Extraterritorial Human Rights and Municipal Law

Consistent with the development agenda that accompanied the establishment of the post-war Bretton Woods order, article 28 of the Universal Declaration of Human Rights referred to the need to move towards an international order that enables countries' efforts to implement economic, social and cultural rights at home, stating that "Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised". This leaves us with the question as to whether the emergence of extraterritorial human rights obligations, which have been increasingly recognized in recent years, sufficient to ensure that this promise is fulfilled?

The very nature and wording of Article 28 of the Universal Declaration of Human Rights(UDHR) follows on the lines of international cooperation and goodwill between Nation States. The provision clearly lays down the need for an international order wherein the rights and freedoms which are laid out in the declaration are able to be realised by the people for whom they are intended. The constituent elements of Article 28 are becoming more and more relevant in the present day and age as countries and their scope of operations are no longer restricted to the territorial demarcation on the world map but rather are becoming more and more universal with time. It has been well accepted by most Nation States that the very nature of human rights is to be considered universal. In such a scenario, governments can no longer hide behind the veil of State Sovereignty in order to justify any violations of human rights. There are essentially three elements which need to be considered while addressing the issue as to whether the concept of recognition of extraterritorial human rights is sufficient enough to fulfil the objective and scope of Article 28 of the UDHR. The first would be to consider the backdrop and the nature of Article 28 of the UDHR itself, the second would be to consider the existing legal provisions under international law to analyse whether or not States have any obligation to consider extraterritorial human rights and the final would be to take into account any measures which may be implemented in order to ensure that the objective of Article 28 of the UDHR is met.

It is first important to consider the backdrop of Article 28 of the UDHR. The UDHR itself was drafted at a period of time where the world leaders understood the importance of international peace and cooperation. It may be said that the predominant thought at the time was that the fulfilment of Universal Human Rights would be impossible if the international environment did not allow for such rights to thrive and be realised. Therefore, before we can establish human rights in their substantive nature, it would be first more important to imbibe an international environment wherein such rights would be allowed to be enjoyed and realised, a situation which can only be achieved through cooperation between Nation States. Rene Cassin, one of the major driving forces behind the drafting of the UDHR, laid down the importance of Article 28 as one of the prerequisite steps which must essentially be fulfilled if the world was to achieve the goal of universal respect for human rights. Therefore, we can see that the intention of the object behind the drafting of Article 28 of the UDHR had the idea of universality of human rights in mind and more importantly, the idea of an enabling international community which would allow for the full and effective realisation of human rights.

In this regard, we turn to the issue of extraterritorial human rights obligations and their position under International Law. The issue of extraterritorial human rights obligations envisages the idea that a State may not restrict it’s liability or accountability in regard to human rights simply to it’s territorial borders, but rather have accountability for human rights violations which may have a nexus drawn to the state even outside the borders of that State. In the age of globalisation with Trans National Companies (TNCs) and Other Business Enterprises (OBEs) expanding over various countries, the need to recognise extraterritorial human rights obligations has become all the more vital. The issue of extraterritorial obligations (ETOs) was first brought up and further clarified in the Maastricht Principles in 2011. There was an apparent realisation that human rights cannot be recognised to their fullest extent unless the dimension of the extraterritorial nature of human rights was addressed. One of the many issues which the Maastricht Principles sought to address was the phenomenon of widespread accountability leading to no accountability. In other words, where any particular situation is the result of the combined action of several actors or nation states, it is often seen that no State feels an obligation to change the situation. This leads to an international environment which actually frustrates and negates the objective of Article 28, which is to provide for an international environment which enables the enjoyment of human rights. The Maastricht Principles recognised this problem and worked towards clarifying this deadlock. Principle 29 of the Maastricht Principles lays down that “States must take deliberate, concrete, and targeted steps, separately and jointly, through international cooperation, to create an internationally enabling environment conducive to the universal fulfilment of economic, social, and cultural rights, including in matters related to bilateral and multilateral trade, investment, taxation, finance, environmental protection, and development cooperation.” Furthermore, Principle 30 states that “States should coordinate with each other, including in the allocation of responsibilities, in order to cooperate effectively in the universal fulfilment of economic, social, and cultural rights. The lack of such coordination does not exonerate a state from giving effect to its separate extraterritorial obligations.” Therefore, if we are to look at the Maastricht Principles as an interpretation of the provisions of international law, it very clearly lays down the responsibility of states in regard to the recognition of ETOs. The Principles provide that States cannot shrug off their responsibilities as being extraterritorial and must acknowledge any situation and work in coordination and cooperate with other Nation States in the endeavour for the fulfilment of universal human rights. The principles advocate the message that States cannot remain passive in the endeavour for the fulfilment of human rights and must play an active role in the international forum in achieving these goals. They must work towards building cooperative mechanisms so that Nation States can cooperate further for the fulfilment of human rights and the reshaping of the international economic and social forum for it to be conducive of domestic efforts to realise human rights, which is in line with the goal and objective of Article 28 of the UDHR.

The final aspect which needs to be looked into is that of any further measures which may be taken up by Nation States in regard to ETOs. While the Maastricht Principles are comprehensive in nature, and provide for an exhaustive interpretation of ETOs, we must take into account the fact that at the end of the day, multilateralism and cooperation between Nation States is of the utmost importance and is one of the essential factors when it comes to the fulfilment of Article 28 of the UDHR. After the UDHR was drafted, the international environment was of an enabling nature in regard to human rights. This can be seen in the near universal and widespread ratification of several human rights treaties and conventions in the years which followed the drafting of the UDHR, namely the International Covenant on Civil and Political Rights(ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). In recent years, however, belief in multilateralism has started to lose colour, as more and more countries have started to put national interests and sovereignty before the objective of international peace and security. Aggressive nationalism has an impact on respect for human rights. The right to a free and fair world implies the critical need to promote equality of opportunity and outcome between nations.

In conclusion, we may say that the idea of recognition of Extraterritorial Human Rights Obligations as envisioned in the Maastricht Principles of 2011 does go a long way in recognising the objective behind Article 28 of the UDHR as formulated by Rene Cassin. However, the true and practical implementation of the principles in the modern world does depend heavily on the willingness of Nation States to cooperate with each other and help imbibe an international environment which is conducive to the universal and full realisation of human rights. Indeed, we may fall back upon the Maastricht Principles when there arises any dispute regarding the recognition of ETOs by a State, or in cases where the separate action of each state may be considered to be insufficient for real change to take place in regard to human rights. However, in order to build up a world order wherein Human Rights are considered to be truly universal and the objective of Article 28 is fulfilled, we must factor in the aspect of voluntary State cooperation and effective coordination between States for implementation mechanisms.