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Home Human Rights Economic Social Cultural Rights The ICESCR as a Legal Constraint on State Regulation of Business, Trade, and Investment: Notes from CESCR General Comment No. 24 (August 2017)

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  1. Thanks a lot Diane for your note and your comments. I am rather more skeptical than you are, especially on the legal grounds for the so-called “extraterritorial obligations” : if I understand the distinguished motives of the Committee, I am not convinced by the legal reasoning (especially, the interpretation of the provisions of the UN Charter, of the ICJ’s case-law and of the UN International Law Commission’s work). I have written a much more critical appraisal of the Comment (“The “extraterritorial obligations” of the States parties to the International Covenant on Economic, Social and Cultural Rights (1966)- A Critical Appraisal of the UN Committee on Economic, Social and Cultural Rights’ General Comment No. 24, on States’ Obligations in the context of Business Activities (2017)”). In this article, I point out the contradictions, the paradox and the significant issues silenced/underestimated by the Committee. One of my main criticisms is that rather than clarifying the regime of extraterritorial obligations, the Committee blurs legal concepts and oversimplifies many issues. I can keep you informed, once the article published.

  2. Diane Desierto Diane Desierto

    Dear Helene (if I may):

    Many thanks for the citation to your forthcoming article. Skepticism is always healthy – and in the case of the Committee’s General Comments, historically it has always received more than its healthy share of skepticism. I agree with you, in principle, that much more could certainly have been elaborated on extraterritorial obligations here under the ICESCR (particularly clarification on the standard of when a State may be deemed to be in a position to ‘influence’ corporate conduct abroad). Much more could also have been discussed on the issue of corruption and related obligations of States under international anti-corruption conventions and anti-corruption norms.

    But drafting density may have yielded here to pragmatic exchanges (as with any human rights body) among the Committee members. So much of the corpus of General Comments is a product of these law and policy tensions.

    To this end, I very much welcome reading your article on the shortcomings of General Comment No. 24. I do not have primary sources on the motivations and debates of the respective Committee members in formulating General Comment No. 24 and would welcome the education on these points.

    With best wishes,
    Diane

  3. Dear Diane – thanks for this most interesting analysis. It might also be interesting to readers to look at the submissions made during the consultation process leading up to this Generla Comment (http://www.ohchr.org/EN/HRBodies/CESCR/Pages/Submissions2017.aspx). Those by governments, as opposed to NGOs, were in general rather critical of the General Comment’s various assumptions about extraterritorial obligations.

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