Respect for human rights in external activities: Overarching normative principles
VI
Respect for human rights in external activities
Overarching normative principles
Introduction
The resource-related action has been a preferred strategy of international efforts to balance inequality in social and economic terms: aid, preferential treatment, technical assistance, etc. Equally, the meaning of creation of an ‘enabling environment’ has given way to an interpretation of ‘affirmative action’ rather than developing an understanding of issues of negligence in development. Since the level of development is singled out as an obstacle to enjoyment of socio-economic rights, the solution to address development challenges (or the lack of) was also seen in providing resources, including through the medium of ‘developmental’ human rights. Efforts focused on ushering in ‘development’ rather than on ensuring the way development was promoted or facilitated was not harmful to human rights.
Historically, the social and human impacts of bringing ‘development’ (both international and national policies and practices) have not always been positive.1 In practice, however, when the impact of development aid was negative, it was more often addressed by special measures of redress rather than through a change in the economic policies that caused it.2 This reality compelled legal discourse to focus on ways to compensate for the neglect of human rights within development. Some scholars were even convinced that the work of the human rights community should be entirely geared towards ensuring that development com-plies with human rights standards, rather than attempting to transform human rights into an ‘all-encompassing blueprint’ for development.3
But how to ensure that economic and/or development policies do not conflict with human rights obligations continues to remain a crucial question.4 Current debates reveal that increasing attention is being paid by the human rights community to seek adequate responses in this direction. However, analyses are still nascent and far from being systematic. Careful exploration, particularly as to the sources of law involved, is warranted. In the previous chapter, I discussed the emergence of new legal ideas and their possible relevance to this research. The main conclusion was that the concept of extraterritorial obligations is not well established and raises many issues when applied to the context of development.
This chapter discusses and builds on existing legal ideas and arguments elaborated over time, in human rights law specifically and international law generally, to turn the broad thrust of the UN Charter human rights provisions into concrete propositions to guide the behaviour of states. It analyses whether and, if so, to what extent, limits are imposed by international law on respect for human rights in external activities related to development. As in previous chapters, it takes socio-economic rights treaties as a point of departure.
1 Human rights and development cooperation: The factual interplay
An evident first step in discussing the conceptual framework for protection of human rights within development is to describe their factual interaction. The purpose here is to set the framework within which the seeds of the demand of ‘what should not be done’ in promoting development became visible. That development cooperation activities will implicate the recipient state’s obligations under the International Covenant on Economic, Social and Cultural Rights seems unavoidable. As emphasized earlier, even if development puts forward an idealistic and ethical self-perception, it is not, as yet, either perceived or implemented as such in practice. The substantial overlap with the human rights treaty norms makes development policies and activities capable of impacting human rights in diverse ways: positively and negatively, directly and indirectly.5 The factual interaction is often presumed to produce situations of ambiguities between human rights logic and development decision-making because, as noted by McInerney-Lankford:6
while there is much substantive congruence, this ‘factual overlap’ does not automatically align with all the objectives of such operations and those of ‘corresponding’ human rights treaties. Such activities may not be assumed to reflect or promote the realization of human rights, since few reference or mainstream human rights in their designs and objectives. Moreover, such activities will typically not address any impact on human rights – assessing whether they in fact support human rights or result in human rights harm.7
Development is replete with policies and international decision-making that, as the Committee on Economic Social and Cultural Rights long ago stated, ‘affect the ability of States to fulfil their treaty obligations’.8 The question of the impact of international decision-making concerning the balance between growth and distribution, and investment and expenditure, is often invoked as an example.9 To the extent that they determine national priorities for public spending on social services and the capacity of governments to allocate such resources, questions of compatibility with the human rights normative framework may arise.10 There is also a correlation between priorities for the allocation of resources at international and national levels.
But unlike other areas such as trade and investment, discussion on legal strategies to ensure a harmonious interface with human rights is lacking in the development field.11 This is partly because instruments of soft-law or non-legal approaches to organizing development cooperation activities are applied. These formally have no legal effect, although the practice they generate may contravene human rights law and eventually hinder their protection.12 The integration of human rights in development theory, policy and practice has always been dependent upon recognition of the existence of a nexus between the two. No significant progress has, however, been achieved since the first time the linkages between economic progress and human rights were identified. In response, debates have increasingly revolved around the question of whether international law addresses the cross-border aspects of human rights violations, in particular socio-economic rights. And, if so, what are the preventive and proactive approaches available to ensure compatibility of policies and practices at the inter-state level with human rights obligations?
2 Proposals on ensuring compliance with human rights: New, old ideas?
It would be fair to say that, due in large part to the involvement of civil society at national and international levels, environmental and human rights aspects of development have been raised and exposed. Governments have rarely been concerned with this issue, and so some of the emerging intellectual efforts come from academia and civil society. One way for the human rights community to argue for adherence to human rights norms was to advocate for extraterritorial obligations, which I examined in a separate chapter.13 Today, another set of academics is showing particular interest in the principles developed in traditional sectors of international law. One view, for example, makes a case for the application of a due diligence standard, as, in the context of international economic interdependence, ‘actions and decisions within the global order cannot easily be disaggregated and attributed to a particular state or states for the purposes of state responsibility’.14 A more refined analysis contends that current international law is based on the independent international responsibility, while what is needed is conceptual tools capable of ‘allocating responsibility between a plurality of actors in situations where contributions to harmful outcomes cannot be attributed based on individual causation of each actor’.15
Two arguments animate the debate on the significance of due diligence. First, states ‘do not often violate ESC rights of individuals living abroad in a direct manner’.16 Second, in most cases, it is not easy to separate an individual’s situation from the general conditions prevalent in his or her country. In light of complex processes typically involved in cross-border socio-economic activities, progressively references are made to the do no harm principles and due diligence standards, as elaborated mainly in the international environmental law. The rules in international environmental law have the logic of prevention at their basis.17 It is alleged that roughly the same line of process may run through the transboundary economic effects, with devastating consequences on the economic, social and cultural rights of individuals in third countries.18 The underlying intention of such an analytical approach is sound and it seems to have garnered the support of a number of other scholars.19
Let us recall that the approach and terminology used may be newer, but the idea behind proposals to subject development practices to the rule of law is not a revolutionary one.20 Earlier efforts, such as the NIEO framework and the Charter on Economic Rights and Duties, aimed to structurally transform inequality (albeit confined to international political economy) and also contained elements of prevention, including, among others, the principle of respect for human rights and international obligations as well as the regulation of the activities of transnational corporations.21 Similarly, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States incorporates fundamental legal limits on state behaviour in pursuance of their development policies externally, among which are the principles of sovereign equality and non-intervention.22 Of course, the main purpose of the international development law ‘project’ was to inject the principle of the rule of law into the process of development.23
The sum total of the instruments of declaratory nature,24 as well as interpretations given to the socio-economic rights, consistently articulated the creation of conditions conducive for the realization of human rights as an essential component of international measures.25 If this requirement (i.e. creation of conditions) is to be understood as aiming to eliminate obstacles to socio-economic progress, then, by definition, its content would include rules on ensuring that efforts to support development do not produce negative effects on human rights. This broad-based and generic requirement, however, lacked concreteness in its contents to become operational as a rule.
