Margot E. Salomon is Senior Lecturer, Centre for the Study of Human Rights and Law Department, London School of Economics. She was a member of the 6-person drafting committee that prepared the Maastricht Principles and co-author, along with the other committee members, of the accompanying Commentary.
This week Human Rights Quarterly published the 86-page legal Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights. The Maastricht Principles were developed over a two-year period between 2009 and 2011 and subsequently adopted by human rights experts at a meeting in September 2011 convened by Maastricht University and the International Commission of Jurists. Signatories include current and former members of UN human rights treaty bodies, former and current Special Rapporteurs of the Human Rights Council, along with academics and legal advisers of leading non-governmental organizations.
The Maastricht Principles are built upon two key conceptual foundations. First, that international human rights law requires that States, when conducting themselves in a way that has real and foreseeable effects on human rights beyond borders, must ensure that they respect and protect rights, as well as in some circumstances, fulfil rights. Second, international law, most pointedly in the area of economic, social and cultural rights, demands prescriptively that States act to realize rights extraterritorially, through ‘international assistance and cooperation’. The aim of the Principles is to enunciate the legal parameters in which these obligations are to be discharged (for an overview of the Principles generally, see Salomon and Seiderman, Global Policy Journal, November 2012) The aim of the Commentary is to set out the legal authority for the Principles.
A 6-person committee was convened to prepare an advanced set of Principles for negotiation, discussion and adoption. One challenge faced by the drafting committee was that much of the extant international jurisprudence regarding extraterritorial obligations, whether emanating from UN treaty bodies, regional human rights courts, or scholarly legal commentary, applied to these obligations in respect of civil and political rights. With its focus on socio-economic rights in particular, the emerging thread (common to both sets of rights) recognized by the Maastricht Principles is that an individual will be considered to fall within the jurisdiction of a State when that State exercises authority or effective control over territory or persons on foreign territory. For example, in a situation of belligerent occupation, the occupying power assumes certain obligations as regards the right to work, to health, to education, and to an adequate standard of living. An individual will also be considered to have come within the jurisdiction of a State where, through its conduct, the State has influence on the exercise of rights outside of its territory. The adoption by a State (or States) of agricultural subsidies that undercut farmers elsewhere and make earning a basic living impossible (right to an adequate standard of living), provides one such example. The requirement to avoid negative effects on the exercise of economic, social and cultural rights beyond borders makes prior assessments by the State of the extraterritorial impacts of its laws, policies and practices of considerable importance.
Significantly, the Principles conclude that jurisdiction will also attach when the State is under an international obligation or otherwise in a position to exercise decisive influence or take measures actively to support the realization of economic, social and cultural rights of people outside of its territory. Whereas jurisdiction has traditionally served as a doctrinal bar to the recognition and discharge of human rights obligations extraterritorially, the recognition under international law of a State’s prescriptive authority to act beyond its borders is based, among other reasons, on a general duty to see human rights secured in the world.
Positive Obligations to Fulfil Socio-Economic Rights Globally
There exists a general obligation for States to take action, separately, and jointly through international cooperation, to fulfil the economic, social and cultural rights of persons outside of their respective territories. This obligation is found in the UN Charter which requires cooperation among Member States in the achievement of human rights by all, higher standards of living, and economic and social progress and development. This wide-ranging obligation to cooperate internationally in the realization of human rights that States owe to each other is reinforced by the obligations of ‘international assistance and cooperation’ explicitly to realize economic, social and cultural rights provided for in the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as the obligation of international cooperation to secure the socio-economic rights of children, as found in the Convention on the Right of the Child. From the assertion in the Universal Declaration of Human Rights in 1948 of an entitlement to an international order in which human rights can be realized, to the 1970s call by the General Assembly for a New International Economic Order, to the 1986 Declaration on the Right to Development, and the Millennium Declaration affirmation of a shared responsibility to address poverty, it should be uncontroversial that international cooperation aimed at ensuring the exercise in the first instance of basic human rights, can be found among the traditional sources of international law.
The Maastricht Principles confirm that States have positive obligations of international cooperation to fulfil socio-economic rights universally. That human rights obligations apply to relations among States is not alien to the international law of human rights, notwithstanding that classically international human rights obligations focus primarily on the regulation of the State in its conduct towards the people within its territory or in certain circumstances to people outside of its territory but subject to its jurisdiction. These ‘obligations of a global character’ (Maastricht Principle 8(b)) have a strong inter-state component, but under international human rights law people remain the rights-holders and are understood as the ultimate beneficiaries of rights.
Economic globalization has revealed that socio-economic rights cannot be properly secured in the world today exclusively through the ad hoc, unilateral or bilateral effort of States. Instead, the global structural environment must be conducive to their realization. Decades of international law-making have reaffirmed the importance of international arrangements that address poverty and underdevelopment and support the realization of economic, social and cultural rights universally. Giving effect to these obligations would require the appropriate management of the international regulatory spheres of trade, investment, taxation, finance, as well as environmental and development cooperation. The elaboration, interpretation, application and regular review of treaties and standards by States, including as members of international organizations, would play an important role in addressing the structural impediments to securing human rights for all.
