The Obligation to Take Impacts on Humanity into Consideration: The Principle of Af- Af-fectedness

The previous chapter identified several potential legitimacy deficits: acts of public authorities can have significant effects on the rights and interests of people in third countries, and tradition-al legitimacy concepts – in particular state consent as a source of legitimacy under public inter-national law – can be insufficient. It has also been argued that one legal response to these legiti-macy deficits could be the institutionalization of HRIAs, i.e. the meta-regulation of public deci-sion-making through rules and principles guiding the conduct of HRIAs as part of an institution’s decision-making process. However, in order to increase legitimacy and avoid that HRIAs are misused as a pretext to justify policy decisions, it is important that public law rules and princi-ples determine if, how, and to what extent HRIAs are to be conducted.

This chapter addresses the first and most general question in this context, namely whether pub-lic authorities have an obligation or responsibility to assess the human rights impacts of their initiatives, and, if answered in the affirmative, if this is also the case irrespective of where these impacts occur. This would imply that international organizations and states bear at least mini-mum responsibilities towards humanity and not only towards their own citizens (of states) or members (of IOs). Such an obligation may be questioned from two perspectives: first, a central paradigm that prevails in many democratic theories and in traditional public international law seems to be that governments are accountable only to their citizens (or foreigners living on a state’s own territory) unless explicit legal exceptions exist under national or international law.

At the risk of overgeneralizing, the underlying assumption would be that human interests are best served if every state takes care of its own population. Consequently, even if state activities have an impact on foreign territory, the affected state or affected individuals are generally not entitled to participate in the decision-making process⁴²² unless law clearly and exceptionally states otherwise. So how would a general duty to assess human rights impacts regardless of where they occur – absent specific treaty or statutory obligations to do so - relate to the acting state’s sovereignty? Second, the third state where human rights impacts are possible may also raise objections. For example, if EU institutions assess the human rights impacts of EU trade and investment policies on third states like Myanmar, such an assessment would be impossible without an analysis of the current human rights situation in Myanmar. It is a politically sensitive issue for the European Union to assess the level of human rights compliance in third states. Af-fected states like Myanmar could argue that they themselves – or UN organizations with the nec-essary mandate – have the exclusive right to make judgments about human rights compliance.

So how would the assessment of human rights impacts occurring in third states relate to the affected state’s sovereignty? ⁴²³

422 Brian Bernhardt, A Theory of Democratic Self-Determination: Affectedness, Sovereignty and Nonterri-torial Political Boundaries, January 2010, p. 3, available at:

http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.874.7785&rep=rep1&type=pdf

423 Zerk, ‘Human Rights Impact Assessment of Trade Agreements’ (above, n. 30), p. 21.

In this chapter, I argue that such an obligation to assess impacts on human rights and interests irrespective of where they occur (“impacts on humanity”)⁴²⁴ emerges as a principle of interna-tional law, namely a legal principle of affectedness (“PoA”). Such a principle has been proclaimed in political theory and philosophy in contrast with statist democratic theories. In a nutshell, the principle states that all those affected by a decision should have the right to participate or have the right that their interests be considered in the decision-making process.⁴²⁵ This principle in-troduces a complementary dimension of responsibility which is not defined by citizenship or residency within territorial borders, but by actual affectedness. It is complementary in the sense that it does clearly not mean that states must grant the exact same rights to citizens and foreign-ers living in third countries (“distant strangforeign-ers”⁴²⁶), but that the rights and interests of distant strangers must at least be taken into consideration in the decision-making process if they are likely to be significantly affected. This is also because “affectedness” in this sense can best be described as a curve reflecting different degrees of affectedness – and correspondingly different degrees of legal obligations and different levels of participation rights. This is an advantage compared with the inflexible binary boundaries defined by nationality or territory.⁴²⁷ The insti-tutionalization of HRIAs arguably responds to the need to establish additional and more flexible decision-making procedures in order to consider impacts of different degrees – regardless of where these impacts occur. At the same time, the principle of affectedness allows to reconcile the extraterritorial application of human rights with the democratic principle of self-determination in cases where a state or public organization does not exercise effective control or authority over foreign territory or individuals on foreign soil, ⁴²⁸ but where a policy decision only

424 Term borrowed, inter alia, from: Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountabil-ity of States to Foreign Stakeholders’ (above, n. 2).

425 Eugene A. Rosa, Ortwin Renn, and Aaron M. McCright, The Risk Society Revisited (Temple University Press, 2014), p. 178; Regina Kreide, ‘The Ambivalence of juridification: On Legitimate Governance in the International Context’, Global Justice: Theory Practice Rhetoric (2009), 18-34, p. 28; Bryde, ‘International Democratic Constitutionalism’ (above, n. 2), p. 117; Robert A. Dahl, Democracy and its critics (New Haven:

Yale University Press, 1989), p. 129; Armin von Bogdandy, ‘Demokratie, Globalisierung, Zukunft des Völk-errechts: Eine Bestandsaufnahme’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV), 63 (2003), pp. 853–877.

426 The term „distant strangers“ refers to non- citizens and non-residents. Similar: Ganesh, ‘The European Union's Human Rights Obligations Towards Distant Strangers’ (above, n. 49).

