2. Duty bearers and right bearers
A comparison of human rights regimes and
the right to development as concerns the determination of duty bearers reveals that the latter goes further because of its extraterritorial applicability and,
through this dimension, also with respect to private
actors.
The uncontested extraterritorial reach of human
rights treaties is rather limited: the International Covenant on Civil and Political Rights presupposes that
a person is “within [the] territory and subject to [the]
jurisdiction” of a State to engage that State’s responsibility. Although the Human Rights Committee does
not understand “jurisdiction” as being limited to the
State’s own territory, it requires a physical contact of
a State (through the actions of its agents) with the territory of another State to trigger the duty to respect, protect and fulfil the rights guaranteed.22 The provisions
of the International Covenant on Economic, Social
and Cultural Rights concerning international cooperation, in particular article 2 (1), do not create an
enforceable claim to cooperation for one State against
others.23 In contrast, the right to development as recognized by the Vienna Declaration and Programme
of Action contains a recommendation addressed to
third States to cooperate to the best of their abilities
and available resources. This recommendation neither
permits less developed States to claim financial aid,
nor does it give third States carte blanche to deny
assistance. Instead, it compels third States and the
international community to justify a denial of support.
In the same vein, the international community would
21 Other yardsticks are the realization of fundamental human rights and the
fulfilment of the State’s “responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity” (General
Assembly resolution 60/1, para. 138). 22 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd ed. (Kehl am Rhein, Germany, N.P. Engel, 2005), article 2,
marginal note 30 (with further references). 23 Although the Committee on Economic, Social and Cultural Rights assumes
that “international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States”,
it rightly does not speak of a corresponding claims-right by other States
(general comment
No. 3 (1990), para. 14), as the Covenant does not set
up a structure of reciprocal rights and duties between States. In contrast,
an individual right is theoretically conceivable, but does not give rise to a
claim to a specific amount of only financial aid.
be obliged to justify itself if it did not step in to support development by eliminating the worst obstacles
to development in cases where States were extremely
weak or failing. This aspect of a legally binding right
to development would link with the preventive dimension of the responsibility to protect as recognized
by the international community in the World Summit
Outcome adopted in 2005.24 It would help shift the
(wrong) focus that scholars and practitioners apply
when discussing the responsibility to protect from military measures (responsibility to react) to development
(responsibility to prevent).
25
The second problem of duty bearers under existing human rights treaties arises from the fact that
individuals are not legally bound to respect, protect
and fulfil human rights. Human rights treaties only
extend to individuals indirectly: the obligation to
protect requires the State to take measures for the
protection of individual rights holders from violations of their rights by other individuals. This legal
approach becomes problematic when States face
powerful private actors. Under the right to water,
for example, States may privatize the water supply
infrastructure, but must ensure that private contractors provide access to the resources on a non-discriminatory basis and through affordable prices.26
A weak State, however, may be unable to control a
large, transnational, private contractor effectively, let
alone sanction violations. Or it may be that the State
authorities are not willing to take action because the
office holders receive personal profits from the corporation’s activities.
In this situation, the external dimension of the
right to development is highly useful insofar as it
obliges the home State of a transnational corporation
24 General Assembly resolution 60/1, para. 139: “The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance
with Chapters VI and VIII of the Charter, to help to protect populations
from genocide, war crimes, ethnic cleansing and crimes against humanity
.... We also intend to commit ourselves, as necessary and appropriate, to
helping States build capacity to protect their populations from genocide,
war crimes, ethnic cleansing and crimes against humanity and to assisting
those which are under stress before crises and conflicts break out.” 25 These dimensions of the responsibility to protect were developed by the
International Commission on Intervention and State Sovereignty set up by
the Government of Canada.
As a conceptual approach, they are helpful
for understanding the responsibility to protect, even if they were not expressly adopted by the World Summit. They can be considered as an emanation of the principle of proportionality and the prohibition of intervention
under public international law. See The Responsibility to Protect: Report of
the International Commission on Intervention and State Sovereignty (Ottawa, International Development Research Centre, December 2001), available at http://responsibilitytoprotect.org/ICISS%20Report.pdf. 26 For details, see Committee on Economic, Social and Cultural Rights, general comment No. 15 (2002) on the right to water. See also Eibe Riedel,
“The human right to water”, in Weltinnenrecht: Liber Amicorum Jost Delbrück, Klaus Dicke and others, eds. (Berlin, Duncker and Humblot, 2005),
p. 585, and Beate Rudolf, “Menschenrecht Wasser–Herleitung, Inhalt,
Bedeutung und Probleme”, in Menschenrecht Wasser, Beate Rudolf, ed.
(Frankfurt, Peter Lang, 2007), p. 15.
The role of international law | PART FOUR 455
to help realize the right to development by controlling
that corporation.
However, as has been shown above,
this extraterritorial dimension is only contained in a
recommendation to cooperate, and hence it gives rise
to a mere obligation to justify non-compliance. Under
this “comply-or-explain” approach, the home State
of a transnational corporation (TNC) is not under an
absolute obligation to prevent any human rights violations by the corporation that infringe upon the right to
development. It is, however, compelled to provide for
appropriate sanctions mechanisms, or explain their
absence, in case the State in which the activities of the
TNC have been incriminated is not able or not willing
to ensure the right to development. Such instruments
may be criminal prosecution for corruption abroad
or civil remedies for foreign claimants (individuals or
groups). For States with functioning independent judiciaries, it would seem difficult to defend inaction in
these areas. At the same time, the cooperative character of the right to development requires States not
to take these measures if the host State of the TNC is
capable of taking them itself.
