Universal Human Rights and Extraterritorial Obligations
Mark Gibney and Sigrun Skogly, Editors
2010 | 264 pages | Cloth $65.00
Law | Political Science
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Table of Contents
—Sigrun Skogly and Mark Gibney
Chapter 1. Obligations of States to Prevent and Prohibit Torture in an Extraterritorial Perspective
Chapter 2. Obligations to Protect the Right to Life: Constructing a Rule of Transfer Regarding Small Arms and Light Weapons
Chapter 3. Growing Barriers: International Refugee Law
Chapter 4. Diagonal Environmental Rights
—John H. Knox
Chapter 5. The Human Rights Responsibility of International Assistance and Cooperation in Health
—Judith Bueno de Mesquita, Paul Hunt, and Rajat Khosla
Chapter 6. The World Food Crisis and the Right to Adequate Food
Chapter 7. Labor Standards and Extraterritoriality: Cambodian Textile Exports and the International Labour Organization
—Virginia A. Leary
Chapter 8. A Sort of Homecoming: The Right to Housing
Chapter 9. Protecting Rights in the Face of Scarcity: The Right to Water
List of Contributors
Excerpt [uncorrected, not for citation]
Sigrun Skogly and Mark Gibney
The fundamental principles governing international law are changing dramatically. International law, which traditionally has regulated the conduct between and among countries, has had as its core the respect for state sovereignty. However, the latter part of the twentieth century witnessed fundamental changes to the way in which the international community operates that are based upon a deep interdependence among states and their openness to international actors. This is often labeled the process of globalization. This process has had a significant impact on states' sovereignty and on the way in which international law regulates the interaction among states. This phenomenon includes the way in which international trade law (spearheaded by the World Trade Organization) dictates how member states' trade policies may operate; the way in which international financial law (led by the International Monetary Fund) determines financial policies of member states; and the way in which international environmental law regulates actions with transboundary effects. Thus, international law is no longer restricted to areas of interstate concern but it has also come to regulate states' domestic actions as well. Opponents to this view may hold that states are still sovereign in that they are not forced to take part in these international legal regimes. However, this view fails to take account of the political and economic realities of international relations where the voluntary nature of this regulation for most states (particularly weaker or poorer states) is a legal fiction.
In this new reality, which is prevalent in the practice of international law but still lacking in theoretical recognition, there is one area that is curiously lagging behind: human rights. This is not meant to suggest that international human rights law does not have a strong domestic foundation. In fact, the reason why international human rights law is so "revolutionary" is that it focuses almost exclusively on the "vertical" relationship between the state and the subjects of that state, rather than the "horizontal" relationship between and among nation-states. However, what human rights has almost totally ignored is that in an increasingly interdependent world—where public and private international actors have great influence upon the lives and living conditions of individuals all over the world—it is not sufficient simply to assess what domestic governments are doing in terms of human rights; it is equally important to assess the effect of other actors: intergovernmental organizations, international private entities, and foreign states as well.
The worldview adopted by rich and powerful states is that what they do in the world—whether through development activities, trade relations, military cooperation, or other foreign relations—will inevitably be beneficial and "good," while human rights violations are the sole responsibility of "other" governments (Mutua 2002). This, however, offers a very simplistic (and convenient) view of the world, and it ignores the manner in which those states that set the international agenda directly and indirectly influence the enjoyment of human rights in third countries.
There has been some reaction against this dominant approach, most notably in the anti-globalization movement or in the rights-based approach to development. In addition, at least a few scholars have called for creating mechanisms for increased and effective accountability on the part of intergovernmental institutions and private international actors. Still, what has been absent is any kind of systematic analysis of the changed realities of how the international community works, which is one reason why the entire human rights enterprise threatens to make itself irrelevant, especially to those who suffer human rights violations. In the words of Margot Salomon, "a rights-based approach to globalization seeks to place international human rights standards and principles at the centre of international economic affairs; to have them successfully inform all cooperative endeavours that may impact on their exercise. However, the international law of human rights will only provide the humanizing force that the negative trends in globalization require of it if it evolves to meet these challenges" (Salomon 2007, 11).
