1. Human Rights Obligations to Cooperate Internationally for Development
10-11 November 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?

2. 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

3. 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

4. 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

5. 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?

6. 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

7. 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

8. 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)

9. 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

10. 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?

11. 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?

12. 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