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In defence of direct obligations for businesses under international human rights law
This article presents three arguments on why businesses have direct obligations under existing international law. Nevertheless, in the present state of international law, the obligations of businesses are limited and wholly dependent on the state's further action of implementation and enforcement. To reach this conclusion, the article asserts that businesses have partial legal personality in international law; that legal obligations and the enforcement model must be distinguished as two separate issues; and that human rights are requirements of justice that emanate from the dignity of each human person to any social actor, including businesses and other non-state actors. The article attempts to contribute to the debate about a binding instrument on business and human rights and presents an alternative understanding of international law that can assist domestic tribunals in applying international human rights standards to businesses as they carry out activities in their jurisdictions.
Journal Article
Extraterritorial Application of Human Rights Treaties
Questions as to when a state owes obligations under a human rights treaty towards an individual located outside its territory are being brought more and more frequently before both international and domestic courts. Victims of aerial bombardment, inhabitants of territories under military occupation, deposed dictators, suspected terrorists detained in Guantanamo by the United States, and the family of a former KGB spy who was assassinated in London through the use of a radioactive toxin, allegedly at the orders or with the collusion of the Russian government — all of these people have claimed protection from human rights law against a state affecting their lives while acting outside its territory. These matters are extremely politically and legally sensitive, leading to much confusion, ambiguity and compromise in the existing case law. This study attempts to clear up some of this confusion, and expose its real roots. It examines the notion of state jurisdiction in human rights treaties, and places it within the framework of international law. It is not limited to an inquiry into the semantic, ordinary meaning of the jurisdiction clauses in human rights treaties, nor even to their construction into workable legal concepts and rules. Rather, the interpretation of these treaties cannot be complete without examining their object and purpose, and the various policy considerations which influence states in their behaviour, and courts in their decision-making. The book thus exposes the tension between universality and effectiveness, which is itself the cause of methodological and conceptual inconsistency in the case law. Finally, the work elaborates on the several possible models of the treaties' extraterritorial application. It offers not only a critical analysis of the existing case law, but explains the various options that are before courts and states in addressing these issues, as well as their policy implications.
eBook
Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights
On 28 September 2011, at a gathering convened by Maastricht University and the International Commission of Jurists, a group of experts in international law and human rights adopted the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights. The experts came from universities and organizations located in all regions of the world and included current and former members of international human rights treaty bodies, regional human rights bodies, and former and current Special Rapporteurs of the United Nations Human Rights Council. Adapted from the source document.
Journal Article
Climate Change Mitigation as an Obligation Under Human Rights Treaties?
Judges and scholars have interpreted human rights treaties as obligating states to mitigate climate change by limiting their greenhouse gas emissions, an argument instrumental to the development of climate litigation. This Article questions the validity of this interpretation. A state's treaty obligation to protect human rights implies an obligation to cooperate on the mitigation of climate change, the Article argues, only if and inasmuch as climate change mitigation effectively protects the enjoyment of treaty rights by individuals within the state's territory or under its jurisdiction. As such, human rights treaties open only a narrow window on the applicability of general mitigation obligations arising under climate treaties and customary international law.
Journal Article
Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders
We live in a shrinking world where interdependence between countries and communities is increasing. These changes also affect—as they should—the concept of sovereignty. In past decades the predominant conception of sovereignty was akin to owning a large estate separated from other properties by rivers or deserts. By contrast, today’s reality is more analogous to owning a small apartment in one densely packed high-rise that is home to two hundred separate families. The sense of interdependency is heightened when we recognize the absence of any alternative to this shared home, of any exit from this global high-rise. The privilege of bygone days of opting out, of retreating into splendid isolation, of adopting mercantilist policies or erecting iron curtains is no longer realistically available.
Journal Article
Trade countermeasures for breaches of international law outside the WTO
This article challenges the widely held view that WTO Members are not permitted to impose trade restrictions on other WTO Members in the form of countermeasures for breaches of international law. It cautions that this generally held view has wider implications for international law and multilateralism because countermeasures are a significant means of enforcing and preserving the normative integrity of international obligations outside the WTO, including 'erga omnes' and 'erga omnes partes' obligations. Arguments supporting their 'displacement' must be based on clear evidence, which this article shows to be lacking. This article also attempts to allay the (understandable but perhaps exaggerated) concern that such countermeasures might undermine the predictability of the WTO system. Trade countermeasures for breaches of extra-WTO obligations are subject to stringent conditions under customary international law and to judicial scrutiny by means of WTO adjudication, both of which minimise the space for abuse and the risk of unpredictability.
Journal Article
Is the International Community Ready for the Next Pandemic Wave? A Legal Analysis of the Preparedness Rules Codified in Universal Instruments and of their Impact in the Light of the COVID-19 Experience
The international community generally recognizes the importance of adopting adequate, timely and continuously updated prevention measures to reduce the risk of global health emergencies and pandemics. Nevertheless, as demonstrated by COVID-19, with its assumed mutation capacity, even the most sophisticated preventive measures cannot avoid the spread of new diseases. States are expected, therefore, to adopt specific preparedness measures to effectively anticipate, respond to, and recover from the impacts of likely pandemics. These measures have gained increasing interest in many treaties all over the world. The present article investigates the international obligations codified in universal instruments related to the adoption of preparedness measures for potential pandemics. Carefully examining relevant international treaties as well as emerging soft-law instruments, it will attempt to answer a pertinent question that has been raised time and again in the past and continues to be raised during the current COVID-19 crisis: are the existing preparedness measures still relevant and adequate or have they become obsolete or misleading? Since more COVID-19 viral waves are expected to arrive in the next months, the urgency of adopting adequate preparedness measures is even more evident. Moreover, the article analyses the current worldwide challenges related to the national implementation of preparedness measures. Considering the innovative drugs and diagnostics that are currently available, and that we can count on new technology platforms that significantly reduce the time needed to develop vaccines, it argues that inaction can no longer be justified, whether in legal, political or moral terms.
Journal Article
Use of force, arms control, and non-proliferation: New U.S. Anti-personnel landmine policy adopted
On June 21, 2022, the United States adopted a new Anti-Personnel Landmine (APL) Policy. Coming nearly on the eighth anniversary of the Obama administration's APL policy announcement on June 27, 2014, and almost two and a half years after the Trump administration's reversal of that policy on January 31, 2020, this is the fifth change in U.S. policy in as many administrations, dating back to the Clinton presidency. The Biden administration's decision returns the United States to greater consistency with the 'Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction' (the Ottawa Convention), which is similar to the Obama and Clinton era approaches. The new policy also renews a commitment to work toward acceding to the Ottawa Convention, which currently has 164 parties. In addition to the United States, other non-parties to the Convention include China, India, Iran, Russia, and the Koreas. Until the United States accedes to the Ottawa Convention, its international obligations regarding APL stem from the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on May 3, 1996 (Amended Protocol II) and customary international law.
Journal Article