The extraterritorial scope of the international covenant on economic, social and cultural rights in the work of the United Nations Committee on Economic, Social and Cultural Rights

Human Rights Law Review

Volumn 11, Issue 1, 2011, Pages 1-35

  Coomans, Fons ^a  

^a MAASTRICHT UNIVERSITY   (Netherlands)

Author keywords

Economic, social and cultural rights; Extraterritorial jurisdiction; International cooperation and assistance; International Covenant on Economic, Social and Cultural Rights; United Nations Committee on Economic, Social and Cultural Rights

Indexed keywords

EID: 79951881337     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngq055     Document Type: Article

References (93)

1. 1966, 993 UNTS 3.
2. See The World Commission on the Social Dimension of Globalization, A Fair Globalization: Creating Opportunities for All (Geneva: ILO, April 2004), available at: http://www.ilo.org/public/english/wcsdg/docs/report.pdf [last accessed 22 November 2010].
3. Sen, 'Ten Theses on Globalization', Los Angeles Times, 17 July 2001.
4. See, for example, Kinley, Civilising Globalisation - Human Rights and the Global Economy (Cambridge: Cambridge University Press, 2009).
5. For an early description of this development, see Friedmann, 'The Changing Structure of International Law' (1969) 127-II Recueil des Cours de l'Académie de Droit International de la Haye 91.
6. Coomans and Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Antwerp: Intersentia, 2004).
7. Skogly, Beyond National Borders: States' Human Rights Obligations in International Cooperation (Antwerp: Intersentia, 2006).
8. Statement adopted by the Committee on Economic, Social and Cultural Rights at its eighteenth session on globalisation and its impact on the enjoyment of economic, social and cultural rights, 15 May 1998, E/C.12/1998/26, at para 515(3).
9. Guidelines on Treaty-Specific Documents to be submitted by States Parties under Articles 16 and 17 ICESCR, 24 March 2009, E/C.12/2008/2.
10. See Windfuhr, Compliance of Germany with its International Obligations under the ICESCR - Special Focus: The Right to Adequate Food (Heidelberg/Bonn/Stuggart: FIAN, EED and Brot für dieWelt, 2001).
11. Hausmann Künnemann, Germany's Extraterritorial Human Rights Obligations - Introduction and Six Case Studies (Heidelberg/Bonn/Stuttgart: FIAN, EED and Brot für die Welt, 2006).
12. Hausmann, Germany's Extraterritorial Human Rights Obligations in Multilateral Development Banks - Introduction and Case Study of Three Projects in Chad, Ghana and Pakistan (Heidelberg/Bonn/Stuttgart FIAN, EED and Brot für die Welt, 2006).
13. Coalition of Belgian Civil Society for Economic, Social and Cultural Rights, Joint Parallel Report - Compliance of Belgium with its Obligations under the International Covenant on Economic, Social and Cultural Rights, Part II, 24 July 2007, E/C.12/BEL/NGO/3.
14. See also FIDH and Kenyan Human Rights Commission, Economic Development or Human Rights - Assessing the Impact of Kenya's Trade and Investment Policies and Agreements on Human Rights (Paris/Nairobi, 2008), available at: http://www.fidh.org [last accessed 22 November 2010].
15. Compare Article 1, Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS 5, 213 UNTS 221; Article 2(1) International Covenant on Civil and Political Rights 1966, 999 UNTS 171; and Article 1, American Convention on Human Rights 1969, 1144 UNTS 123.
16. The European Court of Human Rights, the Human Rights Committee, the Inter-American Commission on Human Rights and the Committee against Torture.
17. For an extensive discussion of the case law of international human rights supervisory bodies, see Gondek, The Reach of Human Rights in a GlobalisingWorld: Extraterritorial Application of Human Rights Treaties (Antwerp: Intersentia, 2009).
18. It is interesting to note that the Optional Protocol to the ICESCR, adopted on 10 December 2008, which provides for a complaints procedure, does include the term 'jurisdiction' in Article 2 on who has the right to submit a communication. The relevant part of that provision reads: 'Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party.'.
