States’ Extraterritorial Obligations regarding the protection of human rights
Despite the universitality of human rights, a large number of States continue interpreting their obligations as applicable only within their own territory. This has led to an important void in the protection of these rights, for which reason a series of principles has been developed that intend to clarify what States’ extraterritorial obligations are in terms of economic, social and cultural rights.
“Extraterritorial obligations” (ETO) are those obligations that States have as a consequence of their acts or omissions, that impact on the enjoyment of human rights outside of their own territorial limits. Although they have acquired greater relevance as a consequence of the effects of globalization, States still show a strong tendency to limit their obligations to their own territory. This has led to important voids in the protection of human rights, particularly in the case of transnational businesses and intergovernmental organizations, such as the International Financial Institutions (IFIs).
Consequentially, since 2011, and thanks to the effort of international experts in the underlying principles of the ETO, there exists a set of principles known as Maastricht’s Principles about States’ Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights. At present, these principles constitute an expert international opinion, which clarify States’ extraterritorial obligations based on current international rights.
Extraterritorial Obligations (ETOs) and their relationship with International Financial Institutions (IFIs) and transnational businesses
In this context, it so happens that States frequently turn to IFIs with the aim of requesting financing for their projects, many of which are liable to cause violations to human rights, not only in the territory of the State that requested the financing but also outside of it. However, it is important to clarify that international rights do no permit the States to ignore – nor transgress – their respective human rights obligations, through the use of the IFIs as agents that do not comply with, in their practices, the own obligations of the States. In this sense, Maastricht’s principle number 15 directly refers to States’ obligations as members of international organizations, establishing that:
“A State that transfers competencies or participates in an international organization must adopt all reasonable measures to guarantee that the organization acts according to international obligations on the subject of human rights of said State.” (Maastricht’s Principles, point 15)
That is to say, that States can not evade their obligations protecting themselves with the justification that actions are developed by the IFIs. On the contrary, as members of said organizations, they must take the measures that are within their reach so that the activities of said organizations are consistent with internationally recognized human rights.
A similar analysis is applicable in the case of transnational businesses originating from a State, but whose activities can have effect on the human rights of the population where they operate. In this case, point 24 of Maastricht’s Principles highlights the States’ obligation of protection or regulation, establishing that:
“All the States must adopt the measures to assure that non-governmental actors that are in positions to regulate […] including individuals and private organizations, transnational businesses and other commercial businesses, do not override or undermine the enjoyment of economic, social and cultural rights.” (Maastricht’s Principles, point 24)
This implies that a State can not wash their hands of the actions and obligations of their transnational businesses that operate outside of their own territory. To the contrary, they must take charge of regulating and supervising their activities, above all those that are related to economic, social and cultural rights (DESC). In this way, Maastricht’s Principles establish that the States must try through their means, to achieve the highest grade of satisfaction possible from the DESC; those that encompass basic questions of human dignity such as food, health, housing, work, education and access to water, among others. States contribute to the guarantee of these rights through their acts or omissions, their decisions that support the governing bodies of the IFIs, and in the regulation and supervision of the actions of their transnational businesses.
In this context, civil society must advocate for the recognition of and compliance with Maastricht’s Principles, since without the observance of extraterritorial obligations, human rights cannot assume their role as legal basis for the regulation of globalization, nor assure the universal protection of all people and groups. Therefore, one of the current challenges consists of finding the way to tackle the immunity that the IFIs claim and the consequent lack of accountability.
These types of advances in terms of international rights, and in relation to the protection of human rights, is relevant within the context of the work of FUNDEPS. Both from the global view point when considering, for example, the obligations of the States that make up the IFIs; as from the local point of view, taking into account violations to human rights in the local sphere, that can be caused by the actions of transnational businesses or projects financed by the IFIs.
More information:
–Web page of the ETO Consortium
Contact:
Gonzalo Roza – Coordinator of the Area of Global Governability
Yamile Najle – Co-coordinator of the Area of Human Rights
Translated By: Rebecca Rhoads