In fleshing out the content of obligations of international cooperation (including obligations of international assistance and cooperation), we see that international assistance and cooperation is not limited to the transfer of financial resources, as is often argued by industrialized States. High-income States tend to equate the obligation with resource transfer and then to take the position that they have no legal obligation to transfer resources abroad in order to address need, only a moral duty. The requirement to ensure that a whole host of international regulatory regimes contribute to an international environment enabling of human rights militates against that narrow interpretation of the norm. In any case, while it may be difficult to conclude that there exists a binding obligation for a given State to provide any particular form of material assistance to any other specific State(s), decades of UN consideration and standard setting in this and related areas have advanced broader interpretations of the obligation whereby economic, financial, monetary and other policies should be designed in such a way as to avoid causing injury to the interests of other States and to the rights of their peoples, and moreover, should actively seek to address existing deprivations.
That said, States may in fact have legal obligations to transfer money in order to address world poverty. Since the 1970s high-income States have repeatedly committed to transferring 0.7% gross national income in official development assistance, which the Committee on Economic, Social and Cultural Rights (CESCR) has taken as a means of measuring compliance with the obligation of international assistance. States ‘in a position to assist’, as per the CESCR, are to allocate ‘adequate and reasonable’ funds, (Commentary to Principle 31, 1151, para. 2) alongside their joint obligation collectively to mobilize the ‘maximum of available resources’ for the universal fulfilment of economic, social and cultural rights (Maastricht Principle 31). This latter requirement is all the more stringent given that some aspects of the obligation to cooperate internationally in fulfilling economic, social and cultural rights globally cannot be achieved by any one State on its own. As regards State responsibility under the ILC articles, in circumstances where more than one State is responsible for the same wrongful act, each State is separately responsible for its own conduct and its responsibility is not diminished by the fact it is not the only responsible State. Thus, on the matter of a truly joint obligation to cooperate internationally, whereby one or several States are unable on their own to provide what is required to comply fully with the obligation, the existence of collective legal obligations is recognized while relying on an individualized regime of legal responsibility in the event of a breach of those obligations. (Salomon, ‘Deprivation, Causation and the Law of International Cooperation’ in M. Langford, W. Vandenhole, M. Scheinin and W. van Genugten (eds), Global Justice, State Duties: The Extra-Territorial Scope of Economic, Social and Cultural Rights in International Law (forthcoming, Cambridge University Press, 2013) 259, at 286-7.)
Obligations of international cooperation are not limited to industrialized States but to all those with capacity and/or resources: those States in position to assist. Any State possessing capacity and any variety of resources – economic, technical, technological, influence in decision-making – must harness those assets also towards fulfilling economic, social and cultural rights elsewhere in the world. Taking account of varied forms of capacity and influence signals that there is a wide range of States with potential obligations.
It may be worth emphasizing that the failure to meet the procedural requirements to devise a clear system of coordination and allocation of responsibilities necessary to give effect to the obligation to cooperate in fulfilling socio-economic rights throughout the world does not relieve a State of its obligations to act separately in order to comply with its positive obligations in fulfilling these rights extraterritorially. Second, a State is not relieved of its obligation in this area because it lacks resources: it could be held internationally responsible for not having worked towards the creation of a practical system of cooperation and for failing to have sought to mobilize the necessary resources globally. International human rights law distinguishes obligations of conduct from obligations of result. Finally, a State in need may not refuse to discharge its own territorial obligations by invoking the failed conduct of other States in assisting.
As for accountability, remedy and reparations, they are principles applicable to the entirety of the Maastricht provisions and are indispensable adjuncts to rights and obligations, even if will have to hope for a creative use of the various procedures under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights when it enters into force if it is to take account of some of the complex wrongs envisioned.
There are of course any number of issues that remain unresolved when it comes to positive obligations to fulfil socio-economic rights in the world. For example, while the relevant State in a position to assist retains the obligation to fulfil economic, social and cultural rights within its territory, irrespective of whether those rights have been realized at home the State could still be said to have positive obligations to fulfil the human rights of people outside of its borders. The determination as to what constitutes the adequate and reasonable use of its capacity and available resources towards the immediate and/or progressive realization of rights at home as well as abroad, should be formed on the basis of an objective determination (Commentary to Principle 31, 1151, para. 3).
While we have come some way in making international human rights law responsive to global deprivation, we have further to go in refining the content of extraterritorial obligations when it comes to socio-economic rights. Conceptual challenges and doctrinal gaps notwithstanding, there are undoubtedly legal obligations to the world’s poor and the Maastricht Principles and Commentary take us one giant step further in appreciating what those legal obligations are, and not a moment too soon.