Human Rights Obligations to Cooperate Internationally for Development 10-11 November 2010 - Åbo Human Rights Obligations to Cooperate Internationally for Development Wouter Vandenhole How many of you involved in litigation for development? Particular cases? How many of you familiar with litigation for development? Particular cases?

Case 1: user fees State party to ICESCR introduces user fees for primary health care Exemptions for low-income groups do not work in practice Attendance of primary health care centres drops with 50%; huge impact on health situation User fees introduced on ‘suggestion’ of bilateral and multilateral donors

Case 2: EU agricultural subsidies Agricultural subsidies that allow for export of agricultural products at dumping price (below production costs) Local farmers/producers deprived of their livelihoods

Case 3: mining Company of state A engages in mining exploration and exploitation in state B State B very attractive conditions: tax-free – free use of water supply Local, indigenous communities deprived of land and water

Discussion Is this a human rights issue? What human rights obligation(s) is/are at stake? Identification of duty-bearer(s) under current legal human rights regime? How satisfactory is the current regime?

Extra-/transnational obligations: UN Committees CESCR: legal obligation to engage in international assistance and cooperation for those States in position to do so – membership international organisations * fulfil: ~ core obligation – 0.7 % GDP CRC Committee: developing states to look for international assistance and cooperation – all states: contribute to global implementation of CRC through international cooperation ° shared responsibility some specific legal obligations to fulfil: Allocation of 0.7 % of GDP to development assistance Adoption of a rights-based approach to development cooperation: CRC framework for development assistance Mainstreaming of children’s rights in development cooperation Earmark proportion for implementation of children’s rights

Human rights obligations beyond national border? Extraterritorial-external-international: starting point: territoriality ~ (domestic) state Third (party) state Transboundary: °environmental law Transnational: variety of actors: foreign states – intergovernmental organizations – companies - … Global

Reluctance Donor states: charity, no legal obligation CESCR: first OP-ICESCR CRC Committee: no politicization Cf. Day of General Discussion on Resources for the Rights of the Child – Responsibility of States, Geneva, September 2007: ‘Some mention was also made on international cooperation, especially with respect to the importance of raising awareness among States parties with respect to their obligations under article 4, since there appeared to be a tendency, in some sectors, to believe that external support should be the main source of resource for the implementation of economic, social and cultural rights.’ (para. 15 Report)

Current processes ETO Consortium Civil society organisations and academia Towards Maastricht Principles on ETOs (Sept 2011) GLOTHRO (Research Networking Programme: Globalisation and Transnational Human Rights Obligations – funded by European Science Foundation): European-wide academic cooperation

Legal recognition - foundation Legal basis: Treaties: ICESCR: ‘international cooperation and assistance’ - no reference to jurisdiction CRC: international assistance and cooperation CRPD: stand-alone article on international cooperation Customary law? Foundations: global justice – cosmopolitanism – de facto impact/influence?

Attribution and distribution of responsibility control/impact/influence/causation? de iure (‘jurisdiction’) or de facto? Distribution: common, but differentiated? domestic state: primary other actors: complementary Simultaneous/parallel obligations to respect and to protect; same scope? subsidiary obligations to fulfil * scope: commitments; degree of influence/impact/control?; ability; need?

Towards the future Scope: general and undifferentiated legal obligation to cooperate internationally for development vs legal obligation to provide development assistance commensurate to need (~ foundation) Beyond statist bias Beyond legal concepts and principles Accountability