Multi-State Responsibility for Extraterritorial Violations of Economic, Social and Cultural Rights
Six decades after the adoption of the UDHR,1 there is still debate on the precise nature and content of extraterritorial human rights obligations, especially when the acts or omissions of states or non-state actors (whether as a result of foreign military intervention, war on terrorism, globalization or otherwise) affect the human rights of individuals in another state. This chapter posits that multiple states can and do hold legal responsibility to protect and promote economic, social and cultural (ESC) rights beyond state borders. States parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR) are obliged to take steps individually or through ‘international assistance and cooperation’ to achieve progressively the full realization of ESC rights.2 The idea that multiple states have human rights obligations to the same individual is derived, in part, from the author’s own experience working in ‘failed states’ and as part of multilateral efforts to bring peace, respect for human rights, and stability to war-torn and dysfunctional states. These violations can be direct or indirect, and this chapter discusses both.
Often, ESC rights violations are direct as states fail to ensure that state revenues are maximized and in turn invested in improving the full spectrum of human rights. A clear example of this is illegal mining and mineral exploitation. State elites may use informally collected revenue from these enterprises for personal gain and effectively divert resources away from public budgets that protect a range of ESC rights such as education and health care. The diversions can be created by the state where the minerals are located, by neighbouring states that allow the minerals into their own territory without verifying their legitimacy, and by the states that allow trading in the illegally obtained minerals. Even non-state actors, such as rebel groups and corporate actors, can take part in such diversions.
The other type of violation discussed in this chapter can be described as indirect, in that revenues are not prevented from reaching the state coffers but nonetheless are not used to maximize resources available to measurably improve the situation of human rights in a given state. These efforts are often cloaked in good intentions or designed to appear to be responding to human suffering. Often the resources at the disposal of the ‘host state’, such as power and financial capacity, are extremely limited, while other actors such as the United Nations (UN) member states choosing to intervene in that state, either bilaterally or multilaterally, have extensive resources and at times more political power than the host state. Such resources and political power may be used to contribute to, as opposed to minimize, human rights violations. Thus, indirect violations can be committed by states, international entities (such as the UN), and even non-governmental organizations.
Oddly, considering legal developments in other fields and the nature of human rights, actors continue to place all legal obligations for violations of human rights on the state where such violations occur. Those governments that contribute to instability and deficient protection of ESC rights through poor service provision, or that have voluntarily joined in efforts to rehabilitate failed states, have enjoyed total impunity for their acts. This impunity is enjoyed regardless of the relative power and financial capacity brought to bear in what these states would call a collective endeavour to bring peace, respect for human rights and stability to war-torn and dysfunctional countries.3
This chapter begins with some brief background information on Haiti and the Democratic Republic of Congo (DRC), as reference is made to these two states throughout this chapter. It then explores several existing theoretical frameworks that will help situate the idea of multi-state accountability in current human rights scholarship. This section will move from a discussion of human rights and human rights actors, to humanitarian law and how it is different from human rights. It will then explore several theories of tort and contract law that can help incorporate the multi-state approach. Next, the chapter will outline several existing hurdles in the international legal system that the proposal will have to overcome, such as a very state-centric approach to international law, the marginalization of ESC rights, and other logistical difficulties that would arise when holding multiple states accountable for a single action. Finally, the theoretical framework will be applied to the human rights situations in the DRC to illustrate in which contexts the international system could benefit from the multi-state accountability approach to human rights.
2. Haiti and the Democratic Republic of Congo (DRC)
Haiti and the DRC provide salient examples of why a broader, non-state-centric approach is necessary to create respect for human rights. Both states demonstrate why it is not tenable to continue to assert that multi-state or non-state actors are immune from human rights accountability.
After the ouster of President Aristide in February 2004,4 the UN mounted its fifth UN peacekeeping operation to Haiti.5 Haiti was considered a ‘failed state’ and had a temporary or interim administration that was established extra-constitutionally with a good deal of influence from important states such as the USA. Against the counsel of experts, the USA intervened to facilitate Aristide’s removal and the ‘restoration’ of order when regional actors were against the idea and most favoured preventive measures.6 The USA obtained UN Security Council support for the US-led ‘multinational interim force’ intervention and quickly turned the intervention over to the UN.7 The overall power and resources that were brought to bear by various member states to achieve the common objectives of bringing peace, respect for human rights and stability were massive. They brought resources that were much greater than those of the government of Haiti.8 Haiti is not the exception. For example, in post-genocide Rwanda, those states participating in the international intervention were much better resourced than the post-genocide government. Following the genocide, the Rwandan Ministry of Justice, tasked with responding to the genocide, had almost no resources and most of its infrastructure had been destroyed. The only vehicle the ministry had was the minister’s old, worn-out private car, which on most days needed to be push-started.
