For Human Rights Beyond Borders

Human Rights have been locked up behind domestic bars to prevent their universal application to globalization and its much needed regulation. Extraterritorial obligations (ETOs) unlock human rights.

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Focal Areas

The ETO Consortium works on the following Focal Areas

Extractive Industries, Landgrabbing, TNCs

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Extractive Industries

Extractive industries include the exploration and exploitation/extraction of natural resources such as oil, gas, minerals, metals, timber and stones. The dominant global economic growth model requires tremendous amounts of natural resources and in particular energy and minerals. Accordingly, the exploitation of natural resources and in particular extractive industries with huge long term investments and impact on the environment is on short term more profitable in countries where the accountability to human rights is low, the legal and institutional frameworks are too weak and much more favorable to (private) investors than victims/local communities who are rarely consulted and heard. Obviously, mineral wealth does not automatically equate with national wealth, and even less with sustainable development and greater enjoyment of human rights. On the contrary, extractive industries mostly operate in rural areas and often in natural reserves, forests areas, indigenous and traditional communities’ lands.

Landgrab

The highly unequal distribution of land ownership in many countries remains an issue of concern, from Latin America to sub-Saharan Africa via South East Asia. The lack of adequate and secure access to land and natural resources for the rural and urban poor is one of the key causes of hunger and poverty in the world. The trend towards the re-concentration of land ownership and the reversal of redistributive agrarian reform processes can be observed even in countries with traditionally more egalitarian patterns of access to land, such as China. A global process is underway whereby powerful foreign private and public investors conclude agreements with States to take possession of or control large surfaces of land, which is relevant for current and future food sovereignty in the host countries. The FAO estimates that in the last three years twenty million hectares have been acquired by foreign interests in Africa alone. 

TNCs

Transnational corporations play a major role not only in the extractive sector and in the renewed interest for land and agricultural investments. They have become key players in many various areas that are of vital strategic importance to the realization of human rights and in particular of economic, social and cultural rights. Among these areas, one can mention security, communication and media, social services and infrastructure. The increasing power of actors like TNCs pose huge challenges to human rights advocates due to, among others, the complex legal structures of corporations, the lack of effective legal and judicial remedies in cases of abuses and the extent to which States should exercise extraterritorial jurisdiction whenever they are in a position to influence, control and regulate TNCs that have affected human rights of people wherever they may live.

Ecodestruction and Climate Change

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Worldwide Eco-destruction and Climate Change are impacting on the enjoyment of individuals’ ESCRs. Most affected are paradoxically those who, in the first place, counted on little -if any- ESCRs protection. Eco-destruction and Climate Change have, in terms of impact, a number of common features, for instance causing displacement of people, deprivation of livelihoods, and aggravation of health conditions. Eco-destruction and Climate Change -and the implicated human rights violations - bear witness to the fact that governments in many cases not merely fail to conduct due diligence and provide preventive regulation, but also in some cases directly participate in activities that are detrimental to ecosystems and climate and thus to the enjoyment of ESCRs abroad.  

ETOs constitute a response and standards concerning both State and third party regulation to close the current gap between the acts, impacts, and corresponding accountability.

The Maastricht Principles reiterate the obligations of States to take deliberate, concrete and targeted steps, separately, and jointly through international cooperation, to create an international enabling environment conducive to the universal fulfilment of ESCRs, including in matters relating to environmental protection (ETOP 29). States must elaborate, interpret and apply relevant international agreements and standards in a manner consistent with their human rights obligations, including those pertaining to environmental protection (ETOP 17). Moreover, States have a duty to regulate to ensure that third parties do no nullify or impair the enjoyment of economic, social and cultural rights, inter alia by administrative, legislative, investigative and adjudicative measures (ETOPs 24, 25).

International Financial Institutions, Development Cooperation

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Both directly and indirectly International Organisations contribute to negatively affecting the worldwide enjoyment of individuals’ Economic, Social and Cultural Rights (ESCRs). The failure of States to take into account the human rights implications of those activities in which they participate via international organisations – be they in the shape of project finance or conditionality of development aid – has severe international consequences and repercussions. Due to the multi-functionality of international finance and development aid, the related human rights violations take various shapes.

International organisations falsely project an image of immunity to human rights violations committed by them. In reality, ETOs specify the obligations of the key decision-making States acting through international organisations and their accountability for the abuses of ESCRs by international organisations.

The Maastricht Principles reiterate the obligations of States to take deliberate, concrete and targeted steps, separately, and jointly through international cooperation, to create an international enabling environment conducive to the universal fulfilment of ESCRs, including in matters relating to finance and development cooperation (ETOP 29). As members of international organisations, States remain responsible for their own conduct in relation to their human rights obligations within their territory and extraterritorially. Moreover, when transferring competences to, or participating in, international organisations, States must ensure that the relevant organisation acts consistently with the international human rights obligation of that State. (ETOP 15).

