In 2012, governments agreed at the Rio+20 conference that all decisions on the post-2015 sustainable development agenda would be both consistent with international law and respect the principle of common but differentiated responsibilities (CBDR) and respective capabilities. The zero draft of post-2015 agreement, as well as the Open Working Group’s outcomes which preceded it, reiterate their grounding in the UN Charter with full respect for international law, including (implicitly at least) international human rights law. In the latest iteration of the Addis Ababa Accord on financing for development (FfD), meanwhile, governments unambiguously commit to respect all human rights, including the right to development.
Are these any more than amorphous and un-actionable commitments to abstract global ideals? What might it mean in practice for governments around the world to fully respect international human rights law in sustainable development? Considering our fundamentally interdependent world with vast disparities in power, what does international law stipulate in particular about the tricky business of delineating common but differentiated responsibilities to particular actors for the means of implementation of the Sustainable Development Goals?
This is precisely the question the Center for Economic and Social Rights, in partnership with the Third World Network, attempted to answer in our recent publication, “Universal Rights, Differentiated Responsibilities: Safeguarding human rights beyond borders to achieve the Sustainable Development Goals.” International law—anchored in the UN Charter and various international human rights treaties and jurisprudence—affirms that states have certain human rights duties which extend outside of their own territory.
Though rarely invoked in post-2015 and Financing for Development debates, these ‘extraterritorial’ human rights obligations can shed useful light on current discussions around international cooperation and financing. They provide normative grounding for the commitment to ‘policy coherence’ under the SDG goal 17 on the global partnership for sustainable development, while buttressing the principle of CBDR, reaffirmed since the 1992 yet still so hotly contested by some powerful states in the context of the ongoing post-2015 and financing negotiations.
In our discussions with negotiators and UN agencies, seven common misconceptions tend to cloud the debate about upholding these standing extraterritorial human rights obligations (ETOs) in development practice, thus detracting from the immense potential of invoking these legal standards in this new era of a universal sustainable development agenda.
Misconception 1: Human rights duties are just one among many sets of international legal obligations, and therefore must adjust to the reality of a new economic and geopolitical order.
In point of fact, governments’ obligations under the UN Charter—including those relating to human rights—enjoy primacy over other subsequent international instruments, including bilateral and multilateral trade, investment, double-taxation or other development agreements. Whenever these international economic agreements conflict with states’ pre-existing duties under the UN Charter and international human rights treaties, these economic development agreements must be brought into harmony with human rights, not vice-versa.
Misconception 2: Human rights norms are merely an instrument of aid conditionality, limiting the policy space of poorer countries to meet their legitimate development needs.
Universality cannot mean conditionality. Governments are not permitted under the UN Charter and international law to invoke their extraterritorial obligations to justify undermining the policy space needed by other states to fulfill their domestic human rights commitments. Instead, upholding one’s extraterritorial obligations under international law first and foremost implies assessing and addressing the impacts of the most powerful states and transnational private actors in either constraining and enabling sustainable development. Wealthier and more influential governments, in other words, will have to ensure first and foremost full policy coherence with sustainable development, turning the stale North-South conditionality dynamic on its head.
Misconception 3: Invoking extraterritorial obligations is a simple ruse to pass the blame to rich countries for what are domestic deficiencies.
Human rights obligations of a domestic and extraterritorial nature are concurrent, not mutually-exclusive, duties. That is, extraterritorial human rights obligations in no way negate state sovereignty or domestic human rights duties, especially in the national implementation of sustainable development plans. States are not permitted, in other words, to invoke the transboundary actions of other states to “pass the blame” and therefore evade their own domestic duties.
Misconception 4: This ETO talk is really just about tapping wealthy countries for more aid.
International human rights law includes a duty of international cooperation and assistance, of which providing financial development assistance is of course a major component. However, the duty is far broader in nature than just supplying aid. It implies an obligation to avoid undermining or nullifying human rights in other countries, and to contribute to an international enabling environment for the full realization of human rights. This duty increases proportionally with the capacity, resources and influence of the state in question. Giving discretionary development assistance, in other words, does not let governments off the hook. Charity cannot offset other actions—such as facilitating egregious tax practices which strip poor governments of development capacity—which undermine human rights overseas.
Misconception 5: Human rights duties don’t apply to decisions governments take within bilateral agreements nor international financial institutions.
Governments can also erode human rights overseas through their bilateral and multilateral conduct, in particular within international and regional institutions. ETOs remain binding no matter how collective a harmful decision may be. While the attribution of state responsibility may be more directly and comprehensively asserted for domestic actions which undermine human rights, states carry their human rights duties into their decision-making conduct within bilateral agreements and international institutions. State responsibility for any human rights harm resulting from multilateral conduct will be by definition shared, yet attributed and delineated based on each governments’ respective influence or effective control. In this sense, all governments, but especially those with most influence, must do all they can to ensure international institutions act in consistency with human rights.
Misconception 6: The UN Charter and international human rights law are ill-equipped to address the challenges posed by the enormous influence of transnational business entities.
International law is a thoroughly state-based order. Many decry this as an outdated historic relic of the post-World War II age, in contrast to the power and reach of the market in the 21st century political economy. Yet, the centrality international human rights law gives to states as the primary duty-holder is in useful recognition of the essential role governments must have in driving sustainable development, correcting market failures and protecting human rights and the public good against private interests. Indeed, one of the fundamental duties of government – as reaffirmed in the UN Guiding Principles on Business and Human Rights – is to protect people’s human rights against business-related abuses, including those which occur under the banner of supposed ‘sustainable development’ in name only.
Misconception 7: Sustainable development should be about action, not about blaming others. Addressing ETOs is polarizing and will inevitably lead to development paralysis.
Finally, assessing the responsibilities of different development actors over the enjoyment of human rights extraterritorially is not about assigning blame, but instead accounting for the far-ranging and sometimes inadvertent real-world effects of government conduct outside of its borders. Without a sober and evidence-based assessment of the external obstacles countries face, and who is responsible for them, solutions can be only piecemeal and discordant at best.
The Spanish philosopher, José Ortega y Gasset, said way back in 1930, “Every reality unknown prepares its own revenge.” Whatever post-2015 and FfD monitoring and review mechanisms are put into place, it is essential above all that governments conduct independent assessments of the impact their laws, policies and practices have on the achievement of sustainable development and human rights on other countries. Our briefing illustrates various examples of governments conducting such extraterritorial impact assessments of complex areas such as tax policy. These should be an essential part of ensuring policy coherence in the sustainable development era.
Remaining knowingly blind to these spillover effects of powerful countries on sustainable development and may well undercut the very object and purpose of the post-2015 agenda.
Niko Lusiani is Senior Researcher at the Center for Economic and Social Rights (cesr.org). For more information about ETOs in sustainable development, including all the associated legal sources and ten specific policy implications for the ongoing post-2015 and FfD negotiations, see CESR and TWN publication: “Universal Rights, Differentiated Responsibilities: Safeguarding human rights beyond borders to achieve the Sustainable Development Goals.”