In the absence of a war, a ceasefire, a peace process, or a peace accord, the UN Stabilization Mission to Haiti (MINUSTAH)9 was a clear example of a well-resourced peacekeeping mission to a state with extreme poverty and a long history of bad governance. There was no hot war in Haiti, so it was unclear why the main response of the UN Security Council was to send troops. Making change on the ground is no easy task,10 but sending the wrong tool does not make it any easier. Even without considering multilateral, bilateral or other sources of government funding, MINUSTAH’s annual budget was larger than that of the government of Haiti. For example, the USA in 2004 and 2005 disbursed US$352 million in assistance for Haiti, most of it through US-based NGOs.11 The Haitian government had annual revenues of about US$400 million and expenditures of about US$600 million in 2005,12 whereas the approved 2005 MINUSTAH budget was US$518.30 million.13
Remarkably, President Aristide’s former prime minister was elected president a little more than two years following Aristide’s ouster.14 His election brought about a reduction in political violence, perhaps indicating that international intervention may have contributed to, as opposed to minimized, the political violence. Nonetheless, it is difficult to determine whether the international intervention, with all its expenditures, has measurably improved the human rights situation in Haiti. Do bilateral or multilateral participants in the international intervention actually have an obligation to create programmes in a way that improves the human rights situation? At present, there is a gulf between those scholars who convincingly assert that such human rights obligations exist,15 and operational entities that seem to begrudge being bound even by humanitarian law after a directive from the UN Secretary-General,16 let alone take their human rights obligations seriously.
2.2 Democratic Republic of Congo (DRC)
The DRC has had a turbulent history of war, exploitation, and European colonization ever since the Stanley–Livingstone expeditions of the 1870s. Since the intervention of King Leopold and the Belgium Empire, the DRC has had a complicated and often violent and exploitative relationship with outside interveners. Of particular import is mining in the DRC. The DRC is a naturally rich nation with resources such as gold, copper, diamonds and coltan.17 Little progress has been made in holding human rights violators accountable – whether member states, individuals, rebels, or corporations – for the impact of their illegal mining involvement on the DRC.18
In many economies around the world, short-term profit-seeking trumps individual ESC rights, and even long-term business interests, creating a catch-22 short-sighted business arrangement. Legally binding ESC human rights laws have, thus far, failed to change this calculation as international organizations and member states have not created regimes designed to reinforce the respect for ESC human rights by making these types of deals less profitable and more risky. This has been especially clear in the DRC and Haiti.
As odd as it may sound, political and bureaucratic concerns trump human rights obligations in the organization of international missions, mainly because member states and multilateral and bilateral bureaucrats do not consider themselves bound by human rights law in the organization and operation of an intervention.19 Of course, private actors, such as armed rebels and corporations, are even less likely to consider themselves bound, and act accordingly. How human rights organizations can more effectively organize mission resources and hold accountable those directly and indirectly linked to violations of ESC rights must be better defined. The questions, ‘Who holds human rights?’ and ‘Who has the obligation to respect human rights?’, are increasingly complex.
