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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ETOs in new CESCR General Comment on State obligations in the context of business activities

The Committee on Economic, Social and Cultural Rights held last month a Day of General Discussion on its recently drafted General Comment No. 24 on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities. The draft General Comment includes a comprehensive section on States’ extraterritorial obligations (ETOs) spanning from para. 30 to 40, which details States’ ETOs to respect (para. 34), protect (para. 35-38) and fulfill (para. 39-40) human rights in the context of business activities. The General Comment furthermore makes explicit reference to the Maastricht Principles in para. 33 as well as in various footnotes.

Prior to the session, the Committee received a total of 62 written contributions, including from 11 States. There was wide support for ETOs section from CSO contributors. A number of States contested the section on ETOs in their written contributions. Some argued that the Covenant has primarily a territorial scope and that under the current state of international human rights law States are not required to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Other States expressed a positive view on the ETOs section.

Several members of the ETO Consortium participated in the session and underlined the importance of the ETOs section. They referred to the legal sources which justify the inclusion of ETOs in the General Comment. Olivier De Schutter and Zdzislaw Kedzia, Committee members and both Co-Rapporteurs for the drafting of this General Comment concluded the General Day of Discussion by emphasizing that the International Covenant on Economic, Social and Cultural Rights was a living instrument which needed to be applied to today’s context.

The drafting of this General Comment takes place in the midst of notable advances in the extraterritorial regulation and accountability of business activities. The French National Assembly adopted a Corporate Duty Vigilance Law last month which requires large companies established in France to identify and prevent adverse human rights and environmental impacts resulting from their activities or that of their subcontractors or suppliers, regardless in which country these are based. Companies failing to publish a vigilance plan will be fined 10 million euros and up to 30 million euros if preventable damages took place. Civil society organisations have, however, also pointed to some shortcomings of the law: the burden of proof remains on those affected, and companies are not responsible for actual outcomes, but only need to prove that they have taken measures to avoid harm.

In Canada, a court in British Columbia announced that it would admit the civil suit pursued by seven Guatemalan men against Tahoe Resources for the violence they suffered in 2013 during a peaceful opposition to the company’s Escobal silver mine in Guatemala. This represents a groundbreaking decision as it is the first time that a Canadian court of appeals admits a case on the foreign operations of a Canadian corporation.

Read the draft General Comment #24 here

Watch the webcast of the Day of General Discussion here