which makes a radical cultural change within the Bank difficult to conceive (Sarfaty 2013). In 1995,
Daniel Bradlow and Claudio Grossmann wrote to encourage the IFIs to "reinterpret their charters to
clarify what issues are considered "domestic" political issues, and therefore outside the scope of
their mandate. While this prohibition has a continuing validity in excluding undue influences, it
should not prevent the IFIs and the multilateral development bank from incorporating all matters
governed by international law, such as human rights and the protection of the environment, into
their operations. Such a reinterpretation would facilitate efforts to promote a development process
that is governed by the rule of law" (Bradlow and Grossmann 1995: 439). The call was valid then; it
remains so today.
Beyond IFIs, the question may be addressed with respect to all international agencies that are key
actors in the process of globalization: must such agencies do more to contribute to the fulfillment of
human rights, by taking human rights into account at the risk of betraying the mandate for which
they were established? There is no simple or immediate way out of this dilemma. It may however be
useful to distinguish between the negative obligations (to abstain from violations) and the positive
obligations (to protect and fulfil human rights) which are traditionally imposed on the parties to
international human rights treaties. Whereas, in order to be fulfilled, positive obligations require that
the addressee possess the required competences to do so, negative obligations merely impose limits
on how existing competences may be exercised. The implication is that, by requiring from an
international organization that it complies with human rights in the course of its activities, we are not
asking it to expand its powers beyond those which it has been attributed by its member States. We
are not even necessarily asking that it exercise the powers it has been attributed with a view to
ensuring the protection and promotion of human rights. We ask, rather, than when it takes action,
and insofar as it takes action, it should ensure that it will not negatively impact upon human rights. In
that sense, the danger of ‘creeping competences’ usually associated with the imposition of human
rights responsibilities on international organizations should not be exaggerated: while such a danger
cannot be ignored, nor should it be considered an unavoidable consequence.
4. The extraterritorial human rights obligations of States
We encounter a fourth difficulty in seeking to ensure that economic globalization be shaped in
accordance with the requirements of human rights. It is that, traditionally, the human rights
obligations of States only extend to the situations that fall under their "jurisdiction". Of course, this
notion should not be equated with the national territory of the State, over which it exercises
territorial sovereignty: human rights bodies have interpreted the notion of "jurisdiction", insofar as it
is a condition for the human rights obligations of the State to come into play, as referring to the
situations over which the States exercises a certain degree of de facto control, whether or not in
accordance with international law. But, in contrast to the primarily negative duties to abstain from
interfering with the enjoyment of the rights of the individual, the duties to fulfil economic, social and
cultural rights, may require the exercise of powers that are those of the territorial State or of an
occupying State acting as the de facto territorial sovereign, which results in limiting the range of
situations to which economic and social rights can be invoked.
Indeed, this is probably why, in its 2004 Advisory Opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice
remarks that, while the International Covenant on Civil and Political Rights, "is applicable in respect
of acts done by a State in the exercise of its jurisdiction outside its own territory" (International Court
of Justice 2004: para. 111), the situation may be slightly different as regards the International
Covenant on Economic, Social and Cultural Rights : the Court notes that this instrument "contains no
provision on its scope of application. This may be explicable by the fact that this Covenant guarantees
rights which are essentially territorial" (International Court of Justice 2004: para. 112 (emphasis
added)). The Court does acknowledge that "it is not to be excluded that it applies both to territories
31
CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction
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