Extraterritorial Human Rights Obligations in Practice
FWO Scientific Research Network (WGO)
Wouter Vandenhole (UAntwerpen), Eva Brems (UGent), Stefaan Smis (VUB), Markus Krajewski (Friedrich-Alexander Universität Erlangen-Nürnberg) en Mark Gibney (University of North Carolina Asheville)
2021-2025
Human Rights have traditionally been framed in a very vertical perspective (state-individual), with the duties of states confined to individuals on their territory. Obligations beyond this 'territorial space' have been viewed as either non-existent or at best, minimalistic. This territorial paradigm has achieved particular prominence in the interpretation of international human rights conventions, although there is language in many of these treaties that would provide a broader scope of application (Gibney and Vandenhole 2014; Skogly 2006).
Today, however, the territorial paradigm is seriously challenged. For one thing, the ability of states and other actors to impact human rights far from home - both positively and negatively - has never been clearer. Perhaps the most direct means by which states act extraterritorially is by placing their own troops on the ground in another state, especially in a conflict situation. Likewise, states may use surveillance beyond their borders. States may intercept migrants in international waters before these migrants arrive at their borders. States may pollute the land, water or air which cross-boundary impacts or contribute to climate change through high levels of carbon emissions. In addition, the regulatory role of states may be invoked when businesses domiciled in their country undertake transnational operations or when states need to take measures to fight and prevent corruption and bribery.
A landmark document that seeks to set out legal principles on the matter is the 2011 Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights, which will celebrate its 10th anniversary in 2021. Between 2010 and 2015, the substantial output of a European Research Networking Programme on extraterritorial human rights obligations (ETOs), GLOTHRO, has deepened and broadened the understanding of extraterritorial human rights obligations, and contributed to consolidating a research community on the topic (Vandenhole 2015). Meanwhile, although the study of ETOs in academia has become more mainstream, the topic is not yet receiving the scholarly attention it needs and deserves. Also, new developments (such as the adoption of the General Comment on State obligations in the context of business activities, that extensively engages with extraterritorial obligations, in 2017 by the Committee monitoring the implementation of the International Covenant on Economic, Social and Cultural Rights, see CESCR 2017) and the work on a binding treaty on business and human rights require an in-depth study through the lens of ETOs. Time has come to take stock of progress and developments, and to cross disciplinary boundaries.
The scientific Research Network seeks to achieve the following three scientific targets with specific focus on state practice:
1.SYSTEMATIZE. To take stock of progress made over the last decade, since the adoption of the Maastricht Principles, in applying the principles, and propose ways forward; we have identified five thematic clusters in which extraterritorial human rights obligations have become more pertinent: development cooperation; environment; investment, finance and trade; migration; and peace and security, and along which the WOG will be organized. Legal developments on these five thematic clusters will be studied from the perspective of four human rights governance systems: The United Nations and the three regional human rights governance systems (the African Union; the Council of Europe; and the Organization of American States).
2.DEEPEN. To take stock of conceptual progress and propose ways forward, drawing on the work undertaken in the framework of GLOTHRO (2010-2015). There are two key doctrinal puzzles that need to be examined: the jurisdictional hooks to assign extraterritorial obligations to states, and the question which principles may guide the distribution of obligations among states (and responsibility for violations).
3.BROADEN. To ensure cross-pollination with other disciplines and civil society work in the area of extraterritorial obligations: on the one hand, we want to learn empirically from civil society work through concrete cases they are involved in or aware of, including through strategic litigation, and to deepened the interdisciplinary dialogue on ETOs. On the other hand, we want to share with civil society and other disciplines our thematic and conceptual findings (see scientific targets 1. and 2.) in order to have them tested and refined. Through multidisciplinary co-creation of knowledge we want to expand the knowledge base on ETOs.