New legal ideas: Comment on the relationship of the international assistance and cooperation and extraterritorial scope of ESC rights

New legal ideas

Comment on the relationship of the international assistance and cooperation and extraterritorial scope of ESC rights

There have been numerous attempts in academic literature to link ‘international assistance and cooperation’ under the ICESCR to the notion of the Covenant’s extraterritorial application.1 The Committee on Economic, Social and Cultural Rights has, on occasion, made reference to this notion.2 The Committee on the Elimination of Discrimination against Women (CEDAW) invoked States Parties’ extraterritorial obligations in the context of a housing project.3 The UN Special Rapporteur on the right to food asserted that the undertaking of states to assist and cooperate under socio-economic rights gives rise to extraterritorial obligations.4 According to the UN Special Rapporteur on the human right to safe drinking water and sanitation, extraterritorial violations may occur, for example, when ‘States contribute to human rights violations in the context of development cooperation activities, including by imposing conditions that undermine rights’.5 More and more development-oriented provisions of the human rights treaties are being dealt with almost exclusively within the paradigm of extraterritorial obligations of states.

This calls for a comment. First and foremost, it raises a question of whether two concepts (obligation of assistance and cooperation on the one hand, and extraterritorial obligations on the other) can be confluent, or are they almost two sides of the same coin? And if they are separate, what is the extent of their mutual reinforcement? Can it be that ‘international assistance and cooperation’, defined primarily as a means of realizing economic, social and cultural rights, be coextensive with the scope of application of a socio-economic rights treaty? Also, can extraterritorial aspects of ESC rights under the Covenant contribute to a better understanding of the obligation of international assistance and cooperation?

1 Clarification on terminology

The concept of the extraterritorial scope of human rights treaties emerged as a response to (i) situations where states either act directly outside their own territorial boundaries, or (ii) where their domestic actions impact on the rights of individuals living abroad. Different terms have been used in the literature to conceptualize the relationship between a state and the protection of socio-economic rights of an individual(s) in another state: extraterritorial obligations, transnational obligations, transboundary obligations, international obligations, universal obligations, external obligations, inter-state obligations, third state obligations or global obligations.6 There is, in fact, no common view on how to appropriately formulate the concept in the context of ESC rights.7

The notions such as transboundary, transborder or transnational8 did not acquire a strong following, as they were associated with environmental law and may or may not have a specific geographic connotation.9 The requirement of international assistance and cooperation, found in Article 2(1) of ICECSR, has also given rise to notions such as global obligations or global responsibility.10 Although the concept of third state obligations may seem logical in the context of ESC rights, its invocation has been rare among commentators. In a recent publication on the topic, it was suggested that the term transnational obligations is broader and preferable, as it includes both ‘extraterritorial human rights obligations as well as direct human rights obligations of other actors than States (NSAs)’.11 Mark Gibney, however, suggests that the most pertinent term in this context is a simple one: human rights obligations.12

Perhaps the most commonly used concept is still extraterritorial obligations.13 This has been the approach of the treaty-based bodies,14 except from CESCR, which despite its occasional references to the term,15 has consistently used the ‘international obligations’ concept without providing any particular explanation. The UN Special Rapporteurs who have taken up this issue frequently have also used the term ‘extraterritorial’.16 In addition, a group of experts who drafted the Maastricht Principles on Extraterritorial Obligations (ETOs) of States in the area of Economic, Social and Cultural Rights opted for the term extraterritorial, encompassing both negative and positive obligations (sometimes referred to as global obligations). Indeed, since socio-economic rights are also subject to general principles applied in civil and political rights case law, where the term ‘extraterritorial obligation’ seems to have been definitively accepted, the term ‘extra-territorial’ seems more relevant, at least for the time being. In what follows, the basic parameters of the concept of extraterritorial obligations as developed in the area of protection of civil and political rights will be laid down.

