Treaties With and Without a Jurisdiction Clause

A justification for human rights duty-bearers to disregard extraterritorial human rights impacts can be based on territorial jurisdiction clauses in international human rights treaties. For Civil and Political Rights) contains an explicit territorial jurisdiction clause. The ECtHR has interpreted the jurisdiction clause in Art. 1 of the ECHR also largely in a territorial sense, as will be discussed below.

674 Art. 2 (1) of the ICCPR.

675 See section 4.7.3.

676 Milanovic, ‘Extraterritorial Application of Human Rights Treaties’ (above, n. 12), 181 et seq.; Michał Gondek, ‘The reach of human rights in a globalizing world’ (Univ, 2009). Insofar as the extraterritorial application of domestic constitutional rights is concerned, in particular US law seems to apply a relatively restrictive approach, even though the Supreme Court rarely decides such cases. In a recently published article, Chapman challenges the originalist objection against the extraterritorial application of constitu-tional rights, namely that the “Founding Fathers” did not intend to grant due process rights to aliens abroad: Nathan Chapman, ‘Due Process Abroad’, Northwestern University Law Review (112), pp. 377–452.

677 In this sense: Ganesh, ‘The European Union's Human Rights Obligations Towards Distant Strangers’

(above, n. 49), Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to’ (above, n. 428).

678 In this sense: Peters, ‘Global Constitutionalism: The Social Dimension’ (above, n. 189), p. 304; Maas-tricht Principle 9 (b): “A State has obligations to respect, protect and fulfil economic, social and cultural rights in any of the following: […]b) situations over which State acts or omissions bring about foreseeable effects on the enjoyment of economic, social and cultural rights, whether within or

outside its territory”: Schutter and et. al, ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (above, n. 201), p. 1104.

679 Peters, ‘Global Constitutionalism: The Social Dimension’ (above, n. 189), p. 303; Ganesh, ‘The European Union's Human Rights Obligations Towards Distant Strangers’ (above, n. 49), p. 536.

ple, Art. 2 (1) of the International Covenant on Civil and Political Rights (“ICCPR”) reads: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant” (empha-sis added).

Such territorial jurisdiction clauses speak against an extraterritorial obligation to respect, pro-tect and fulfill human rights as rights unless public authorities have effective control over a terri-tory or persons abroad. Some authors have suggested interpreting the characteristic of effective control broadly so that it might be applied at least to the international funding of projects. For example, if a state provides funding for a large-scale infrastructure project that results in illegal involuntary resettlements, the recipient state might violate its human rights obligations. One might argue, however, that a donor sate might also have “effective control” over the territory on which the project is realized or over the affected people. Coomans cautiously suggests that it depends on the facts whether an impact on human rights rights of project-affected people “can be qualified as exercising effective control over people or territory abroad”⁶⁸⁰, but also admits that it is very hard to think of cases or situations apart from military occupation where such a degree of control has been reached, even considering the strong actual influence many donors might have due to their financial and technical expertise.⁶⁸¹

The effective control criterion can be criticized for being too strict and not adequate for an in-creasingly interconnecting world, and for being in conflict with what Skogly and Gibney defined as the moral and legal reason for extraterritorial human rights obligations: to take “responsibil-ity for one’s own actions or omissions”,⁶⁸² even though it remains, from a legal perspective, open what exactly taking responsibility means.⁶⁸³ In defense of the effective control criterion, it has been argued that it imposes human rights obligations towards individuals whose human rights a state is able to violate.⁶⁸⁴ The effective control criterion operationalizes this assumption, but is, in an interconnected world, under-inclusive. As demonstrated above, human rights can be se-verely affected even without effective control. However, jurisdiction clauses like the one cited above would only speak against extraterritorial obligations for rights as individual rights. Argu-ably, public authorities at least have an obligation to not prevent other states from respecting, protecting and fulfilling human rights on their territories. Jurisdiction clauses could not be used as shields against such an obligation of non-obstruction: states must “abstain from harmful

680 Coomans, ‘The Extraterritorial Scope of the International Covenant on Economic, Social and Cultural Rights in the Work of the United Nations Committee on Economic, Social and Cultural Rights’ (above, n.

673), p. 6.

681 See also: Dann, The Law of Development Cooperation (above, n. 4), p. 265; On the donors’ influence:

Andrea Kämpf and Anna Würth, ‘Mehr Menschenrechte in die Entwicklungspolitik!’, p. 6.

