altered the outcome would only be relevant to the question of damages to be awarded
(International Court of Justice 2007: para. 461).
This is consistent with the position adopted by the International Law Commission when it addressed
the issues of foreseeability and causality ‐‐ the link between conduct and result. In its Commentary to
Principle 4 of its 2006 Draft Principles on the Allocation of Loss in the Case of Transboundary Harm
Arising out of Hazardous Activities, it remarked: “The principle of causation is linked to questions of
foreseeability and proximity or direct loss. Courts in different jurisdictions have applied the principles
and notions of proximate cause, adequate causation, foreseeability and remoteness of the damage.
This is a highly discretionary and unpredictable branch of law. Different jurisdictions have applied
these concepts with different results. It may be mentioned that the test of proximity seems to have
been gradually eased in modern tort law. Developments have moved from strict condicio sine qua
non theory over the foreseeability (‘adequacy’) test to a less stringent causation test requiring only
the “reasonable imputation” of damage” (International Law Commission 2006b).
Thus, a particular violation of economic, social and cultural rights may be attributed to the conduct of
one State, even if other, intervening causes, or the conduct adopted by a number of other States,
have also played a role in the violation. The problem nevertheless remains that alleging the
responsibility of one State in a situation for which other States also bear some responsibility
(potentially to an even larger degree) may be politically difficult to justify. This is especially the case
where the argument made is that the State in question should have done more to support the
realization of economic and social rights in another State, for instance by increasing the level of
development aid or by facilitating access of that State to international finance. It is one thing for a
State to be found responsible for implementing trade policies that destroy local producers' ability to
compete on their own domestic markets; it is quite another to seek to engage the responsibility of
that State for not ensuring that the multilateral trading system works for the benefit of the State
which, due to its poor trade balance, finds it difficult to make progress on development indicators.
3. Human rights and international organisations: international financial institutions
In the post‐World War II era, economic globalization has proceeded to a significant extent through
international organizations to which certain competences have been transferred to guide the
development efforts of poor countries, or to help them access financial support on international
markets. But international human rights law has largely developed through treaties that States ‐‐
and, almost without exception, States alone ‐‐ may accede to, and that are not addressed to
international organizations. We encounter, thus, a third difficulty in addressing the relationship
between economic and social rights and economic globalization.
Of course, human rights treaties binding on States parties are not the sole source of international
human rights law. However, we again find a gap between the answers that may be found in theory
and the level of practical implementation. As subjects of international law, international
organizations are in principle bound by "any obligations incumbent upon them under general rules of
international law, under their constitutions or under international agreements to which they are
parties" (International Court of Justice 1980: para. 37). Undoubtedly, human rights are part of
general international law. They are recognized in customary international law. They also may be seen
as part of the general principles of law that are a source of international law, as the vast majority of
national constitutions provide a list of basic rights often directly inspired by the Universal Declaration
of Human Rights, or have themselves served as a source of inspiration to the Declaration (De
Schutter 2012). Yet, the potential avenues to allege the responsibility of international organizations,
including in particular international financial institutions, for violations of economic and social rights,
remain very limited (De Schutter 2010b). Unless international organizations acknowledge that they
are bound to comply with human rights in the exercise of the powers attributed to them, and
29
CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction
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