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Extra-Territorial Obligations

Working Paper –  Human Rights Law Sources:  UN Pronouncements on Extra-Territorial Obligations

This Working Paper outlines the application of extra-territorial obligations (ETOs) by United Nations mechanisms, including the Concluding Observations of Treaty Bodies, General Comments and Recommendations adopted by Treaty Bodies, and within the work of UN Special Procedures including Special Rapporteurs and Independent Experts appointed by the Human Rights Council.  As such, it provides a current understanding of how ETOs are monitored and enforced by UN human rights mechanisms.

The Working Paper is available HERE.

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Extra-Territorial Obligations Consortium

The ETO Consortium is a network of leading human rights organizations, university institutes, civil society organizations and institution-based individuals.  Its purpose is to address the current shortcomings of human rights interpretation in a globalization context by mainstreaming states’ extraterritorial obligations into human rights implementation, monitoring, and enforcement processes.

The Global Initiative for Economic, Social and Cultural Rights is a member of the ETO Consortium and provides leadership for the Consortium’s International Financial Institutions and Development Cooperation Focal Group and provides its expertise on strategic litigation to Consortium members and others.

In 2012, the GI-ESCR was elected by its peers to serve on the Steering Committee of the ETO Consortium.

For detailed information on Extra-Territorial Obligations and human rights see the ETO Consortium website and the:

Maastricht Principles on Extra-Territorial Obligations and the Commentary to the Maastricht Principles on Extra-Territorial Obligations

See the FIAN flyer on ETOs HERE.

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Committee on Economic, Social and Cultural Rights scrutinizes China regarding extra-territorial obligations

The Global Initiative for Economic, Social and Cultural Rights welcomes the Committee on Economic, Social and Cultural Rights’ Concluding Observations on China, which include strong and detailed language on the issue of extra-territorial obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The Global Initiative for Economic, Social and Cultural Rights successfully intervened with a Parallel Report laying out the extra-territorial obligations under the ICESCR and requesting that the Committee include scrutiny on those obligations within the periodic review of China.  The Parallel Report relies in part on the Maastricht Principles on Extra-Territorial Obligations, which provide the clearest and most comprehensive reaffirmation of extra-territorial obligations under international human rights law.  The Parallel Report was supplemented by a joint Parallel Report by the Global Initiative and the International Human Rights Clinic at Western New England University School of Law which provided factual examples of violations of China’s extra-territorial obligations.

In it’s Concluding Observations, the Committee called upon China to adopt a human rights-based approach to its policies of international cooperation, by:

“(a)        Undertaking a systematic and independent human rights impact assessment prior to making funding decisions;

(b)        Establishing an effective monitoring mechanism to regularly assess the human rights impact of its policies and projects in the receiving countries and to take remedial measures when required; and

(c)       Ensuring that there is an accessible complaint mechanism if violations of economic, social and cultural rights occur in the receiving countries.”

The Committee also addressed the extra-territorial obligation to protect in the context of corporate accountability, expressing its concern “about the lack of adequate and effective measures adopted by the State party to ensure that Chinese companies both State-owned and private, respect economic, social and cultural rights, including when operating abroad” and recommending that China:

“(a)        Establish a clear regulatory framework for companies operating in the State party to ensure that their activities promote and do not negatively affect the enjoyment of economic, social and cultural human rights; and

(b)          Adopt appropriate legislative and administrative measures to ensure legal liability of companies and their subsidiaries operating in or managed from the State party’s territory regarding violations of economic, social and cultural rights in their projects abroad.”

According to Bret Thiele, Co-Executive Director of the Global Initiative for Economic, Social and Cultural Rights, “The Committee has made clear that the ICESCR includes extra-territorial obligations to respect, protect and fulfill human rights, including by regulating and otherwise holding corporations accountable to those obligations for their activities abroad and ensuring that any international cooperation and development cooperation includes systematic and independent human rights impact assessments prior to making funding decisions as well as the provision of an accessible complaint mechanism if violations of economic, social and cultural rights occur in the receiving countries.”

Thiele added that the Concluding Observations not only touch up the extra-territorial obligation to respect by directly refraining from human rights violations and the extra-territorial obligation to protect in the context of corporate activities abroad, but should be interpreted as also addressing the extra-territorial obligation to fulfill by ensuring that human rights impact assessments also focus on how best to further the enjoyment of economic, social and cultural rights through bilateral and multilateral international cooperation and development assistance.

