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centre of activity, is registered or domiciled or has its main place of
96
business or substantial business activities in the State concerned."
Furthermore, the Committee on the Elimination of Racial Discrimination
suggests that the State party should ensure that no obstacles are
introduced in the law that prevent the holding of such transnational
corporations accountable in the State party's courts when such violations
are committed outside the State party. The Committee reminds the State
party to sensitize corporations registered in its97territory to their social
responsibilities in the places where they operate.
Such statements and comments illustrate that international human
rights bodies recognize that home states have extraterritorial obligations
to respect, protect and fulfil human rights of individuals against
corporate violations abroad.
The third category of state obligations concerning economic and
social rights includes the obligation to fulfil, which is defined as a
positive obligation. It is further divided into obligation to facilitate,
provide and promote. 98 It depends, but is not limited to, available
financial resources of the state. It requires states to take active measures
to ensure the availability, accessibility, and affordability of economic and
social rights. 99 Therefore, states are obliged to work towards abolishment
of obstacles for the enjoyment of economic and social human rights.10
For example, the Maastricht Principles on Extraterritorial Obligations of
States in the area of Economic, Social and Cultural Rights instruct, "[a]ll
States must take action, separately, and jointly, through international
cooperation, to fulfil economic, social and cultural rights of persons
within their territories and extraterritorially..." 10t In a failed state
relating to corporate actors registered on its territory, where there is no
efficient governmental control or authority, which would protect
economic and social rights, an extraterritorial state may become the
primary holder of an obligation to fulfil economic, social and cultural
rights. The size and availability of a state's financial resources will play a
large role in meeting these standards to protect economic and social
96 Committee
on the Rights of the Child, General Comment No 16 on State Obligations
Regarding the Impact of the Business Sector on Children's Rights: What is Its Standing, Meaning,
and Effect?, 62nd Sess., U.N. Doc. CRC/C/GC/16 (April 17, 2013).
97 Committee on the Elimination of Racial Discrimination, CERD/C/GBR/CO/18-20,
(September 14, 2011); see also Concluding observations of the Committee on the Elimination of
Racial Discrimination, CERD/C/CAN/CO/19-20, (March 9, 2012).
98See Committee on Economic, Social and Cultural Rights, General Comment 12, Right to
adequate food 20th session, 1999, U.N. Doc. E/C. 12/1999/5 (1999).
99See generally Economic, Social, and Cultural: Norms on the Responsibility of Transnational
Corporations and Other Business Enterprises with Regard to Human Rights, Economic and Social
Council, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2, 4 (2003); The Maastricht principles on
Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights,
http://www.fian.org/fileadmin/media/publications/2012.02.29_-Maastricht Principles on Extraterritorial Obligations.pdf (last visited June 30, 2013).
10oSee QUB Budget Analysis Project, Budgeting for Economic and Social Rights: A Human
Rights Framework, 43 (QUB School of Law, Belfast, 2010).
101The Maastricht principles on Extraterritorial Obligations of States in the area of Economic,
Social and Cultural Rights, http://www.fian.org/fileadmin/media/publications/2012.02.29__Maastricht Principles onExtraterritorialObligations.pdf (last visited June 30, 2013).