On 18 August 2026, the Aylla Rewe del Ngen Mapu Kintuantü, an autonomous political, social, spiritual and cultural alliance bringing together ancestral authorities and more than 150 communities of the Mapuche Williche Indigenous people in southern Chile, filed a complaint against Statkraft AS before the Norwegian Consumer Authority. The complaint concerns Statkraft’s human rights due diligence in relation to two hydropower installations on the Pilmaiquén River, Rucatayo and the Los Lagos project. The complainants sought urgent handling because the Los Lagos reservoir was about to be filled. Before the month was out, Statkraft reported the filling of the reservoir complete.
Statkraft is wholly owned by the Norwegian State. It was also the developer and majority owner of Fosen Vind when, in 2021, the Norwegian Supreme Court held that the licences for two of its wind farms violated the right of Sámi reindeer herders to enjoy their culture under Article 27 ICCPR. Knut Helge Hurum, who represented Nord-Fosen siida in that litigation, now advises the Mapuche Williche complainants in Norway.
The conjunction is striking, but it is easy to draw the wrong question from it. The obvious framing – do the principles established in Fosen apply? – is not worth asking, because the answer is plainly no. A Norwegian judgment does not govern a Chilean concession, and nothing in the complaint suggests otherwise. The harder question, from an international law perspective, is what international law requires of a State when an enterprise it wholly owns creates human rights risks abroad — and assuming that ownership entails heightened due diligence, whether a judgment of the State’s own courts identifying the same category of harm affects what the State must be taken to know about that risk.
This post argues that the limits of conventional attribution and of the established doctrines of extraterritorial jurisdiction reveal a third and under-theorised nexus, namely State ownership itself. Ownership matters because it gives the State a distinctive capacity – and, the argument developed here suggests, a corresponding responsibility – to require heightened human rights due diligence from the enterprise. Fosen matters within that nexus not as exported law but as established knowledge: once the State’s own highest court has identified a category of harm, the State cannot plausibly treat that harm as unforeseeable when its wholly owned enterprise creates a comparable risk abroad.
The international-law gap: attribution and extraterritoriality
Statkraft’s separate corporate personality and complete State ownership do not, without more, make it an organ of the Norwegian State under Article 4 ARSIWA. Formal corporate status is not conclusive: an entity may exceptionally qualify as a de facto State organ where its dependence on the State is so complete that it lacks genuine autonomy. On the publicly available facts, however, Statkraft’s legal status and governance arrangements do not appear to meet that demanding threshold. Article 5 provides no alternative basis for attribution: developing and operating hydropower installations in Chile is ordinary commercial activity, not the exercise of delegated governmental authority. Article 8 would require Norway to have instructed, directed or controlled the specific conduct at issue. As the ILC commentary makes clear, neither the State’s creation of a corporate entity nor its ownership of the company’s shares is sufficient for that purpose: direction or control must relate to the particular operation complained of. There is presently no evidence of such involvement in the Pilmaiquén projects. The Bosnian Genocide judgment confirms both the exceptional character of de facto organ attribution and the demanding nature of the control required for attribution under Article 8.
There is a certain irony in this, because Norway’s own model of State ownership is designed to produce precisely this result. The ownership policy insists that the State exercises its rights through the general meeting and does not instruct companies on operational matters, which are the board’s responsibility. The separation that makes State ownership legitimate as a matter of corporate governance is the same separation that ordinarily prevents ownership without further evidence of dependence, direction or control from supporting attribution under international law. On the publicly available facts, Statkraft’s conduct on the Pilmaiquén is therefore not attributable to Norway merely by reason of State ownership.
Extraterritorial human rights obligations provide a natural second route, but they only partially fit the present case. Under Article 1 ECHR, jurisdiction is primarily territorial, subject principally to exceptions based on effective control over an area or State agent authority and control over individuals. Norway exercises neither in southern Chile. The case might instead be approached through complicity, asking whether conduct undertaken within the State facilitates a human rights violation abroad. The Soering line of cases has been analysed in precisely those terms. That approach does not readily resolve the present case, however: there is no evidence that Norway itself directed or affirmatively assisted the conduct at issue. The question is instead what Norway should have required or prevented in its capacity as owner. Nor has the European Court accepted a general effects-based conception of jurisdiction. In M.N. and Others v Belgium, the Grand Chamber rejected the proposition that decisions taken within a State automatically bring persons affected abroad within its jurisdiction; in Duarte Agostinho, it declined to extend jurisdiction to diffuse transboundary environmental harm, even as it accepted the territorial claim in KlimaSeniorinnen.