2 Extraterritorial application of human rights treaties

Discussions on the human rights consequences of the extraterritorial acts of states have always revolved around civil and political rights, and mainly in relation to the former. The repercussions of external economic and social processes on economic, social and cultural rights are, however, perhaps far more substantial and frequent. Human rights extraterritorial obligations are not yet consistently recognized, even in relation to civil and political rights treaties. Civil and political rights case law has not yet provided all necessary guidance to states, and, instead, courts have dealt with issues with which they have been confronted, on a ‘need-to-decide’ basis. Today, there is no clear threshold and no substantive rules. As Françoise Hampson points out, the debate is not between general international lawyers and human rights lawyers; rather, it’s within and between the latter.17

In effect, in international law, states incur responsibility for the conduct of their state agents acting outside their territories.18 In light of the persistent discussions, Hampson raises a question: ‘Is it seriously argued that international law would determine that responsibility exists if there were no substantive basis on which to evaluate the lawfulness of conduct?’19 One may enquire whether, after all, it is not more a matter of justiciability of human rights than their applicability that is in question.20 It may be that, indeed, individuals may be less effectively protected from the extraterritorial effects of state conduct under certain human rights treaties than they are under certain regional human rights instruments, which do not require threshold jurisdictional criterion.21 Martin Scheinin also provides a very useful analysis to demonstrate that ‘jurisdiction’ is simply an element of the road-map for admissibility determination under human rights treaties.22 Nonetheless, the extraterritorial scope of civil and political rights has engendered abundant academic work in response to the case law of mainly two bodies, the ECtHR and the Human Rights Committee. Some socio-economic human rights scholars have since joined the debate.

2.1 Defining the scope of obligations under the human rights treaties: Jurisdictional approaches

Any debate on the subject matter starts with the principal enquiry of whether human rights treaties can be applied extraterritorially. The International Court of Justice in its Wall opinion,23 in the case of DRC v. Uganda,24 the UN Human Rights Committee,25 the Committee on Economic, Social and Cultural Rights in its General Comments26 and in consideration of country situations27 all suggest the existence of some degree of extraterritoriality. Similarly, the European28 and the Inter-American29 human rights systems have supported the notion of extra-territorial obligations.

The key concept in determining the scope of a state’s human rights obligations extraterritorially is jurisdiction.30 The total cumulus of the case law of the different human rights bodies have led to the development of three criteria to establish whether an individual can be considered as falling within a state’s jurisdiction:31 de facto jurisdictional authority or territorial control;32 control or authority over persons;33 and the ‘cause and effect’ criteria. The first approach has been related to cases of military occupation, where ‘jurisdiction’ is established prima facie.34 Cases involving acts of diplomats and consular agents,35 as well as cases of detention36 and unlawful killings,37 all sharing the common feature of an individual being held in the direct control or authority of state agents, gave rise to the development of the second approach. In the second scenario, what is required is to determine whether a specific act brings the affected person within the ‘jurisdiction’ of a state.38

These two tests may not be easily reconcilable, however, with the types of situations in the development context that we have discussed briefly in the introduction. This is because the common basis for these two tests is the control or physical relationship between the state and the victim. In the case of socioeconomic rights, as well as some other contemporary problems, the ‘physical’ element may not be present to produce negative effects.39 In addition, as pointed out, ‘because the guaranteeing of ESC rights will often depend on duties to protect and fulfil (or, on positive obligations “not to omit”), the nature of those duties may make it difficult to identify what specific conduct of the State engenders a “jurisdictional link” between the state and the individual’.40

While fact patterns involving these two criteria are not excluded in the development setting, in most cases the ‘harm’ can be inflicted indirectly, intended or otherwise. Therefore, the third criteria, expressed in the concept of ‘control over the infliction of the alleged violation’41 or the concept of ‘cause and effect’,42 can be deemed, perhaps, as a more conceptually appropriate theory of jurisdiction for economic, social and cultural rights. This concept formulates the idea that the state is ‘responsible for the (extraterritorial) conduct of [its] agents that adversely affects individuals in another state’.43 In Hampson’s view, ‘[w]hen a state engages in action in the territory of another state, it is exercising its jurisdiction because the mere fact of the action carries with it a claim of an implied authority to act’ and ‘[w]hether or not the state has international authority for its action in another state, the action itself is an assertion of jurisdiction’.44