19. See Optional Protocol to the ICESCR, GA/Res. 63/117, 10 December 2008, A/RES/63/117. It has been argued by some that there was no reason to include a jurisdictional limitation clause in the Protocol because the ICESCR does not use that term. However, that would be a deviation from the wording of other international complaints procedures and completely unacceptable for states, because it would be open to anyone to lodge a complaint against any State Party to the Protocol, no matter whether such a person is within the jurisdiction of that State: see Inter-American Institute of Human Rights and International Commission of Jurists, Commentary on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (Costa Rica/Geneva: Inter-American Institute for Human Rights/Sida, 2010) at 51-2.
20. Higgins, Problems & Process - International Law and HowWe Use It (Oxford: Clarendon Press, 1994) at 146.
21. For a discussion of different arguments, see Pogge, 'Severe Poverty as a Human Rights Violation', in Pogge (ed), Freedom from Poverty as a Human Right (Oxford: Oxford University Press and UNESCO, 2007) 11.
22. Skogly and Gibney, 'Economic Rights and Extraterritorial Obligations', in Hertel and Minkler (eds), Economic Rights - Conceptual, Measurement and Policy Issues (Cambridge: Cambridge University Press, 2007) 267 at 268.
23. Compare Article 2(1) ICCPR which provides: 'Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant...' (emphasis added).
24. On the scope of this provision, see McGoldrick, 'Extraterritorial Application of the International Covenant on Civil and Political Rights', in Coomans and Kamminga.
25. See Craven, The International Covenant on Economic, Social and Cultural Rights - A Perspective on its Development (Oxford: Clarendon Press, 1995) at 144.
26. Craven quotes Cassin, who, at the time of drafting the ICESCR, argued that 'by providing for recourse to international cooperation instead of allowing the enjoyment of rights to be put off, [the reference to international cooperation] filled the gap between what States could in fact do and the steps they would have to take to meet their obligations under the Covenant', 21 May 1951, E/CN.4/SR.216, at 6.
27. For example, General Comment No 3: The nature of States parties obligations (art. 2, para 1), 14 December 1990, E/1991/23; 1(1) IHRR 6 (1999).
28. Statement on Poverty and the International Covenant on Economic, Social and Cultural Rights, 10 May 2001, E/C.12/2001/10; and Statement on theWorld Food Crisis, 19 May 2008, E/C.12/2008/1.
29. For example, General Comment No 14: The right to highest attainable standard of health (art. 12), 4 July 2000, E/C.12/2000/4; 8 IHRR 1 (2001).
30. For a more recent example, see General Comment No 21: The right of everyone to take art in cultural life (art. 15, para 1(a)), 21 December 2009, E/C.12/GC/21; 17 IHRR 608 (2010), at para 58.
31. 1945, UNTS 993.
32. Bossuyt, Working Paper for the Commission on Human Rights Sub-Commission on the Promotion and Protection of Human Rights, 'The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights', 21 June 2000, E/CN.4/Sub.2/2000/33, at para 72.
33. De Wet, 'Human Rights Limitations to Economic Enforcement Measures Under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime' (2001) 14 Leiden Journal of International Law 277 at 280.
34. See General Comment No 8: The relationship between economic sanctions and respect for economic and social rights, 4 December 1997, E/C.12/1997/8; 5 IHRR 302 (1998).
35. See also Craven, 'Human Rights in the Realm of Order: Sanctions and Extraterritoriality', in Coomans and Kamminga.
36. On the application of the proportionality test to economic sanctions.
37. 12 August 1949, 75 UNTS 287.
38. See the report by Al-Haq, TheApplicability of Human Rights Law to Occupied Territories:The Case of the Occupied Palestinian Territories (Ramallah: Al Haq, 2003).
39. Dennis, 'Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation' (2005) 99 AmericanJournal of International Law 119.
40. Initial Report submitted by Israel under Articles 16 and 17 ICESCR, 28 November 1997, E/1990/5/Add.39.
41. Concluding Observations regarding Israel's Initial Report, 4 December 1998, E.C.12/1/Add.27, at para 8.
42. Israel, Additional information submitted by State Parities to the Covenant following the consideration of their reports by the Committee on Economic and Social and Cultural Rights, 14 May 2001, E/1989/5/Add.14.
43. Concluding Observations on the additional information submitted by Israel, 31 August 2001, E/C.12/1/Add.69, at para 12.
44. Second periodic report submitted by Israel under Articles 16 and 17 ICESCR,16 October 2001, E/1990/6/Add.32.
45. Summary Record of the 18th Meeting, 4 June 2003, E/C.12/2003/SR.18, at paras 22-4.
