Economic, Social and Cultural Rights of
Civilians in Contexts of Armed Conflict
and Occupation: an International Law
Perspective
Chiara Altafin
Thesis submitted for assessment with a view to obtaining
the degree of Doctor of Laws of the European University Institute Florence, March 2015
European University Institute
Department of Law
Economic, Social and Cultural Rights of Civilians in Contexts of
Armed Conflict and Occupation: an International Law
Perspective
Chiara Altafin
Thesis submitted for assessment with a view to obtaining
the degree of Doctor of Laws of the European University Institute Examining Board
Prof. Francesco Francioni, European University Institute Prof. Martin Scheinin, European University Institute Prof. Natalino Ronzitti, LUISS University of Rome Prof. Nigel White, University of Nottingham
© Chiara Altafin, 2015
No part of this thesis may be copied, reproduced or transmitted without prior permission of the author
Acknowledgments
The accomplishment of this thesis would certainly not have been possible without the insightful comments, advice and support of outstanding professors and a number of good friends.
I am indebted to my supervisor, Professor Francesco Francioni, whose renowned expertise coupled with a profound level of humanity have invaluably contributed to the completion of this work. His guidance and insightful comments have offered me a unique opportunity for discussion of the issues dealt with in my project, deepening and refining my proposals. I am additionally sincerely grateful to him for our collaboration at the Department of Political Science of LUISS Guido Carli in Rome.
I am also grateful to Professor Martin Scheinin, Professor Natalino Ronzitti and Professor Nigel White for agreeing to sit on the jury for my Ph.D defence and for providing valuable comments on this study. I would particularly like to thank Professor Ronzitti for his constructive criticism that enriched my research; I am greatly indebted to him for all the professional opportunities he has presented to me over the years. Cherished support was also provided by Professor Marina Mancini, who gave me much confidence in the study of international criminal law especially in view of our long collaboration at the LUISS Department of Law.
I am also grateful to EUI Professors Marise Cremona, Bruno De Witte and Nehal Bhuta. I equally wish to thank the EUI Academy of European Law for having run relevant teaching programmes, conferences and symposia during which I met several people who gave me expert advise on crucial aspects of my research; in the same vein, my participation in its recent project on
Regulating the Privatization of ‘War’ was a good chance. I also thank the members of the EUI Working
Groups on International Law, International Human Rights Law and International Criminal Law. In addition, I wish to thank the Center for International and Comparative Law at the University of Michigan Law School, where I spent a few months as a visiting researcher, providing me with excellent opportunities to test my assumptions and arguments and to develop new ones; in particular I wish to thank Professor Steven Ratner, Professor Bruno Simma and Professor Christopher McCrudden.
I owe my thanks also to Annick Bulckaen at the Law Department of the EUI for her generous help in terms of administrative requirements and many more matters beyond. Similarly, thanks are owed to Machteld Nijsten and Ruth Gbiki for their kind assistance at the EUI Library which greatly facilitated the path for this research.
Moments of discouragement and fatigue would never have been overcome without the unconditional support of my family and friends. I am particularly indebted to my parents, Lorena and Gianfranco, for their warm encouragement and loving help in the past years. A very special thanks goes out to Elena and Filippo as well as to a number of friends, particularly Lara, Arianna, Valentina, Tiago, Philippe, Caroline, Keiva, Karolina, Basia, Matthew, Luca, Carola, Federica, Barbara, Mara, Mery, Robin, Camille, François, Janine, Anna, Vicky, Laura, Adriana, George, Daniele, Rita, Katerina, Spiros, Benedita, James, Eliska, Berenika, Virginia, Silvia, Giovanni, Valerio, Donato, Michela, Simona, Stefano, Héctor, Caro, Céline, Susan and Simone.
Abstract
This dissertation examines the role, function and adequacy of public international law to deal with civilians’ access to, enjoyment and progressive realisation of economic, social and cultural rights (ESC rights) as controversially affected during and in the aftermath of contemporary scenarios of armed conflict, other situations of massive violence, and contexts of occupied territories. Over the course of the past three decades the nature of armed conflicts, their causes and consequences have undergone major changes. Similarly, current-day military occupations have assumed polymorphic features, including forms of prolonged occupation or forms of interim administrations to carry out “regime change” in the occupied territory.