Therefore, today’s legal argumentation in effect attempts to concretize some of the well-known existing principles and rules through the medium of human rights law by applying human rights concepts and framework. Accordingly, states’ tripartite obligations to respect, protect and fulfil human rights are interpreted expansively to include acts and omission outside the state’s jurisdiction, i.e. affecting individuals residing in third states. Following this rationale, it is argued that states (in our context, donors and creditors) are to respect the human rights of individuals residing in third states.26 The Montréal Principles on Women’s Economic, Social and Cultural Rights,27 the Quito Declaration28 and the Maastricht Principles29 all follow this logic. It is important to observe that this thinking is not completely contrary to the opinion of some donor states. Practice is crystallizing among certain donors to integrate the ‘do no harm’ principle in the context of conflict and fragility.30 While an equally explicit statement of principle applicable to all situations and in all circumstances is still pending, the OECD-DAC’s Action-Oriented Policy Paper on Human Rights and Development identifies ‘do no harm’ as one of its ten principles.31 Compared to its detailed and comprehensive do no harm policy in conflict situations,32 the general principle is rather short and lacks the level of detail necessary for their operationalization:
Donors’ actions may affect human rights outcomes in developing countries in positive and negative ways. They can inadvertently reinforce societal divisions, worsen corruption, exacerbate violent conflict, and damage fragile political coalitions if issues of faith, ethnicity and gender are not taken fully into consideration. Donors should promote fundamental human rights, equity and social inclusion, respect human rights principles in their policies and programming, identify potentially harmful practices and develop short, medium and long-term strategies for mitigating the potential for harm.33
Likewise, the Accra Agenda for Action supported this position by stating that: ‘Developing countries and donors will ensure that their respective development policies and programmes are designed and implemented in ways consistent with their agreed international commitments on gender equality, human rights, disability and environmental sustainability.’34 These new terms of donor discourse, however, evolved in a non-binding and voluntary form rather than as a legal obligation. To have lasting importance, the assumption that human rights tout court need to be respected in external activities in all circumstances, and at all times, requires firm theoretical foundations. This will ensure that development policies and practices comply with treaty obligations, regardless of the position the actors in the development process, both international and national, take on the nexus between human rights and development and changes in policies.35
In this context, one has to observe that scholarship is not always consistent in its use of conceptual constructs but, more crucially, the sources of law to support their argumentation. For example, certain academics seem convinced that cases involving the obligation of states not to violate rights stipulated in the ICESCR in other countries are comparatively straightforward:
The obligation to respect prohibits a state from directly interfering with the enjoyment of esc rights by persons in other countries. For example, on the basis of the obligation to respect a state should refrain from food embargoes or other coercive measures towards other states. In addition states should refrain from giving trade and producer’s subsidies… benefiting their own nationals that may be to the detriment of local traders and producers in developing countries. Usually this type of transnational conduct is easy to identify and the negative effects on the esc rights of people in developing countries are often well-documented. It is reasonable to conclude that a foreign state has a rather strong obligation to change its conduct and that it is accountable for such conduct that leads to violations of esc rights of citizens in that other country.36
This position seems to have acquired general support in the literature.37 However, as rightly noted, ‘[w]hat seems plain common sense – States are not allowed to do abroad what they are not allowed to do domestically – does not necessarily make legal sense’.38 First, legal logic sometimes overlooks the fact that the case law of human rights bodies on respect of human rights in the territory of third states is often hinged upon the question of jurisdiction.39 Second, arguments developed on the basis of the general comments of the Committee on Economic, Social and Cultural Rights, UN General Assembly resolutions on human rights, and unilateral coercive measures, as well as reports of the human rights special procedures, may be convincing; however, strictly speaking these sources are not legally binding.40 This has not escaped the attention of international financial institutions. Commenting on the interpretations of the Committee as to the meaning and scope of obligations of international cooperation, the legal counsel of the International Monetary Fund made a thinly veiled reference to the legal status of the normative pronouncements of human rights bodies.41
Equally, little substantiation is provided on the question of the activities of the states as members of international organizations, which requires states to take positive measures to ensure conformity with their treaty obligations. In this context, one should recall the recently endorsed UN Guiding Principles on Business and Human Rights, which state:
At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis. Within these parameters some human rights treaty bodies recommend that home States take steps to prevent abuse abroad by business enterprises within their jurisdiction.42
Thus, reference to the term ‘present’ seems to indicate the possibility of future developments, where regulation of extraterritorial activities of companies is the obligation of the home state as well. In the same vein, Olivier De Shutter affirms that ‘[t]he contemporary, mainstream view is that there exists no general obligation imposed on States, under international human rights, to exercise extra-territorial jurisdiction (understood here as a combination of adjudicative and prescriptive jurisdiction) in order to contribute to the protection and promotion of internationally recognized human rights outside their national territory’.43 He also reminds us that if there is a positive obligation of states to protect the rights of individuals from acts of non-state actors, such obligations have only been affirmed in situations falling under a state’s jurisdiction. Consequently, ‘in the current state of development of international law, a clear obligation for States to control private actors operating outside their national territory, in order to ensure that these actors will not violate the human rights of others, has not crystallized yet’.44
In recognition of these challenges, general principles of international law and legal mechanisms developed in special international law are relied upon in an attempt to flesh out prohibitive and preventive aspects of cross-border socioeconomic activities. For example, the commentaries on the Maastricht Principles on the ETOs of States in the area of Economic, Social and Cultural Rights often apply the principles and rules developed in environmental law to the case of socio-economic rights, including the precautionary principle, issues of foreseeability and causality as developed in the Draft Principles on the Allocation of Loss in the Case of Transboundary Harm, etc.
It is, of course, entirely possible to apply the rules by analogy, given the ‘area-related’ development of legal rules in international law, but this will depend on whether one adheres to the conception of international law as a ‘coherent and just legal order’ and/or whether conditions for analogous application are met.45 For example, analogous application is justified where a gap exists, which means the issue in question must not be regulated by any rule or principle of international law.46 From this standpoint, the question remains whether there is indeed no rule or principle of international law that could regulate the cross-border aspects of socio-economic rights violations. Should guidance not therefore be looked for in the general legal principles and rules found therein? Is there any special rule applicable in relation to human rights?
3 International law and cross-border aspects of socio-economic rights
3.1 General obligation to avoid causing harm and exercise due diligence
It would be ambitious to attempt here anything like a complete analysis of a concept such as due diligence. The following is thus merely a comment on some aspects of the concept of due diligence that may be relevant to the discussion on ensuring compliance with human rights norms.
