Extraterritorial state obligations

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Extraterritorial state obligations ( English extraterritorial obligations , ETOs for short ) describe the obligations of a state to respect, protect and guarantee human rights outside of its national borders.

background

Universality is one of the basic principles of human rights. Accordingly, it says in Article 1 of the Universal Declaration of Human Rights : "All people are born free and equal in dignity and rights." The responsibility to respect, protect and guarantee human rights still rests primarily with states, as international law predominates State law is. Accordingly, the human rights obligations of states are traditionally only related to the respective state territory. The protection of human rights thus initially ends at the borders of a country. With regard to civil and civil human rights, it is assumed - in accordance with the wording of the UN Civil Covenant , as well as the American and European Human Rights Conventions - that they only establish extraterritorial state obligations if there is sovereignty or power over an extraterritorial area. There are also further interpretations, such as B. a recommendation of the UN Human Rights Committee .

The UN Social Covenant on Economic, Social and Cultural Rights ( WSK privileges) does not know the limiting conditions of territory and sovereignty, however. The rights and freedoms are guaranteed to all people everywhere. The fact that the state obligations apply universally is not explicitly stipulated; on the other hand, they are not limited either. The treaty only emphasizes in Article 2.1. The importance of international cooperation: "Each state party undertakes, individually and through international aid and cooperation, [...] to achieve the full realization of the rights recognized in this pact." Also in Articles 11 and 12, the states commit themselves according to their influence and through Cooperation to contribute to the global realization of the contract objectives. This has far-reaching consequences for the claim and reality of the protection of value chain rights. Due to globalization, states have increasing international influence, for example through trade agreements or global production chains (outsourcing of production sites, raw material extraction abroad, etc.). States and companies benefit from this worldwide exchange, but often violate the economic, social and cultural rights in the corresponding extraterritorial areas. The actions of a state that protects human rights in its own territory can contribute to massive human rights violations in other countries through its foreign trade policy. The traditional understanding in international law of territorially understood state obligations would have to adapt to the de facto scope of state action in the globalized world in order to effectively do justice to the universality of human rights.

Debate under international law

There is now a growing debate about the extent to which states have human rights obligations towards people outside their territory. The responsibility of the state obligation is to be understood quite gradual and can be differentiated according to duty to respect, protect and guarantee. Many international lawyers now recognize that states have a duty to respect human rights in their bilateral and multilateral relations in accordance with the do-no-harm approach .

On the other hand, extraterritorial protection and guarantee obligations, which mean for a state to put an end to extraterritorial human rights violations by third parties or to support other states in the implementation of economic, social and cultural human rights, are established at different levels depending on the context. As early as 1970, the United Nations set itself the goal that all industrialized countries should provide 0.7% of the national gross national product for development aid and thus also to guarantee universal human rights. According to the UN Social Pact, this development cooperation must be geared towards the fulfillment of human rights and, in particular, the basic human rights principle of non-discrimination. So far, both the treaty bodies of the United Nations and some international lawyers see an extraterritorial duty of protection for human rights in the avoidance and punishment of business-related human rights violations by companies abroad. By establishing human rights due diligence obligations for private actors and monitoring compliance with them, states could ensure on their own sovereign territory that commercial enterprises do not commit any human rights violations abroad. Local governments can exert direct influence if state-owned companies are active abroad or foreign trade activities are financially supported by the state, e.g. B. by Hermes Cover . It is also not yet clear how international organizations outside the United Nations (e.g. the WTO ) can be made obligatory to protect human rights.

The growing number of proponents of a comprehensive recognition of extraterritorial state obligations argue among other things. a. on numerous reports and positions of UN committees and UN special rapporteurs , on the assessment of international lawyers, as well as the legal interpretation and judgment practice of organs of regional human rights protection systems. The International Court of Justice found that extraterritorial state obligations are in the sense of the UN Civil Pact and the European Court of Human Rights also ruled in Al-Skeini et al. vs. United Kingdom that the territoriality principle of state responsibility can be extended as far as state action extends. It is therefore to be expected that norms on the extraterritorial responsibility of the state and business will progress both internationally and nationally and that legally binding agreements and control instruments will increasingly be created.

Consortium for extraterritorial obligations

In 2007 the consortium for extraterritorial obligations was founded in Geneva (short: ETO consortium). The consortium consists of around 80 representatives from human rights organizations and academia, including: a. Amnesty International , Bread for the World , Human Rights Watch , the International Commission of Jurists (ICJ), Misereor , Oxfam UK and Maastricht University . The consortium is committed to international law recognition and implementation of comprehensive extraterritorial respect, protection and guarantee obligations of states in the field of human rights. In the age of globalization, the “creation of a normative framework for extraterritorial human rights obligations” is a key step in ensuring the universality of human rights. In 2011, the Maastricht principles on extraterritorial state obligations in the field of economic, social and cultural rights were developed and adopted from the consortium. The principles see cross-border state responsibility where states, through their actions or omissions, have the opportunity to ensure compliance with human rights or prevent or end human rights violations. The Maastricht Principles summarize what the UN Committee on Economic, Social and Cultural Rights has already requested in numerous of its so-called General Comments. The normative framework that the principles represent is therefore not new, but rather derived from existing human rights norms. The principles were adopted by 40 people, including international lawyers and current and former UN special rapporteurs.

