Abstract
If human rights are “inalienable rights of all members of the human family”, as is enshrined in the Universal Declaration of Human Rights, then no government should be allowed to deny people of them. When some governments fail to realize them for the people under their jurisdiction, the international community has a responsibility to step in.This extra-territorial effect of human rights was not included in the original conception of human rights. It is of recent date, and, in practice, limited to interventions to end severe violations of civil and political human rights. For economic, social and cultural human rights, extra-territorial obligations are still contested.In this paper, we elaborate three contentions: first, that the realization of social human rights requires the acceptance of and compliance with extra-territorial obligations; second, that compliance with extra-territorial obligations would help transform the international assistance paradigm from charity into legal obligation; and third, that for global constitutionalism to succeed in improving the fairness of the international legal order requires acceptance of the indivisibility of human rights.
Highlights
If human rights are “inalienable rights of all members of the human family”, as enshrined in the Universal Declaration of Human Rights (UDHR) [1], no government should be allowed to deny people of them – whether the denial is due to the inability or the unwillingness of some governments to realize all human rights for all people under their jurisdiction
We mean that the international community set human rights standards for all countries, but relied on activism at the national level claiming their realization, and on governments to fulfil them at the national level
While it is difficult to argue against the idea that the international community ought to take action when governments fail “to protect their own populations from the four crimes of genocide, war crimes, ethnic cleansing, and crimes against humanity” – which most often means governments involved in genocide, war crimes, ethnic cleansing, and crimes against humanity – we find the present narrow scope of the ‘third wave’ of human rights discourse deeply problematic
Summary
If human rights are “inalienable rights of all members of the human family”, as enshrined in the Universal Declaration of Human Rights (UDHR) [1], no government should be allowed to deny people of them – whether the denial is due to the inability or the unwillingness of some governments to realize all human rights for all people under their jurisdiction. ODA that is not based on an acknowledged ETO creates a donor and recipient relationship, rather than a duty-bearer and rights-holder relationship As the former UN Special Rapporteur on the Right to Health expressed it: “if there is no legal obligation underpinning the human rights responsibility of international assistance and cooperation, inescapably all international assistance and cooperation is based fundamentally upon charity. If the “separation wall” between political and social human rights has been deconstructed in human rights discourse at the national level [23], it still stands firmly when it comes to extraterritorial obligations: R2P is accepted by the UN General Assembly, ETOs are not, and most high income countries reject them [11].
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