The Global Initiative hopes these conclusions and recommendations are followed by all States Parties to the International Covenant on Economic, Social and Cultural Rights and urges the Committee to apply similar scrutiny of extra-territorial obligations on a regular basis during periodic reviews.

 

The Global Initiative’s Parallel Report regarding the List of Issues can be found HERE

The List of Issues can be found HERE

The Global Initiative’s Parallel Report on the legal analysis for the periodic review can be found HERE

The Joint Global Initiative – International Human Rights Clinic at Western New England University School of Law factual Parallel Report can be found HERE

The Global Initiative’s oral intervention can be found HERE.

The Committee’s Concluding Observations can be found HERE.

 

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Human Rights Committee scrutinizes the United States regarding extra-territorial human rights obligations

The Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), scrutinized the United States regarding its extra-territorial human rights obligations under the Covenant.  The U.S. will appeared before the Committee in March 2014 for its periodic review.

The Committee has made clear that the ICCPR includes extra-territorial obligations to respect and to ensure human rights, including by regulating and otherwise holding corporations accountable to those obligations for their activities abroad.

The Global Initiative for Economic, Social and Cultural Rights successfully intervened with a Parallel Report laying out the extra-territorial obligations under the ICCPR and requesting that the Committee include scrutiny on those obligations within the periodic review of the U.S.

The List of Issues recently adopted by the Committee, which defines the scope of review, requires the U.S. to discuss its understanding of the “the scope of applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory; in times of peace, as well as in times of  armed conflict”.  As the Parallel Report makes clear, the jurisprudence of the Committee provides a clear articulation of the extra-territorial application of ICCPR obligations.  Notwithstanding, the U.S. continues to states that the ICCPR only applies within U.S. territory.

The Global Initiative’s Parallel Report for the periodic review also calls on the Committee to hold the U.S. accountable for extra-territorial obligations in the context of decisions made within international financial institutions such as the World Bank.

This examination of the U.S. provides advocates the opportunity to address the issue of extra-territorial obligations and provides the Committee the opportunity to finally settle this misinterpretation by the U.S. of its treaty obligations.

 

The Global Initiative’s Parallel Report regarding the List of Issues can be found HERE.

The List of Issues can be found HERE.

The Global Initiative’s Parallel Report on the legal analysis for the periodic review can be found HERE.

The Joint Global Initiative – International Human Rights Clinic at Western New England University School of Law factual Parallel Reports can be found HERE and HERE.

 

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Germany and Uganda: Corporate Accountability for Forced Eviction of the villages of Kitemba, Luwunga, Kijunga and Kirymakole in Uganda

In April 2012, the Global Initiative intervened with a Parallel Report to the Human Rights Committee regarding violations of Germany’s extra-territorial obligation to protect human rights by not regulating or holding accountable a German corporation involved in forced evictions in Uganda.

The report covers the forced eviction of the villages of Kitemba, Luwunga, Kijunga and Kirymakole in the Mubende District of Uganda that were carried out in 2001 on behalf of the Neumann Kaffee Gruppe to make way for a coffee plantation.  The Report concludes that Germany violated its extra-territorial obligations under the International Covenant on Civil and Political Rights to protect human rights by failing to regulate Neumann Kaffee Gruppe and for failing to investigate and appropriately sanction Neumann Kaffee Group for its complicity in the forced evictions.  To date those evicted continue to live in extreme poverty due to their forced eviction and have been unable to realize their right to a remedy in either Uganda or Germany.

UPDATE:

For those of you interested in extra-territorial obligations (as well as corporate accountability), please see the recent List of Issues from the Human Rights Committee on Germany as well as the related Parallel Report from the Global Initiative for Economic, Social and Cultural Rights. The List of Issues contains a groundbreaking recognition of extra-territorial obligations under the International Covenant on Civil and Political Rights, with specific content on the extra-territorial obligation to protect (or ensure) Covenant rights by regulating corporations for activities resulting in human rights violations abroad, as well as creating accountability and remedial mechanisms for such violations. This List of Issues now lays the foundation for future work on extra-territorial obligations under the ICCPR, including at the next session of the Human Rights Committee at which Germany is up for its periodic review.