The starting point is that states are to avoid causing harm. The famous Trail Smelter Arbitral Decision held that states were not allowed ‘to use or permit the use of [their] territory in such a manner as to cause injury by fumes in or to the territory of another or the properties of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’.47 In effect, the principle enshrined in the Trail Smelter case and reaffirmed in the Nuclear Weapons Advisory Opinion48 as well as the Rio Declaration, is believed to have attained the status of customary law in the field of environmental protection.49 In the Corfu Channel case, the International Court of Justice stated that ‘[i]t is true, as international practice shows, that a State on whose territory or in whose waters an act contrary to international law has occurred, may be called upon to give an explanation’50 and that ‘certain general and well-recognized principles’ include the principle that ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’.51
As Professor Dupuy observes, this principle is a direct consequence of the basic premise of international law, namely sovereign equality and reciprocity: ‘Ceci est particulièrement vrai s’agissant des conséquences des activités qu’un Etat déterminé peut entreprendre à l’intérieure de sa propre zone de compétence. Il devra veiller à s’assurer que des dommages ou préjudices divers ne seront pas entrainés sur le territoire des autres Etats par ses propres activités ou celles qu’il autorise.’52
The Trail Smelter and Corfu Channel cases thus offer ‘an appropriate starting point for consideration of the general international law on transboundary harm, as it was from this arbitration that a central principle of international law [i.e. due diligence] was introduced’.53 While it is clearly the case that development of the obligation of due diligence is at the core of the development of international law on transboundary harm, it is also true that the content and nature of the obligation of due diligence may change according to the subject matter under consideration.54 The obligation of prevention or the due diligence obligation is thus a principle of law of general application. The primary obligation of states to prevent transboundary socio-economic harm therefore can be said to derive from the principle of sic utere tuo ut non laedas.55 But even if this is so, the grounds for a claim of due diligence in relation to the cross-border aspects of socio-economic activities are more murky. First, there is little to no state practice from which general standards of what due diligence would require in the prevention of socioeconomic harm can be extracted. Second, references in General Assembly Declarations, including encouragement to all international donors and development banks to ‘seek to ensure that their own policies and programmes will advance the attainment of agreed development goals’, are too modest.56 Relevant documents speak of ‘enhancing coherence and consistency’ and improving good governance at ‘all levels’ in the reform of international financial and trade systems.57 The strongest and most recent improvements include a general pronouncement such as ‘[w]e commit to respecting all human rights’.58 It would be too early, however, to say that the concept of due diligence in the transboundary socioeconomic context is consolidated.
The question of the adverse effects of economic activities was raised in the framework of the ILC’s work on international liability for injurious consequences arising out of acts not prohibited by international law.59 The Special Rapporteur of the Commission, M.C.W. Pinto, commenting on the scope of topic, stated:
The techniques of the present topic – that is, the promotion of painstaking individual adjustment of competing interests in particular subject areas to reconcile liberty of action with freedom from adverse transboundary effects – might well be more productive of solutions in the economic area than undue reliance upon rules curtailing freedom of action.60
However, the extension of the scope of the ILC’s draft articles to the adverse effects of activity in the economic sphere was set aside and not pursued. This was due to, first, that there was ‘no possibility of proceeding inductively from the evidence of State practice in the field of the physical uses of territory to the formulation of rules or guidelines in the economic field’, and, second, there was an understanding that ‘such a step might retard the emergence of general support for development of the topic as such’.61
Thus far, there is neither a primary treaty obligation nor state practice to that effect. It is even doubtful if an obligation upon states exists to ensure that economic activities within their jurisdiction and control do not negatively impact on other states. The position that one state should not hinder the development of another and eliminate obstacles to development seems to be a widely accepted formulation.62 Such a principle is considered an international minimum standard. However, the content of this obligation to not hinder (i.e. what should not be done to hinder development) is unclear. To date, there is no basic criteria to make it possible to determine whether a state has acted diligently or not in its social and economic activities with cross-border effects. A developing state would not be able to hold a group of developed states responsible for a particular socio-economic activity or even a development approach, for example, if it considers that their policies hinder its own development path, unless there is a breach of a specific treaty obligation.63
This being said, there are some initiatives underway to elaborate basic elements of the obligation of prevention in certain sectors of economic activity.64 In the context of development cooperation specifically, some policy arrangements are visible. Indeed, over the last few years, bilateral donors and major development institutions have put more and more emphasis on the idea of policy coherence for development. While on the surface, the rationale at the basis of policy coherence revolves around the idea of ‘the most efficient possible use of… [development aid] resources’, the concept of policy coherence in development draws its basis from a number of normative principles.65
The European Consensus for Development, which sets out the European vision for development, defines ‘promoting policy coherence’ as one of its main objectives.66 To promote policy coherence, the EU takes ‘account of the objectives of development cooperation in all policies that it implements which are likely to affect developing countries, and that these policies support development objectives’.67 These areas include, among others, trade, agriculture, fisheries, social dimension of globalization, employment and decent work, migration, research and innovation, information society, transport and energy.68 Similarly, the OECD is taking steps towards designing a broad framework to enhance policy coherence for development (PCD).69
The more enticing question is whether a ‘policy coherence for development’ or ‘whole of government’ (e.g. coherence of policies within government) approach, as promulgated by development cooperation actors, can be coextensive with the ‘do no harm’ standard. If one describes the concept of PCD ‘as efforts to minimize contradictions and to build synergies between policies other than development cooperation that have an impact on developing countries’, this may indeed be the case.70 However, it seems that the concept of policy coherence for development is more than just ‘minimizing the adverse impact that public policies can have in developing countries’, and also includes positive efforts to integrate ‘development concerns’ across all fields.71 In the same spirit, the Addis Ababa Action Agenda stipules: ‘We commit to pursuing policy coherence and an enabling environment for sustainable development at all levels and by all actors and to reinvigorating the global partnership for sustainable development.’72 From this perspective, since human rights is an integral part of the notion of sustainable development, policy coherence for development and the obligation to respect international human rights are interrelated.73
Whether there is an obligation of prevention or a duty of a state towards the socio-economic rights of the people outside of its territory who suffer the consequences of its socio-economic actions will be examined further below, after consideration of the obligation to respect human rights under international law.
3.2 General obligation to respect human rights
There is no expressis verbis provision in international human rights treaties requiring states to not violate the human rights of individuals residing in other states or to be respectful of human rights when conducting their external activities, including in the area of development cooperation. The common preambular paragraph of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights notes that:
in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.74
This preambular paragraph appears as the closest reference to the issue of promotion and protection of human rights at the international level. Perhaps the only relevant provision is the requirement of ‘international assistance and cooperation’ for the implementation for socio-economic rights in the ICESCR, CRC, and CRPD. The primary obligation derives from the UN Charter provisions to promote respect for all human rights. It is posited here that an obligation to respect fundamental human rights is to be found in general international law. This conclusion emerges from a number of cases decided by the International Court of Justice.
