Maastricht principles on extraterritorial state obligations in the area of economic, social and cultural rights

The Maastricht principles on extraterritorial state obligations in the area of economic, social and cultural rights were drawn up by an international consortium of international lawyers and non-governmental organizations and adopted at a meeting of experts in Maastricht in September 2011 . The 44 principles define and concretise cross-border state responsibility wherever states have the opportunity to ensure compliance with human rights or to prevent or end human rights violations through their actions or omissions. The Maastricht principles thus summarize what various UN committees have already called for. The normative framework that the principles represent is therefore not new, but rather derived from existing human rights norms.

Why the Maastricht Principles?

The globalization leads to that political and economic decisions often have a negative impact on the enjoyment of human rights in other countries, d. H. For example, foreign trade policy can lead to human rights violations abroad. State obligations, understood only as territorial in traditional international law , are not sufficient to do justice to this wide range of state action in the globalized world and to effectively protect human rights.

The Maastricht principles were formulated against this background. They represent an interpretation of the UN human rights conventions and require the community of states to recognize extraterritorial state obligations as an obligation under international law. In the medium term, this is intended to create comprehensive obligations to respect, protect and guarantee situations in which states can influence economic, social and cultural human rights (VAC rights) abroad through their actions or omissions.

The United Nations and the Maastricht Principles

The Maastricht Principles are based on the recommendations and general comments of various UN bodies. Many UN bodies, in turn, now explicitly refer to the Maastricht principles, including a. the UN Committee on the Rights of the Child. In its 16th General Commentaries it says, for example, For example, that the Convention on the Rights of the Child does not limit the state's responsibility to protect children's rights to territorial borders. States should therefore regulate the behavior of non-state actors in order to protect children's rights internationally. Also, UN Special Rapporteur appointed already regularly to the Maastricht principles. The UN special rapporteurs on the right to food and the right to safe drinking water and sanitary facilities called on the national governments to include the Maastricht principles in political decisions without delay. The principles are an important instrument for tackling economic and social problems of globalization in a targeted manner. The UN special rapporteur on extreme poverty and human rights, Magdalena Sepúlveda, even emphasizes that extraterritorial state obligations are of fundamental importance in the fight against global poverty.

Origin and goals of the Maastricht Principles

In 2007 the Consortium for Extraterritorial Obligations was founded in Geneva . The consortium consists of around 80 organizations and individuals involved in human rights policy and analysis, including a. Amnesty International , Bread for the World , Human Rights Watch , the International Commission of Jurists (ICJ), Misereor , Oxfam UK and Maastricht University .

The declared aim of the consortium is the recognition and implementation of comprehensive extraterritorial respect, protection and guarantee obligations of states in the field of human rights under international law. For this purpose, the Maastricht Principles were developed and adopted by the consortium at a conference of the International Commission of Jurists and the University of Maastricht in 2011. 40 experts from the United Nations, non-governmental organizations, academia and international law were involved. Since then, the consortium has been committed to ensuring that civil society, social movements, states and international organizations view the Maastricht Principles as part of human rights analysis and policy-making in order to ensure universal protection of human rights. According to Article 38.1d of the Statutes of the International Court of Justice , the Maastricht Principles can be used as a source of international law.

The principles

The Maastricht Principles comprise 44 principles, which are divided into sections: General Principles, Duties to respect, protect and guarantee, accountability and legal remedies, and final provisions.

General principles

The first section explains general principles of human rights, such as their universal validity. According to Principle 3, states are obliged to protect human rights at home and abroad. This is not a general duty that makes individual states responsible for all people in all countries, but only relates to situations in which a state influences the realization of human rights in other countries through political, economic or military decisions. In order to derive these extraterritorial obligations, the Maastricht Principles refer to various sources of international human rights protection (Principle 6). a. also the.

Extent of extraterritorial state obligations

This section explains the conditions under which states are jointly responsible for realizing human rights in third countries. According to Principle 9, the state must respect, protect and, if necessary, guarantee human rights abroad in the following situations:

a) He has state authority or exercises actual power

b) Acts / omissions of the state have foreseeable effects on the exercise of economic, social and cultural rights that the state is aware of (e.g. trade agreements)

c) The state has a decisive influence on the realization of human rights (e.g. in international development aid)

Duties to respect

These obligations relate to the active intervention of a state. According to Principle 20, states must refrain from making or preventing the exercise of human rights outside their territory. In addition, indirect impairments are to be avoided (principle 21). No other state may be supported or instructed to violate economic, social or cultural rights. On the one hand, a state must not hinder the exercise of economic, social and cultural rights through active action, for example military operations. On the other hand, indirect actions, for example trade agreements, must also be coordinated in such a way that the other state is not instructed to impair the guarantee of human rights.