Rights to Food and Health

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The enjoyment of the Rights to Food and Health is constantly at risk in many countries. The main reasons for this scandalous state of affairs are economic policy failures of a few key states that impact extraterritorially on closely related human rights such as the right to land and other productive resources to feed oneself sustainably in community with others, the right to earn one’s living in a way that guarantees access to adequate food and decent living and the right to social security including an income guarantee sufficient to access adequate food.

The right to food related cases involve to a large extent State’s support for agribusiness in areas such as land grabbing, capturing of input and output markets, genetically modified organisms (GMO), Baby Food production. Moreover, food speculation by the banking sector impedes the enjoyment of ESCRs. In the area of the right to health, examples include lacking access to essential medicines due to policies promoting oligopolistic tendencies of extraterritorial pharmaceutical industries, and the tilting of health policies to vested interests and profit-oriented set-ups threatening considerable parts of the population with exclusion.   

The Maastricht Principles on ETOs lay down the States obligations to respect, protect and fulfill ESCRs extraterritorially. States are obliged to refrain from any action that would impair or nullify the enjoyment of ESCRs of those also living extraterritorially (Principle 19- 22). Furthermore, States have the obligation to protect individuals ESCRs by regulating non-state actors (Principles 23-27). States are obliged to regulate and/or influence the business sector in order to protect those affected by them outside their territory. Transnational companies involved in land grabbing, GMO, agrofuels and many more need to be regulated according to these principles. The obligation to fulfill requests States to create, through international cooperation, an enabling environment conductive to the universal fulfillment of the human rights to food and health and related ESCRs (Principles 28-35). There is a need for States to collaborate through finance, investment, trade and ecological agrarian reforms in order to contribute to the creation of an enabling environment.

Finance Regulation, Tax

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Finance Regulation 

Continuing instability, impunity and biased regulation in the financial sector poses systemic threats to human rights), even more so post-2008. The failure of some states to effectively regulate and protect against the abuses of financial enterprises has vast effects on many economies and, in turn, on public budgets and the enjoyment of economic, social and cultural rights, in particular to work, to food, to housing, to education and to social security, with significant trans-boundary effects  

Financial markets are thoroughly global both in their operations and in their repercussions on society.  Yet, financial regulation remains for the most part stubbornly national. Given the systemic and global impact of financial markets, States carry obligations to address the failures of regulation and establish accountability to protect and prevent human rights impacts both domestically and beyond borders. States have a duty, in other words, to regulate banks and funds that are based (or have substantial business activities) in their territories with impacts on ESCRs abroad (implied in ETOPs 24, 25).   ETOs provide an innovative tool in reinforcing these duties, clarifying the delineation of responsibilities between states and providing a normative framework to close the perilous vacuum in accountability of private financial actors. 

Tax Evasion

Almost $1 trillion was lost in 2009 in developing countries due to illicit financial flows, about 60% of which stems from tax evasion and corporate tax dodging. This equates to more than 10 times ODA in developing countries annually. A number of governments actively help rich people, corporations and criminals hide their money away from national tax authorities by facilitating and maintaining tax havens, many industrialized countries among them. Tax evaders and those States complicit in tax evasion undermine governments’ ability to mobilize the maximum available resources and conduct non-discriminatory fiscal policy in accordance with the obligation to progressively realization ESC rights. By eroding the State’s capacity to exercise its sovereignty in taxing legal and natural persons in its jurisdiction, tax evaders and the countries which encourage them also destabilize the transparency, participation and accountability of public institutions. Despite several common-sense and feasible ways to limit tax evasion, the duty to cooperate in the mobilization and use of the maximum of available resources for economic, social and cultural rights fulfilment continues to be undermined by governments North, South, East and West through the support and maintenance of abusive tax havens.

The Maastricht ETO Principles identify international tax cooperation as a duty of states. (ETOP 31)  The Maastricht Principles reiterate the obligations of States to take deliberate, concrete and targeted steps, separately, and jointly through international cooperation, to create an international enabling environment conducive to the universal fulfilment of ESCRs, including in matters relating to finance and taxation (ETOP 29). Moreover, the obligation to international cooperation and assistance implies that States must cooperate with—and not undermine—efforts to mobilize the maximum of available resources for the universal fulfilment of economic, social and cultural rights. (ETOP 31)

Focal Group 1 of the ETO Consortium deals with financial regulation and tax evasion. If you want to get in touch with this focal group, please contact the Consortium’s Secretariat at secretariatetoconsortium.org

Conflict, Occupation, War

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Third parties, such as transnational corporations, are contributing to conflicts, occupation and war due to the rendering of their services. Such cases range from trade in “blood diamonds” extracted from conflict situations, mining in (or any other way of profiting from occupation), child soldiers transport transported across borders/regions and many more severely affecting the enjoyment of human rights. States occupying territories are fully responsible for the fulfillment of ESCR in these territories (and – of course – to respect and protect them.)

