over which a State party has sovereignty and to those over which that State exercises territorial
jurisdiction", and it finds that the Covenant on Economic, Social and Cultural Rights does impose
obligations on Israel as the Occupying Power in the Occupied Palestinian Territories. However, the
Court still presumes that the Covenant requires for its implementation that the State does exercise
"quasi‐sovereign" powers ‐‐ for instance, to establish a system of schools, to build health care centres,
or to implement a program for social housing. This illustrates the difficulty of imposing
extraterritorial obligations in the area of economic, social and cultural rights, at least if we remain
trapped in the current (and still dominant) mindset that sees such rights as imposing positive duties
on the State, whereas civil and political rights only (or primarily) would impose negative duties of
abstention.
However, significant progress has been achieved over the past few years in order to extend the
responsibility of States beyond the situations that occur on their national territory, not only for civil
and political rights, but also for economic and social rights. Human rights treaty bodies have
increasingly acknowledged the existence of extraterritorial obligations, both in order to prohibit
them from adopting measures that have negative impacts on the enjoyment of human rights outside
their national territory, and in order to oblige them to contribute to the protection of human rights
outside their national territory in situations which they are in a position to influence (for instance,
CESCR 1999a: para. 19 and 36; CESCR 2000: para. 39; CESCR 2002: para. 31 and 35‐36). The emerging
consensus in this regard is also illustrated for instance by the Guiding Principles on Human Rights and
Extreme Poverty endorsed by consensus by the UN Human Rights Council in September 2012 (United
Nations Human Rights Council 2012), which state that "as part of international cooperation and
assistance, States have an obligation to respect and protect the enjoyment of human rights, which
involves avoiding conduct that would create a foreseeable risk of impairing the enjoyment of human
rights by persons living in poverty beyond their borders, and conducting assessments of the
extraterritorial impacts of laws, policies and practices" (Guiding Principles on extreme poverty and
human rights (2012): para. 92). Another indication of the progress made in this direction is the
presentation at the Human Rights Council, in 2012, of the already mentioned Guiding Principles on
human rights impact assessment of trade and investment agreements, that describe the
methodology that should guide the conduct of such impact assessments prior to the conclusion of
such agreements (Guiding Principles on Human Rights Impact Assessments of Trade and Investment
Agreements 2011). Finally, the endorsement in September 2011, by a large range of international
human rights experts and organizations, of the Maastricht Principles on the extraterritorial
obligations of States in the area of economic, social and cultural rights, that may be seen as a
restatement of the obligations of States outside their national territory, also has significantly
contributed to this momentum (De Schutter et al. 2012a; Coomans and Künnemann 2012).
5. Controlling transnational corporations
Part of this movement towards the affirmation of extraterritorial obligations of States in the area of
economic, social and cultural rights, consists in imposing on States a duty to control private actors
over which they can exercise control, even outside their national territories: in Chapter 19, David
Kinley and Justine Nolan explain why this matters, highlighting the increased role of large
corporations in the global economy and the difficulties States encounter in seeking to regulate their
activities (see also, for an early and compelling assessment, Joseph 1999). But a second answer to
the challenge of ensuring that economic globalization does not proceed in disregard of the
requirements of economic and social rights, has consisted in imposing on such actors certain human
rights obligations, sometimes euphemistically referred to as "responsibilities". The most significant
achievement in this regard was the endorsement by the Human Rights Council, in 2011, of a set of
Guiding Principles on Business and Human Rights proposed by the Special Representative of the UN
Secretary‐General on the issue of human rights and transnational corporations and other business
enterprises, professor J. Ruggie.
32
CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction
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