It is time to address this enormous gap in international law and to examine the manner in which foreign states influence the enjoyment of human rights in third countries. What the chapters in this book analyze is neither the "horizontal" nor the "vertical," but rather, the "diagonal" relationship between outside actors (especially Western states) and citizens in other countries. This is not an attempt to take issue with the principle that it is the domestic state that has the primary responsibility for its own population's human rights. What is added, however, is the notion that states should be held accountable wherever their actions may influence human rights enjoyment. The problem is that this idea runs smack into such established international law principles as "national sovereignty" and "jurisdiction." In a wonderful analogy that he develops in his contribution to this volume, Thomas Gammeltoft-Hansen likens the need for new thinking in the realm of human rights to the emergence of quantum mechanics, which arose when classical physics theory was found to be incapable of explaining phenomena at the atomic level. For Gammeltoft-Hansen (and the other authors in this volume), international law is frequently unable to deal with a globalized world where states are increasingly interrelated. It is tempting to add to this that the intellectual appreciation of extraterritorial obligations may well require the development of legal principles that make a "quantum leap" from the traditional territorial confines of human rights law.
In this book we address a variety of issues: What are the theoretical foundations for asserting that states have human rights obligations that go beyond national borders? How do foreign policy decisions—including development assistance, trade relations, and military cooperation—affect the human rights of individuals in third countries? How could states become more accountable for their foreign policies, and are there remedies that could be put in place for victims of the negative effects of such policies? It is indeed surprising that at the same time that international environmental law is developing provisions that call for consultation with affected people in third states in case of possible pollution, it would still be seen as an infringement of state sovereignty if similar provisions were to be introduced in situations of possible human rights violations.
There are some isolated developments within the implementation of human rights that are starting to reflect the concerns described above. Sweden adopted a White Paper in 1998 in which it approved the principle that all Swedish foreign policy should have the overall aim of protecting or promoting human rights. The UN Committee on Economic, Social, and Cultural Rights has started to question states that report to it as to how they ensure that their voting in international institutions, or their design of development policies, takes into account the effect on economic, social, and cultural rights (Sepúlveda 2006). Opposition politicians in the United Kingdom have suggested that the government of the United Kingdom may have been complicit in the violation of the right to be free from torture in connection with the extraordinary rendition of individuals eventually ending up as detainees in Guantánamo Bay (BBC 2009). And finally, several of the United Nations' special rapporteurs have started to develop this idea of extraterritorial obligations in their own work, some of which is explored in this volume.
There is an emerging literature on the theoretical foundations for extraterritorial obligations (Skogly 2006), the interpretation of applicable treaty law (Coomans and Kamminga 2004), and relevant international economic structures and human rights law (Pogge 2007; Salomon 2007; Rajagopal 2003). Some more specific work in this area has also been done in the field of economic, social, and cultural rights (Skogly 2003b; International Council for Human Rights Policy 2003; Skogly and Gibney 2007). The aim of the current book is to illustrate the implications of extraterritorial obligations on the enjoyment and implementation of specific human rights, with examples taken from civil and political rights as well as economic, social, and cultural ones. Furthermore, we are addressing some larger cross-cutting issues where the extraterritorial effects of states' actions are considered from the perspectives of environmental law and refugee law.
The theoretical challenges in this realm are substantial. Just as there is a need for rethinking the position of sovereignty with regard to international human rights law generally, there is also a need to rethink other key concepts such as jurisdiction, state responsibility, and accountability. Furthermore, the applicability of the tripartite typology of obligations (to respect, protect, and fulfill) in terms of foreign policy needs to be explicitly recognized.
One of the most controversial issues with regard to extraterritorial human rights obligations has been the concept of jurisdiction. What various adjudicatory bodies have been trying to determine is where the domestic state's jurisdiction ends, and where the foreign state's jurisdiction begins. This approach to human rights obligations is built on the traditional notion that jurisdiction is to be equated solely with territory, rather than control over the individuals who suffer as a result of a foreign state's activities.
This narrow approach to jurisdiction (both in terms of linking it to territory and seeing it as one dimensional), is a challenge to viewing human rights obligations in an extraterritorial light. However, what is beginning to become clearer is that one or more foreign states may directly or indirectly exert sufficient control over an individual to influence his or her human rights enjoyment without that foreign state having territorial control where the individual resides. With increased globalization and international interaction involving parties with significantly unequal (economic, military, or other) power, it makes more sense to talk about jurisdiction over individuals or over actions, than necessarily tying it exclusively to territory.