It is argued that relevant implications against civilians’ vulnerability may derive from a more integrated and holistic approach of international law to issues pertaining to the respect, protection, and fulfilment of ESC rights. In particular, the position taken is that certain branches of international law have progressively come to represent valuable legal tools enabling to delineate and clarify the core substance and uncertain boundaries of outstanding connections emerging between civilians’ ESC rights and conflict-affected or occupation-related settings.
The evolution of the international legal framework invites, indeed, a reconsideration of the normative responses advanced under international humanitarian law in tandem with the functional development of other applicable international legal regimes, such as international criminal law and international human rights law. Through an extensive review of legal instruments and practice, this study investigates the following: which international norms have progressively supported developments in the normative content of ESC rights and favour a more precise understanding of the nature and scope of ensuing obligations to be addressed for the imperative of civilian protection; which international norms have tackled questions of accountability for their violations as committed during the conduct of hostilities and its aftermath or the administration of occupied territories; which international norms have also advanced the availability of remedies to ensure the basic right to effective remedy and reparation for the violations concerned. Accordingly, emerging trends alongside relevant gaps, weaknesses and limits in the legal branches concerned are addressed by suggesting a number of conclusive basic remarks.
TABLE OF CONTENTS
Acknowledgments ... 5
Abstract ... 7
List of Main Abbreviations ... 14
Introduction ... 17
1. The context of the study ... 17
2. The scope of the study and the significance of the research topic ... 20
3. Defining the approach to the research focus ... 22
4. Methodology ... 29
5. Roadmap ... 30
Chapter I: Civilian immunity under the law on the conduct of hostilities and ESC rights ... 33
1. Introduction ... 33
2. The binary qualification framework in the twenty-first century ... 35
3. The evolution of the IHL protection of civilian persons and objects ... 38
4. The definition of civilians under AP I and AP II ... 44
5. Civilian objects and the definition of military objective ... 47
5.1. Some remarks on military objectives under AP I ... 50
5.1.a. The condition of effective contribution to the enemy’s military action ... 52
5.1.b. The negative presumption in favour of immunity from armed attack ... 56
5.1.c. The condition of definite military advantage ... 57
5.1.d. Dual-use objects ... 59
5.2. Civilian objects under AP II ... 61
6. The scope of civilian immunity against the effects of hostilities ... 62
6.1. The prohibitions of direct and deliberate attacks ... 63
6.2. The prohibition of indiscriminate attacks ... 78
6.2.a. Some remarks on the principle of proportionality ... 83
6.2.a.i. The issue of long-term and indirect effects of attacks ... 89
6.3. The obligation to adopt precautionary measures in attack and in defence ... 96
6.4. Prohibitions or limitations on use and attacks on certain objects ... 104
6.5. Cultural property ... 107
6.5.a. Remarks on the scope of the protective regime ... 109
6.5.b. Remarks on IHL rules regulating the targeting of cultural property ... 120
6.5.c. Remarks on the criminalisation of acts against cultural property ... 125
6.6. Education ... 130
6.6.a. Preliminary remarks on the protection of the right to education ... 133
6.6.b. Remarks on the protection of educational facilities ... 136
6.6.c. Remarks on the criminalisation of education-related violations ... 141
6.6.d. Remarks on the international law potential in deterring attacks ... 144
6.7. Objects indispensable to the survival of the civilian population ... 147
7. The prohibition of starvation in relation to siege and blockade ... 156
7.1. Siege ... 157
7.2. Blockade ... 160
7.2.a. An atypical case of blockade: the connection with occupation and military operations ... 163
Chapter II: International cooperation and humanitarian assistance to civilians ... 175
Chapter III: The “welfare of the civilian population” under the laws of
occupationand ESC rights ... 184
1. Introduction ... 184
2. The protective purpose of the law of occupation and its scope for ESC rights ... 186
2.1. The protective purpose as an intrinsic function of the existing regime ... 186