3.1 The Essence of Human Rights Law
It is well established in international human rights law that human rights derive from the inherent dignity and worth of all persons, with the human person as the central subject and primary beneficiary of human rights.20 Thus, human rights are not derived from being a national of a particular state but are based upon attributes of human personality. During the Vienna Conference on Human Rights, states declared that ‘Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments.’21 What is noteworthy in this language is that it reiterates attachment of rights to the individual, and the use of the plural form of government infers that more than one government can be concerned with the rights of a particular individual. But for years there has been theoretical debate and practical confusion about the application of human rights. To some degree, growing out of the state-centric reality of international law, it is understandable how many continually attempt to limit human rights to the relationship between the individual and the state. Focusing on the individual without linking him or her to a particular state seems fanciful, but if the objective of human rights law is the protection of individual/group rights and the creation of a just world, that is the logical outcome.22
The failure of entities with the capacity to effect positive changes in human rights to be bound by human rights principles reinforces the idea that human rights law has no restraining normative content and may be manipulated simply for political ends.23 The more often human rights law is applied to those with power, the closer we are to a place where the individual person becomes of the essence of law’s purpose.24
The fact that all laws are broken, however, does not mean there is no law – but it does affect the law’s acceptance and effective enforcement. What is most problematic, however, is the relative difficulty of getting the most powerful entities to accept and comply with their human rights obligations in practice. While a lack of mechanisms, effective forums and third-party oversight does not negate the existence of rights, these deficiencies certainly present challenges for human rights advocates. The traditional realist’s view of human rights is grounded in a tight-knit community or nation, where a contract between governed and governors defines these rights. This idea, in times of little movement between one nation and another, worked adequately enough to ground human rights law. But today, human rights law is about protecting individuals and groups from those who have the capacity to violate their rights.25 The ‘community’ is heterogeneous and international, and therefore laws ought to apply globally. In that regard, the International Court of Justice (ICJ) observed in the Reservations to the Genocide Convention case:
[T]he contracting states do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention…. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions.26
Indeed, in 1993, the Vienna Conference affirmed the idea that human rights are universal, indivisible, interdependent and interrelated, yet, we have not achieved full acceptance of human rights as a constant limitation of power. Historically, human rights law has been viewed too narrowly and has been portrayed as a dichotomy of good or evil intentions. In fact, because human rights apply to everyone, people with evil intentions are not the only ones who can violate them. Often organizations created to do good, such as the UN, NGOs and even human rights groups, can violate human rights of individuals and groups. The idea that violators must be evil limits the understanding and application of human rights law.27
Many theories regarding the accountability of multiple actors have been developed and are in use throughout the world. Most of these theories allow for degrees of responsibility or fault, distinguishing the actions of one wrongdoer from another involved in the same action. Theories and practice, ranging from simple to very sophisticated, have developed to allocate or apportion fault, responsibility and liability. These theories include co-defendant and co-conspirator liability, agency, contract, vicarious liability, respondent superior, market share liability, joint and several liability, enterprise liability, and comparative fault.28
Even in international law, multiple actors can be held responsible. The ICJ, humanitarian and environmental law, and even trade law allow for multiple actor liability, even though international law otherwise usually focuses on the state actor. This traditional thinking of international law provides an incomplete framework for examining human rights obligations. Human rights law should not be held prisoner by the dated idea that only one state at a time can violate international law, that a state is only bound by law regarding its own citizens. In fact, human rights treaties ratified by a vast majority of states are very open. They apply not just to citizens but to everyone within a state’s jurisdiction.29 Thus, a state and any other powerful entity can violate the human rights of someone under its jurisdiction.
Unfortunately, human rights and humanitarian law are often lumped together within the public international law field. Practitioners often practise both, and human rights lawyers are far from immune from the phobia that human rights law may be more fantasy than fact. Because humanitarian law is the more developed discipline, practitioners often wrongly apply its obsessive concerns with jurisdiction to human rights cases. However, no such hurdle need be crossed in human rights law. This desire to determine first whether human rights law applies has created a problem for its extraterritorial application, when, in fact, human rights law is not territorially limited. Human rights are distinct from most international law or law between nations. For example, whether refugee law is a distinct discipline within international law, or, rather, a part of human rights law, makes a difference as to how these laws are interpreted. Laws relating to refugee rights use language about such laws applying in the territory of the contracting state.30 The territorial limits included in the Convention Relating to the Status of Refugees31 have been interpreted narrowly by contracting states. The US Supreme Court, in a narrow interpretation of refugee law as traditional international law, as opposed to a part of human rights law, found that detention of Haitians in Guantánamo, Cuba, was not covered by the Refugee Convention, since that would be an ‘uncontemplated’ extraterritorial obligation.32 Viewing the Refugee Convention as protecting the human rights of individuals first, rather than as simply an agreement between states, would have resulted in a different decision that protected the rights of the refuge-seeking Haitians.33
Again, human rights law focuses on the rights of individuals and groups, and its purpose is to protect individuals and groups against human rights violations. Such violations may be by states or actors other than states. International organizations have gained their legitimacy from participation of states, but are losing their credibility after failing to live up to the principles they were founded to uphold. Accountability to their principles – beyond toothless self-review – should be enforced, and legal developments support this change.34 Human rights law should and does apply to international organizations.35 However, the realization of this principle has been difficult, given that such organizations are not currently parties to human rights treaties.
