Mark Gibney, Sigrun Skogly, eds. Universal Human Rights and Extraterritorial Obligations. Philadelphia: University of Pennsylvania Press, 2010. vi + 256 pp. $65.00 (cloth), ISBN 978-0-8122-4215-7.
Reviewed by Karen Costa (International Law, Graduate Institute of International and Development Studies)
Published on H-Human-Rights (October, 2010)
Commissioned by Rebecca K. Root (Ramapo College of New Jersey)
Meeting the Challenges of a Globalized World: Extraterritorial Obligations in the Field of Human Rights
This book comprises a collection of contributions on how to make human rights suitable for the age of globalization. Authors address the "diagonal" relations between individuals within a country and outside actors (especially Western states). The overall claim is that states' human rights obligations may apply beyond national borders, to the extent that states' conduct affects the enjoyment of human rights of individuals in other countries. Although the notion that the primary responsibility regarding human rights lies with the domestic government remains valid, the authors claim that it does not cover the full picture anymore. Contributions illustrate the impact of extraterritorial obligations in the areas of civil, political, economic, social, and cultural rights.
Chapter 1 is a comprehensive overview of states' obligations to prevent and to prohibit torture in an extraterritorial context. Recalling relevant international case law on the subject, the author advocates for a broad definition of extraterritorial jurisdiction: "whenever the authorities of a state party exercise 'effective control' over territory or persons outside the state's own territory" (p. 14). The analysis focuses on the global war against terrorism, the extent of state parties' obligations under the UN Convention Against Torture (CAT), and the attempt by some states to deny or circumvent key provisions of the CAT. Among others it covers the prohibition of refoulement and the issues of diplomatic assurances and extraordinary renditions in states' counterterrorism strategies. The chapter is a powerful contribution that provides a respectable overview on recent practices and the opinions of many important legal authorities on the subject. It portrays the spectrum of challenges faced by those combating torture at a time when certain states' parties to international treaties seem to deliberately interpret treaty provisions based on their letter only, with disregard to their purpose.
Chapter 2 comprehensively analyzes states' extraterritorial obligations in relation to the transfer of small arms. The right to life, being the human right most negatively affected by the phenomenon, is the main focus of the analysis. Starting from the international legal protection conferred to this fundamental human right, it assesses the first tentative steps by the international community towards more effective rules and mechanisms to address this critical issue. One such initiative is the UN General Assembly Resolution 61/89 of December 2006, aiming towards an arms trade treaty to establish common international standards for the import, export, and transfer of conventional arms. It is argued that more needs to be done in order to successfully control international arms transfers, especially when it is known by the transferring state that the arms are likely to be used to commit serious human rights violations.
Extraterritorial state action in the field of refugee law is the topic of chapter 3, which identifies conceptual differences between general international human rights law and refugee law. While the former deals principally with the relationship between a state and its subjects, the latter is concerned with a transversal relationship between one state and the subjects of another state. The article depicts and analyzes (among other things) the increasing practice of the checking of asylum claims outside the territory of the receiving state. It is argued that such practices not only negatively affect the application of the non-refoulement principle, but also the protection bestowed by refugee law, which increases along with the attachment developed between refugees and host state over time. A more principled interpretation of the concept of jurisdiction is called for as a way of avoiding double standards.
Chapter 4 covers extraterritorial aspects of environmental rights. Human rights law typically covers the horizontal relationship between a state and its subjects, whereas environmental law may also cover the diagonal relationship between a state and subjects of another state in case of transboundary environmental harm. International environmental law, however, lags behind human rights law in terms of enforcement mechanisms. Occasionally, human rights machinery has offered indirect means of protecting the environment in cases when human rights were also found to be violated. Noting that in the last few years international environmental law has also adopted a number of compliance mechanisms, the author argues that progress is being made towards a more effective protection of horizontal and diagonal environmental rights.