A concept closely linked to jurisdiction is the notion of state responsibility. This is another key concept that needs to be revisited in order to operationalize extraterritorial obligations. In legal terms, state responsibility is triggered when the state has committed an internationally wrongful act, that is, a breach of an international obligation. International human rights treaties contain obligations for states—both domestically and internationally. However, state responsibility for breaches of international human rights law as a result of a state's actions beyond its borders is rarely triggered. This is partially due to the narrow interpretation of jurisdiction as indicated above, and partially due to a lack of effective accountability mechanisms for human rights violations. Yet, the concept of state responsibility could be applied to breaches of extraterritorial human rights obligations if the willingness to use these principles were present. However, what has to be developed further is the notion of diffuse and shared responsibility. The practice of extraordinary rendition provides a number of examples of how different states might be responsible for different human rights violations—all arising out of the same general incident. Thus, what international law has to begin to get away from is the idea that only one state—invariably the territorial state—is responsible for committing human rights violations.
Yet another related issue is the problem of accountability. There are international accountability structures accessible to victims of violations of human rights. However, these are generally related to the domestic state and are dependent upon this state's acceptance of the jurisdiction of the international courts or committees. Due to the inability to hold states accountable for human rights violations in other countries, international law principles of immunity and jurisdiction limited to territory tend to prevail. The issue of immunity also results in limited accountability for intergovernmental organizations (such as the World Bank and other international financial institutions), even though states that have (extraterritorial) human rights obligations make up the membership of these organizations and are collectively responsible for the decisions and policies of these institutions. Again, the development of accountability mechanisms that can respond to the current international interdependent structures and their effect on human rights is essential.
While the intention of the book is to illustrate how extraterritorial obligations are relevant for individual human rights, it is not possible to be exhaustive in such a relatively small collection of contributions. Thus, each author has chosen his or her own theme within the overall focus of extraterritoriality, and the chapters should therefore be read as illustrations as to how individual human rights may be affected by the actions of foreign states. The advantage of this approach is that several aspects of the extraterritorial effects of states' actions are illustrated (such as trade, development assistance, military cooperation, refugee protection) through the assessment of individual human rights. It is likely that much of the discussions on the variety of extraterritorial conduct could be applied to a number of the other rights as well. Consequently, the chapters add a wealth of knowledge to a field in which systematic analysis is still wanting.
What becomes clear throughout the various chapters on the different rights is that extraterritorial obligations follow the tripartite classification of obligations mentioned above. There is a negative right to respect human rights in other countries, inter alia through avoiding taking part in extraordinary rendition, or through avoiding pollution of water or restricting the water sources for a neighboring country. In terms of the obligation to protect, states have obligations to ensure that they protect individuals against human rights violations by third (private) parties. In an extraterritorial setting, this means regulating the activities of transnational corporations over which they exert jurisdiction in order to avoid having these entities engage in practices that breach human rights standards in other countries. Examples of this may be the regulation against the use of child labor, or regulation to ensure human rights compliance by private security companies. Finally, the obligation to fulfill is a positive obligation to support foreign countries in their quest to implement human rights within their own domestic setting through measures such as development assistance that is human rights conducive, or assistance to develop a human rights infrastructure (functioning judiciary, anti-corruption measures, and so forth).
In addressing the concept of extraterritorial human rights obligations, we have found that violations of civil and political rights are understood more easily than violations of economic, social, and cultural rights. Without making any value judgment as to the importance of different sets of rights, or indeed the necessity of addressing extraterritorial obligations equally for all five types of rights, we have found several causes for the easier understanding of violations of civil and political rights. First, as the chapters on torture, life, and refugee protection clearly demonstrate, the direct causation between government action or inaction and human rights violation may be more easily ascertained. For instance, in terms of extraordinary rendition (as addressed by Manfred Nowak in Chapter 1), the extraterritorial effects of human rights violations are very clear and easy to document. Second, most people still have a better grasp of civil and political rights than economic, social, and cultural rights. Thus, the first part of the book focuses on civil and political rights.
In Chapter 1, Manfred Nowak illustrates that the right to be free of torture, which has traditionally been viewed as operating within national territorial boundaries, has recently come to be recognized as having significant extraterritorial components. Nowak, who presently is the UN special rapporteur on torture, analyzes how the obligation to refrain from torture reaches beyond the borders of states that have ratified relevant human rights treaties (in particular the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment), notwithstanding the seemingly territorial limitations in these treaties. By addressing issues such as refoulement in refugee law and torture issues relating to the "war on terror," Nowak makes compelling arguments for the further reach of states' obligations.