2.2 Distinguishing jurisdiction in general international law and human rights treaties

Judging by the totality of the human rights case law, it appears jurisdiction has been used as a threshold requirement before identifying whether the responsibility of a state towards an individual can be established. For example, according to the Banković case, what was to be established was whether the victim was under the jurisdiction of the state at the time of the conduct in question.45 In other terms, for the purposes of establishing jurisdiction, it is not the consequences of the exercise of authority outside national territory that is discussed, but whether the state was entitled to act. In the much commented-on Banković case, considered as the statement of the general principle concerning extraterritorial applicability of human rights, the European Court of Human Rights in essence assigned ‘jurisdiction’ a very restricted meaning, equating it with the notion of territory. The Court found that the Convention could apply outside the territory of a State Party only in ‘exceptional circumstances’. The practice of the ECtHR has evoked criticism, not least from one of the judges of the Court.46

The way the term ‘jurisdiction’ had been interpreted in the case law of the human rights bodies spurred a lot of commentary on the actual meaning (or rather its diverse meanings) of the concept in international law,47 and in human rights law in particular.48 A consensus opinion on the issue is that jurisdiction serves different functions, under international law on the one hand, and for human rights on the other.49

To begin with, classical international law doctrine does not probe into the matters of jurisdiction in the context of human rights violations. The basic framework of jurisdiction issues has been set in the well-known Lotus case. The PCIJ’s approach has been regarded as expansive, i.e. not excluding the possibility of a permissive rule to that effect under international law:

While certain scholars regard Lotus as a prevailing approach on the issue in general,51 certain others view the case as largely anachronistic and confined to the specific context of criminal jurisdiction, and therefore of little use and guidance for the interpretation of human rights.52 Without regard to the results of the debate on the currency of the Lotus standards, the basic framework is that the permissive rule extends to the prescriptive jurisdiction, while enforcement jurisdiction is limited to the territory of the State.53

Differing analysis can help to clarify the conceptual confusion in relation to the question of jurisdiction and to shed light on how jurisdictional solutions under human rights law should be (or should have been) appropriately approached. There is by now an agreement in doctrine that for the purposes of human rights, jurisdiction is about delineating the circle of persons to whom a state is obliged to secure human rights. More specifically, the references to and the meaning of territory and jurisdiction in human rights treaties were not designed to deal with the issues of accountability for human rights violations, e.g. ‘for direct actions taken against individuals outside a state’s sovereign territory’. To take the example of the International Covenant on Civil and Political Rights,54 it is largely agreed that the drafters’ reference to territory and jurisdiction in the treaty was meant to simply make sure that the Covenant did not generate duties to ensure (positive duties) all of the treaty’s provisions to individuals outside their territories (we shall return to this point later).55

Quite reasonably, then, the question of accountability for violations of the specific rights as a result of extraterritorial activity is different from the question of jurisdiction as a framework to define the scope of positive duties owed by a state. But irrespective of the theoretical discourse on what is the most appropriate way to interpret the meaning and scope of jurisdiction in human rights treaties, in most scenarios human rights bodies have tried to grapple with the issue of the applicability of human rights norms extraterritorially concerning the ‘negative’ obligations of a state. As a result, any attempt to frame the current reality through a different category discussed during the drafting would prove inadequate.56

Eventually, when confronted with the factual situation of an alleged violation, the practice of the Human Rights Committee has been to suggest interpreting the extraterritorial actions of states as falling within the scrutiny of the Covenant and hence in accordance with the object and purpose of the human rights treaties.57 Sir Nigel Rodley, applying the rule of interpretation as laid down by the Vienna Convention on the Law of the Treaties, held:

The ordinary meaning of article 2 was the one given to it by the Committee, and the context included any subsequent practice in the application of the treaty which established the agreement of the States parties regarding its interpretation. It did not include the travaux préparatoires, which were a supplementary means of interpretation under article 32 of the Convention. The object and purpose were laid down clearly in the preamble to the Covenant and consisted in protecting humans from the overreaching power of States.58

Nowak similarly states that the motive behind the formulation of Article 2(1) of the ICCPR was to limit responsibility of States Parties for the ‘legal security of persons who are located on their territory and subject to their sovereign authority’. But ‘[w]hen States Parties, however, take actions on foreign territory that violate the rights of persons subject to their sovereign authority, it would be contrary to the purpose of the Covenant if they could not be held responsible’.59