427 Bryde, ‘Das Demokratieprinzip des Grundgesetzes als Optimierungsaufgabe’ (above, n. 47), p. 64. If any concern, however remote, were sufficient, world society would be the only basis for political legitimacy, which in turn would considerably restrict the possibility of effective participatory decision-making pro-cesses. There must therefore be different degrees of affectedness. The goal should be to identify more pragmatic solutions with more or less great involvement. This may imply under certain circumstances also a pluralism of overlapping democratic decision-making units instead of a fixation on the nation-state level. In this sense: Brun-Otto Bryde, ‘Grenzüberschreitende Umweltverantwortung und ökologische Leis-tungsfähigkeit der Demokratie’, in: Klaus Lange (ed.), Gesamtverantwortung statt Verantwortungsparzel-lierung im Umweltrecht, pp. 75–91, p. 78.

428 These restrictive criteria have been applied by the ECtHR to define the scope of territorial human rights jurisdiction: ECtHR, Application no. 52207/99, Bankovic and Others v Belgium and Others (2001);

ECtHR, Application No 55721/07, Al-Skeini and Others v United Kingdom (2011). Based on this case law, several authors have argued that, for reasons of democratic self-determination, the exercise of normative authority would be necessary to establish extraterritorial human rights obligations; the mere factual ef-fects of a policy decision on distant strangers would, in contrast, not be sufficient: Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdic-tion and What JurisdicJurisdic-tion Amounts to’, Leiden Journal of InternaJurisdic-tional Law, 25 (2012), pp. 857–884, p.

884; Ganesh, ‘The European Union's Human Rights Obligations Towards Distant Strangers’ (above, n. 49), p. 503. Critical of this normative approach and arguing in favor of a “facticist” view on territorial

jurisdic-factually affects the human rights of distant strangers.Instead of only establishing a legal rela-tionship between a state and those subjected to its authority, a principle of affectedness can cre-ate a legal relationship between the duty-bearer (in our case in particular: the EU) and the right-holder living on a foreign territory.⁴²⁹

Such a principle of affectedness is increasingly reflected in legal developments, inter alia, in in-ternational environmental, human rights and economic law, which I will examine in this chapter.

In line with Benvenisti’s recent reconceptualization of sovereignty as trustees of humanity,⁴³⁰ I argue that these rules and principles that require to consider impacts irrespective of where they occur are not an exception to but rather an expression of a reconceptualized principle of sover-eignty. This claim is, as a quick look at the realities of political decision-making demonstrates, often counterfactual. In many cases, it might be the unwillingness of decision-makers to take human rights impacts into account. Strong financial, economic or other interests can be the rea-son. However, non-compliance with obligations is not always an issue of unwillingness, but can also be an issue of inability: A lack of awareness of potential impacts or uncertainty about how to adequately evaluate these impacts are often among the reasons for an apparent lack of com-mitment.⁴³¹

The starting point for this chapter is the idea of a principle of affectedness as developed in politi-cal theory (see section 4.2). Against this background, this chapter analyzes developments in in-ternational environmental, human rights and economic law which indicate a responsibility to assess impacts on human rights and interests regardless where these impacts occur: This re-flects the emergence of a legal principle of affectedness (see sections 4.4-4.7). However, before it is possible to claim that a legal principle emerges, it is necessary to also understand how such a principle would relate to the sovereignty claims of the acting and affected states (see section 4.3). It will therefore be demonstrated that the concept of sovereignty has always been adapted to changing realities and defined by other principles. In particular, the scope of one state’s sov-ereignty is limited by other states sovsov-ereignty – and, at least since the second half of the 20th century, also by other principles of international law, in particular human rights. It is in this con-text that a legal principle of affectedness would not be incompatible with sovereignty but rather another principle that determines the scope of sovereignty. This finding is fully compatible with the basic rationale that justifies sovereignty in the first place, namely to serve the fundamental interests of humanity.

tion: Peters, ‘Global Constitutionalism: The Social Dimension’ (above, n. 189), p. 304. See section 4.7.4.4 for a closer analysis of the normative and facticist theories.

429 Similar: Cedric Ryngaert, ‘EU Trade Agreements and Human Rights: From Extraterritorial to Territorial Obligations’, International Community, 20 (2018), pp. 374–393. This will be discussed in more detail be-low (see section 4.7.4.4).

430 Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakehold-ers’ (above, n. 2). However, Benvenisti largely basis his argument on a pre-existing legal analysis, in par-ticular on constitutionalism and Global Administrative Law scholarship.

431 An interview with an official of the World Bank’s Development Research group confirms that norma-tive uncertainty can increase what appears to be non-compliance, because in an organization like the World Bank “the objectives of the institution are a little unclear, the norms are a little unclear, the roles are a little unclear, [and] there are so many nationalities [and] so many disciplines”, quoted in: Sarfaty, Values in Translation (above, n. 13), p. 78.

Such an obligation to take the rights and interests of those affected into account is still very vague,⁴³² and especially in the global context, a legal principle of affectedness raises many fol-low-up questions:⁴³³ How should, for example, the scope of affected stakeholders be defined – and what exactly does it mean to be “involved” in decision-making? How can transnational or international decision-making processes be designed in order to enhance transparent, participa-tory, and principle-based deliberation? How can deliberative processes interact with scientific practices? Are there – judicial or other - mechanisms available to sanction decision-makers who fail to comply with these requirements? The obligation (or in certain cases at least self-commitment) to conduct impact assessments - including impacts on humanity - is a consequence and confirmation of a principle of affectedness. A closer analysis of impact assessment regimes can therefore contribute to finding answers to these follow-up questions, which will therefore be addressed in parts IV and V.