2.1.a. The Hague Regulations ... 187
2.1.b. The Forth Geneva Convention ... 189
2.1.c. Additional Protocol I ... 192
2.1.d. Basic remarks ... 192
2.2. The protective purpose as an evolving function of the challenged regime ... 193
2.2.a. The rare, rejected or failed application of the laws of occupation ... 194
2.2.b. The (alleged) inadequacy of the conservationist principle ... 196
2.2.c. Substantial developments of international law ... 198
2.2.c.i. The principle of self-determination of peoples ... 199
2.2.c.ii. Modern international human rights law ... 201
2.2.d. The legal relevance of the temporal dimension of the laws of occupation ... 206
3. The prohibition to change the legal status of the occupied territory ... 218
4. The obligation to restore and ensure public order and life in occupied territory ... 222
4.1. The meaning of the expression “vie publique” ... 223
4.2. Restoring and ensuring civil life: nature and implications for ESC rights ... 227
4.2.1. The occupier’s legislative competence and the context ... 229
4.2.1.a. Control over the territory ... 229
4.2.1.b. Resources available in the occupied territory ... 229
4.2.1.c. Time period of occupation ... 230
5. The obligation to respect pre-existing legal system and admissible exceptions ... 235
5.1. The meaning of “les lois en viguer” and “empêchement absolu” ... 236
5.1.a. Case study: the planning and building authority in Area C of the West Bank ... 239
5.2. The necessity exceptions ... 243
5.2.1. Necessity on security grounds ... 243
5.2.2. Necessity for maintaining the orderly government of the occupied territory ... 244
5.2.3. Necessity for fulfilling the obligations under the Geneva Conventions ... 248
5.3. Necessity for implementing international human rights law ... 250
6. The seizure and use of enemy property ... 258
6.1. The prohibition on seizure and use of public property ... 258
6.1.1. Movable State property ... 259
6.1.2. Immovable State property, particularly natural resources ... 261
6.1.2.a. Case study: the quarrying activity in the occupied territory ... 267
7. Concluding Remarks ... 276
Chapter IV: Civilians’ protection in the area of ESC rights under international human rights law ... 278
1. Introduction ... 278
2. Theoretical and practical grounds for reliance on human rights law ... 278
2.a. Elaborating upon legal preservation of civilians’ human dignity ... 278
2.b. Approaching coherently the integral and holistic vision of human rights ... 281
2.c. Taking seriously the evolution of the international protection of ESC rights ... 285
2.c.i. Reflecting on the nature and typologies of State obligations ... 296
2.c.ii. Focusing on the obligations stemming from the ICESCR ... 299
2.d. Inquiring as to the relationship with other branches of international law ... 304
3. The applicability of human rights treaties on ESC rights ... 305
3.1. Preliminary consideration on the effects of armed conflicts on treaties ... 306
3.2. The relevance of ad hoc derogation clauses ... 309
3.2.a. The European Convention on Human Rights ... 310
3.2.b. The American Convention on Human Rights ... 312
3.2.d. The International Covenant of Civil and Political Rights ... 313
3.2.e. Overall preliminary remarks ... 316
3.3. Derogability from ESC rights under treaties without ad hoc derogation clause ... 320
3.3.1. The ICESCR and the debate on derogability ... 322
3.3.2. Derogability from ESC rights in international and regional jurisprudence ... 324
3.3.2.a. The Committee on Economic, Social and Cultural Rights ... 324
3.3.2.b. The International Court of Justice ... 327
3.3.2.c. The Committee on the Rights of the Child ... 329
3.3.2.d. The Committee on the Elimination of Discrimination against Women ... 331
3.3.2.e. The African Commission on Human and Peoples’ Rights ... 334
3.3.3. Additional remarks in the light of general international law ... 339
3.4. The relevance of ad hoc limitation clauses ... 341
3.5. The ICESCR’s general limitation clause and its implications in conflict-affected situations ... 343
3.5.1. The scope of admissible limitations on ESC rights ... 344
3.5.1.a. Article 4 as a protective clause of ESC rights ... 345
3.5.1.b. Article 4 as a clause intrinsically linked to “progressive realisation” ... 346
3.5.1.c. Article 4 as a clause not appealing to “public order” ... 347
3.5.1.d. The significance of “the general welfare” under Article 4 ... 349
3.5.1.e. Further implications from the qualifications under Article 4 ... 352
3.5.1.f. The required compatibility “with the nature of these rights” ... 353
3.5.2. De facto derogations from ESC rights? ... 356