One author has provided a fairly thorough analysis of all relevant human rights treaties and the meaning attached in these treaties to the notion of jurisdiction. His concluding argument is that ‘jurisdiction’ has several distinct meanings and, possibly, in the human rights treaties, ‘jurisdiction’ refers to ‘a power a state exercises over a territory, and perhaps over the individuals’.60

3 Applicability of ICESCR extraterritorially

The International Covenant on Economic, Social and Cultural Rights belongs to a category of treaties with no provision on their territorial application.61 Likewise, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and Convention on the Rights of Persons with Disabilities contain no territorial jurisdiction clause. Following the general trend emerging in the jurisprudence of the human rights bodies, authors have started to pay considerable attention to the extraterritorial aspects of the ICESCR.

Whether in light of the years-long process of elaboration of the notion of ‘trans-national’ obligations or in response to the failure to recognize the international dimension of human rights obligations through the concept of right to development, or whether for any other reason, the concept of extraterritoriality has been enthusiastically embraced by the human rights scholarship. The lack of express territorial limitations was seen as an authoritative legal argument to extend the reach of the treaty to virtually all activities of states taking place or having direct or indirect effect on the rights of people outside their territorial borders. The findings of human rights bodies served as a catalyst to move the discussions on the protection of ESC rights into the new plane through a new legal ‘idea’.

3.1 ‘Jurisdiction’ and the ICESCR

As noted earlier, the Covenant does not include the term ‘jurisdiction’. Overall, two approaches have been devised to determine the possible extension of application of the Covenant on Economic, Social and Cultural Rights, beyond the territory of a State Party. First, the lack of jurisprudence, or even a general statement by the CESCR on the issue, has seen most authors apply the concept as applied in the jurisprudence on civil and political rights. The second approach is based on the absence of reference to ‘territory’ and ‘jurisdiction’ in the Covenant, thus the provision on ‘international assistance and cooperation’ has been interpreted as implying the extraterritorial applicability of the treaty.62

The ICJ’s Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, however, in contrast to human rights scholars, did not consider the existence of the phrase ‘international cooperation and assistance’ in the treaty as relevant to the question of jurisdiction and instead held that:

[t]he International Covenant on Economic, Social and Cultural Rights contains no provision on its scope of application. This may be explicable by the fact that this Covenant guarantees rights which are essentially territorial.63

In this advisory opinion, the Court seems to have set a higher standard of applicability for the ESC rights treaty, compared to the ICCPR.64 This situation has been reversed to a certain extent. Later, in the contentious case of the DRC v. Uganda, the Court, restating its finding of the Wall Advisory Opinion on the same measure of extraterritorial applicability of human rights treaties, did not make a reference to the ICCPR but instead employed a broader term of ‘international human rights instruments’.65 In particular, according to the Court, ‘international human rights instruments are applicable “in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”’. Thus, the Court resorted to ‘a single standard’ for all human rights instruments.66

Finally, the ICJ may have even further refined its position on the scope of application of human rights treaties. In its decision on Provisional Measures in Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), pointing out the absence of a territorial clause of the treaty, the Court has observed that:

The latest pronouncement of the Court leads us to conclude that the Covenant does not a priori limit its reach to the national territory. Of evidentiary significance to this effect are also the declarations of the States Parties to the Covenant on Economic, Social and Cultural Rights. When adhering to the ICESCR, Turkey declared that ‘it will implement the provisions of this Covenant only to the States with which it has diplomatic relations’, and that the ICESCR was ratified exclusively with regard to the national territory ‘where the Constitution and the legal and administrative order of the Republic of Turkey are applied’.68 A number of states objected to Turkey’s reservation, stating that it created ‘uncertainty as to the States Parties in respect of which Turkey is undertaking the obligations in the Covenant’69 and that it was ‘in the common interest of all states that treaties to which they have chosen to become parties are respected and applied as to their object and purpose by all parties’.70 While for some the meaning of Turkey’s declaration was not clear,71 according to Greece:

This reservation is incompatible with the obligation of a State Party to respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of such State Party.72