The right to health is covered in chapter 5, which builds upon the work of the former UN Special Rapporteur on the right to the highest attainable standard of health, Paul Hunt. Relying upon international legal instruments, especially the International Covenant on Economic, Social and Cultural Rights (ICESCR), the authors argue that state parties have the human rights responsibility of international assistance and cooperation. This arguably legally binding obligation is applied to the example of Sweden's international development policy, especially regarding health programs in Uganda, as well as states' action in the framework of the International Monetary Fund and the World Bank. The overall argument is that states' responsibility of international assistance and cooperation reinforces their various international and other developmental commitments, notably the Millennium Development Goals.
The extraterritorial dimensions of the right to adequate food are thoroughly covered and illustrated with various concrete examples in chapter 6. International factors heavily affect the realization of this particular right, which is closely tied to broad and complex issues such as demand and supply, trade policies, and models of production. Although the primary obligation lies on each state party to the ICESCR regarding the realization of the right to adequate food vis-à-vis its own population, there is much room and need for international cooperation and assistance by states parties for this right to be progressively realized globally. The acknowledgement and observance by state parties to the ICESCR of their extraterritorial obligations to respect, protect, and support the fulfillment of the right to adequate food is essential in an ever more interdependent and globalized world.
Chapter 7 focuses on a pioneering program launched in 1999 in Cambodia. The program, known as "Better Factories Cambodia", aimed to gain increased access to foreign markets (particularly that of the United States) for that country's textiles while raising local industry's labor standards. The International Labour Organization supervised the program, partly by monitoring and reporting on workers' conditions, as well as providing technical assistance. The overall impact of the program was considered positive, especially for young women, who are the majority of employees in Cambodia's garment industry.
The following chapter offers a detailed account of how the right to housing is addressed in the extraterritorial debate. It provides an overview of relevant provisions enshrined in international and regional human rights treaties, some of which reflect extraterritorial dimensions of housing rights. The two main areas in which these rights are at stake are analyzed, namely forced evictions and urban upgrading in international development. Moreover, the chapter addresses the obligations of non-state actors, notably international financial institutions and multinational corporations. The conclusion is that a limited progress has been made, especially due to human rights litigation, in gradually affirming certain extraterritorial dimensions in the field of housing. However, effective forms of accountability are yet to be truly operationalized, especially in the area of international development cooperation.
The final contribution covers the right to water. Asserting extraterritorial obligations is an even greater uphill struggle in relation to this particular right. This is due to the still debated legal status of the right to water: Is it an independent human right or a derivative right of other related human rights (especially the right to food, health, and an adequate standard of living)? Nevertheless, the discussion is moving towards the recognition of the right to water as a human right, and has notably benefited from the UN Committee on Economic, Social and Cultural Rights' General Comment No. 15 ("The Right to Water"), adopted in 2002. The United Kingdom's international development activities are used as examples, particularly projects on water and sanitation implemented in Africa and in the Middle East, mostly carried out with donor partners (international agencies and other states). They are depicted as good practice in terms of improving water and sanitation abroad, though the British government largely regards them as a mater of foreign policy, not a human rights obligation. This approach leads to a lack of accountability mechanisms and remedies for those harmed by such projects. Therefore, more needs to be done in terms of research and advocacy so as to move towards a more protective approach.
Taken as a whole, the book clearly demonstrates that, in a globalized world, there is a need to rethink the way we look at human rights obligations. The extraterritorial framework offers a good starting point on how to tackle new challenges to the realization of human rights worldwide. Gathering contributions from a variety of areas, the book clarifies and raises aspects to be further developed. Editors concede that many difficulties lie ahead, especially at the conceptual level. Jurisdiction, state responsibility, and accountability correspond to key concepts that have to be rethought. Thus, further research is needed and welcomed.
Due to the breadth of the topics covered by various experts on different human rights areas, the book will provide those interested in the challenging idea of extraterritorial obligations with a better picture of how far-reaching the concept is and how many areas can benefit from it. Filled with conceptual discussions but also with real-life examples, it will be useful for both scholars and practitioners alike, who may explore ways of collaborating and thus further advancing the discussion.
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Karen Costa. Review of Gibney, Mark; Skogly, Sigrun, eds., Universal Human Rights and Extraterritorial Obligations.
H-Human-Rights, H-Net Reviews.
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