The position under the ICCPR is more open. In General Comment No. 36, the Human Rights Committee stated that Article 6 extends to persons outside a State’s territory whose right to life is affected by its military or other activities in a direct and reasonably foreseeable manner. It also recalled that States must not aid or assist activities undertaken by States or non-State actors that violate the right to life. This formulation goes beyond the conventional tests of power or effective control, but it does not straightforwardly resolve the present case. The harm examined here concerns principally the conditions for Indigenous cultural life protected by Article 27, while the relevant connection to Norway consists in its ownership of the enterprise and its alleged failure to prevent the harm, rather than in Norwegian conduct directly producing or affirmatively assisting it. The ICCPR therefore provides important doctrinal openings, but not yet a settled ownership-based obligation of the kind at issue here.
Taken together, however, these regimes leave a structural difficulty. Control-based jurisdictional tests are victim-facing: they ask what relationship the State has with the persons abroad who claim to be harmed. Effects- and complicity-based approaches instead examine the State’s own contribution to the harm. The Pilmaiquén case poses a different, entity-facing question: what preventive obligations arise from a State’s ownership of an enterprise domiciled and wholly held at home, where its operations abroad generate the risk? Existing extraterritoriality doctrine does not squarely capture that question, which is why the limits of these routes should be treated as the beginning of the analysis rather than its end.
State ownership as a third nexus
The relevant international framework has developed most clearly in business and human rights, where State ownership itself has emerged as a distinct basis for heightened expectations.
Principle 4 of the UN Guiding Principles on Business and Human Rights (UNGP) provides that States should take additional steps to protect against human rights abuses by business enterprises that they own or control, including, where appropriate, by requiring human rights due diligence. The commentary reasons from capacity: where a State owns an enterprise, it has the most direct means to ensure that human rights policies are implemented. Crucially for present purposes, Principle 4 formulates the relevant relationship without making it depend on territorial control over the affected rights-holders. Its trigger is instead the State’s ownership or control of the enterprise. It thus identifies a relationship of responsibility that is analytically distinct from both attribution and extraterritorial jurisdiction.
CESCR General Comment No. 24 points the same way from treaty-body doctrine, addressing business activities whether the enterprises concerned are privately or State-owned and whether they operate domestically or transnationally, and elaborating home State obligations to prevent and redress infringements by corporations domiciled within their territory or jurisdiction. The Maastricht Principles articulate the obligation to regulate in comparable terms. The OECD framework adds a governance layer, with the Guidelines for Multinational Enterprises applying to State-owned enterprises and the Guidelines on Corporate Governance of State-Owned Enterprises expecting the State to act as an informed and active owner, responsible business conduct included.
Two things follow, pulling in opposite directions.
The first is that State ownership is already recognised across international instruments and treaty body practice as a distinct ground for heightened expectations. The State is not simply another investor whose exposure is capped by the corporate form. The second is that this recognition has not crystallised into a determinate binding obligation. The UNGPs expressly state that they do not create new international law obligations. General Comment No. 24 is not binding as such, although, as the ICJ observed in Diallo, interpretations adopted by the treaty bodies established to supervise the relevant instruments should be accorded great weight. These materials therefore provide significant interpretive support for an ownership-based responsibility, but it would be over-claiming to say that international law currently imposes an enforceable duty of the kind at issue here.
It is worth stating the resulting thesis plainly, because the two halves belong to different registers. As a matter of existing law, international law already identifies State ownership as a special relationship calling for heightened human rights diligence, but it has not converted that relationship into a determinate international legal obligation. Between attribution, which asks whether the enterprise’s conduct is the State’s, and jurisdiction, which asks whether affected persons fall within the State’s responsibility, there remains a gap. The argument that follows is therefore normative. Fosen and Pilmaiquén show both why that gap matters and what an ownership-based obligation might require — due diligence that is knowledge-sensitive and temporally preventive.
What Fosen changes: knowledge, not law
In Fosen, the Supreme Court of Norway unanimously declared the wind farm licences and expropriation decisions invalid. Two features of the reasoning matter here. The threshold is that a violation arises where interference has a substantial negative impact on the possibility of cultural enjoyment (paras 118–119), a test the Court took from the Human Rights Committee. And the Court declined what may be called the green-purpose defence, namely the public interest in renewable energy did not neutralise the right, in part because the aims of the transition could be pursued otherwise. Mitigation was assessed substantively — could herding in fact continue? — rather than as evidence of a diligent process.
