A matrix of jurisdiction: extra-territoriality ‘divided and tailored’ : States’ duties to ensure access to effective remedy under the EU Proposal for a Directive 2022/0051 on corporate sustainability due diligence

Abstract

What are jurisdictional implications when the EU is regulating companies’ conduct outside of the EU, and enshrines judicial remedies for victims of corporate human rights violations that occurred abroad? The EU initiative for a Directive on corporate sustainability due diligence is an important step towards a legally binding framework, which this thesis takes up to inquire into a particular tension: (i) the well-established lack of access to effective remedies in the EU for victims who are based in a third country, (ii) the call on Member States to reduce legal, practical, and other barriers as given mandatory expression in the Commission Proposal, and (iii) the right of access to effective remedy in international human rights law as mediating between the former two. The inquiry has the following steps: Part 1 introduces the structuring role of concepts of ‘jurisdiction’ both for States’ competences to act within and outside their borders, and for the scope of States’ obligations under human rights law. Then it highlights jurisdictional obstacles and barriers inherent in the EU jurisdictional framework. Part 2 compares the negotiation mandates of the Commission, Parliament and Council with respect to their scope as regards remediation, presenting scenarios to illustrate the mechanisms that would be available for victims to bring claims against private parties, and against the State. Part 3 extrapolates three specific bases of States’ extraterritorial jurisdiction and the according substantive and procedural standards that States need to observe under the Articles 1, 6(1), and 13 of the ECHR, informing the discussion of the scenarios developed before. In light of the opposing tendencies in the three mandates, linked to substantively different remediation for victims outside the EU, a framework of ‘forms of extraterritorial jurisdiction’ is assessed.