3.2.1 Jurisprudence of the International Court of Justice
Examination and analysis of the Court’s views on human rights has been the subject of comprehensive academic treatment.75 Most of the cases to be examined here have been adjudicated in the period which is known as the phase of modest engagement of the Court with human rights issues, compared to its recent jurisprudence, where the ICJ has been seized with cases where issues of international human rights law made up the substantive questions put before it.76 What follows is a tour d’horizon of the ICJ’s application of human rights in cases before the court that look into the question of an obligation to respect human rights as an obligation under general international law.77 The Court’s views are particularly pertinent as they develop human rights related questions from an inter-state perspective.
The first enunciation of the fundamental principles of international human rights law comes from one of the earliest cases before the Court: the Corfu Channel case. The case is notable for a range of important legal issues it dealt with, but the focus here will be on the obligation of coastal states to notify the existence of sea mines, referring to this obligation as being based ‘on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war’.78 The concept was further qualified as an ‘intransgressible principle of international customary law’79 and later in the Wall Opinion, the Court viewed this rule together with many humanitarian law rules as ‘essentially of an erga omnes character’.80 This distinction between what it called bilateral obligations and obligations erga omnes, i.e. ‘towards the international community as a whole’, was drawn in the famous obiter dictum of the Barcelona Traction case, which, from the onset, dealt with the diplomatic protection of shareholders. According to the Court these erga omnes obligations were:
By their very nature… the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.81
The Court has thus suggested that erga omnes obligations may derive inter alia from the principles and rules concerning the basic rights of the human person, and listed the prohibition of slavery and racial discrimination as examples. While the issue is picked up again in more detail below, it will suffice here to mention that the expression used by the Court, i.e. the ‘basic rights of the human person’, further complicates the subject, as it raises the question as to which rights can be qualified as ‘basic’. In the passage above, the list of examples related to what can be regarded as basic rights, although non-exhaustive, is confined to three: the prohibition of genocide, protection from slavery and racial discrimination. It is suggested that by choosing the wording, ‘basic rights of the human person’, the Court intended to make it clear that not all human rights rules and principles have an erga omnes character.82 This conclusion is further supported by the Court’s treatment of the issue of ‘denial of justice’. In addressing the claim of Belgium in this regard, the Court held that:
With regard to more particularly to human rights, to which reference has already been made in paragraph 34 of this Judgment [e.g. specifying obligations erga omnes83], it should be noted that these also include protection against denial of justice. However, on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality.84
The Court’s assessment was evidently based on prevailing realities at the time of the decision, where there was as yet no mechanism for individual complaint under universal human rights treaties.85 On balance, the Barcelona Traction case can be regarded as a monument to the international legal order, transforming the very texture of the protection of human rights at the international level, identifying instances in which every state has a legal interest to protect.
A year later, the ICJ decided the Namibia case in response to a General Assembly request for an advisory opinion on South West Africa, in which the Court delivered its much criticized decision in 1966. The Advisory Opinion of 1971 confirmed the position of the UN Security Council on the illegality of the continued presence of South Africa in Namibia. In this context, the ICJ invoked the pledge of UN Member States under the UN Charter to promote respect and observance for human rights and found that:
Under the Charter of the United Nations, the former Mandatory had pledged itself to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter.86
Schwelb captured well the significance of the Court’s pronouncement: ‘[w]hen the Court speaks of “conformity with the international obligations assumed… under the Charter”, or talks of “a violation of the purposes and principles of the Charter”, or mentions the pledge to observe and respect human rights and fundamental freedoms for all and much more so when it finds that certain actions “constitute a denial of fundamental human rights” and classifies them as “a flagrant violation of the purposes and principles of the Charter”, it leaves no room for doubt that, in its view, the Charter does impose on the Members of the United Nations legal obligations in the human rights field.’87
Nigel Rodley draws a similarly important conclusion in that the pronouncement of the Court signifies that ‘[t]he Charter provisions are therefore not just hortatory and programmatic’, but a legally binding obligation.88 It is also significant that the Court not only refers to the human rights provisions set out in the purposes and principles of the UN Charter, but to the entire corpus of human rights provisions in the Charter. This conclusion can be derived from the reference to the ‘pledge’ of the member States contained in Article 56 of the Charter.89
Another case of relevance to our discussion is the Tehran Hostages case. In Tehran Hostages, the Court established a violation of human rights, as found in the UN Charter and Universal Declaration of Human Rights, in the context of applicable rules of general international law.90 In the view of the Court, ‘the Universal Declaration of Human Rights is a document of sufficient legal status to justify its invocation by the Court in the context of a State’s obligations under general international law’.91 The use of the wording of ‘fundamental principles’ of the UDHR yet begs a question whether the Court is actually making a distinction between ‘fundamental’ and ‘other’ principles, and what would constitute the content of these ‘fundamental’ principles – a question raised above. While it leaves a possibility for a restrictive reading, and in the context of the case the prohibition of torture could be said to constitute such a fundamental principle, it is also possible that the Court was ‘simply stating that the Declaration as a whole propounds fundamental principles recognized by general international law’.92 But even if the expression used by the Court is read restrictively, it clearly does not foreclose any further legal developments of what may constitute a ‘fundamental’ principle.
The Nicaragua case is also acknowledged to have found that human rights are part of general international law. According to Rodley, to reach such a conclusion, the judgement in Nicaragua should be placed in a proper context. He offers the following reading of the case: ‘if one reads what the Court says about human rights in the light of its central argument (i.e. they cannot be invoked to justify armed intervention), one finds that the Court tends to confirm its recognition that human rights principles are part of general international law.’93 The Court, in examining the commitment of Nicaragua to the Organization of American States in relation to its domestic political system (democracy and free elections), as well as respect for human rights, had concluded that these matters fall within the domestic jurisdiction and recalled that every state has a fundamental right to choose and implement its own political, economic and social systems.94 It further took a view that while there was ‘a possibility of a State binding itself by agreement in relation to a question of domestic policy, such as that relating to the holding of free elections on its territory’, Nicaragua did not do so, given that its commitments were not legal undertakings.95 The Court then stated that:
Nicaragua is accused by the 1985 finding of the United States Congress of violating human rights. This particular point requires to be studied independently of the question of the existence of a ‘legal commitment’ by Nicaragua towards the Organization of American States to respect these rights; the absence of such a commitment would not mean that Nicaragua could with impunity violate human rights.96
Again, Rodley’s interpretation is useful here in that what the Court is trying to say in this passage is that the human rights violations of Nicaragua could be examined under a source other than the specific undertakings of Nicaragua under the OAS, i.e. under customary law.97 The absence of a formal legal commitment thus does not preclude the possibility of international responsibility when human rights violations occur. The question before the Court, he continues, was not about the existence of such an obligation to respect fundamental human rights, but its implementation and the limited question before it, namely whether they gave a basis for the US military action, which they certainly did not, as the Court specified.