The lack of regulation and accountability allows third parties to gain from, and in some cases even nourish, conflicts, occupations and wars. It is for this reason not just enough to call upon the parties to the conflict, occupation or war to do justice, but also upon those who have clear extraterritorial obligations (ETOs).

The Maastricht Principles 23-27 lay down that States have the obligation to protect individuals ESCRs by regulating or influencing non-state actors in case that there is a risk of human rights violations. Those companies, driven by its fiduciary duty to make profit, that directly or indirectly contribute to a conflict, occupation or war need to be regulated or influenced by the State where the corporation, or its parent or controlling company, has its centre of activity, is registered or domiciled, or has its main place of business or substantial business activities, in the State concerned. 

Focal Group 8 of the ETO Consortium deals with Conflict, Occupation, and War. If you want to get in touch with this focal group, please contact the Consortium’s Secretariat at secretariatetoconsortium.org .     

Corruption

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Corruption of various types undermines the implementation of ESCR and contributes to the generation (or perpetuation) and deepening of poverty. Surveys of the very poor in the Global South reveal that corruption has a significant and detrimental impact on impoverished people’s lives. Especially the human rights enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR), for instances the right to adequate food and housing, water, equitable access to public goods and services, the highest attainable standard of mental and physical health, are highly sensitive on corruption. Also at larger scales and across national borders, corruption not only reduces the net income of the poor, but is also hampering programs aimed at meeting their basic needs, from sanitation to education to housing and healthcare. It misallocates resources that are meant to fulfil ESCR through various state programmes.  

In recent years, corruption cases have become famous for their transnational dimension and it is for this reason that Extraterritorial Obligations (ETOs) play a strong role. These cases commonly feature public officials illicitly enriching themselves at public expense and depositing those ill-gotten assets in foreign banks, oversea properties and financial instruments (off-shore havens). Other areas for which ETOs play an important role are Oversea Development Assistance, Corruption in Public Contracting and Privatization, Corruption in the Water Sector, and Land and Real-estate Fraud.

Several principles laid down in the Maastricht Principles on ETOs are relevant in the field of corruption. States are obliged to refrain from any action that would impair or nullify the enjoyment of ESCRs of those also living extraterritorially (Principle 19- 22). Cases connected to the financial crisis, high-level fraud and corrupt practices in investment trading have a clear damaging cross-border consequence. Furthermore, States have the obligation to protect individuals ESCRs by regulating or influencing non-state actors (Principles 23-27). Cases involving these principles include private sector actors and business persons bribing foreign officials (BFO) for favorable commercial conditions and/or contracts. The extraterritorial obligation to fulfill requests States to create, separately and jointly through international cooperation, an enabling environment conducive to the universal fulfillment of ESCRs (Principles 28-35). In this context there is a need for States to collaborate in the exchange of information, technical assistance and return of assets.

Focal Group 2 of the ETO Consortium deals with Corruption. If you want to get in touch with this Focal Group, please contact the Consortium’s Secretariat at secretariatetoconsortium.org .  

Trade, Investment, IPRs

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More often than not bilateral and multilateral trade and investment agreements fail to properly address human rights as the basic regulatory framework for international commercial law including the issue of IPR (Intellectual Property Rights). This has severe implications for the enjoyment of Economic, Social and Cultural Rights (ESCRs). The lack of adequate regulation in this area allows third parties to systematically disregard human rights in matters of trade and investment.

In order to protect individuals’ enjoyment of ESCRs, it is necessary to ensure that accountability mechanisms are keeping up with the increased globality of trade and investment. ETOs provide a response and standards concerning both State and third party regulation to close the current gap between the acts, impacts, and corresponding accountability.

The Maastricht Principles reiterate the obligations of States to take deliberate, concrete and targeted steps, separately, and jointly through international cooperation, to create an international enabling environment conducive to the universal fulfilment of ESCRs, including in matters relating to bilateral and multilateral trade and investment (ETOP 29). States must elaborate, interpret and apply relevant international agreements and standards in a manner consistent with their human rights obligations, including those pertaining to trade and investment (ETOP 17). Moreover, States must take necessary measures -inter alia by administrative, legislative, investigative, and adjudicatory measures- to ensure that non-State actors, which they are in a position to regulate, do not nullify or impair the enjoyment of ESCRs. Moreover, all other States have a duty to refrain from nullifying or impairing the discharge of this obligation to protect (ETOPs 24, 25).

Focal Group 3 of the ETO Consortium deals with Trade, Investment & IPRs. If you want to get in touch with this focal group, please contact the Consortium’s Secretariat at secretariatetoconsortium.org.