A group of leading human rights experts recently launched an initiative at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law in Lund to radically change the way human rights are monitored.
Under all human rights indices there are few, if any, countries with a better human rights record than Sweden. But how well does Sweden protect human rights when it operates outside its borders? How well do all states protect human rights?
The traditional approach to addressing this issue is to focus solely on state domestic practice, says Mark Gibney, the Raoul Wallenberg Visiting Professor of Human Rights and Humanitarian Law. The traditional questions include whether the state carries out torture or summary executions against its own citizens, or whether it educate its young and provides health care to the sick and infirm within its population.
“But this domestic performance provides an incomplete picture of the degree to which states follow international human rights standards,” says Gibney. “The dominant thinking that each state’s human rights obligations begin and end at their own territorial borders represents a complete misreading of international human rights law.”
Consider the extraordinary renditions that took place after September 11, 2001. Under these practices, states purposely used the crossing of national borders – and strategically employed foreign security personnel – as a way of evading state responsibility for kidnapping, torture and the summary execution of suspected terrorists. In that way, international law was continually running behind actual state practice.
“The main reason for this is the dominant thinking that a state’s human rights obligations only apply within its own territorial borders,” Gibney says.
As globalisation proceeds apace, states operate outside their own territorial borders almost as a matter of course. And so often when they do, their actions will have serious human rights consequences – both positive and negative – on individuals living in other lands.
Take the example of arms sales in Sweden. On a per capita basis, Sweden is one of the largest arms dealers in the world. But whom are these arms being sold to? Are the recipients of Swedish-made weapons countries that generally respect human rights, or are they states that repeatedly violate human rights – and if the latter, to what extent are Swedish weapons being used to carry out such abuses?
A second example involves the overseas operations of multinational corporations. Under the traditional “territorial” approach, it is the “host” state that is left to regulate the operations of foreign multinational corporations. But what if the “host” state is unable or unwilling to do so and, as a result, human rights violations ensue, whether it comes in the form of employing underage children, massive environmental degradation, or death or injury due to the absence of any meaningful health and safety standards?
“To date, the ‘answer’ given by international law is that the ‘home’ state has no legal obligation to regulate the extraterritorial operations of its own corporations, although it may do so if it chooses,” says Wouter Vandenhole, the UNICEF Chair in Children’s Rights at the University of Antwerp. “Unfortunately, and perhaps not surprisingly, countries have shown little inclination to do so.”
Gibney, and this team of researchers from universities throughout Europe, say it has become crystal clear that an extraterritorial approach to international human rights law is more relevant than ever because states and other actors are increasingly acting beyond their territory as globalisation intensifies.
Now a group of researchers has launched a new initiative, the results of which, a report called the Extraterritorial Obligations Report, will be made public in 2016. This report is more than just cataloguing any potential human rights abuses. Instead, it will inform the UN treaty bodies, governments and the citizens of each state to help them understand how their actions have potentially negative impacts on the human rights of people outside of their territorial borders.
It will provide a comparative analysis of a multitude of countries based on five thematic issues and detail how they impact human rights: trade and investment, corporations, migration, peace and security, and development cooperation. The researchers consider these five areas to be the most obvious manifestations of states acting extraterritorially and having human rights consequences in other countries.
“A government’s human rights record should no longer be solely judged on its record in the domestic realm,” says Sigrun Skogly of Lancaster University Law School. “Rather, in an increasingly globalised world, we need mechanisms to analyse whether governments are providing human rights protections to all, regardless of where they are located.”