3.6. The relationship with international humanitarian law ... 358
Chapter V: The protection of civilians via extraterritorial reach of treaties on ESC rights ... 371
1. Introduction ... 371
2. Extraterritoriality under international human rights law in legal scholarship: preliminary considerations of research ... 374
3. The potential of soft-law norm-setting efforts on extraterritorial obligations ... 378
3.1. The UN Guiding Principles: normative contributions to conflict-affected situations and evolving implications ... 382
3.1.a. Some remarks on the State’s duty to protect ... 384
3.1.b. Some remarks on subsequent States’ policy options ... 389
3.1.b.i. Reflecting on evolved forms of extraterritorial jurisdiction as tools to influence corporate conduct overseas ... 390
3.1.c. Some remarks on the corporate responsibility to respect ... 393
3.1.c.i. Elaborating on businesses’ respect for international humanitarian law ... 394
3.2.c.ii. Reflecting on businesses’ approach to risks of gross human rights abuses as “a legal compliance issue” ... 397
3.2. The Maastricht Principles: contributions to the normative framework of human rights obligations of foreign States ... 399
3.2.a. A twofold conceptual foundation of extraterritorial obligations ... 399
3.2.b. A progressive interpretation of the notion of jurisdiction ... 400
3.2.c. The general obligation to avoid causing harm ... 400
3.2.c.i. The foreseeability rule ... 401
3.2.c.ii. The precautionary principle ... 402
3.2.c.iii. The prior assessment requirement ... 403
3.2.d. The normative content of extraterritorial obligations on ESC rights ... 404
3.2.d.i. Respecting ESC rights ... 404
3.2.d.ii. Protecting ESC rights ... 405
3.2.d.iii. Fulfilling ESC rights ... 413
3.2.e. The accountability dimension of extraterritoriality ... 414
4. The general scope of application of treaties on ESC rights in view of their textual vacuum or ambiguity ... 416
4.a. The ICESCR ... 418
4.b. The ICERD and CEDAW ... 419
5. Looking at treaties on ESC rights through a threefold lens of extraterritorial application
in conflict-affected situations ... 422
5.1. The concept of jurisdiction: which role and content for the extraterritorial application of treaties on ESC rights? ... 423
5.1.1. State jurisdiction: a revised traditional basis for extraterritorial obligations on ESC rights ... 425
5.1.2. Preliminary remarks on the scope of the ICESCR ... 429
5.1.2.a. The “exclusive” use of the term jurisdiction in the OP-ICESCR ... 431
5.1.2.b. The practice of the Committee on economic, social and cultural rights ... 433
5.1.2.c. The approach of the International Court of Justice ... 433
5.1.2.d. The position within the UN Special Procedures mechanisms ... 436
5.1.3. A progressive interpretation of the scope of State obligations relating to ESC rights ... 436
5.1.3.1. Effective control and authority over people or foreign territories ... 437
5.1.3.1.a. The doctrine of effective control as developed in international jurisprudence ... 438
5.1.3.1.b. The effective control criterion in cases of occupied territories ... 441
5.1.3.1.b.i. Critical missing cases ... 442
5.1.3.1.b.ii. The Israeli/Palestinian case ... 443
5.1.3.2. Foreseeability as to the effects on the enjoyment of ESC rights ... 456
5.1.3.3. Decisive influence or measures to realise ESC rights ... 457
5.2. The concept of “international cooperation”: which relevance for the extraterritorial application of treaties on ESC rights? ... 459
5.2.1. “International cooperation”: an emerging basis for extraterritorial obligations on ESC rights ... 460
5.2.1.1. International cooperation as a general principle of international law ... 460
5.2.1.2. International cooperation as referred to in human rights treaties ... 462
5.2.1.3. International cooperation on the right to food and the right to health ... 465
5.2.1.4. Some remarks under customary international law ... 466
5.3. Sanctions or equivalent measures as acts giving rise to the extraterritorial application of treaties on ESC rights ... 466
Chapter VI: Testing corporate liability for breaches of international law having direct or indirect relevance for civilians’ ESC rights ... 471
1. Introduction ... 471
2. Civil litigation in national legal orders ... 476
2.1 The Jerusalem Light Rail case ... 476
2.1.1 The legal basis for actions against the two French companies ... 479
2.1.2 The reasoning of the Versailles Court of Appeal ... 481
2.1.2.a ..on the locus standi of the appellants ... 481
2.1.2.b ..on the basis of the action brought by the OLP ... 482
2.2 Bil’in Village case ... 498