Human rights law is not humanitarian law, with all its jurisdictional definitions. Humanitarian lawyers spend countless hours in mental contortions attempting to show how humanitarian law either applies or does not apply to a particular circumstance.36 Is it an international conflict? Were the participants engaged in combat? Were they wearing uniforms? And, recently, is he or she an enemy combatant? Such a practice appears to help these lawyers comfort themselves that humanitarian law is really law. Human rights apply and belong to humans. Although this may be a stark and sweeping statement, this is the nature of human rights law, and this is why human rights law should now apply to non-state actors,37 to corporations and in the private sphere (e.g. discrimination).38 It is out of step with these developments, which represent the essence of human rights law, to limit the extraterritorial application of human rights law and to presume that only one state may be held responsible for violating individual or group human rights. To some degree, these limits have been based on the desire to avoid the difficult task of evaluating government policy in a war abroad. In addition, the international law state-based approach appears to helpfully limit the inquiry to one state at a time. However, these limitations are mainly due to an enculturation from humanitarian law and traditional international law, in which we review the actions of one state at a time and where some sort of jurisdictional hurdle must be crossed before the law applies. Human rights law is relevant whenever individual or group rights are violated whether by one state, several states or non-state actors.
3.3 Humanitarian Purpose Versus the Intervention Industry
Historically, linked to the work of the International Red Cross and the content of humanitarian law or the rules of war, interventions with a humanitarian purpose have developed a certain mystique. They enjoy international protection, not only in the form of limited scrutiny, but as full affirmative privileges. The problem is that interventions with an ostensibly humanitarian purpose now regularly include a full range of operations, from aid programmes to sending troops (known informally as ‘blue helmets’).39 This complicates any effort to hold individual states responsible, since a state may easily avoid scrutiny by claiming a humanitarian purpose.40
In the ICJ’s consideration of the complaint by the Nicaraguan government regarding the covert war the USA was waging against it, the court even entertained the US argument that its activities in Nicaragua should be considered of humanitarian nature and, therefore, legitimate. The ICJ stated:
the provision of humanitarian aid cannot be regarded as an unlawful intervention or in any way contrary to international law … if [implemented] to avoid violations of sovereignty and limited to the purpose ‘to prevent and alleviate human suffering’ and ‘to protect life and health’ and to ensure respect for human beings and given without discrimination.41
Although the ICJ did not find the US intervention in Nicaragua to have a humanitarian purpose, its tautological statement that humanitarian aid cannot be regarded as contrary to international law is consistent with the mystique that has developed around humanitarian purpose. Humanitarian intention is now used instrumentally by governments and NGOs as a means to avoid seriously evaluating whether their intervention actually contributes to measurably improving the human rights situation. This allows for the disease of ‘appearing to be doing’ to replace ‘actually doing’. If the intervention can be classified as having a humanitarian purpose, intervening states can avoid scrutiny. The question should be not whether there is a humanitarian purpose, but whether interventions have a measurable impact on human rights.
Within many international NGOs, there has been a question in reaction as to whether good intentions are good enough.42 There has not been a similar process for states and international organizations. Scholars of humanitarianism have discussed the need for human rights to be respected and promoted by NGOs.43 All actors would be assisted, most specifically the intended beneficiary, if all interveners were truly held to human rights standards. The reality that international interventions have become a major industry begs for the legal framework to be reconsidered. The fact that public monies fuel this industry is not a reason to avoid scrutiny, but rather a reason for it. If one were to sum up all the entities which contribute to work that may fall into the vaguely worded humanitarian purpose, the number would be significant.44 The international intervention industry offers goods and services and should be treated like any other industry. Having good intentions should not be a reason for arguing that such industry has no human rights obligations. The public policy behind holding those who manufacture goods or provide services responsible for their quality applies to all actors, including those with the ostensible intention to do good. In fact, given that some of these ‘do-gooders’ are working for organizations that promote the respect for principles, they may have a duty to do good. The fact that governments have a long history of enacting laws or signing international treaties and not applying those laws or treaties at the domestic level simply highlights the historical challenge, but it does not negate the importance of holding governments to accept their freely accepted legal obligations.
3.4 Duty to Act
General principles of tort, contract and criminal law create a number of situations requiring an affirmative duty to act. A duty to act may be based on the relationship of the parties (e.g. parent to child, pilot to passenger) or in contract; a duty may be based on a voluntary assumption of care; a duty may arise from the fact that a person created a risk from which a need for protection arose (for example, the good Samaritan principle,45 in which no duty exists to intervene, but once a person intervenes he or she has a duty to intervene appropriately); a duty may arise from a special relationship that makes the non-acting partner criminally responsible for the actor’s criminal action (for example, one person beats the other and leaves the victim lying on the ground injured); a duty can arise from the fact that one owns the real property upon which the victim is injured; and the duty to act and the resulting criminal liability for failing to act, may be based on statute.46 If one borrowed and applied these general principles of law to instances of states intervening in another state in any way (from invasion, to peacekeeping, to development work), a duty would often exist.