Fosen is nevertheless not merely a domestic law datum. The Norwegian Supreme Court was applying Article 27 ICCPR, interpreting the right in light of Human Rights Committee jurisprudence. Its identification of the relevant harm therefore arose through Norway’s implementation of an international human rights obligation. The broader Indigenous rights framework also connects the two settings. Both Norway and Chile are parties to ILO Convention No. 169, although the legal bases and procedures at issue in Fosen and Pilmaiquén are not identical.
Against that background, the Chilean facts present a recognisably similar structure of risk. Statkraft acquired Empresa Eléctrica Pilmaiquén S.A. in 2015, together with three projects on the same river: Osorno, abandoned in 2023; Rucatayo; and Los Lagos, a 52 MW run-of-river plant whose 35-metre dam floods approximately 192 hectares and whose environmental permit dates from June 2009, six years before the acquisition. For the Mapuche Williche, the Pilmaiquén is not apprehended simply as a natural resource or as the physical site of an infrastructure project; it forms part of a living territory associated with the Ngen Mapu Kintuantü and with ceremonial and healing practices. The parallel with Fosen lies not in the identity of the affected practices, nor in the identity of the applicable rights, but in the structure of the conflict. Renewable energy infrastructure alters the material environment on which the continued exercise of Indigenous cultural practices is said to depend.
This is where the ownership nexus and Fosen can meet. Due diligence is a knowledge-sensitive standard; UNGP Principles 17 and 18 are built around identifying and assessing risk. A State whose own highest court has judicially established that a specific category of renewable energy development can extinguish the material conditions of Indigenous cultural life cannot plausibly treat that category as unknown when an enterprise it wholly owns encounters it abroad. Nor was Fosen the only source of knowledge. Statkraft had already faced a Sámi complaint concerning wind development in Sweden before the Norwegian and Swedish National Contact Points, and NCP Norway accepted parts of an earlier complaint concerning the Pilmaiquén projects in 2024.
Fosen therefore does not travel as law. It fixes the content of what the additional steps under Principle 4 would have to cover if that Principle were given determinate legal effect. Ownership supplies the nexus; the State’s own adjudicated experience supplies the standard of what it already knows.
Due diligence before the point of no return
The last piece concerns timing, and Fosen illustrates the problem as sharply as Pilmaiquén does. The turbines had already been built when the licences were declared invalid, and the dispute was resolved through settlements reached only in December 2023 and March 2024. Invalidating an administrative decision does not reverse the material effects of a project that has been completed. The same sequence has now played out on the Pilmaiquén. The consultation ordered in 2021 and conducted by the Consejo de Monumentos Nacionales concerned administrative measures relating to archaeological findings; by Statkraft’s own account, it did not concern the construction of Los Lagos or the broader cultural significance of the river. That process closed in November 2025, and the reservoir was filled in August 2026, within days of the complaint being lodged.
The UNGP framework is not indifferent to irreversibility. Human-rights due diligence is expressly preventive, and where adverse impacts must be prioritised, the UNGPs direct enterprises first to those that are most severe, with severity assessed by reference to scale, scope and irremediable character. Irremediability therefore already matters to the substantive ordering of risks. What the Pilmaiquén sequence exposes is a different problem: the framework does not translate that concern into a clear rule about timing. It does not specify when a serious unresolved risk of irreversible harm must suspend, delay or otherwise constrain the activity that may make prevention impossible. Norway’s Transparency Act is instructive precisely as a domestic implementation of this preventive logic rather than as its international source: section 4 requires enterprises to identify adverse impacts and to implement measures to cease, prevent or mitigate them, but it contains no standstill rule.
That temporal gap matters especially for State-owned enterprises. If State ownership is to support a heightened preventive responsibility, and if the content of that responsibility is informed by risks the State already knows, the relevant knowledge must constrain decision-making while prevention remains possible. Otherwise the additional responsibility associated with State ownership arrives too late to do any additional work. A heightened duty discharged only after the reservoir is full is not a heightened duty at all. And where the threatened harm is the loss of a cultural practice inseparable from a particular place, ex post remediation is not simply a weaker substitute for prevention: once the place has been irreversibly transformed, the object of protection itself may no longer be recoverable. The Pilmaiquén case therefore does not test whether Fosen travels as law. It tests whether international law can give legal shape to something it currently recognises only as an expectation, to wit that a State which owns an enterprise, and which has already been told by its own courts what a category of harm looks like, owes something more than the shareholder’s ordinary distance when that enterprise meets the same harm somewhere else.
Image: Statkraft