2.2.1. The suits before Canadian courts and the controversial viability of civil claims for war crimes allegedly committed abroad ... 498
2.2.2. The petitions before the Israeli Supreme Court ... 503
2.2.3. The individual complaint before the United Nations Human Rights Committee ... 504
3. Criminal litigation in national legal orders ... 506
3.1. The Riwal Group/Lima Holding B.V. case for corporate complicity in international crimes ... 506
3.2. The Lahmeyer case ... 508
4. Concluding remarks ... 512
Conclusions ... 514
1. The object of this study ... 514
2. The main findings of this study ... 515
2.1. ... 515 2.2. ... 521 2.3. ... 522 2.4. ... 525 2.5. ... 529 2.6. ... 530
List of Main Abbreviations
ACHR American Convention on Human Rights
AfrCHPR African Charter on Human and Peoples’ Rights AfrCommHPR African Commission on Human and Peoples’ Rights
AP I Protocol Additional to the Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts
AP II Protocol Additional to the Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts
CEDAW Convention on the Elimination of All Forms of Discrimination against Women
CERD International Convention on the Elimination of All Forms of Racial Discrimination
CESCR Committee on Economic, Social and Cultural Rights CRC Convention on the Rights of the Child
ECHR European Convention of Human Rights
ECtHR European Court of Human Rights
EurCommHR European Commission of Human Rights ESC Rights Economic, Social and Cultural Rights
GCIV Geneva Convention Relative to the Protection of Civilian Persons in Time of War
GCs Geneva Conventions of 1949
HRC Human Rights Committee
HRs Hague Regulations
IACtHR Inter-American Court on Human Rights IACommHR Inter-American Commission on Human Rights ICC International Criminal Court
ICCSt. Statute of the International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
IHL International Humanitarian Law
IHRL International Human Rights Law ILA International Law Association
ILC International Law Commission
OHCHR Office of the High Commissioner for Human Rights
OPICESC Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights
PCIJ Permanent Court of International Justice SCSL Special Court for Sierra Leone
RPE Rules of Procedure and Evidence
UNCC United Nations Compensation Commission
UN GA United Nations General Assembly
UNHRC United Nations Human Rights Council UN SC United Nations Security Council
INTRODUCTION
1. The context of the study
Over the course of the past three decades the nature of armed conflicts, their causes and consequences have undergone major changes, such as those in the Balkans region and in the Persian Gulf or in the cases of Central African Republic, the Democratic Republic of the Congo, Lebanon, Libya, Mali, Nigeria, Syria, Somalia, Sudan and South Sudan. Similarly, current-day military occupations have assumed polymorphic features, including forms of prolonged occupation, such as in the case of the Palestinian territories, or forms of interim administrations to carry out “regime change” in the occupied territory, such as in the cases of Afghanistan and Iraq. These (r)evolutions have favoured the perception that the international community must assume and arrange itself for “new protection needs” of civilian victims of such complex scenarios.1
In this context, issues pertaining to the respect, protection, and fulfilment of economic, social and cultural rights (ESC rights) ever more constitute unavoidable components of any comprehensive appraisal of the evolving legal framework for the protection of civilians in international law. The ESC rights as enshrined in various international instruments essentially provide guarantees to individuals of their fundamental rights to physical and mental health, to an adequate standard of living for oneself and one’s family (comprising water, food, clothing, housing, and the improvement of living conditions), to education, to work, to protection and assistance to the family, and to take part in cultural life.
Contemporary conflict-related situations are indeed acknowledged among the major obstacles to the progressive realisation of the ESC rights of civilians, particularly these of vulnerable categories such as children, women, members of racial, ethnic or religious groups, minority communities, refugees and internally displaced persons.2 For instance, all human nutrition phases (i.e. production,
1 See J. Kellenberger, President of the International Committee of the Red Cross, “Strengthening legal protection for
victims of armed conflicts”, Official Statement, 21 September 2010.