The aforementioned cases evidence the fact that although human rights issues played a rather ancillary role to the context of the cases in question, they do contain important formative elements for the way human rights constituted themselves in the international legal order. The important conclusion to be derived from the present analysis of the selected jurisprudence of the International Court of Justice is that UN Charter human rights provisions are of a binding character; ‘the principles and rules of international law concerning the basic rights of the human person’ create obligations erga omnes, and these principles and rules can be found in the UN Charter and the Universal Declaration of Human Rights.98 The ICJ ‘has unambiguously accepted that the obligation to respect fundamental human rights is an obligation under general international law’.99
3.2.2 The doctrine on the obligation to respect human rights
The conclusion formulated on the basis of the ICJ’s case law in the preceding section can be supported further by the position of the Institut de Droit International (IDI), expressed in its Resolution on the Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of States adopted at its session in Santiago de Compostela in 1989. In its resolution, the Institut suggested that the very obligation of states to ensure the protection of human rights is an obligation erga omnes.100 Article 1 of the resolution puts forward the following:
Human rights are a direct expression of the dignity of the human person. The obligation of States to ensure their observance derives from the recognition of this dignity as proclaimed in the Charter of the United Nations and in the Universal Declaration of Human Rights.
This international obligation, as expressed by the International Court of Justice, is erga omnes; it is incumbent upon every State in relation to the international community as a whole, and every State has a legal interest in the protection of human rights. The obligation further implies a duty of solidarity among all States to ensure as rapidly as possible the effective protection of human rights throughout the world.101
As such, this resolution clearly suggests that the general obligation to ensure respect for human rights as proclaimed in the UN Charter and the UDHR is itself an erga omnes obligation. The reference to the UN Charter and UDHR was read by Yoram Dinstein as all rights recognized in the Universal Declaration,102 an interpretation not readily accepted by some authors.103 Indeed, the Resolution of the IDI does not define the term ‘human rights’, while the reference to the UDHR seems to suggest a broad thrust of the term.104 The text of the resolution suggests a degree of hierarchy only at the level of legal consequences.105 Article 2(3) specifies that:
Violations justifying recourse to the measures referred to above shall be viewed in the light of their gravity and of all the relevant circumstances. Measures designed to ensure the collective protection of human rights are particularly justified when taken in response to especially grave violations of these rights, notably large-scale or systematic violations, as well as those infringing rights that cannot be derogated from in any circumstances.
Article 2(3) suggests a distinction should be drawn between derogable and non-derogable rights, in that in the case of the former, the actions by third states should be in response to ‘especially grave violations’ or ‘large-scale or systematic violations’ of these rights, while for the latter, such a threshold does not seem to be required. The former category of rights, i.e. derogable rights, should thus go beyond an isolated incident of the violation and, on the condition of consistency and grossness, can give rise to obligations erga omnes. This degree of hierarchy is also evident in the subsequent Article 4(b) of the resolution of the IDI, which states that ‘la mesure sera proportionnée à la gravité de la violation’.
It seems safe to conclude that the IDI has supported the theory that the general obligation to respect human rights is in itself an obligation erga omnes. Fitzmaurice, in a special report submitted to the Institut de Droit International (much earlier before the resolution was adopted), referred to the principle of a general duty – ‘common law’ duty – to respect human rights, which according to him, not only formed part of international customary law but had pre-existed in much the same way as the rules embedded in the Nuremberg Charter.106 Thus, for the purposes of this chapter, a central point is that there is a general principle to respect and to avoid causing harm to human rights. This principle can be said to have a life of its own, independently from the question of rights giving rise to obligations towards the international community, as well as their scope and the legal consequences stemming therefrom.107
Whether this communis opinio stands the test of some of the development actors, such as the IFIs, is far from clear. The basic contention advanced unofficially by the legal adviser of the IMF, Francois Gianvitti, in an occasion organized by the Committee on Economic, Social and Cultural Rights, was that the rights set out in the Covenant have to be part of general or customary international law to have a direct effect on the Fund.108 The suggestion that socio-economic rights formed part of general or customary international law was not accepted by the IMF, despite an insistence on this point by human rights bodies.
3.2.3 Discovering the content of human rights in the obligation to respect
Attempting to identify the contours of a customary character of a right not only is a daunting task but, as Theodor Meron has warned, requires an ‘overconfident’ observer.109 Such an inquiry, in its range and ambition, cannot be feasibly accommodated here. The purpose is rather to synthesize the relevant theoretical constructions and arguments as regards the customary status of socio-economic rights. At the onset, it needs to be reiterated that there is perhaps no issue more examined and less understood than the subject of customary human rights law. When it comes to socio-economic rights, they are hardly ever analysed by the scholarship in the context of the discussions on the content of customary human rights law. The basic provisions of the UN Charter generating obligations to respect human rights are certainly not confined to a few ‘classic’ civil and political human rights.110
The UDHR has often been used as a shortcut for evidence of the customary status of virtually all individual human rights. But this assertion is not commonly held. It is not clear the extent to which the UDHR has come to be regarded as an authoritative interpretation of Charter-based provisions or as binding as a matter of customary law. The assertion that states are bound by ‘each and every provision’ of the Declaration as a matter of customary law may indeed be regarded as an ‘overstatement’.111
As far as socio-economic rights are concerned, in a study of 20 years ago examining the content of customary law evidenced in the Declaration, Hurst Hannum reached the following conclusion:
Articles 22 through 27 [of the UDHR] deal primarily with economic, social, and cultural rights, including social security, the right to work, the right to rest and leisure, the right to an adequate standard of living, the right to education, and the right to participate in cultural life. Despite the fact that the United States, in particular, has often denied the status of “rights” to these norms, they may enjoy wider international support than some of the civil and political rights traditionally emphasized in U.S. jurisprudence. However, they are rarely referred by either commentators or courts in discussions of the content of customary international human rights law. The following rights would seem to enjoy sufficiently widespread support as to be at least potential candidates for rights recognized under customary international law: the right to free choice of employment; the right to form and join trade unions; and the right to free primary education, subject to a state’s available resources. Many rights included within these articles are closely related to other rights, such as the right to life and the prohibition against arbitrary discrimination.112
As can be seen, Hannum’s list of ESC rights and their components as candidates for customary status, with the exception of the right to free primary education, require negative obligations and have civil and political right-related origins. The Committee on Economic, Social and Cultural Rights has adopted a broader view on this issue, observing that: ‘even in a situation of armed conflict, fundamental human rights must be respected and that basic economic, social and cultural rights, as part of the minimum standards of human rights, are guaranteed under customary international law and are also prescribed by international humanitarian law’.113 The characterization of the minimum core of the socio-economic rights as customary international law has not, however, been supported by thorough legal analysis.114 Generally, the literature tends to display caution with regard to attaching a character of customary law to socio-economic rights.