Here is the relevant paragraph:

17. Please comment on allegations that families forcibly evicted at gunpoint in August 2001 from their homes and lands in Naluwondwa-Madudu, Mubedne District, Uganda to make way for a large coffee plantation owned by Kaweri Coffee Plantation Ltd., a wholly-owned subsidiary of Neumann Kaffee Gruppe Hamburg continue to live in extreme poverty and explain what the State party has done to investigate the role and responsibility of Neumann Kaffee Gruppe.

Read the Parallel Report HERE.

Read the List of Issues HERE.

 

UPDATE:

The Concluding Observations on Germany included a broad acknowledgement of the extra-territorial application of the International Covenant on Civil and Political Rights, including the extra-territorial obligation to protect by regulating and holding accountable transnational corporation.  This result should now be useful to anyone claiming violations of such rights for activities of States or their corporations that violate human rights abroad.  The relevant Concluding Observation states:

16. While welcoming measures taken by the State party to provide remedies against German companies acting abroad allegedly in contravention of relevant human rights standards, the Committee is concerned that such remedies may not be sufficient in all cases (art. 2, para. 2).

The State party is encouraged to set out clearly the expectation that all business enterprises domiciled in its territory and/or its jurisdiction respect human rights standards in accordance with the Covenant throughout their operations. It is also encouraged to take appropriate measures to strengthen the remedies provided to protect people who have been victims of activities of such business enterprises operating abroad.

The full Concluding Observations are HERE.

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Guatemala:  Holding the World Bank Accountable for Human Rights Violations

The Global Initiative for Economic, Social and Cultural Rights (GI-ESCR) together with Rights Action and the International Human Rights Clinic at Western New England University School of Law has filed a Petition before the Inter-American Commission on Human Rights in an attempt to hold the World Bank and Inter-American Development Bank (IDB) accountable for human rights violations that occurred during the construction of the Chixoy hydroelectric dam in Guatemala.

In May 2012, the same organizations filed a Supplemental Brief to the Inter-American Commission that addressed various admissibility issues including jurisdiction over the Member States of the World Bank and IDB that have human rights obligations within the inter-American human rights system.

Several Maya Achi villages were forcibly evicted, some through a series of brutal massacres, to make way for the construction of the Chixoy Dam in the 1980s.  The case highlights the complicity of international financial institutions (IFIs), in particular the World Bank and the IDB, in the brutal removal of indigenous communities from their lands in Guatemala.

According to Grahame Russell, Co-Executive Director of Rights Action, “Almost 30 years after the so-called completion of the Chixoy Dam project, no reparations or compensation have been provided, whatsoever, to the thousands of Maya Achi families, from 32 communities, whose lives and livelihoods were illegally harmed and destroyed.”

Bret Thiele, Co-Executive Director of the GI-ESCR, said that “Several States that make up the decision-making bodies at the World Bank and the Inter-American Development Bank have human rights obligations under the inter-American human rights system, including extra-territorial obligations, and there is sound legal foundation for holding them accountable for their roles in the egregious human rights violations that occurred during their management of the Chixoy dam project.”

While attempting to hold IFIs accountable for human rights violations before regional human rights mechanisms is novel, the case is grounded in the International Law Commission’s Articles on Responsibility of International Organizations as well as the recently adopted Maastricht Principles on Extra-Territorial Obligations.  As the Petition argues, the World Bank and Inter-American Development Bank are made up of States, all of which have human rights obligations.  These States should not be able to ignore, or indeed violate, these obligations simply by organizing themselves into international financial institutions or by using those institutions as agents to carry out policies or practices that violate their respective international human rights obligations.

Grahamme Russell added that the Petition would be supported by a grassroots effort to hold the Banks accountable as well as to ensure that the Inter-American Commission exercises its authority to hold Member States of the OAS that sit on the decision-making bodies of the Banks accountable for human rights violations.

View the Petition (Request for Appeal) to the Inter-American Commission on Human Rights HERE.

View the Supplemental Brief to the Inter-American Commission on Human Rights HERE.

NOTE:  The Petition is an appeal of an earlier case brought before the Inter-American
Commission and includes updated factual information and legal analysis.  For more information on the human rights violations that occurred during construction of the Chixoy dam in Guatemala see: http://www.nlginternational.org/news/article.php?nid=8

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