Taking the point of departure from the fundamental right to life, Barbara Frey (Chapter 2) illustrates the significant human rights problems created by the proliferation of small arms on the international market. Starting with a review of the extraterritorial obligations to protect the right to life as a customary norm as well as a right based in treaty law, Frey, the former UN special rapporteur on small arms and human rights, considers how such obligations are enforceable. This leads to a consideration of emerging customary norms on the specific issue of small arms transfers and their likely misuse. The failure of the exporting state to recognize its own responsibility for the effects of the prevalence of such arms (and the tragic consequences that so often follow from this) are clearly documented and analyzed in this chapter.
Two chapters in the book take inspiration from other areas of international law that are in many respects closely related to human rights. In Chapter 3, Thomas Gammeltoft-Hansen covers international refugee law. He presents the changing reality of refugee law, which continues to move "outward" from the territorial boundaries of the receiving state. Such examples include the US interdiction program off the coast of Haiti, Australia's "Pacific solution" of transferring refugee determinations offshore, and the various policies pursued by European states that have helped move the refugee determination process seemingly all the way back to the country of origin—or something close to this. In this situation, extraterritorial obligations are not only implicated in the important principle of non-refoulement, but in a host of diverse human rights issues as well.
In another sister-area to international human rights law, John Knox (Chapter 4) provides an analysis of how international environmental law has dealt with extraterritorial obligations. Knox situates environmental rights within the broader framework of international human rights law, and he elaborates specifically on vertical and diagonal obligations. He neatly sums up the different approaches this way: "human rights law has the advantage of providing rights to individuals, but the disadvantage of not always clearly extending those rights beyond the territorial jurisdiction of their own states. International environmental law (IEL) has the converse strength and weakness." Using this paradigm as a focal point, Knox shows how several international and regional environmental law instruments, as well as the broader principle of non-discrimination in international law, have important implications in the field of human rights.
Returning to the core of international human rights law, Judith Bueno de Mesquita, Paul Hunt, and Rajat Khosla (Chapter 5) address the right to the highest attainable standard of health, building specifically on the work Hunt has carried out in his capacity as the UN special rapporteur on the right to health. Placing extraterritorial obligations within a larger context, including states' behavior in international financial institutions, the chapter focuses specifically on the Hunt's experience in assessing the effect of Swedish development assistance on the right to the highest attainable standard of health in Uganda.
The current international food crisis provides the framework for Michael Windfuhr's contribution on the right to adequate food. In Chapter 6, he addresses how national and international policy structures and policy choices have contributed to the current negative state of food availability, and he sets this situation in the context of a right to adequate food. Through the presentation of case studies where external actors have had significant impacts on local peoples' enjoyment of the right to food, Windfuhr illustrates compellingly that the realization and the protection of the right to adequate food should not be limited to territorial boundaries of any state, but that international cooperation is an instrument to achieve the progressive realization of this right.
Virginia Leary (Chapter 7) takes a different approach from the other contributors in this volume. Leary focuses on a single example where a foreign state (the United States) and an intergovernmental organization (the International Labor Organization) worked in tandem in order to help improve workers' rights in another country (Cambodia). In particular, through a case study of the Cambodian textile exports and the ILO, Leary addresses the benefits that may come from external actors' concern over working conditions, including trade union rights, in a national setting in a developing country, although she is also quite cognizant of the tenuous nature of extraterritorial protection of those rights. What is also important about Leary's contribution is that it clearly shows that the issue of extraterritorial obligations is not solely about negative externalities.
Malcolm Langford's chapter on the right to housing (Chapter 8) contextualizes the issue of extraterritorial obligations within the field of international cooperation, with particular reference to international development. Langford does so through the use of two case studies: one on forced evictions, and the other on urban upgrading in international development.
Amanda Cahill (Chapter 9) addresses an important, yet implicit, right in the International Covenant on Economic, Social, and Cultural Rights, namely, the right to water. Her chapter focuses primarily on General Comment 15, adopted by the UN Committee on Economic, Social, and Cultural Rights in 2002, and then applies these principles to a detailed discussion relating to the manner in which the United Kingdom's Department for International Development (DFID) addresses and complies with such obligations in its overseas work.
In sum, each one of the chapters that follows challenges, in one way or another, some of the most basic and established principles in international law generally, and human rights law more specifically. This challenge is not an option but a necessity if human rights law is to remain relevant for, and provide a meaningful response to, individuals around the world who face torture, starvation, lack of housing, polluted water, and failure to obtain refugee status or life-saving medicines—often due to actions or omissions on the part of foreign states.