Research On The Home Country’s Jurisdiction Over Transnational Corporations Accounted For Human Rights Violations Abroad

Recently,there have been cases of violations of human rights in host countries by foreign subsidiaries of transnational corporations.In order to obtain an adequate compensation,more and more victims claim that parent company should be accountable for the violations committed by its subsidiaries in the proceeding of home country.Since the court of home country used to give the decision in accordance with traditional international law,it is often difficult for the forum to break through the limitations of legal obstacles,such as territorial jurisdiction,forum non conveniens,and separateness of legal person,and to establish legitimate and effective jurisdiction to initiate proceedings over private parties,i.e transnational corporations.However,with the evolution and development of international human rights law,it begins to be urgent to regulate extraterritorial human rights violations by transnational corporations.For the sake of national public interests and the sustainable development of the global economy,states and international organizations are looking for a feasible way to solve the jurisdictional issue of the civil proceeding of home country.There are two main issues in the process of establishing jurisdiction over the claims against the foreign subsidiaries.First,the legal obstacles are often be cited to dismiss the proceedings,given that the home country and its court do not have sufficient motivation and enthusiasm to initiate proceedings;secondly,the jurisdiction over a foreign entity always be questioned for the infringement on the sovereignty of other states,which is also a key issue in establishing jurisdiction.Therefore,discussions on the legality and rationality of the two core issues above and their feasible solutions have always attracted the attention of practice and academic circles.This paper seeks to untangle the jurisdiction issue through a summary of the latest legislative and judicial practices in the field of extraterritorial human rights regulation by the international community.From the perspective of international treaty negotiations,the codification of the "zero draft"(Legally Binding Instrument,LBI)hosted by the United Nations is the most concentrated expression of the extraterritorial human rights responsibility norms of transnational corporations at international level.Adjudicative Jurisdiction in LBI,confirming the legitimacy of the jurisdiction over a foreign entity,based on the requirement of states to take responsibility of human rights protection.However,due to the overly broad description of the text and the lack of explanations for the introduction of cutting-edge doctrines,the text is suspected of universal jurisdiction and excessive extraterritorial jurisdiction,and failed to receive a widespread support.Although some major countries have not expressed their support for the "zero draft",it does not represent their opposition to the purpose of LBI.From the domestic judicial practice of the United States,the Netherlands and the United Kingdom,it can be seen that the there are relatively more practices of establishing jurisdiction over transnational corporations’ extraterritorial human rights cases in United States,and plaintiff can give a claim based on the Alien Tort Claim Act in accordance with customary international law.However,the judicial practice of the United States in the past ten years has gradually shown the opposite position,giving a negative attitude towards the jurisdiction over a foreign subsidiary of transnational corporations.Compared with the United States,a more positive attitudes of EU members have been shown.Not only do they deny the progressiveness of the forum non conveniens,but also recognize the inevitability of "piercing the corporate veil" in human rights cases of transnational corporations.Nevertheless,Contrast to the rich practical experiences of the United States,the case references of EU countries are inadequate,it is difficult to form a system with rigorous logic.The research above shows that under international human rights law,the trend of the home country’s responsibility for regulating transnational corporations’ extraterritorial behavior is unswerving,despite the international community has not yet reached an agreement on the specific content of transnational corporations’ extraterritorial human rights responsibilities.At the same time,through LBI negotiations and domestic practice,it can also be found that the international community has a critical position and viewpoint on some principles and rules in traditional international law in terms of regulating the extraterritorial human rights responsibilities of transnational corporations.Such results and trends are closely related to the future development of our country.Although there is no related cases happened in China,as the largest developing country and one of the largest economies in the world,under the development trend of taking proceedings in home country,China not only needs to be the host country to deal with the potential problems brought by transnational corporations in human rights violations,and will also take the human rights responsibilities of the home country when the investment happens.Therefore,the study of LBI and judicial practice is of great significance for us to explore the actual impact for China.