Protection obligations

According to the general opinion, the human rights treaties also require the signatory states to protect themselves against human rights violations committed by third parties. The state duty to protect does not end at its own state borders. States must ensure through legislation, administration and case law that non-state actors under their influence, such as private individuals and organizations, transnational corporations and other companies, do not hinder or violate the exercise of social and cultural rights abroad. Principle 25 explains the situations in which state measures in accordance with Principle 24 must be taken.

a) If (threatening) damage arises or occurs in the territory - or:

b) If a non-state actor has the nationality of the country in question - or:

c) If the (parent) company of a company has its registered office in the country concerned - or:

d) If there is a connection between the state concerned and the behavior to be regulated (e.g. the non-state actor carries out a large part of his activities in the country concerned) - or:

e) If an infringing behavior violates a mandatory norm of international law ( ius cogens )

Warranty obligations

The fifth section of the principles deals with the creation of the framework conditions for the global realization of human rights (principle 29). In Art. 2 (1) of the UN Social Covenant, each contracting state undertakes, individually and through international cooperation, to take every possible measure in order to implement the rights recognized in the social pact by all appropriate means, especially legislative measures. The realization of economic, social and cultural rights must therefore be prioritized in political decisions at international level (e.g. with regard to taxation or global trade) as well as at national level. Article 2 (1) also states that states with high economic and technical capabilities in particular have an obligation to provide development aid. States must therefore promote human rights extraterritorial in accordance with their available resources (Principle 31). 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 - to this day the actual aid is far below that. Under Principle 32, states should do so

a) Promote the rights of disadvantaged and threatened groups in particular

b) Give priority to core commitments to realize the rights

c) Respect international norms (e.g. right to self-determination)

d) Do not take retrograde action

Principle 34 also includes an obligation to seek international assistance and cooperation. If a state cannot guarantee economic, social and cultural rights, it is required to seek international support in order to achieve this goal.

Accountability and Remedies

Article 8 of the Universal Declaration of Human Rights states that every right needs an available remedy. Therefore, Principle 37 in the Maastricht Principles refers to the general obligation to provide effective legal remedies. In the event of violations of economic, social and cultural rights, a national, international, independent or judicial body must be accessible to victims. To ensure this, states should

a) Working together or seeking support to ensure legal remedies b) Provide legal access for groups and individuals c) Involve victims d) Guarantee access to (extra) judicial means e) Recognize the right to individual complaints before the UN Social Committee (a protocol was established in 2008 adopted to recognize the right of individual complaints also with regard to economic, social and cultural rights. To date, however, only a few states have ratified the protocol.)

Final provisions

In this section it is underlined that the preceding principles do not limit the obligations of a state towards its own people (principle 44). In addition, states may only restrict the fulfillment of extraterritorial state obligations if this is done in accordance with international law (Principle 42). No legal responsibility should be weakened or restricted by the principles described (principle 43).

Case studies

European poultry exports to West Africa

The EU's poultry exports to West Africa (e.g. Ghana, Cameroon) have increased dramatically in recent years. Between 2010 and 2012 alone, the export figures rose over 64% to 464,059 tons; German chicken meat exports grew by 166% to 42,897 tons in the same period. As a rule, these are frozen chicken parts that do not have a market in the European Union . The increased exports are destroying the livelihoods of local farmers and traders who cannot market the domestic goods at as low a price as the foreign sellers who benefit from low import tariffs. The local chicken meat producers, mostly smallholders, had to give up their production as far as possible or switch to the more economically risky and costly egg production.

Since safe cold chains can usually not be ensured in African countries, the frozen chicken meat from the import harbors health risks for local consumers (e.g. bacterial contamination, salmonella). According to a study by the Center Pasteur in Yaounde, in 2004 83.5% of the examined chicken parts were unsuitable for human consumption; the microbial load was up to 180 times higher than the EU maximum values for poultry. According to Maastricht Principles 12 and 14, every state has an obligation to refrain from conduct that could affect economic, social and cultural rights in extraterritorial areas. The fact that there are hardly any reliable cold chains in the countries affected, such as Ghana or Cameroon, is a foreseeable risk that exporters should also be aware of through prior examination. The interference in the national economic structure also makes it difficult for local governments to protect and guarantee the right to food and health of the population. As a result, the EU's behavior contradicts Maastricht Principle 21 (a), which states that the ability of a state to comply with its human rights obligations must not be impaired by the behavior of other states. According to the Maastricht Principles, exports endanger the exercise of economic, social and cultural rights and should therefore be prohibited or restricted.

