Article
Wouter Vandenhole
Initially, there was a considerable degree of debate on the appropriate terminology.10 Whereas the principled positions may not have changed, there seems to have emerged a pragmatic quasi-consensus, to use the notion of extraterritorial obligations. This notion suggests that first there were territorial obligations, and now also extraterritorial obligations. Such an understanding has been challenged, grounded in arguments that human rights are universal (“all people have human rights and […] all States have the responsibility to protect those rights – for all people”11) or give rise to global obligations or obligations of international cooperation.12 The Maastricht Principles do use the notion of extraterritorial obligations, but define them in a two-pronged way, i.e. as obligations binding upon a State relating to its conduct and as obligations of a global character.13 Whereas that is a creative and workable compromise, subsuming global obligations under the notion of extra-territorial obligations may be misleading in terminology, but certainly also challenges quite fundamentally the relevance of questions of jurisdiction or causation. It may equally invite further reflection on the scope of obligations and on questions of assigning obligations and attributing responsibility.
I. Beyond territoriality14 Traditionally, human rights have been framed within a territorial perspective. The idea of human rights emerged in the aftermath of the establishment of a Westphalian world order of 1648, with territorially distinct States exercising sovereignty within their geographical borders. This territorial ordering has shaped the trajectory and vocation of domestic and international human rights law : it is a corrective to the domestic failures of the State. Whatever the content of the claim or the nature of the government, the responsibilities of States are constrained by national borders. This “Westphalian territorial framing of rights is a paradigm under strain”.15 The capacity of States and other actors to impact human rights far from home, whether positively or negatively, is real. Most notable has been the rise of trade and investment regimes, international aid policies, global military operations and global finance. Economic globalisation in particular has fragmented and transformed State sovereignty, facilitating the growth of other powerful actors on the global level. As 10
See for more details, M. Gibney, “On Terminology : Extraterritorial Obligations”, in M. Langford, W. Vandenhole, M. Scheinin and W. van Genugten (eds.), Global Justice, State Duties. The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law, Cambridge, Cambridge University Press, 2013, pp. 32‑47. 11 Ibidem, p. 47. Compare M. Gibney and S. Skogly (eds.), Universal Human Rights and Extraterritorial Obligations, Philadelphia, University of Pennsylvania Press, 2010. 12 See e.g. M.E. Salomon, supra note 9, pp. 259‑296. 13 Principle 8, Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights, Netherlands Quarterly of Human Rights, Vol. 29, No. 4 (2011), pp. 578‑590. 14 This section draws heavily on M. Langford et alii, supra note 1, pp. 3‑6. 15 Ibidem, p. 3.
808|European journal of Human Rights
|2013/5
Journal européen des droits de l’homme