiative goes beyond what is strictly necessary to implement human rights. In addition, the divisions between domestic and international affairs, the struggle between state and individual interests in the context of emerging human rights protection, and the variety of legal techniques to exert pressure, point to changes in the principle of non-intervention, the direction will be determined. by state practice. In conclusion, it is argued here that extraterritorial regulation in the context of jurisdiction is not about the right of a state to govern its own interests within its jurisdiction and/or other jurisdiction, but also about the obligation for the state to do so in the context of human rights.
Lawson, Rick A., “The Concept of Jurisdiction in the European Convention on Human Rights”, Globalization and Jurisdiction, eds. Waagstein, Patricia Rinwigati, Corporate Responsibility for Human Rights: The Ongoing Search for a Regulatory Framework (Uppsala: Uppsala University, 2009) Wallace, Cynthia Day, Multinational Enterprise and Legal Control: The Host State. Restatement of the Law Third: Foreign Relations Law of the United States Restatement of the Law, ed.