The topic accommodates differing views among scholarship.115 For some scholars, socio-economic rights are not firmly established under the category of customary international law.116 On the other side of the spectrum, certain authors have tried to shed light on the extent socio-economic rights have attained (or are likely to attain) the status of customary international law. Oscar Schachter holds the view that a strong case can be made with respect to the right to subsistence, or ‘at least’ the right to food.117 There is, in fact, wide support for the proposition that at least some aspects of the right to food are part of customary law.118 This support may also stem from the fact that the text of Article 11 of the Covenant itself stipulates that ‘the States Parties to the present Covenant [recognize] the fundamental right of everyone to be free from hunger’. Philip Alston’s analysis of the legal status of the Millennium Development Goals suggests that those minimum sets of goals adopted on the basis of agreement and consistently endorsed by virtually all states in development fora may have crystallized into customary human rights law.119
At the same time, there have been debates as to whether constructing the status of human rights generally in terms of customary law is appropriate. In their prominent analysis, Alston and Simma proposed a view that human rights law does not stand the traditional test of custom formation; most of the human rights standards will hardly meet the requirement of actual state practice.120 The socio-economic rights in particular may be unable to substantiate the presence of the main prerequisites of customary law. Instead, they draw attention to the third source mentioned in the Article 38 of the Statute of International Court of Justice, namely ‘the general principles of law recognized by civilised nations’. Adopting a broad definition of ‘general principles’,121 this source of law ‘seems to conform more closely than the concept of custom to the situation where a norm invested with strong inherent authority is widely accepted even though widely violated’.122 Alston and Simma, referring to the jurisprudence of the International Court of Justice, some of which was referred to in the previous section, point out that the Court, while accepting that the obligation to respect human rights is an obligation under general international law, never expressly spoke of custom.
This brings us back to an examination of whether the concept of the ‘basic’ or ‘fundamental’ human rights that the Court referred to incorporates socioeconomic dimensions. As the Draft Articles on State Responsibility for Wrongful Acts makes clear, the notion is fluid and may evolve in the future.123 The qualification of what is ‘basic’ inevitably touches upon the question of hierarchy of human rights, the logic of which demonstrates the presence of many problems. First of all, the question of hierarchy generally in international law is subject to dispute.124 Second, examination of the subject necessarily requires an inquiry into related concepts of jus cogens, erga omnes, and non-derogable and core rights, all of which not only are subject to academic controversy but are also marked by the lack of consensus on their identity.125 There are, in fact, many complex positions within these categories and in relation to the hierarchy. What is clear, as a minimum, is that the question of hierarchy in international law and human rights law are in a dialectical relationship: ‘hierarchy affects human rights’ and ‘human rights give birth to hierarchy in general’.126
At any rate, as Professor Dupuy notes, ‘[i]l est évident qu’une hiérarchisation des droits et libertés à garantir s’expose à la contestation’, as it inevitably leads one to fall into the trap of value judgement and arbitrariness.127 Creating a hierarchy in human rights according to their fundamental character is hardly reconcilable with the theory of indivisibility and interdependence of human rights.128 But leaving the indivisibility discourse and its internal theoretical inconsistencies aside,129 it is the analysis of treaty texts that causes us to consider that states did not give all human rights the same status.130 Strictly from a consensualist conception of international law, ‘some rights are obviously more important than other human rights’.131
Although there is no set of agreed criteria for differentiating between the higher rights and ordinary rights, one of the widely accepted methods used is the concept of non-derogable rights.132 On this basis, the list of non-derogable rights provided by Article 4(2) of the ICCPR, and Article 12 (2) of the ECHR, or Article 27 of ACHR and even that of Common Article 3 of the Geneva Conventions of the 1949, evidences the absence of explicit references to any of the socio-economic rights. A list common to all treaties includes the right to life, the prohibition of slavery, prohibition of torture or of cruel, inhuman or degrading treatment or punishment and prohibition of retroactive penal measures.
Obviously, certain of the enumerated rights in the list, particularly the right to life133 and prohibition of torture, contain economic and social rights elements.134 International criminal law is pointed out as a relevant field in search of criteria to deduce the fundamental character of certain human rights and thus locating them in the framework of the imperative norms of international law.135 Put in these terms, legal corollaries of socio-economic rights can be found amply in the content of crimes under the Rome Statute and hence may evidence their fundamental nature for the protection of basic rights of human person.136
At the same time, authors like Steven S. Marks support the idea of the selection of rights common to several human rights treaties to serve as a common list of rights applicable equally in exceptional circumstances such as underdevelopment, natural disasters and armed conflict.137 According to Tomasevski, in any event, the categories of ‘fundamental’ human rights are not helpful or particularly relevant to the context of development.138 This view therefore proposes the ‘relevance’ criterion to be developed and applied. In other words, a situation-specific method of defining ‘clusters’ of the rights most affected in a specific context would be helpful.
Last but not least, it is worth mentioning that parallel to these is a separate theory based on the basic needs approach. This approach, regarded by some as important, is premised on the idea that the realization of human rights is dependent upon fulfilment of basic subsistence needs.139 Obviously, this approach may be subject to criticism for ‘committing the naturalistic fallacy of deducing norm from fact, but determination of basic human needs should be recognized as a result of the philosophical consideration that no human right can be realized without the fulfilment of such basic needs’.140 This theory is in line with the position of the Committee on Economic, Social Cultural Rights on minimum core rights. As Eibe Riedel further clarifies:
In relation to ESC-rights generally, one is not talking about a grand, extravagant bouquet of every conceivable social blessing, but of no more than minimum subsistence levels, necessary for survival – the minimum for existence. Every person is entitled to the core esc-rights, indispensable for leading a life in dignity. Such basic social rights in no way differ from other freedom rights.141
The subsistence or certain elements of the right to adequate standard of living are clearly making gains at least in the opinio juris of states, albeit advanced under labels distant from rights terminology.142 In any event, what is lacking is the consistent application of these basic ‘rights’ in practice.143
3.2.4 An example of a fundamental human right: Obligation not to deprive a people of its own means of subsistence
Given the fragmentary and inconclusive material available in relation to the socioeconomic content of ‘basic’ or ‘fundamental’ human rights, it is perhaps useful to adhere to the examples of fundamental rights found in the Draft Articles on Responsibility of States for Internationally Wrongful Acts. Article 50 of the Draft Articles sets out the obligations not affected by countermeasures, among which are the obligations for the protection of fundamental human rights in paragraph 1(b).144 In the commentaries on the relevant provision, the Draft Articles enumerate the jurisprudence and doctrine on the limits to countermeasures.145 They also mention certain human rights provisions not subject to derogation, as identified by human rights treaties. In addition to these, interestingly, reference is made to the effect of economic sanctions as dealt with by the Committee on Economic, Social and Cultural Rights. The commentary further summons up analogies that ‘can be drawn from other elements of general international law’ and in this context recalls the unconditional prohibition of starvation as a method of warfare,146 as well as the final sentence of paragraph 2 of Common Article 1 to the International Covenants: ‘In no case may a people be deprived of its own means of subsistence.’147 Before examining the work of the ILC, a few comments of general nature are in order in relation to this elusive provision.
