Despite the universality of human rights, many states still disregard their extra-territorial obligations and apply human rights only within their own borders.
1. Human rights specialists have only relatively recently begun to give serious attention to the issue of extra-territorial obligations (ETOs), so the terminology relating to it has not yet sufficiently sunk-in. In the past, we have mostly referred to the external obligations of states. But the key point now is that states have responsibility for actions taken by themselves and also for actions taken by others --e.g., corporations-- outside their borders, especially but not only, when they have actual or potential control over them. (G. Kent)
2. We already know states have a broad variety of moral and international legal responsibilities. Some of them are enshrined in international human rights law and have thus become legal obligations. References to the extra-territorial or external human right obligations of states inherently emphasize the roles they have neglected pertaining certain other actors. Why? Because human rights law is state-centric, since it is only states that sign and ratify international human rights agreements. But corporations or other agencies sometimes are complicit in states’ violations of human rights (HR) meaning that, so far, such non-state actors have not been made de-facto direct abusers (violators) of HR.
3. Over the past 20 years, the attempt to limit obligations territorially has led to gaps in HR protection that have become more severe particularly in the context of globalization. Some of these gaps are:
• the lack of HR regulation and accountability of transnational corporations (TNCs);
• the ineffective application of HR law to development, financial investment and trade agreements and policies;
• the absence of HR accountability of intergovernmental organizations, e.g., the EU (and their respective member states) and the lack of implementation of governments’ duties to respect, protect and fulfill HR abroad in their international cooperation and assistance.
4. States must thus be reminded that, without extra-territorial obligations, HR cannot assume their proper role as the legal base for regulating a globalization process that ensures the universal protection of HR. States must fully integrate these obligations into their policies and practices and ensure that they are the central terms of reference in international and global policy-making and that remedial/recourse mechanisms are put in place as needed: food for thought for the drafters of the post 2015 development agenda here.
5. National, regional and international HR mechanisms must equally address extra-territorial obligations in their respective reporting and monitoring systems, including the call for remedial actions; they must further strengthen the application of extra-territorial obligations in jurisprudence and law. In particular, states must ensure that these mechanisms guarantee the right to an effective remedy for breaches of extra-territorial obligations.*
*: The Maastricht Principles on Extra-territorial Obligations of States, adopted in 2011 by international law experts from all regions of the world, including members of international HR treaty bodies, regional HR bodies, as well as former and current Special Rapporteurs of the United Nations Human Rights Council, reflect existing current legal standards and norms. They clarify the extra-territorial obligations of States with a particular focus on economic, social and cultural rights. The Maastricht Principles are applicable to HR in general and inform the HR obligations of intergovernmental organizations. States and HR mechanisms are called to apply the Maastricht Principles and the norms and standards on which they are based when acting unilaterally, multilaterally and through intergovernmental organizations. (M. Gibney and R. Kunnemann, Accountability for violations beyond borders, Chapter 7, pp.54-57, in Right to Food and Nutrition Watch – Claiming Human Rights: The Accountability Challenge, FIAN et al, Heidelberg, October 2011)
The common misconception that human rights are strictly territorial in their application easily leads to results that are the antithesis of human rights
It is only a simple-minded approach to jurisdiction that identifies jurisdiction with territory; this plays into the hands of those politicians and businessmen who still feel they can do abroad what they must not do at home.
6. It is clear: Only by carrying over HR obligations from state-based treaty law to the activities of intergovernmental organizations and TNCs will open the door to accessing more effective accountability mechanisms to end HR abuses/violations attributable to these actors-made-duty-bearers and thus to potentially receive the reparations due from them.**
**: I note that accountability for breaches to extra-territorial obligations will, of course, not be higher than the existing accountability for breaches of domestic HR obligations. I also note that existing HR mechanisms of the UN are under-applied as refers to ETOs. This fact allows HR abuses and violations by foreign actors (including intergovernmental organizations) to continue even under the current HR treaty laws. [It is not that the International Covenant on Economic, Social and Cultural Rights (ICESCR) does not emphasize the duty to realize these ETOs in HR in cases of overseas development assistance (foreign aid). ICESCR always meant to overcome territorial limitations].
7. What flows from the ETOs is that:
• home states of TNCs will have to allow for legal remedy once companies they headquarter abuse HR abroad;
• a state violates HR not only when it destroys, for instance, people’s access to food in a foreign country, but also when it condones others (on whom it has influence) doing so. (Take, for example, the case of land grabbing by corporations operating from outside a territory, or the example of the European Union being responsible for violating the subsistence rights of sugar farmers in poor countries);
• the obligation of governments of the North are unfulfilled, because they do not take up their responsibility to regulate and monitor the work of their respective TNCs overseas;
• the focus on economic, social and cultural rights abroad, now provides us with additional tools to (re)gain democratic control over policies that are violating HR.
8. Important to keep in mind here is the fact that ETOs also vie not to interfere with states' efforts to implement their own territorial obligations, but in fact facilitate such policies. But states also have to use their influence in international political decision-making processes they participate in.
9. Bottom line: Being international, ETOs are not yet being global! They stand not only for morals, but are grounded in law. (R. Kuennemann)
A lot more for us to do still.
Claudio Schuftan, Ho Chi Minh City
Postscript/marginalia: International law has not plainly established the ‘legal personality’ of the entity we describe as the global-community-taken-as-a-whole
As far as I know, most ETO discussions focus on the obligations of single countries, not the global community as a whole. That limited perspective weakens the entire human rights project. (G. Kent)
There are colleagues that have introduced the term global community to highlight that there are some moral responsibilities that rest with the collectivity of all people, and at least some of them should be raised to the level of legal obligations. The codification of these obligations would be based on a broad consensus regarding a host of underlying moral responsibilities. The idea is that the global-community-taken-as-a-whole should be viewed as carrying certain obligations. The UN Charter and the Universal Declaration of Human Rights clearly acknowledge the responsibility of the global community for the realization of human rights. Under international law, the primary obligations of states are internal, but they have external obligations as well. There are thus global obligations that go beyond --collectively. There is a need for clarity though, not only about what the global community may do, but also about what it must do and to what depth, i.e., what the obligations of rich countries are and what the obligations of international agencies are collectively with regard to human rights in poor countries.* (G. Kent)
*: There have been many global plans, but they propose only to work around the edges of the many HR problems, but not to end their violation. We have had no breakthrough solutions. Moreover, it should be acknowledged that the global community also has an obligation to support the efforts of the people of those states whose governments fail them. (G. Kent)