Situation in Germany

The position of the Federal Republic of Germany in recognizing extraterritorial state obligations is not clear. For years, German human rights organizations have therefore been calling for a political debate on Germany's extraterritorial responsibility and for a legally binding recognition of extraterritorial state obligations in areas where Germany can influence the realization of human rights. In the area of ​​business and human rights, the Federal Government is trying to encourage companies to respect human rights abroad as part of the implementation of the UN Guiding Principles. In 2016, it adopted the National Action Plan on Business and Human Rights for this purpose . In accordance with the UN Guiding Principles, civil society organizations do not call for the state obligations and complaint options to be forgotten, so that the National Action Plan on Business and Human Rights goes beyond voluntary CSR measures by companies. With the Supply Chain Act initiative, an amalgamation of various civil society organizations calls for the introduction of a binding supply chain law , which obliges companies to comply with human rights standards along the entire supply chain, including abroad. There is a similar development towards extraterritorial state obligations and binding due diligence obligations for companies in other European countries. A corresponding legislative proposal will be discussed in France in January 2015, and a parliamentary working group was set up in Denmark. Switzerland has had reports drawn up on the introduction of mandatory due diligence. The corporate responsibility initiative also calls for the introduction of a law that obliges corporations to take responsibility for compliance with human rights and environmental standards abroad.

The German Federal Ministry for Economic Cooperation and Development already recognizes that human rights apply to the Federal Republic of Germany “not only on its own territory, but also in the context of its activities in international organizations and abroad” and is already applying a corresponding concept of human rights in its development cooperation. A complaint mechanism for people affected by human rights violations is also currently being planned. The human rights concept also addresses the extraterritorial state obligation in the context of foreign missions of the Bundeswehr. A comprehensive recognition of extraterritorial state obligations by the federal government is not foreseeable.

Individual evidence

  1. ↑ UN Human Rights
  2. ↑ Art. 2, Para. 1 UN Civil Covenant, Art. 1 ECHR, Art. http://www.auswaertiges-amt.de/cae/servlet/contentblob/360794/publicationFile/3613/IntZivilpakt.pdf - http://dejure.org/gesetze/MRK/1.html - http: // www. oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm
  3. ↑ Human Rights Committee: Concluding observations on the sixth periodic report of Germany, adopted by the Committee at its 106th session (October 15 - November 2, 2012), November 12, 2012, CCPR / CDEU / CO / 6, section 16, http: //www2.ohchr.org/english/bodies/hrc/docs/co/CCPR-C-DEU-CO-6.doc
  4. ↑ http://www.institut-fuer-menschenrechte.de/fileadmin/user_upload/PDF-Dateien/Pakte_Konventionen/ICESCR/icescr_de.pdf
  5. ^ Michael Krennerich: Social human rights. Between Law and Politics, Schwalbach 2013, p. 124.
  6. ↑ Olivier de Schutter gives an overview in: de Schutter: International Human Rights Law. Oxford 2011, pp. 162-178.
  7. ↑ Olivier de Schutter: International Human Rights Law. Oxford 2011, pp. 162-178.
  8. ↑ Michael Krennerich: Social Human Rights - from hesitant recognition to extraterritorial validity, in: Zeitschrift für Menschenrechte 2/2012, pp. 166–183, here: p. 167.
  9. ^ The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep., P. 136, § 109.
  10. ↑ Al-Skeini and Others v. the United Kingdom (Appl. No. 5572/107), judgment of 7.2011, § 133.
  11. ↑ http://www.etoconsortium.org/
  12. ↑ Fons Coomans: The positioning of the Maastricht principles on extraterritorial state obligations in the area of ​​economic, social and cultural rights in: Zeitschrift für Menschenrechte 2/2012, pp. 27–47, here: p. 30.
  13. ^ The Maastricht principles on extraterritorial state obligations in the area of ​​economic, social and cultural rights, FIAN, Cologne, 2012
  14. ^ Michael Krennerich: Social human rights. Between Law and Politics, Schwalbach 2013, p. 126.
  15. ^ Michael Krennerich: Social human rights. Between Law and Politics, Schwalbach 2013, p. 126.
  16. ↑ http://www.auswaertiges-amt.de/DE/Aussenpolitik/Aussenwirtschaft/Wirtschaft-und-Menschenrechte/Uebersicht_node.html
  17. ↑ Federal Foreign Office: National Action Plan for Implementation of the UN Guiding Principles on Business and Human Rights. September 2017, accessed July 16, 2020 .
  18. ↑ http://www.cora-netz.de/cora/steckbriefe/
  19. ^ Initiative of the Supply Chain Act. Initiative Supply Chain Act, accessed on July 16, 2020 .
  20. ↑ http://www.ohchr.org/Documents/Issues/Business/NationalPlans/Denmark_NationalPlanBHR.pdf
  21. ↑ http://www.parlament.ch/d/suche/seiten/geschaefte.aspx?gesch_id=20123980
  22. ↑ Corporate responsibility initiative: corporations should be responsible for unscrupulous business dealings. Retrieved July 16, 2020 .
  23. ↑ Human rights in German development policy, Federal Ministry for Economic Cooperation and Development, 2011, p. 5 ( Memento of the original dated December 21, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. .  @1@ 2Template: Webachiv / IABot / www.bmz.de
  24. ↑ Ibid., Human Rights in German Development Policy, Federal Ministry for Economic Cooperation and Development, 2011, p. 21. ( Memento of the original from December 21, 2014 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bmz.de