682 Skogly and Gibney, ‘Economic Rights and Extraterritorial Obligations’ (above, n. 12), p. 268.

683 Coomans, ‘The Extraterritorial Scope of the International Covenant on Economic, Social and Cultural Rights in the Work of the United Nations Committee on Economic, Social and Cultural Rights’ (above, n.

12), p. 7; Vassilis Tzevelekos, ‘Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility’, Mich-igan Journal of International Law, 36 (2014).

684 Cedric Ryngaert, ‘Clarifying the Extraterritorial Application of the European Convention on Human Rights’, Merkourios - International and European Security Law, 28 (2012), 57-60, p. 60.

tion that prevents other states from fulfilling their obligations […] under international human rights law”⁶⁸⁵.

Some human rights treaties do not have a comparable jurisdiction clause, such as the ICESCR.⁶⁸⁶ At least three different conclusions can be drawn from the lack of a jurisdiction clause⁶⁸⁷ - a dis-cussion that will also be relevant later considering that the EU’s CFR does not contain a compa-rable territorial jurisdiction clause either.

First, one could still read the treaty obligations as limited to territory or effective control. Given the universality of human rights based on the equal moral worth of all human beings, the ab-sence of a jurisdiction clause would make it unconvincing to justify such a standpoint. ⁶⁸⁸ This is in line with the reconstruction of sovereignty in light of the principle of affectedness: the exclu-sion of others must be justified. In other words: a jurisdiction clause justifies a purely territorial application of human rights. Absent such a jurisdiction clause, there is a general – but probably rebuttable – presumption that duty-bearers are responsible vis-à-vis all human rights holders.

An application of the jurisdiction clause to the ICESCR against its wording would also be difficult if one takes the history of the treaty into account: the ICCPR and the ICESCR were negotiated at the same time. While the former explicitly limits the territorial scope, the latter does not.

The other extreme interpretation would take the wording seriously and argue that territorial borders do not matter at all. In the Bosnian Genocide case the ICJ held that the obligation to pre-vent genocide was not limited by territory⁶⁸⁹ and requires states to “employ all means reasona-bly available to them, so as to prevent genocide as far as possible”.⁶⁹⁰ Supporters of such a rather broad approach largely refer to the wording of Art. 2 (1) ICESCR, which states that each State Party to the ICESCR undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Some states and scholars have claimed that this even implies a positive obligation to, for exam-ple, provide foreign aid.⁶⁹¹ However, in particular the majority of Western states and scholars

685 Asbjørn Eide, ‘Adequate Standard of Living’, in: Daniel Moeckli, Sangeeta Shah, David Harris et al. (eds.), International Human Rights Law, pp. 195–216, p. 197

686 Many of these economic, social and cultural rights are important in the context of trade and develop-ment cooperation due to their substantive overlap with central developdevelop-ment goals, such as poverty allevi-ation and the other objectives laid down in the MDG. Generally on the relallevi-ationship between human rights and development Alston, ‘Ships passing in the night: The current state of human rights and development debate seen through the lens of the Millennium Development Goals’ (above, n. 564); Pogge, World Poverty and Human rights (above, n. 255); Sen, Development as Freedom (above, n. 564).

687 For a good overview: Milanovic, ‘Extraterritorial Application of Human Rights Treaties’ (above, n. 12).

688 Ibid., p. 227.

689 ICJ, Bosnia and Herzegovina v. Serbia and Montenegro (Application of Genocide Convention) (2007), para 183: The obligations to prevent genocide „apply to a State wherever it may be acting or may be able to act in ways appropriate to meeting the obligations in question.”

690 Ibid., para 430; Milanovic, ‘Extraterritorial Application of Human Rights Treaties’ (above, n. 12), p. 227.

However, the ICJ also states that its decision focuses on the Genocide Convention and is not intended to

“establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation for States to prevent certain acts”: ICJ, Bosnia and Herzegovina v. Serbia and Montenegro (Application of Genocide Convention) (above, n. 689), para 429.

691 See, e.g., the statement by Mr. M'Baye of Senegal, now a Judge of the International Court of Justice, at the thirty-third session of the U.N. Commission on Human Rights, 33 U.N. ESCOR C.4 (1391st mtg.) para

rejected such a positive obligation to provide assistance. This is in line with the fact that Western states always emphasize the voluntary nature of the 0.7% goal.⁶⁹² Consequently, the cooperation and assistance clause in Article 2 (1) ICESCR principle should be seen as a principle that guides legal interpretation and political decision-making, but does not allow for a clear verdict of ille-gality. However, even if one negates a positive duty to actively provide foreign assistance, the provisions at least contain a minimum obligation to refrain from acts that harm the realization of these human rights. Without at least such a minimum obligation, the normative content of this provision– which was discussed in detail and not adopted by mistake⁶⁹³ - would be meaningless.

