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5 Melb. J. Int'l L. 37 (2004)
Acting Extraterritorially to Tame Multinational Corporations for Human Rights Violations: Who Should Bell the Cat

handle is hein.journals/meljil5 and id is 43 raw text is: ACTING EXTRATERRITORIALLY TO
TAME MULTINATIONAL CORPORATIONS FOR
HUMAN RIGHTS VIOLATIONS:
WHO SHOULD 'BELL THE CAT'?*
SURYA DEVAt
[The continued impunity of multinational corporations ('MNCs ')for human rights violations is
driving the search for an effective as well as efficient regulatory model. Regulation of MNCs by
home states through extraterritorial laws is a recent addition to the measures under review in
this ongoing search. The presentation of a Bill in the United States House of Representatives on
7 June 2000 marked an attempt to adopt the extraterritorial model of regulation. This was soon
followed by the introduction of a similar Bill in the Australian Senate on 6 September 2000.
Though the fate of the US Bill remains undecided, in the case of the Australian Bill the
Parliamentary Committee found it to be impracticable, unworkable, unnecessary and
unwarranted. Within a theoretical framework of integrated legal responsibility, and in the
context of multiple regulatory dilemmas, this article seeks to examine the provisions and the
omissions of the two Bills. It argues that the legislative failures of the above Bills are instructive
in at least three respects. Firstly, that it is legitimate for a state to impose and enforce
internationally recognised human rights obligations upon the overseas activities of the
corporations incorporated within its territory, as well as the overseas subsidiaries of such
corporations, by enacting an extraterritorial law. Secondly, the failure of the Bills to become law
should not be interpreted as a failure of the proposed model itself; if resort is to be had to any
state-centric model of extraterritorial regulation, it is the 'home state' model of regulation which
presents greater potential as compared to the 'host state' model. Thirdly, extraterritorial
regulation of MNCs, essentially being a variation of the municipal regulatory model, is not
self-sufficient due to this model's inherent limitations, and therefore needs to be supplemented by
an international regulatory mechanism.]
CONTENTS
I    Introduction: Backdrop of the Two Failed Attempts ......................................... 38
II   Dilemma of Regulation: Who Should Regulate What, Where and How? ............... 41
III  Extraterritorial Regulation of MNCs: Two Possibilities and Two Attempts .......... 46
A    Basis of Extraterritorial Regulation of MNCs ....................................... 46
B    Home State versus Host State Regulation: A Balance Sheet .................. 50
IV   Two (Failed) Attempts: Comparing the Provisions and Omissions of the
U S  and  A ustralian  B ills ......................................................................................   52
A    Targeted  O bjects  ...................................................................................   52
B    Subject M atters  Covered  .........................................................................  52
C    Intended  Beneficiaries ............................................................................. 54
D    Measures for Reporting, Implementation and Enforcement ................... 54
* This article is a substantially revised version of a paper presented at the 21st Law and
Society Conference, organised by the Justice Policy Research Centre, The University of
Newcastle, Australia, 8-10 December 2003.
t BA (Hons), LLB (Delhi), LLM (Delhi). PhD Candidate, Faculty of Law, The University of
Sydney, Australia. Formerly Assistant Professor, National Law Institute University, Bhopal,
India; Lecturer, Faculty of Law, University of Delhi, India. The author would like to thank
Dr Fleur Johns, Rosemary Lyster, Swati Deva and the three anonymous referees for their
useful comments on an earlier draft of this article. The author dedicates this article to his
wife, and son Vyom.

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