2 For instance, issues related to the enjoyment of ESC rights were considered fully relevant to the Chechen conflict, see
CESCR, List of issues to be taken up in connection with the consideration of the fourth periodic report of the Russian Federation concerning the rights referred to in Articles 1-15 of the International Covenant on Economic, Social and Cultural Rights (E/C.12/4/Add.10), UN Doc. E/C.12/Q/RUS/2, 14 January 2003, para. 7 (“What is the position of the State party regarding the self-determination of all the peoples of the Russian Federation and what measures are being taken by the State party to ensure that all those people affected by conflict, including the Chechens, enjoy the economic, social and cultural rights contained in the Covenant?”), para. 9 (“What steps are being taken by
procurement, preparation, distribution, consumption, and biological utilisation of food) are likely to be impaired in such situations, resulting inmalnutrition, disease and death.Then, collapsed health care systems are aggravated by delays or denials of access to basic health services as caused, for instance, by restrictions on movement imposed during the conduct of military operations or by military checkpoints, curfews, blockades and other methods and means of warfare employed. Additionally, not only the vast majority of dead and injured are civilians, but also the bulk of damage produced by warfare, military occupations and aftermath contexts mainly affect infrastructures vital for civilian well-being: pertinent examples concern the demolitions of houses and forced evictions or the destruction of schools.
Conversely, failures to realise ESC rights as well as violations of these rights may be - and generally are - among the root causes of conflict-affected situations, principally in respect to gross and systematic discrimination and inequality vis-à-vis access to natural resources, to land tenure and distribution, to housing, to work, limited access to education, identity conflict, corruption.
In this regard, the importance of safeguarding ESC rights as core elements of post-conflict justice mechanisms in the pursuance of social justice and sustainable peace based upon the rule of law has started to be emphasised in the light of largely neglected inclusion of serious abuses of economic and social rights within post-conflict criminal prosecutions as well as truth and reconciliation processes.3 In this vein, a sort of “marginalization” of ESC rights has been addressed within the transnational justice discourse4 and practice.5 On the one hand, the “omission” of crimes concerning systemic violations of ESC rights, despite their strategic role in maintaining regimes of abuse, has been critically noticed in the prosecutorial strategies developed in international, hybrid and regional tribunals. On the other hand, few truth and reconciliation commissions have engaged with ESC rights violations, and
the State party to ensure that Chechens who have been displaced from Chechnya, especially to Ingushetia, enjoy all economic, social and cultural rights under the Covenant?”); CESCR, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Russian Federation, UN Doc. E/C.12/1/Add.94, 12 December 2003, paras. 10, 28, 30, 56, 58.
3 See C. Chinkin, “The Protection of Economic, Social and Cultural Rights Post-conflict”, paper series commissioned by the
Office of the High Commissioner for Human Rights, 2009, available at:
http://www2.ohchr.org/english/issues/women/docs/Paper_Protection_ESCR.pdf. The author’s contention is that “the failure to deliver economic, social and cultural rights through national legal frameworks in accordance with international standards undermines the sought-after stability and human security post-conflict, which in turns lessens the ability or willingness of victims and witnesses to participate in the formal processes of post-conflict justice”. See also S.C. Agbakwa, “A Path Least Taken: Economic and Social Rights and the Prospects of Conflict Prevention and Peacebuilding in Africa”, 47 Journal of African Law, 2003, pp. 38-64; M.A. Drumbl, “Accountability for Property Crimes and Environmental War Crimes, Prosecution Litigation, and Development”, International Centre For Transitional Justice, 2009.
4 See Report of the Secretary General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 23 August
2004, S/2004/616, para. 8, which defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”.
5 See OHCHR, “Rule of Law Tools for Post-Conflict States: Truth Commissions”, 2006, UN Doc. HR/PUB/06/1, p.
sometimes even with “economic crimes”:6 the Commission of Inquiry into the Crimes and Misappropriations Committed by the ex-President Habré, his Accomplices and/or Accessories in Chad,7 the Commission for the Historical Clarification of Human Rights Violations and Acts of Violence which Caused Suffering to the Guatemalan People,8 the Commission for Reception, Truth and Reconciliation in Timor-Leste,9 the Truth and Reconciliation Commission in Liberia,10 the Truth and Reconciliation Commission in Sierra Leone,11 and the Truth, Justice and Reconciliation Commission in Kenya.12
Hesitation displayed by these bodies has been interpreted as an extension of the old and larger ideological dichotomy in human rights discourse.13 Whereas civil and political rights violations have been deemed as justiciable and susceptible to being redressed through transitional justice initiatives,
6 See Final Report of the Truth and Reconciliation Commission of Liberia, Vol. 2, sect. 9.9.1, which defines “economic crimes” as (1)
any forbidden action directed to create economic gain by a State or non-State actor whose economic activities fuelled the conflict, or contributed to gross human rights and/or humanitarian law violations, or who benefited economically from the conflict; or (2) public or private person’s actions directed to create illicit profit by engaging in certain conduct (e.g. money laundering, looting, tax evasion, human trafficking and child labour). Various economic crimes and perpetrators (especially companies) were considered within diverse economic sectors (i.e. timber, logging and mining; and also looked at the role of corruption). Significantly the Commission concluded that “the appalling number and scale of economic crimes in Liberia … grossly deprived Liberia and Liberian citizens of their economic rights and … obstructed the economic development and policy of the State”, see ibid., para. 138.
