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Extraterritorial Obligations (ETOs) are obligations in relation to the acts and omissions of a state, within or beyond its territory, that have effects on the enjoyment of human rights outside of that state's territory. [1] [2]
Human rights are universal rights. When a state limits its human rights obligations as being applicable only within its own borders, this can lead to gaps in the protection of human rights in international political processes. Extraterritorial Obligations (ETOs) are a missing link in the universal human rights protection system. [2]
The details of ETOs were laid out in the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (Maastricht Principles) in 2011. [2] The Maastricht Principles were adopted by international law and human rights experts from different regions of the world. [3]
The Maastricht Principles oblige states to respect the economic, social and cultural rights of persons within their territories and extraterritorially. According to the principles, states must refrain from conduct which nullifies or impairs the enjoyment and exercise of economic, social and cultural rights of persons outside their territories. [2]
The Maastricht Principles further determine that states must refrain from any conduct which a) impairs the ability of another state or international organisation to comply with their human rights obligations, and b) aids, assists, directs, controls or coerces another state or international organisation to breach that their human rights obligations. [2]
The Maastricht Principles do not purport to establish new elements of human rights law, they clarify extraterritorial obligations of states on the basis of existing international law. [2] The principles are not legally binding, they are an expression of expert opinions regarding the status of extraterritorial human rights obligations in international law. [1]
Nevertheless, the Maastricht Principles were explicitly drawn from international law with a view to giving effect to the object of the Charter of the United Nations and international human rights. Principle 8b of the Maastricht Principles refers to the United Nations Charter as the source of obligation, being a starting point for an evaluation of the legal character of ETOs.
The Universal Declaration of Human Rights, defined by the United Nations, is to apply to every person regardless of the political, jurisdictional or international status of the country or territory to which a person belongs. [4]
The United Nations asserts that all states must take action, separately, and jointly through international cooperation, to respect the economic, social and cultural rights of persons within their territories and extraterritorially. States are also to refrain from conduct which impairs the enjoyment of such rights of persons outside their territories. [2]
In 2007, The Extraterritorial Obligations (ETO) Consortium was established in Heidelberg, Germany. It is a global network of over 140 organisations and academics seeking to advance awareness on and the implementation of states’ extraterritorial obligations. [3]
Climate change highlights the need for an effective protection of human rights, which must be available to individuals and communities when they are faced with political, social, economic or ecological problems that are not limited by states' political borders. [5]
Climate change has adverse effects on populations, their displacement having significant adverse consequences for children in Africa. Extraterritorial conduct by states or international organisations or their omissions associated with climate change has raised scrutiny. A report by the Office of the High Commissioner for Human Rights connects climate change and the enjoyment of the rights of the child under the Convention on the Rights of the Child, highlighting the importance of measures such as extraterritorial jurisdiction. [6]
Land grabbing in the 21st century primarily refers to large-scale land acquisitions following the 2007–08 world food price crisis, prompting food security fears within parts of the world. [7] The discussion over the improvement of transparency in large-scale land acquisition includes addressing the extraterritorial obligations of states over international business enterprises. [8]
The lack of global governance mechanisms for the use of digital technologies, for example in the public domain, and their commercialization is an issue. States have obligations to limit any potential unintended negative consequences, but in reality digital tools are being used to crack down on civil and political rights. The European Union is in the process of constructing a set of regulations for establishing and supporting a digital single market with the intent of recalibrating the current legal frameworks. One example is the General Data Protection Regulation, with the aim to give EU residents more control over their data. [9]
While states in the past may have contested any extraterritorial obligations on the basis of international law, which implies that a state is not to infringe on the sovereignty of another state, [10] such obligations, in particular for the prevention of genocide and other atrocity crimes, are increasingly being referenced in international legal cases. [11]
In the international case of Bosnia v. Serbia (2007), a state provided high levels of military and economic assistance to paramilitary forces located in another country that carried out genocide. [10] In its 2007 judgment on Bosnia v. Serbia, the International Court of Justice found that states parties to the Genocide Convention of 1948 have an obligation to prevent genocide also beyond their territorial borders. [11]
Human rights are moral principles or norms for certain standards of human behaviour and are regularly protected in municipal and international law. They are commonly understood as inalienable, fundamental rights "to which a person is inherently entitled simply because she or he is a human being" and which are "inherent in all human beings", regardless of their age, ethnic origin, location, language, religion, ethnicity, or any other status. They are applicable everywhere and at every time in the sense of being universal, and they are egalitarian in the sense of being the same for everyone. They are regarded as requiring empathy and the rule of law and imposing an obligation on persons to respect the human rights of others, and it is generally considered that they should not be taken away except as a result of due process based on specific circumstances.