This seems to suggest that some states consider ICESCR obligations, both negative and positive, to be applicable beyond a state’s sovereign territory. In light of the above discussion, and consistent with the ICJ’s Wall Advisory Opinion, later refined in the DRC v. Uganda case, one avenue of possible extraterritoriality of the Covenant on Economic, Social and Cultural Rights is qua jurisdictional limits.73

Contrary to the main argument in the preceding chapter, that international assistance and cooperation is one possible means of implementation of states’ obligations under ESC rights treaties (as opposed to a self-standing obligation), human rights scholars have adopted an expansive approach to Article 2(1) of the ICESCR. As noted before, the requirement of international assistance and cooperation has been interpreted as a basis for extraterritorial applicability of the Covenant. A standard analysis of extraterritorial obligations with reference to international assistance and cooperation proceeds more or less as follows:

The material analysed thus confirms that human rights may be applicable outside the territory of a state. The question, rather, seems to relate to the circumstances under which applicability can be envisaged.

3.2 Challenges in applying extraterritoriality principles in the context of development

Notwithstanding the scant assertions of international bodies on the extraterritorial applicability of economic, social and cultural rights, it seems that general principles of extraterritorial applicability of the civil and political rights also apply to socio-economic rights.75 The only problem is that, in situations other than foreign occupation, there is no sufficient clarity as to the extraterritorial scope of the ICESCR. In what follows, it is suggested to review the type of scenarios that may engage ‘extraterritorial’ applicability of the ICESCR in a development setting, with a view to understanding better the suitability of conceptual frameworks developed to deal with the relationship between a state and the protection of socio-economic rights of an individual(s) in another state.

Potential development-related extraterritorial cases under the ICESCR generally include the following:76 (i) agricultural practices leading to the export dumping in the developing countries in violation of the right to an adequate standard of living of individuals residing in those countries and (ii) the ‘promotion of user fees and cost recovery measures in health projects [in a bilateral or multilateral context], which have had, and continue to have, adverse effects on the right to highest attainable standard of health’77 (the same practice of increasing user fees can be found in relation to development projects for education,78 water, sanitation, etc.). In addition, extraterritorial obligations have been found in cases of illegitimate debt accrued as a result of development policies and strategies;79 technical and financial contributions to government-led land management projects;80 an extra-territorial obligation has been asserted to fulfil the ESC rights of individuals living in third states;81 debt repayment and violations of socio-economic rights and so on. Applying a human rights framework, increasingly the NGOs have alleged human rights violations in the context of development cooperation.82

These examples point out at least to two types of scenarios in the development setting that may engage questions related to the extraterritorial operation of the ICESCR. The first relates to protection of individuals from the extraterritorial conduct of a state acting directly outside its territory – promoting, let us say for the sake of simplicity, user fees in the framework of development projects for education. The second scenario would involve a conduct that is not extraterritorial, per se, but produces effects outside the territory – put differently, arrangements of a policy or socio-economic nature, taken within the confines of a state, which have an extraterritorial effect on the socio-economic rights of individuals. Again, in simplified terms, a case in point may be a situation akin to the 2015 Greek debt crisis, where economic arrangements and policies adopted by lender states may incur considerable impact on the enjoyment of economic, social and cultural rights of individuals residing in Greece.83

More fundamentally, in the development context a wide variety of scenarios will have an inter-state or extraterritorial dimension, as ‘development’ projects are very often based on cooperative and joint or collective action, involving multiple actors who contribute to the final outcome, and are in some cases harmful. Development is an area of external state activity capable of producing large-scale effects on the situation of the well-being of individuals outside the state’s boundaries.84 It is the essence of development to intervene, to prompt changes. It has even been labelled as an art of large-scale social engineering. However, according to one view, ‘domestic economic decisions that have international economic implications, and necessarily global effect upon human conditions, would not bring affected individuals in foreign countries under the jurisdiction of the State in question’, suggesting that ‘considerations of fairness and expediency require that states would not bear responsibility for indirect or unforeseen consequences of their actions in areas outside their control’.85 While it is not clear which concerns will need to be taken into consideration – fairness or expediency – the real problem with any practices related to socio-economic fields with human rights implications outside the territory is establishing the necessary link required between the act and the violation.86

