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Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights

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Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights HUMAN RIGHTS QUARTERLY Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights Olivier De Schutter,a Asbjørn Eide,b Ashfaq Khalfan,c Marcos Orellana,d Margot Salomon,e & Ian Seidermanf On 28 September 2011, at a gathering convened by Maastricht University and the International Commission of Jurists, a group of experts in international law and human rights adopted the Maastricht Principles on Extraterritorial Obliga- tions of States in the area of Economic, Social and Cultural Rights. The experts came from universities and organizations located in all regions of the world and included current and former members of international human rights treaty bodies, regional human rights bodies, and former and current Special Rapporteurs of the United Nations Human Rights Council. a Olivier De Schutter is the United Nations Special Rapporteur on the right to food and profes- sor at the University of Louvain, visiting professor at Columbia University. b Asbjørn Eide, dr. juris h.c., is former Director and presently Professor Emeritus at the Nor- wegian Center for Human Rights at the University of Oslo. c Ashfaq Khalfan is an Economic, Social and Cultural Rights Policy Coordinator at Amnesty International’s International Secretariat focusing on legal enforcement. d Marcos A. Orellana (LL.M., S.J.D.) is an attorney from Chile and Director of the Center for International Environmental Law’s (CIEL) Human Rights and Environment Program. e Margot E. Salomon (B.A., M.A., LL.M., Ph.D.) is Senior Lecturer at the Centre for the Study of Human Rights and Law Department, London School of Economics and Political Science. f Ian D. Seiderman (B.A., J.D., LL.M., Ph.D.), is Legal and Policy Director of the International Commission of Jurists. The present Commentary was written by the listed authors in their individual capacity as members of the Drafting Group who facilitated the elaboration of the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights. The institutions listed with the names of the authors are for the purpose of identification rather than endorsement of the content of the Commentary by these institutions. Human Rights Quarterly 34 (2012) 1084–1169 © 2012 by The Johns Hopkins University Press 2012 Commentary to the Maastricht Principles 1085 Based on legal research conducted over a period of more than a decade, the undersigned experts adopted the following principles: Preamble The human rights of individuals, groups and peoples are affected by and dependent on the extraterritorial acts and omissions of States. The advent of economic globalization in particular, has meant that States and other global actors exert considerable influence on the realization of economic, social and cultural rights across the world. Despite decades of growing global wealth, poverty remains pervasive and socio- economic and gender inequalities endure across the world. Moreover, individuals and communities face the continuing deprivation and denial of access to es- sential lands, resources, goods and services by State and non-State actors alike. Countless individuals are subsequently unable to enjoy their economic, social and cultural rights, including the rights to work and decent working conditions, social security and care, an adequate standard of living, food, housing, water, sanitation, health, education and participation in cultural life. States have recognized that everyone is entitled to a social and international order in which human rights can be fully realized and have undertaken to pur- sue joint and separate action to achieve universal respect for, and observance of, human rights for all. In the Vienna Declaration and Programme of Action, all States affirmed the importance of an international order based on the principles of equal rights and self-determination of peoples, peace, democracy, justice, equality, rule of law, pluralism, development, better standards of living and solidarity. In pursuit of these objectives, States reaffirmed in the Millennium Declaration their collective responsibility to uphold these principles at the global level. States have repeatedly committed themselves to realizing the economic, social and cultural rights of everyone. This solemn commitment is captured in the Charter of the United Nations, and is found in the Universal Declaration on Human Rights and numerous international treaties, such as the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabili- ties, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, as well as in the International Covenant on Civil and Political Rights and many regional human rights instruments. 1086 HUMAN RIGHTS QUARTERLY Vol. 34 These commitments include the obligation to realize progressively economic, social and cultural rights given the maximum resources available to States, when acting individually and through international assistance and cooperation, and to guarantee these rights without discrimination on the basis of race, colour, gender, sexual orientation and gender identity, language, religion, political or other opinion, national or social origin, property, birth, disability or other pro- hibited grounds in international law. Drawn from international law, these principles aim to clarify the content of extraterritorial State obligations to realize economic, social and cultural rights with a view to advancing and giving full effect to the object of the Charter of the United Nations and international human rights. These Principles complement and build on the Limburg Principles on the Imple- mentation of the International Covenant on Economic, Social and Cultural Rights (1986) and on the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997).1 I. GENERAL PRINCIPLES 1. All human beings everywhere are born free and equal in dignity and are entitled without discrimination to human rights and freedoms. Commentary (1) Principle 1 restates Article 1 of the Universal Declaration of Human Rights (UDHR), which affirms that “[a]ll human beings are born free and equal in dignity and rights.”2 The core precept that rights inhere in the hu- man person has been universally and authoritatively reaffirmed in the Vienna Declaration and Programme of Action, endorsed by all states at the 1993 World Conference on Human Rights, which states that “[h]uman rights and fundamental freedoms are the birthright of all human beings.”3 1. See generally Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, adopted 28 Sept. 1985, U.N. ESCOR, Comm’n on Hum. Rts., 41st Sess.U.N. Doc. E/CN.4/1985/4, Annex (1985) [hereinafter Siracusa Principles]; The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, adopted 8 Jan. 1987, U.N. ESCOR, Comm’n on Hum. Rts., 43d Sess., Agenda Item 8, U.N. Doc. E/CN.4/1987/17/, Annex (1987) [hereinafter The Limburg Principles]; The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 20 HUM. RTS. Q. 459, 691–704 (1998) [hereinafter Maastricht Guidelines]. 2. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess, art. 1, U.N. Doc. A/RES/3/217A (1948) [hereinafter UDHR]. 3. Vienna Declaration and Programme of Action, adopted 25 June 1993, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., art. I, ¶ 1, U.N. Doc. A/CONF.157/23 (1993), reprinted in 32 I.L.M. 1661 (1993) [hereinafter Vienna Declaration]. 2012 Commentary to the Maastricht Principles 1087 (2) Article 2 of the Universal Declaration of Human Rights establishes that “[e]veryone is entitled to rights and freedoms . without distinction of any kind . .” The principle that rights are subject to enjoyment without dis- crimination or distinction is contained in Article 7 of the Declaration itself, as well as in a number of the principal human rights treaties.4 2. States must at all times observe the principles of non- discrimination, equality, including gender equality, transparency and accountability. Commentary (1) Principle 2 reiterates a number of principles that run throughout the corpus of international human rights law and standards. (2) The principle of non-discrimination under international human rights law relates both to the enjoyment of rights, as expressed in Principle 1, and as a self-standing principle.5 Article 7 of the Universal Declaration of Human Rights recognizes both the principle of equality before the law and the right to equal protection under the law. Article 3 of the International Covenant on Economic, Social and Cultural Rights and Article 3 of the International Covenant on Civil and Political Rights obligate states “to ensure the equal rights of men and women to the enjoyment of all . rights” set forth in 4. International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, G.A. Res. 2106 (XX), U.N. GAOR, 20th Sess., art. 2(1), 660 U.N.T.S. 195 (entered into force 4 Jan. 1969), reprinted in 5 I.L.M. 352 (1966) [hereinafter CERD]; International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., art. 2(2), U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976) [hereinafter ICESCR]; Conven- tion on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., art. 2(1), U.N. Doc. A/44/49 (1989), 1577 U.N.T.S. 3 (entered into force 2 Sept. 1990); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted 18 Dec.
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