Universal jurisdiction is a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation to the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage. The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as to the concept of jus cogens – that certain international law obligations are binding on all states.
Economic, social and cultural rights, (ESCR) are socio-economic human rights, such as the right to education, right to housing, right to an adequate standard of living, right to health, victims' rights and the right to science and culture. Economic, social and cultural rights are recognised and protected in international and regional human rights instruments. Member states have a legal obligation to respect, protect and fulfil economic, social and cultural rights and are expected to take "progressive action" towards their fulfilment.
The human right to water and sanitation (HRWS) is a principle stating that clean drinking water and sanitation are a universal human right because of their high importance in sustaining every person's life. It was recognized as a human right by the United Nations General Assembly on 28 July 2010. The HRWS has been recognized in international law through human rights treaties, declarations and other standards. Some commentators have based an argument for the existence of a universal human right to water on grounds independent of the 2010 General Assembly resolution, such as Article 11.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); among those commentators, those who accept the existence of international ius cogens and consider it to include the Covenant's provisions hold that such a right is a universally binding principle of international law. Other treaties that explicitly recognize the HRWS include the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the 1989 Convention on the Rights of the Child (CRC).
The right to health is the economic, social, and cultural right to a universal minimum standard of health to which all individuals are entitled. The concept of a right to health has been enumerated in international agreements which include the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities. There is debate on the interpretation and application of the right to health due to considerations such as how health is defined, what minimum entitlements are encompassed in a right to health, and which institutions are responsible for ensuring a right to health.
The Vienna Declaration and Programme of Action (VDPA) is a human rights declaration adopted by consensus at the World Conference on Human Rights on 25 June 1993 in Vienna, Austria. The position of United Nations High Commissioner for Human Rights was recommended by this Declaration and subsequently created by General Assembly Resolution 48/141.
Denaturalization is the loss of citizenship against the will of the person concerned. Denaturalization is often applied to ethnic minorities and political dissidents. Denaturalization can be a penalty for actions considered criminal by the state, often only for errors in the naturalization process such as fraud. Since the 9/11 attacks, the denaturalization of people accused of terrorism has increased. Because of the right to nationality, recognized by multiple international treaties, denaturalization is often considered a human rights violation.
The right to education has been recognized as a human right in a number of international conventions, including the International Covenant on Economic, Social and Cultural Rights which recognizes a right to free, compulsory primary education for all, an obligation to develop secondary education accessible to all with the progressive introduction of free secondary education, as well as an obligation to develop equitable access to higher education, ideally by the progressive introduction of free higher education. In 2021, 171 states were parties to the Covenant.
Ecocide is destruction of the natural environment that is widespread, long-term and severe. The concept of ecocide originated in the 1970s after the United States devastated the environment in Vietnam through use of Agent Orange during the Vietnam War.