7 See Chad: Report of the Commission of Inquiry into the Crimes and Misappropriations Committed by ex-President Habré, his Accomplices
and/or Accessories: Investigation of Crimes Against the Physical and Mental Integrity of Persons and their Possessions, 7 May 1992.
8 See Acuerdo sobre el Establecimiento de la Comisión para el Esclarecimiento Histórico de las Violaciones a los Derechos Humanos y los
Hechos de Violencia que han Causado Sufrimientos a la Población Guatemalteca, 23 June 1994. It focused on violations of civil and political rights, but it observed that acts of genocide occurred against the indigenous Mayan communities, affecting their traditions, and accordingly it investigated violations of cultural rights and their impact, including on the Mayan population’s enjoyment of adequate standards of living. See Guatemala: Memoria del silencio, Vol. III, Chap. XVIII, 1994, paras. 2866-2950. A noteworthy conclusion was that, during the internal conflict, their survival and culture was impacted by the State, as they were forced into conditions of extreme poverty, deprived of traditional economic activities, and forced to displacement, see ibid., paras. 2887-2901 and 2904-2909.
9 See Chega! The report of the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR), 2005. On its
considerations on ESC rights violations as well as recommendations on ESC rights, see paras. 7-12.
10 The 2005 Act to Establish the Truth and Reconciliation Commission of Liberia mandated it to investigate gross
human rights violations, violations of international humanitarian law and “economic crimes, such as the exploitation of natural or public resources to perpetuate armed conflicts”, and determining those responsible. See Final Report of the Truth and Reconciliation Commission of Liberia, Vol. I: Findings and Determinations. Its report is the first of any truth commission to extensively explore “economic crimes” as a key factor in fuelling conflict. Furthermore, violations of ESC rights were deemed the principal causes of the war in Liberia. It also provides historical information about Liberia’s socio-economic, cultural, and political past, and how certain practices generated the conflict.
11 It studied the role of mineral resources, in particular diamonds, in fuelling the conflict, see Witness to Truth: Report of the
Sierra Leone Truth and Reconciliation Commission, Vol. 3 B, Chap. 1. The categories of violations adopted in order to carry out its human rights mandate also included “economic violations” (i.e. looting, destruction of property and extortion); further, the economic, social and cultural dimensions of some violations were explored as affecting women and children. See Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission, Vol. 3 A, Chap. 4, paras. 14 and 19.
12 See Report of the Truth, Justice and Reconciliation Commission of Kenya, 2013, Vol. II B. The three chapters of this volume
focus on certain aspects of the Commission’s mandate regarding, respectively, government policy of economic marginalization and violations of socio-economic rights, historical injustices related to land, economic crimes and grand corruption.
13 See R. Carranza, “Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes?”, 2
ESC rights have generally been perceived as “aspirational policy goals” rather than legal entitlements by governments, donor agencies and practitioners. In this sense, the misconception of socio-economic abuses as non-justiciable has been reflected in their references in “catch-all” development programs. However, a move away from this narrow view has been long advocated.14 In making this move, at least two aspects must be considered. The first one concerns the extent to which ESC rights
should be integrated in post-conflict justice settlements, so underpinning the concept of transitional justice.
The importance of this aspect is linked to the potential enhancement of human security after conflicts, since failures of such an integration could otherwise exacerbate tensions, contribute to renewed conflict, and result in further violations of civil and political rights. Furthermore, its significance is linked to the potential of facilitating the debate on how to substantially redress complex and interrelated violations of past
conflicts as well as on how to prevent their recurrence in the future.15Conversely, a second aspect concerns the implications that may derive under international law from a more integrated and holistic approach to
such contexts, which would take into account different dimensions of conflict by incorporating more
seriously the full range of violations committed.
