Human Rights Protection: From Without to Beyond Borders

The world is getting smaller. An action or decision made in one area can have effects on the other side of the world (as is the case of directed attacks with drones) or even have global impacts.

Thus, the theory that States are only responsible for that which occurs in their territories seems more and more out of touch. At the same time, human rights strategies seem to be changing. The old strategy of groups of professionals, generally in the Global North, which provided assistance outside of their countries’ borders to situations of human rights violations in the South (the strategy Without Borders), has evolved to a strategy that not only concerns itself with the country where effects are felt, but also those in which the actions or omissions that violate human rights take place (as dubbed by the Extraterritorial Obligations Consortium: Human Rights Beyond Borders).

As the Maastricht Principles on Extraterritorial Obligation of States in the area of Economic, Social and Cultural Rights,  point out, States have territorial obligations (over actions taken within their borders) and responsibility for acts or omissions that violate rights, even when the harm is produced outside its borders, that is to say, extraterritorial obligations.

The idea of extraterritorial obligations is not a novel theory. In fact, it has existed since the very beginning of international law. Nonetheless, it is in this era of globalized effects in which actions gain heightened importance.  Official institutions as well as companies located in various countries are generating greater globalized impacts as a result of their actions.

Nonetheless, as demonstrated by a recent report on the impact of Canadian mining in other countries, today, the policies of many States support or tolerate official and private actors that violate their extraterritorial obligations regarding human rights. In this report, for example, the authors question Canada’s responsibility as a result of four types of conduct:

• Financial and political support without requiring compliance with international human rights standards
• Canada’s undue interference in the countries
• The omissions of the Canadian diplomatic service and the shielding of mining companies from accountability through free trade agreements
• Inadequate legal framework in Canada to prevent and punish human rights violations caused by mining activity

But at the same time, at the regional and global level, as well as through domestic legislation, States are developing new ways of promoting compliance with these obligations. One of these is the recent resolution that the United Nations Human Rights Council adopted, proposed as a reaction to the crisis in Argentina caused by speculative investment funds. The resolution, in addition to condemning “the activities of vulture funds for the direct negative effect that the debt repayment to those funds, under predatory conditions, has on the capacity of Governments to fulfill their human rights obligations,” grants States the ability to “participate in the negotiations aimed at establishing a multilateral legal framework for sovereign debt restructuring processes.”

Another example is the 2010 Nagoya-Kuala Lumpur Supplementary Protocol. This protocol is a treaty assigning transboundary liability and redress for biodiversity damage caused by genetically modified organisms. The Protocol seeks to harmonize the international legal principles applicable to environmental and human health risk from living modified organisms.

Within the United Nations, different committees have also recognized these principles. For example, the ESCR Committee has recognized them in the case of German aid in Cambodia, or the responsibility of Norwegian pension funds in irresponsible investments, such as that which financed the Marlin Mine in Guatemala. These types of situations are creating more and more concern. Sweden has created an investment Code of Ethics that seeks to prevent Swedish pension funds from investing in projects and companies that cause harm in other countries.

Of course, extraterritorial responsibility cannot exonerate host States from their role in protecting their territory.  Among promising national experiences on the issue of regulating the conduct of foreign companies, even when these are still under development, are the following:

• Brazil’s Anti-Corruption Law (No. 12.846/2013), which applies to business organizations, foundations, or associations and foreign companies with an office, branch or subsidiary in Brazilian territory;
• The French legislative proposal on parent company liability, whichwould require French companies to demonstrate, if sued in civil, commercial or penal court, that they have adopted systems to avoid causing harm in the framework of their economic activity.

The transformation of conducts that violate rights should also produce a transformation in the response to these violations. The recognition of the existence of territorial obligations and the need to highlight their importance is an alternative that could be more valuable today. If violations don’t care about borders, the tools to address violations should not be limited by them.