Land eviction in Uganda

In 2001 around 4,000 residents of the Mubende district in Uganda were evicted from their land. The reason for this was the leasing of the land to Kaweri Coffee Plantation Ltd., a subsidiary of the German Neumann Coffee Group . The villagers had been asked to hand over their land to the new investor. When this did not happen, the Ugandan army brutally bulldozed and weapons against the residents of the villages and drove them from their land. There were also violent attacks by soldiers. Houses were burned down and supplies stolen. A few days later the new plantation was opened in the presence of German investors. Like Germany, Uganda has ratified the UN social pact. Accordingly, both countries must ensure the protection of value chain rights.

In accordance with the Maastricht principles, in this case study Germany clearly violated its extraterritorial state obligations to protect economic, social and cultural rights. Since the federal government was informed about the investment in the coffee plantation, it should have ensured, according to the protective obligations of the Maastricht Principles 24-26, that the construction of the new plantation by the Neumann Kaffee Gruppe does not cause any human rights violations. As a member of the management level of the African Development Bank, which granted the Neumann Kaffee Gruppe a loan to build the plantation, the Federal Republic would also have had the opportunity to fulfill its protective obligations - for example through a risk analysis.

A lawsuit against the Ugandan government and the company was only allowed on the basis of a deposit payment in 2002. In addition, the process dragged on for over a decade due to changing judges, the absence of competent lawyers and missed appointments. Guaranteeing access to legal remedies is another extraterritorial state obligation (Principle 37). Everyone concerned should therefore be entitled to legal redress and adequate compensation. In this case study, access to the national legal system was made difficult for victims by paying bail and delaying the proceedings. According to the Maastricht Principles, Germany has a responsibility to provide the displaced villagers with legal access in Germany as well.

A complaint was submitted to the German OECD contact point in 2009 . There it should be determined whether the Neumann Coffee Group is responsible for the expulsion of the farmers. In 2011, the contact point came to the conclusion that the Neumann Kaffee Gruppe had assumed that it had acquired the land free from the claims of others and was therefore not responsible for the human rights violations. The company was not asked to meet its human rights obligations in the future. In November 2012, the United Nations Human Rights Committee therefore appealed to the German government to better regulate the behavior of global companies and also to promote legal access for victims of human rights violations by German companies.

Individual evidence

↑ Olivier de Schutter gives an overview in: de Schutter: International Human Rights Law. Oxford 2011, pp. 162-178.

↑ Olivier de Schutter: International Human Rights Law. Oxford 2011, pp. 162-178. See also: Michael Krennerich: Social human rights - from hesitant recognition to extraterritorial validity, in: Zeitschrift für Menschenrechte 2/2012, pp. 166–183.

↑ http://www.srfood.org/es/human-rights-beyond-borders-un-experts-call-on-world-governments-to-be-guided-by-the-maastricht-principles .

↑ http://www.etoconsortium.org/en/about-us/eto-consortium/ .

↑ http://avalon.law.yale.edu/20th_century/decad026.asp#art38 .

↑ http://www.un.org/millennium/declaration/ares552e.htm .

↑ Archived copy ( memento of the original from February 18, 2015 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@ 2

↑ Francisco Marí: Off to Africa? Chicken legs and pig paws continue to flood West African markets, in: The Critical Agricultural Report 2014, pp. 96–100, here: pp. 96f. http://www.kritischer-agrarbericht.de/fileadmin/Daten-KAB/KAB-2014/KAB2014_96_100_Mari.pdf .

↑ Evangelical Development Service (ed.): Don't send chicken. How chicken from Europe is ruining smallholders in West Africa and a strong citizens' movement in Cameroon is successfully fighting back. Bonn 2010, p. 5.

↑ https://www.daserste.de/information/wissen-kultur/w-wie-wissen/sendung/2010/das-globale-huhn-100.html .

↑ Rolf Künnemann: Violation of extraterritorial state obligations: case studies and experiences from civil society, in: Zeitschrift für Menschenrechte 2/2012, pp. 48–63, here: p. 54.

↑ Andrea Jeska: Coffee trade: Our farm in Africa . In: The time . No. 34/2014 ( online ).

↑ http://www.fian.de/fileadmin/user_upload/dokumente/shop/Land_Grabbing/2013_Mubende-Dossier_druck_final.pdf