The Convention on the Rights of Persons with Disabilities is an international human rights treaty of the United Nations intended to protect the rights and dignity of persons with disabilities. Parties to the convention are required to promote, protect, and ensure the full enjoyment of human rights by persons with disabilities and ensure that persons with disabilities enjoy full equality under the law. The Convention serves as a major catalyst in the global disability rights movement enabling a shift from viewing persons with disabilities as objects of charity, medical treatment and social protection towards viewing them as full and equal members of society, with human rights. The convention was the first U.N. human rights treaty of the twenty-first century.
The Yogyakarta Principles is a document about human rights in the areas of sexual orientation and gender identity that was published as the outcome of an international meeting of human rights groups in Yogyakarta, Indonesia, in November 2006. The principles were supplemented and expanded in 2017 to include new grounds of gender expression and sex characteristics and a number of new principles. However, the Principles have never been accepted by the United Nations and the attempt to make gender identity and sexual orientation new categories of non-discrimination has been repeatedly rejected by the General Assembly, the UN Human Rights Council and other UN bodies
The Declaration of Human Duties and Responsibilities (DHDR) was written for reinforcing the implementation of human rights under the auspices of the UNESCO and the interest of the Office of the United Nations High Commissioner for Human Rights and was proclaimed in 1998 "to commemorate the 50th anniversary of the Universal Declaration of Human Rights"(UDHR) in the city of Valencia. Therefore, it is also known as the Valencia Declaration.
The right to sexuality incorporates the right to express one's sexuality and to be free from discrimination on the grounds of sexual orientation. Specifically, it relates to the human rights of people of diverse sexual orientations, including lesbian, gay, bisexual and transgender (LGBT) people, and the protection of those rights, although it is equally applicable to heterosexuality. The right to sexuality and freedom from discrimination on the grounds of sexual orientation is based on the universality of human rights and the inalienable nature of rights belonging to every person by virtue of being human.
Human rights and climate change is a conceptual and legal framework under which international human rights and their relationship to global warming are studied, analyzed, and addressed. The framework has been employed by governments, United Nations organizations, intergovernmental and non-governmental organizations, human rights and environmental advocates, and academics to guide national and international policy on climate change under the United Nations Framework Convention on Climate Change (UNFCCC) and the core international human rights instruments. In 2022 Working Group II of the IPCC suggested that "climate justice comprises justice that links development and human rights to achieve a rights-based approach to addressing climate change".
The 1997 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights build on the 1987 Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights and identify the legal implications of acts and omissions which are violations of economic, social and cultural rights. The guidelines were adopted by a group of over thirty experts who convened from 22–26 January 1997 in Maastricht on the occasion of the Limburg Principles' 10th anniversary. Three years later, the Maastricht Guidelines along with the Limburg Principles were reissued as UN document E/C.12/2000/13 by the Committee on Economic, Social and Cultural Rights (CESCR).
Development is a human right that belongs to everyone, individually and collectively. Everyone is “entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized,” states the groundbreaking UN Declaration on the Right to Development, proclaimed in 1986.
An extraterritorial operation in international law is a law enforcement or military operation that takes place outside the territory or jurisdiction of the state whose forces are conducting the operation, generally within the territory of another sovereign state. Under international law, these activities are generally highly restricted, and it is considered a violation of a state's sovereignty if any other state engages in law enforcement or military operations within another state without gaining that state's consent:
The first and foremost restriction imposed by international law on a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.
Ashfaq Khalfan is an international jurist in human rights law, Director of the Law and Policy Programme at Amnesty International, and Chair of the Board of Governors of the Centre for International Sustainable Development Law.
Marko Milanović is Professor of Public International Law at the Faculty of Law of the University of Reading. He is an editor of the European Journal of International Law and its blog, EJIL: Talk!.
The Oslo Principles, formally the Oslo Principles on Global Obligations to Reduce Climate Change, are a set of principles identifying the legal obligations of states to limit climate change, as well as means of meeting these obligations. Written by an international group of legal experts, the Principles’ goal is to limit the rise in average global temperature to 2 degrees Celsius. The Oslo Principles were presented on March 30 at King’s College London.