46. Concluding Observations on the second periodic report of Israel, 23 May 2003, E/C.12/1/Add. 90, at paras 31, 35, 40 and 41.
47. The International Court of Justice, in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ICJ Reports 2004 131 at paras 112 and 134, has said that the Palestinian territories have been subject to Israel's territorial jurisdiction as an occupying power. On this basis Israel is bound by the provisions of the ICESCR in these territories. In its most recent Concluding Observations on the examination of the Israeli periodic State Report under the ICCPR, the Human Rights Committee said that the provisions of that Covenant apply to the benefit of the population of the Occupied Territories, including the Gaza Strip, for all conduct by the Israeli authorities or agents in those territories affecting the enjoyment of rights enshrined in the ICCPR: see Concluding Observations of the Human Rights Committee regarding Israel, 29 July 2010, CCPR/C/ISR/CO/3, at para 5.
48. HRC, Concluding Observations regarding the United Kingdom of Great Britain and Northern Ireland, 18 July 2008, CCPR/C/GBR/CO/6, at para 14.
49. List of Issues on Turkey, 14 June 2010, E/C.12/TUR/Q/1.
50. See Article 1(3) Charter of the United Nations.
51. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, GA Res 2625.
52. Revised Guidelines regarding the form and contents of reports to be submitted by States parties under Articles 16 and 17 of the ICESCR, 17 June 1991, E/C.12/1991/1. In the latest, revised version of the Guidelines for Reporting, this reference to the priority orientation of international and technical assistance and cooperation has been deleted. The new text now reads: 'Indicate the impact of international economic and technical assistance and cooperation, whether received or provided by the State party, on the full realization of each of the Covenant rights in the State party or, as the case may be, in other countries, especially developing countries'.
53. See Guidelines on Treaty-Specific Documents.
54. Committee Member Mr Eibe Riedel, Report of the Open-endedWorking Group to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on its third session, 14 March 2006, E/CN.4/2006/47, at para 88.
55. Committee Member Mr Eibe Riedel, Report of the Open-endedWorking Group to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on its second session, 10 February 2005, E/CN.4/2005/52, at para 63.
56. Commission on Human Rights, Report of the Open-endedWorking Group to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on its third session, 14 March 2006, E/CN.4/2006/47, at paras 77-86. Western states opposing international cooperation as a legal obligation included Canada, Sweden, the United Kingdom, the Netherlands and Spain. States from the South favouring international cooperation as a legal obligation included Angola, Egypt, Ghana, Indonesia, Iran and Morocco.
57. Vandenbogaerde and Vandenhole, 'The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: An Ex Ante Assessment of its Effectiveness in Light of the Drafting Process' (2010) 10 Human Rights Law Review 207 at 232.
58. General Comment No 2: International technical assistance measures (art. 22), 2 February 1990, E/1990/23; 1(1) IHRR 3 (1995).
59. General Comment No 4: The right to adequate housing (art. 11(1)), 13 December 1991, E/1992/23; 1(1) IHRR 9 (1995), at para 19.
60. See also General Comment No 7: The right to adequate housing (art. 11(1)): forced evictions, 20 May 1997, E/1998/22; 5 IHRR 1 (1998), at paras 18 and 19.
61. General Comment No 11: Plan of action for primary education (art. 14), 10 May 1999, E/C.12/1999/4; 6 IHRR 900 (1999), at para 11.
62. See, for example, General Comment No 18: The right to work (art. 6), 24 November 2005, E/C.12/GC/18; 13 IHRR 625 (2006), at paras 52-4, focusing on the role of the ILO, private enterprises and trade unions.
63. See Darrow, Between Light and Shadow: TheWorld Bank, The International Monetary Fund and International Human Rights Law (Oxford: Hart, 2003) at 126-9 and 136-7.
64. Article 20 WTO Agreement on Agriculture, available at: http://www.wto.org/english/docs_e/legal_e/14-ag.pdf [last accessed 22 November 2010].
65. See, for example, Mechlem, 'Harmonizing Trade in Agriculture and Human Rights: Options for the Integration of the Right to Food into the Agreement on Agriculture' (2006) 10 Max PlanckYearbook of United Nations Law 127.
66. General Comment No 12: The right to adequate food (art. 11), 12 May 1999, E/C.12/1999/5; 6 IHRR 902 (1999), at paras 36-41.