The formula appears in the context of Article 1(2) in the 1966 Covenants, along with the norm stipulating the sovereignty of people over natural wealth and resources.148 Very little information is available on the meaning and implication of the sub-norm in the preparatory work to the international covenants. Nor has doctrine attempted to provide any systematic clarification, often treating the provision very marginally against the background of a broader question of self-determination.149
Intermittently, however, it was invoked in contexts as diverse as genocide, occupation, and indigenous peoples’ rights,150 though without a detailed analysis of its legal implications in those settings. Interestingly, the provision is not referred to in the 1962 General Assembly Resolution on Permanent Sovereignty over Natural Resources or the 1970 Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States or even the Declaration on the Right to Development. Attempts have been made to treat the provision as the basis for subsistence rights; in particular, in the context of the right to food.151 The Committee on Economic, Social and Cultural Rights has taken a similar stance, invoking the sub-provision in the context of the right to water.152
According to Cassese, the sub-norm may ‘be read to nullify even arrangements “freely made” by the people “for their own ends” if these arrangements deprive the people of its means of subsistence. It presumably nullifies the obligation to pay any compensation required under international law where such compensation would deprive the people of its means of subsistence.’153 However, this explanation provides little information on the potential importance of the provision with respect to the substantive rights guaranteed by the Covenant.154 In the drafting history, the original wording of the sub-norm appeared as follows:
In no case may a people be deprived of its own means of subsistence on the grounds of any rights that may be claimed by other States.155
Generally, there was considerable controversy regarding the provision. The Saudi Arabian delegate clarified that the means of subsistence intended:
to prevent a weak or penniless government from seriously compromising a country’s future by granting concessions in the economic sphere – a frequent occurrence in the nineteenth century. The second sentence of paragraph 2 was intended to serve as a warning to all who might consider resorting to such unfair procedures.156
In the view of Alston, examples of the cases given in the period of drafting suggest that it would be appropriate for the supervisory mechanism ‘to concern itself in the future with cases where this provision is alleged to have been violated by virtue of the deprivation of a people of its subsistence food production’, yet, as he warned, ‘in view of the complexity of issue, its essentially economic and social nature, the difficulty of demonstrating causality, and the Committee’s generally cautious approach, it is unlikely that the Committee will take such issues in the foreseeable future’.157 Alston’s assessment holds, to a large extent, valid even today. Nonetheless, the CESCR had taken some small but significant steps in applying the sub-norm in the context of the right to self-determination, finding some concrete violations that fall within its scope:
The Committee urges the State party to respect the right to self-determination as recognized in article 1, paragraph 2, of the Covenant, which provides that ‘in no case may a people be deprived of its own means of subsistence’. Closure restricts the movement of people and goods, cutting off access to external markets and to income derived from employment and livelihood. The Committee also calls upon the Government to give full effect to its obligations under the Covenant and, as a matter of the highest priority, to undertake to ensure safe passage at checkpoints for Palestinian medical staff and people seeking treatment, the unhampered flow of essential foodstuffs and supplies, the safe conduct of students and teachers to and from schools, and the reunification of families separated by closures.158
The provision has received some attention in the work of the International Law Commission in the context of state responsibility. In the framework of the provision providing for the obligation of states to make reparations under the Draft Articles on State Responsibility, the text of draft Article 42 was originally far more extensive and included in paragraph 3 the following sentence:
In no case shall reparation result in depriving the population of a State of its own means of subsistence.
The purpose of this requirement was obviously to define the limits of reparations.159 Different views were expressed as to whether the provision should be retained with respect to reparation. The provision proved to be controversial, with some members expressing a view that the provision was of ‘critical importance for developing countries’,160 while, on the other hand, many States objected to the provision, ‘as it would be abused by States to avoid their legal obligations and erode principle of full reparation’.161
Although in the final text the provision in question was not retained, discussions at the International Law Commission provide useful insights on the meaning of the provision.162 The sub-norm that appears in both Covenants on human rights was said to have ‘its validity in international law’,163 and as contained in the Covenants, reflected a ‘legal principle of general application’.164 The problem was particularly placed ‘in the category of massive and systematic human rights violations’.165
Concerns expressed at the ILC were soon afterwards raised in the Eritrea–Ethiopia Claims Commission. The Commission stated that the size of the parties’ claims ‘raised potentially serious questions involving the intersection of the law of State responsibility with fundamental human rights norms’.166 Acknowledging first that both Eritrea and Ethiopia are parties to the ICCPR and ICESCR, the Commission went on to highlight that even if the issue as it appeared before the International Law Commission (i.e. in the context of reparations) was not retained, ‘[t] hat does not alter the fundamental human rights law rule of common Article I(2), which unquestionably applies to the Parties’.167 The Commission further stated that:
Awards of compensation of the magnitude sought by each Party would impose crippling burdens upon the economies and populations of the other, notwithstanding the obligations both have accepted under the Covenants. Ethiopia urged the Commission not to be concerned with the impact of very large adverse awards on the affected country’s population, because the obligation to pay would fall on the government, not the people. The Commission does not agree. Huge awards of compensation by their nature would require large diversions of national resources from the paying country – and its citizens needing health care, education and other public services – to the recipient country. In this regard, the prevailing practice of States in the years since the Treaty of Versailles has been to give very significant weight to the needs of the affected population in determining amounts sought as post-war reparations.168
Having regarded the sub-norm contained in Article 1(2) of the Covenants as the relevant rule of international law, the Commission stated that it could not disregard the fact that a ‘large damage award’ could result in the ‘serious injury to its population if such damages to be paid’. Hence, it considered ‘whether it was necessary to limit its compensation awards in some manner to ensure that the ultimate financial burden imposed on a Party would not be so excessive, given its economic condition and its capacity to pay, as to compromise its ability to meet its people’s basic needs’.169 Towards the end, however, the Commission concluded that ‘it need not decide the question of possible capping of the award in light of the Parties’ obligations under human rights law’.170
It is interesting that the principle has not been invoked in the recent human rights analysis of the Greek debt crisis or economic sanctions.171 As noted, however, even though Article 1(2) recognizes that economic self-determination of peoples is without prejudice to any obligations arising out of international economic cooperation, these international economic obligations are subject to the prohibition of depriving a people of its own means of subsistence – a non-derogable core of the provision.172 Indeed, where international economic obligations compromise the ability of a state to meet its people’s basic needs or a blockade brings a ‘severe human dignity crisis resulting from the deteriorated public services, widespread poverty, food insecurity,… unemployment and… aid dependence’,173 a violation of Article 1(2) is still possible.
Writing as far back as in 1984, Alston already referred to this provision as a ‘sub-norm’ with great potential.174 Could this norm potentially apply to a range of policies, both at national and international levels, as a safeguard or as a norm that includes the obligation to respect a range of rights enshrined in the International Covenants? A strong case can be made for an affirmative answer. The norm performs both the function of the obligation to avoid damaging core socio-economic rights and defines, albeit in vague and general terms, the scope of the rights protected. Its synthetic but categorical provision stands as self-explanatory.
