02.März 2018
The Responsible Business Initiative (Konzernverantwortungsinitiative, KOVI) does not only concern the duties of transnational corporations to respect human rights abroad. For Switzerland as a state, it may also represent a mean to fulfill its extraterritorial human rights obligations.
Originally, human rights have been conceptualized as rights of individuals against the state they are residing in. They generate obligations to respect (i.e. not violate), to protect (i.e. prevent violations by third parties) and fulfill these rights (i.e. work towards their full realization). In recent years, two debates have gained academic and political momentum:
Are states also subject to extraterritorial human rights obligations, thus towards individuals who are not located on their territory?
Do human rights also generate duties for private, non-state actors – such as transnational corporations (TNCs)?
The KOVI concerns both these questions. On the one hand, it primarily refers to extraterritorial obligations of non-state actors and thereby cuts across the two issues. On the other hand, in discussing such a constitutional amendment, it refers to Switzerland’s responsibility as a state to protect human rights extraterritorially, i.e. to prevent violations by third parties abroad. These include TNCs which operate abroad but are under Swiss jurisdiction or control.
Consolidating Soft Law?
In international law, an extraterritorial state duty to protect is so far only anchored in non-binding guidelines, recommendations and policies. However, its acceptance is on the rise, mirrored in declarations and comments by expert committees and UN bodies. According to the UN Guiding Principles on Business and Human Rights, states may contribute to preventing human rights violations abroad, e.g. by regulating conduct of private parties under their control. In the Maastricht Principles on Extraterritorial Obligations developed by an expert consortium in 2011, it is maintained that states are under an obligation to do so. Increasingly, it is assumed that at least with regard to the conduct of TNCs abroad, states have a duty to prevent them from infringing human rights, be it at home or abroad. This position is supported by UN Committees e.g. in their General Comments, and reflected by the establishment of UN Working Groups and the current efforts on a binding treaty on Business and Human Rights. Certainly, many issues are still under discussion, such as the level of control necessary for triggering state duties (e.g. must a state exercise thorough jurisdiction or merely be de facto able to influence a TNC? Must the TNC have its registered office, central administration or principal place of business in Switzerland, as the KOVI suggests?). Nonetheless, all these developments point to a likely future consolidation of this currently non-binding principle into a binding legal norm.
Framing the Debate: Considering State Duties
The KOVI seeks to oblige non-state actors to respect human rights abroad. However, an adoption of the initiative may also amount to one way of complying with Switzerland’s duty – as a state – to protect human rights extraterritorially.
Various means on legislative, administrative, executive or adjudicative levels may contribute to fulfilling such a duty, e.g. by licensing private actors’ activities abroad, by monitoring them or by holding them accountable for violations. The measures the KOVI suggests, its civil law mechanism, may or may not be the most effective and efficient ones. They are certainly not sufficient – other measures already do and will need to complement it.
But what is crucial is that this way of looking at it – being aware of the state duties that loom in the background – may encourage a different framing of the debate: Human rights duties to individuals abroad are not only borne by TNCs, but primarily by the state itself. While it is essential to oppose intolerable conduct of TNCs abroad, this should be complemented by a debate and awareness-raising on the fact that the state is also under moral, political and soon-to-be legal obligations. If so, then it is neither optional nor charitable or especially praiseworthy to introduce such (or similar) measures of protecting human rights abroad. It may just be what states are anyway required to do. In that sense, the initiative may have the potential of providing Switzerland with one possible measure – among many – to comply with what could soon become a binding obligation under international law.
PS: As a side remark, if the above is the case and if the initiative is being adopted, it is – from the viewpoint of human rights practice – an interesting (both encouraging as well as somehow discouraging) phenomenon that the legal codification of this way of complying with international obligations can be traced back to a civil society movement.