67. Report of the Special Rapporteur on the Right to Food, Jean Ziegler, 16 March 2006, E/CN.4/2006/44, at para 41.
68. See also, GA Res 60/165, The Right to Food, 16 December 2005, A/RES/60/165.
69. This has been done by the Special Rapporteur on the Right to Food in one of his reports.
70. General Comment No 15: The right to water (art. 11 and 12), 20 January 2003, E/C.12/2002/11; 10 IHRR 303 (2003), at para 31.
71. Concluding Observations regarding Kenya, 1 December 2008, E/C.12/KEN/CO/1, at para 11.
72. Concluding Observations regarding Madagascar, 20 November 2009, E/C.12.MDG/CO/2, at para 12.
73. General Comment No 17: The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (art. 15(1)(c)), 12 January 2006, E/C.12/GC/17; 17 IHRR 613 (2006), at para 56.
74. General Comment No 19: The right to social security (art. 9), 23 November 2007, E/C.12/GC/19; 15 IHRR 605 (2008), at para 58.
75. Concluding Observations regarding Italy's Third Periodic Report on Implementation of the Covenant, 23 May 2000, E/C.12/1/Add.43, at para 20.
76. See also, Concluding Observations regarding Germany's Fourth Periodic Report on Implementation of the Covenant, 24 September 2001, E/C.12/1/Add.68, at para 31.
77. Concluding Observations regarding Canada's Fourth and Fifth Periodic Report on the Implementation of the Covenant, 22 May 2006, E/C.12/CAN/CO/5, at para 68.
78. See the Concluding Document of this Conference, A/CONF.198/11, at para 42.
79. Concluding Observations regarding Luxembourg, 26 June 2003, E/C.12/1/Add.86, at para 6; Denmark, 14 December 2004, E/C.12/1/Add.102, at para 5; the Netherlands, 24 November 2006, E/C.12/NLD/CO/3, at para 9; and Sweden, 1 December 2008, E/C.12/SWE/CO/5, at para 11.
80. Concluding Observations regarding Ireland, 5 June 2002, E/C.12/1/Add.77, at para 38; Italy, 14 December 2004, E/C.12/1/Add.103, at para 34; Monaco, 13 June 2006, E/C.12/MCO/CO/1, at para 29; Finland, 16 January 2006, E/C.12/FIN/CO/5, at para 21; and Belgium, 4 January 2008, E/C.12/BEL/CO/3, at para 27.
81. Concluding Observations regarding Germany, 24 September 2001, E/C.12/1/Add.68, at para 15; Spain, 7 June 2004, E/C.12/1/Add.99, at para 10; and France, 9 June 2008, E/C.12/FRA/CO/3, at para 12. Is of the view that 'a State was not committed to its obligation to assist other States if the amount of aid it provided to other States declined over a number of years'.
82. List of Issues on Sweden, 13 December 2007, E/C.12/SWE/Q/5, at para 14.
83. In the same vein, see Sepúlveda, 'Obligations of "International Assistance and Cooperation" in an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights' (2006) 24 Netherlands Quarterly of Human Rights 271.
84. Sepúlveda argues that such a duty seems to arise in the context of disaster relief and humanitarian assistance, holds that developed states are not required to meet the needs of poor states, 'but rather that they are under a duty to provide some form of assistance to the developing world', which is rather vague.
85. Human Rights Council, Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, 11 February 2009, A/HRC/10/5, at para 9.
86. Human Rights Council, Report of the Special Representative of the Secretary-General on the issue human rights and transnational corporations and other business practices, John Ruggie, 22 April 2009, A/HRC/11/13, at para 15.
87. Report of the Special Representative of the Secretary-General on the issue human rights and transnational corporations and other business practices, John Ruggie, 7 April 2008, A/HRC/8/5, at para 19.
88. De Schutter, International Human Rights Law (Cambridge: Cambridge University Press, 2010) at 162.
89. Joseph, 'Scope of Application', in Moeckli et al. (eds), International Human Rights Law (Oxford: Oxford University Press, 2010) 150 at 166.
90. Trail Smelter Case (United States, Canada) (1941) 3 Reports of International Arbitral Awards 1905-1982.
91. 'The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights' (1998) 20 Human Rights Quarterly 691.
92. Skogly has come to a different conclusion on the basis of an analysis of a number of General Comments and Concluding Observations. She is of the view that 'the Committee has developed a consistent and quite comprehensive approach to the extraterritorial reach of the Covenant...'.
93. Franck, The Power of LegitimacyAmong Nations (NewYork and Oxford: Oxford University Press, 1990) at 53-4.