In addition, complex issues within the development cooperation context would arise in connection with the moment at which violations occur, namely whether they occur at the stage of design or implementation, and how to differentiate between original and consequential violations, or when a violation has not been intended. Difficulties also include establishing a direct link between a policy of development cooperation and its effect on ESC rights in the country of the state receiving aid.87 In the context of development cooperation, there may be challenges in separating the complex causal relationships between conduct and/or omission originating in the international environment from the activities of a particular donor state, as well as separating the donor activities from the activities of the recipient state (or other possible causes).88 Consider the following example when:

a vote in Washington to change the wheat price supports for Nebraska can change the price of bread in Calcutta and the price of meat in Kiev. And when major actors take concerted action to produce effects–when, for example, officials from the United States, Japan, and Germany cooperate to manipulate the relative values of the dollar, the yen, and the mark–exports and imports, deficits and taxes, jobs and standards of living, even birthrates and life-expectancies throughout the world far beyond those three countries are affected, for better or worse, as intended or otherwise.89

It is often the case that multiple actors are involved in socio-economic processes, making the questions even more complex. What at first sight seems to be an extraterritorial act of a state (donor), is transformed by the state (recipient) into an act or omission of its own. In essence, in development cooperation, decisions are made within cooperative arrangements, with the consent of recipient states; hence actions and decisions of the states (recipient of development cooperation) transform initially extraterritorial conduct into territorial conduct. Such a situation suggests elaboration of sophisticated concepts determining varying degrees of responsibility and means of determining them. At present, broad categories are increasingly used to describe possible sources of harms to human rights of individuals in impoverished parts of the world, such as globalization, global integration of markets, and unequal and unfair economic relations that sustain structural obstacles to many states impeding development. On this basis, it should be conceded that, indeed, the emergences of ‘transnational solidarities’ challenge the old precepts of jurisdiction.90

In the context where global and economic forces are in play, possibilities of attribution to a concrete state or actor may prove precarious. Generally, it is submitted that multilateral contexts are more complex in this regard. Some commentators have tried to address these issues, putting forward different proposals, including the principle of foreseeability,91 the principle/obligation of due dili gence,92 or even the application of the precautionary principle.93 Or, to render propositions set out by the Maastricht Principles on the Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights operative, theoretical analysis is being developed on how to divide responsibility between the national state and other states and actors, as well as between the other actors.94

The nature of socio-economic rights themselves adds another layer of complexity to the issue. At the heart of the violation of socio-economic human rights lie systemic or structural causes. Equally, the potential of domestic decisions in the development context (as well as external decisions, such as externally designed economic or social policies) to impact on the socio-economic rights of individuals outside their territories usually goes beyond an individual violation and may result in massive impairment of basic socio-economic rights. In this respect, it seems that there is room to explore these aspects further within the notion of ‘grave or systematic violations’, as provided for by the Optional Protocol to the ICESCR.95 All in all, the tests developed for civil and political cases may require further refinement and a high degree of sophistication to be able to be accommodate the specificities of violations of the socio-economic rights.

While these issues are starting to become more widely discussed in the human rights analysis, in general international law the question of injurious economic effects is dealt with under the topic of the effects doctrine (a variation of objective territorial jurisdiction). According to this doctrine, jurisdiction can be asserted on the basis that the negative (injurious) effect, but not the act or omission itself, occurred in the territory of state.96 The origin of the effects doctrine is closely associated with the practice of US anti-trust law. Even if the effects doctrine has found some following, it has been very controversial.97 The main contention was that the effects doctrine would lead to ‘unacceptable interferences in the freedom of others to conduct their economic affairs as they choose’.98 As Simma explains:

To be sure, economic effects are certainly the result of human action, but it has been argued that there remains a difference in kind between physical constituents of an act realized in a state’s territory and the mere economic consequences of the manipulation of market forces… It could also be said that such effects are too remote from the initial acts; recognizing them as the ‘result’ of these initial act could bring almost everything within their ambit. An excessive effects doctrine would indeed bear the risk of creating a sort of jurisdictional ‘butterfly effect’, since, in the highly interconnected world economy, even inconspicuous and seemingly innocent acts can be traced back as being at the origin of all kinds of negative repercussions.99

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