Perhaps the strongest basis to assert a duty is the good Samaritan principle, given that states would argue that they had no duty in the first place to intervene. Just as in general principles of law, a good Samaritan has no obligation to intervene, but if he or she does, he or she is held to certain legal obligations.
Another basis for an affirmative duty could be asserted depending on circumstances. For example, considering Chapter IX of the UN Charter and various human rights agreements,47 it could be argued that a contractual or statutory duty exists. Or where a state has intervened in another state – for example, militarily or economically – and damage has been done and attributed to the intervening state, a duty could arise. The idea is established rhetorically and intellectually that a human rights duty applies to protect the ‘target beneficiaries’ of international actors involved in development projects. This understanding, however, has yet to be accepted or realized by most states and other international actors. It is notable that, on paper, the World Bank already recognizes this duty:
Human rights foster accountability of all actors involved in development by locating duty for particular development outcomes on duty-bearers (usually States). This advances accountability to the poor and a consequent empowerment of the poor. In short, human rights improve the processes through which development occurs for those it is designed to benefit.48
3.5 An Agent or Subcontractor Cannot Avoid Legal Obligations
In general principles of law, it is clear, whether under contract, agency or tort law, that an individual or entity cannot escape legal responsibility by forming an association with others. In these cases, one is held to be liable for the acts or omissions of the other. Similarly, international organizations have human rights obligations, and entities that created these organizations do not escape liability by acting through the international organization. Indeed, as Shelton notes,
International organizations are entities created by states delegating power to achieve certain goals and perform specified functions…. It would be surprising if states could perform actions collectively through international organizations that states could not lawfully do individually.49
International organizations are subjects of international law and, as such, they are bound by any obligations incumbent upon them under general rules of international law.50 Case law interpreting the European Convention of Human Rights (ECHR)51 has consistently held states to be responsible for their actions, regardless of the banner or entity through which such actions were carried out.52 It has been held that it would be incompatible with the purposes of the ECHR (and indeed other human rights treaties) to absolve states from responsibility when acting through international organizations.53
4. Specific Hurdles
Ending obligations to respect human rights at a state’s borders severely limits human rights law’s capacity to effectuate positive change. A state-based interpretation is anachronistic and flows against an actual trend of globalization of commerce as well as conflicts. In contrast to the old state-centric model of international relations, the present world is amazingly interconnected.54 Trade, international investment and economic immigration have accelerated the reach of the global economy, and eroded the power of the state to govern.55 Corporations increasingly perform roles state governments were previously responsible for, and their impacts on social life have broadened and deepened in countries around the world. Corporations have expanded their influence in countries around the world, and with great power comes great responsibility. In principle, corporations therefore have obligations to respect human rights wherever they operate. But when human rights principles apply in the private sphere across borders, can states claim that only a host state has human rights obligations? Can they claim that their domestic human rights obligations do not apply when that state is working in another, either directly or through an agent (e.g. the UN, OAS or World Bank)?56 Some aspects of this issue have received academic attention.57
The prevalence of illegal mining in some states shows how a state-based approach to human rights enforcement is ineffective. Illegal mining constitutes a crime of conversion, but it goes well beyond a crime as it infects and inhibits the development of sustainable peace and true human-centred development. Unfortunately, legal developments to address this problem are well behind the understanding of the damage it creates.
There is a growing understanding of the application of human rights law to individuals serving in international operations. For instance, human rights principles forbid ‘blue helmets’ to torture or rape those they have been sent to protect.58 At the same time, mechanisms to create accountability for these violations are underdeveloped.59 However, while there is also a growing understanding and acceptance of the international responsibility to protect,60 there is still again an underdevelopment of the collective responsibility for failing to act or to fail while acting.61
An understanding of how human rights law applies when member states organize their interventions in another state, and how they spend their money, is also underdeveloped.62 There are, however, attempts to address this. For example, Zanmi Lasante (Partners in Health), the Robert F. Kennedy Memorial Center for Justice and Human Rights, and the International Human Rights Clinic at the New York University School of Law requested and received a hearing on the human rights obligations, specifically economic and social rights, that members of the OAS have when implementing projects in Haiti.63 The purpose of the hearing was to remind the commissioners of the confusion regarding this issue and the ripeness for further clarification.
4.1 Extraterritorial Application of Human Rights Law
Extraterritorial responsibility has been well established in international law for decades. The seminal case, the Trail Smelter Arbitration, held that ‘no state has the right to use or permit the use of its territory in such a manner as to cause injury … in or to the territory of another’ (emphasis added).64