3.3 Non-intervention and unilateral coercive measures of economic character
As far as the negative effects of economic and social policies on third states are concerned, general principles of international law, such as those expressed in the UN Charter and 1970 Friendly Relations and Cooperation Declaration,175 set out the basic framework through the principle of the prohibition of intervention. This Declaration states: ‘No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.’ In Resolution 3016 (XXVII), the General Assembly was more concrete in terms of what measures could fall within the intervention in economic fields, declaring that ‘actions, measures or legislative regulations by States aimed at coercing, directly or indirectly, other States engaged in the change of their internal structure’ would be in violation of not only the UN Charter and the 1970 Declaration but also the 2nd International Development Strategy.176 The Charter of Economic Rights and Duties of States, although frail in its legal weight, provided a more forceful articulation of the principle.177 The 1981 Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States referred to the duty of states to prevent the use of trans-national corporations under its jurisdiction and control as instruments of political pressure or coercion against other states. Thus, the prohibition of economic coercion is one possible application of the principle of non-intervention, with bilateral programmes possibly falling within its scope.178
The General Assembly, the Commission on Human Rights, the Human Rights Council, as well as international conferences of the 1990s, produced a number of resolutions on the question of human rights and unilateral coercive measures.179 The Vienna Declaration and Programme of Action on Human Rights declared that:
The World Conference on Human Rights calls upon States to refrain from any unilateral measure not in accordance with international law and the Charter of the United Nations that creates obstacles to trade relations among States and impedes the full realization of the human rights set forth in the Universal Declaration of Human Rights and international human rights instruments, in particular the rights of everyone to a standard of living adequate for their health and well-being, including food and medical care, housing and the necessary social services. The World Conference on Human Rights affirms that food should not be used as a tool for political pressure.180
Despite these enunciations in, strictly speaking, non-binding declarations (except for the 1970 Declaration), the prohibition of non-intervention has been rather narrowly construed in the jurisprudence as well as in the day-to-day practice of states.181 The fact that economic sanctions are not prohibited and are imposed by states is a significant factor in an assessment of the issue. The ICJ, in response to the claims of Nicaragua that the United States had violated the principle of non-intervention through withdrawal of economic aid, reduction of quotas, and a trade embargo, held in the Nicaragua case that:
While admitting in principle that some of these actions were not unlawful in themselves, counsel for Nicaragua argued that these measures of economic constraint add up to a systematic violation of the principle of non-intervention. At this point… the Court has merely to say that it is unable to regard such action on the economic plane as is here complained of as a breach of the customary-law principle of non-intervention.182
The conduct of the US that Nicaragua complained about, even if not qualified as a breach by the Court, is the most frequent and among ‘the most effective methods of pressure’, with potentially severe consequences183 for states depending significantly on aid.184 While a reading of the texts suggests that economic measures are not excluded from the scope of the non-intervention norm, the central element of the definition is the ‘requirement of coercion’. Therefore, the actual problem is in constructing an argument ‘that a state’s sovereign will can be overborne through imposition of economic measures’.185 In light of this, it could be that the Court in Nicaragua did not find that the actions amounted to a violation of the non-intervention prohibition, in view of the concrete circumstances of the case, while a different legal evaluation may be developed with regard to a different set of facts.
The second component of the economic coercion concept is an intention to ‘change some policies or practices or even its governmental structure’ of the target state.186 In relation to this criterion it is suggested to look at the practice of the IMF and the WB. Their decisions go very far towards changing the policy of states at many levels in dramatic ways. However, rarely are the actions of the IFIs regarded as intervention.187 Nonetheless, a pertinent question remains as to whether recent applications of the policy adjustments in states facing severe economic crises may fall within the ambit of ‘subordination of will’ and thus amount to economic coercion.
The prohibition of non-intervention is too imprecise a notion to provide an answer as to whether the use of development aid to induce changes in the internal regulatory framework of the states, in disregard of their human rights obligations, violates the norm. Overall, in the context of the UN resolutions, referred to above, on unilateral coercive measures, one recurrent issue has been the imposition of an economic, commercial and financial embargo on Cuba by the US. Even though many states were opposed to the extraterritorial effects of such measures, they did not condemn the embargo as such. The EU, for example, while condemning the extraterritorial effects of the US actions, was of the view that the ‘trade policy of the United States towards Cuba is fundamentally a bilateral issue’.188
The debate on the issue historically took place between developed and developing states, the former limiting the general prohibition of Article 2(4) of the UN Charter only to the use of military force, while the latter clearly saw economic coercion within the ambit of the norm. The second interpretation is problematic, as the proposal to include prohibition against economic coercion had been rejected in the drafting of the Charter.189 Since the issue has been highly debated over the decades, the UN SG concluded that ‘there is no clear consensus in international law as to when coercive measures are improper, despite relevant treaties, declarations, and resolutions adopted in international organizations which try to develop norms limiting the use of such measures’.190 Perhaps the conditions imposed on the developing countries in exchange for development aid are the most difficult aspect of the economic coercion concept. As Detlev Chr. Dicke remarks, ‘[a]s long as the developing countries prefer – quite understandably – to receive aid rather than complaining publicly against ominous conditions, it will remain very difficult to achieve any progress in this field’.191
Assessment of the legality of economic measures can be said to be quintessentially context-specific, depending on the nature of the measures, applicable conventional and customary international law, and an assessment of circumstances precluding wrongfulness of such measures. It will not be irrelevant to suggest that in view of the controversies over the issue, some states have transferred the debate into the realm of human rights discourse.192 A recent study of the Office of the High Commissioner on Human Rights, pursuant to Resolution 15/24 of the Human Rights Council, conducted a synthesis of issues on the topic of impact of unilateral coercive measures on the enjoyment of human rights, stating that ‘it follows that unilateral coercive measures regardless of their legality under particular body of international law, may negatively impact human rights in various ways’.193
4 The practice of the CESCR on cross-border aspects of economic, social and cultural rights
4.1 Due diligence in human rights generally
The obligations of prevention in the field of human rights were elaborated in a more detailed manner by the practice of the UN Human Rights Committee194 and the CESCR in their General Comments.195 Similarly, the European,196 African197 and Inter-American198 human rights systems have contributed to the understanding of the obligation of due diligence in protection of human rights. The obligation of due diligence was extensively elaborated within the scope of the right to life, but also in relation to the prohibition of torture and inhuman and degrading treatment,199 the rights to liberty and security of person,200 the right to respect for private and family life, and the right to safe environment,201 protection of children,202 freedom of expression and assembly,203 etc. The practice of the Inter-American Court (IACtHR) is particularly interesting, as it has adopted a broad approach in defining the content of the due diligence obligations in relation to the right to life to encompass the creation of decent conditions of life in the case of Street Children.204 For example, in the case of Street Children, with reference to Article 4 of the American Convention, the IACtHR held that:
In essence, the fundamental right to life includes not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence. States have the obligation to guarantee the creation of the conditions required in order that violations of this basic right do not occur and, in particular, the duty to prevent its agents from violating it. [emphasis added]