The third approach to treaties without a jurisdiction-clause is a sort of middle-path; it does not

“throw together” all human rights obligations and dimensions, but rather asks specifically which human rights apply to what extent extraterritorially. Even though slightly simplistic, Milanovic suggests that positive obligations generally require effective control over a territory, whereas negative obligations (“duty to respect”) would not be territorially limited.⁶⁹⁴ For example, sol-diers engaging in military action on a foreign territory are under an obligation to “engage in no act or practice of racial discrimination” pursuant to Art. 2 (1) (a) CERD, but are not obliged – absent territorial control - to prohibit and bring to an end, by all appropriate means, including legislation, racial discrimination as required under Art. 2 (1) (d) CERD.⁶⁹⁵ Such a differentiated approach focusing on the specific right and the specific dimension seems more appropriate and reflective of social realities than attempts to apply a “one-size-fits-all” approach to all socio-economic rights just for the formalistic reason that they are codified in one single legal docu-ment.

While the duty to conduct HRIAs requires taking action, it nevertheless largely stems from the negative dimension of human rights, namely to not enact economic or other policies that cause

18, U.N. Doc. E/CN.4/SR.1391 (1978); 17 U.N. GAOR C.3 (1203d mtg.) para 21, U.N. Doc. A/C.3/SR.1203 (1962) (Mr. Afnan, Iraq); similar: UN Committee on Economic, Social and Cultural Rights, General Com-ment No 3 - The nature of States parties obligations (Art. 2, para 1) (above, n. 400) at para 8.

692 This point has been made based on the negotiation history of the ICESCR by Philip Alston and Gerard Quinn, ‘The Nature and Scope of States Parties' Obligations under the International Covenant on Econom-ic, Social and Cultural Rights’, Human rights quarterly, Vol. 9 (1987), pp. 156-229, pp. 186–192. A more pragmatic objection would be that such an obligation might not be desirable, at least as long as the impact of foreign aid is controversial, see by way of example: William Russell Easterly, The White Man's Burden (Oxford: Oxford Univ. Press, 2006); Dambisa Moyo, Dead Aid (Berlin: Haffmans & Tolkemitt, 2014).

693 For more on the negotiation history: Alston and Quinn, ‘The Nature and Scope of States Parties' Obliga-tions under the International Covenant on Economic, Social and Cultural Rights’ (above, n. 692).

694 Milanovic, ‘Extraterritorial Application of Human Rights Treaties’ (above, n. 12), p. 228. In its General Comment No. 14, the ICESCR Committee clearly pointed out that states are required to refrain from im-posing economic sanctions or similar measures restricting the supply of another state with adequate med-icine: UN Committee on Economic, Social and Cultural Rights, E/C.12/2000/4, General Comment No. 14 - The Right to the Highest Attainable Standard of Health (Art. 12) (2000), para 41. This duty prevails in spite of the fact that the sanctions are authorized by the Security Council in response to a violation of interna-tional law committed by the state’s government against which the sanctions are targeted: The Committee emphasizes that the ”lawlessness of one kind should not be met by lawlessness of another kind”: UN Committee on Economic, Social and Cultural Rights, E/C.12/1997/8, General Comment No. 8 - The relation-ship between economic sanctions and respect for economic, social and cultural rights (1997), para 16.

Ganesh is critical of this distinction and suggests that, under EU human rights law, both positive and nega-tive extraterritorial obligations apply, but only if an initianega-tive produces a legal effect abroad: Ganesh, ‘The European Union's Human Rights Obligations Towards Distant Strangers’ (above, n. 49).

695 Milanovic, ‘Extraterritorial Application of Human Rights Treaties’ (above, n. 12), p. 228.

significant harm to people living in third countries.⁶⁹⁶ HRIAs mainly investigate whether a policy would have these impacts and whether, consequently, negative human rights obligations would make such an option illegal or (politically) undesirable. As discussed above, HRIAs are, in this sense, an exercise of self-restraint.⁶⁹⁷ To take the case of the EU: the HRIAs assess whether, for example, an EU trade policy has human rights impacts in third countries. Consequently, the EU must assess whether its own policies constitute an act that results in or contributes to human rights infringements. This is essentially a consequence of the EU’s negative human rights oblgi-ations. The HRIA regime does not intend to bring an end to other human rights violations in third countries.