E/C.12/GC/24
by such subsidiaries and business partners, wherever they may be located. 83 The Committee
underlines that, although the imposition of such due diligence obligations does have
impacts on situations located outside these States’ national territories since potential
violations of Covenant rights in global supply chains or in multinational groups of
companies should be prevented or addressed, this does not imply the exercise of
extraterritorial jurisdiction by the States concerned. Appropriate monitoring and
accountability procedures must be put in place to ensure effective prevention and
enforcement. Such procedures may include imposing a duty on companies to report on their
policies and procedures to ensure respect for human rights, and providing effective means
of accountability and redress for abuses of Covenant rights.
34.
In transnational cases, effective accountability and access to remedy requires
international cooperation. The Committee refers in this regard to the recommendation
included in the report on accountability and access to remedy for victims of businessrelated human rights abuse, prepared by the Office of the United Nations High
Commissioner for Human Rights at the request of the Human Rights Council, 84 that States
should “take steps, using the guidance” (annexed to that report) “to improve the
effectiveness of cross-border cooperation between State agencies and judicial bodies, with
respect to both public and private law enforcement of domestic legal regimes”.85 The use of
direct communication between law enforcement agencies for mutual assistance should be
encouraged in order to provide for swifter action, particularly in the prosecution of criminal
offences.
35.
Improved international cooperation should reduce the risks of positive and negative
conflicts of jurisdiction, which may result in legal uncertainty and in forum-shopping by
litigants, or in an inability for victims to obtain redress. The Committee welcomes, in this
regard, any efforts at the adoption of international instruments that could strengthen the
duty of States to cooperate in order to improve accountability and access to remedies for
victims of violations of Covenant rights in transnational cases. Inspiration can be found in
instruments such as the International Labour Organization (ILO) Maritime Labour
Convention, 2006, in force since 2013, which establishes a system of harmonized national
legislation and inspections both by flag States and by port States upon complaints of
seafarers on board ship when the ship comes into a foreign port; or in the ILO Domestic
Workers Convention, 2011 (No. 189) and the ILO Domestic Workers Recommendation,
2011 (No. 201).
3.
Extraterritorial obligation to fulfil
36.
Article 2 (1) of the Covenant sets out the expectation that States parties will take
collective action, including through international cooperation, in order to help fulfil the
economic, social and cultural rights of persons outside of their national territories. 86
37.
Consistent with article 28 of the Universal Declaration of Human Rights, 87 this
obligation to fulfil requires States parties to contribute to creating an international
environment that enables the fulfilment of the Covenant rights. To that end, States parties
must take the necessary steps in their legislation and policies, including diplomatic and
foreign relations measures, to promote and help create such an environment. States parties
should also encourage business actors whose conduct they are in a position to influence to
ensure that they do not undermine the efforts of the States in which they operate to fully
realize the Covenant rights — for instance by resorting to tax evasion or tax avoidance
strategies in the countries concerned. To combat abusive tax practices by transnational
83
84
85
86
87
Guiding Principles on Business and Human Rights, principle 13.
See the Council’s resolution 26/22.
See A/HRC/32/19, paras. 24-28; and the annex to that report, for the guidance to improve corporate
accountability and access to judicial remedy for business-related human rights abuse, paras. 9.1-9.7
and 10.1, and paras. 17.1-17.5 (for public law enforcement) and 18.1 and 18.2 (for private law
enforcement).
Olivier De Schutter and others, “Commentary to the Maastricht Principles on Extraterritorial
Obligations of States in the area of Economic, Social and Cultural Rights”.
See General Assembly resolution 217 (III) A.
11