2. The scope of the study and the significance of the research topic
The present dissertation positions itself within the current wave of scholarship attempting to address the aforementioned aspects, albeit in a much more focused manner. In the present study, ESC rights during and in the aftermath of contemporary scenarios of armed conflict, other situations of massive violence, and contexts of occupied territories are explored through the lens of public international law. The purpose is to determine whether and how its evolution has allowed for them to be addressed in relation to civilians’ vulnerability. In other words, this thesis aims at discussing the evolution of the international legal order and examining the suitability of existing international law to deal
with several controversial ways affecting the access to, enjoyment and progressive realisation of, ESC rights by civilians.
The proposed inquiry on the relevance and adequacy of international law for handling the
14 See also L. Arbour, “Economic and Social Justice for Societies in Transition”, (Second Annual Transitional Justice
Lecture, New York University School of Law Center for Human Rights and Global Justice and the International Center for Transitional Justice, New York, 25 October 2006), CHRGJ Working Paper No. 10, 14, emphasising that “Transitional justice should take up the challenge that mainstream justice is also reluctant to rise to: acknowledging that there is no hierarchy of rights and providing protection for all human rights, including economic, social and cultural rights … A comprehensive transitional justice strategy would therefore want to address the gross violations of all human rights during the conflict and, I suggest, the gross violations that gave rise or contributed to the conflict in the first place”.
15 In the case of Liberia, the Truth and Reconciliation Commission did not address ESC rights sufficiently in its legal
analysis and recommendations, despite its innovative and broad mandate (i.e. addressing all gross human rights violations, violations of international humanitarian law and economic crimes).
protection of civilians in the area of ESC rights will be conducted under a preventive alongside remedial perspective. It will offer the chance to analyse a number of significant developments that have occurred in the last decades in different branches of public international law in relation to ESC rights. The applicability of various legal regimes will be investigated in view of the practice emerged in conflict-affected situations, shedding light on the role played by a plurality of international norms that interact with one another and gradually reshape the interpretation of the rules representing the traditional point of reference for assessing such practice. This gives the opportunity to examine whether the latter has confirmed, enhanced, weakened or challenged what international law provides for as it stands. Accordingly, emerging trends alongside existing gaps and limits in the international legal protection afforded to civilians’ ESC rights regarding particular dimensions of their realisation will be addressed. In the same regard, the potential for further clarification and appropriate elaboration of the norms concerned will be highlighted, with a view to contributing to greater coherence within the international law system (rather than to fragmentation resulting from its expansion).
Specifically, the present thesis inquires the normative responses advanced under international humanitarian law along with the contributions developed from other applicable international legal regimes, such as international human rights law and international criminal law. Indeed, the thesis takes the position that each of these branches has progressively come to represent valuable legal tools enabling to delineate the core substance and clarify the uncertain boundaries of outstanding connections emerging between civilians’ ESC rights and conflict-torn or occupation-related settings. This approach is pertinent to the wide acknowledgement in legal doctrine and jurisprudence that contemporary patterns of armed conflict as well as modern forms of belligerent occupation have growingly impacted the law applicable in these scenarios, the institutions competent to monitor the implementation of existing norms to be complied with, the mechanisms appropriate to ensure
accountability for violations of binding legal obligations incumbent upon relevant actors and to
possibly contribute to prevent them in the future, and the requirements of remedial justice suitable to provide
reparation to victims of such violations.
All the just mentioned points are taken into due account in the present study. They offer important insights for assessing the extent to which public international law has progressively provided for rules that (i) support developments in the normative content of ESC rights and favour a more precise understanding of the nature and scope of ensuing obligations to be addressed for the imperative of civilian protection, (ii) tackle questions of accountability for their violations as
committed during the conduct of hostilities and its aftermath or the administration of occupied territories, and (iii) advance the availability of remedies to ensure the basic right to effective remedy and reparation for the violations concerned.
This approach to international law relies on the assumption that the protection of civilians in the field of ESC rights requires reliance on a legal framework that recognises the many facets of each right that has
to be considered comprehensively. Therefore, questioning the role and function of international law means
investigating no longer only - or mainly - the adequacy of basic principles and values that have guided the elaboration of the law of war and the law of occupation, primarily to handle the humanitarian consequences of such scenarios. Rather, it turns out to be also a matter of reflecting on functional development of other branches of international law capable of addressing the direct/indirect and short/long-term detrimental effects of such scenarios for ESC rights. Indeed, they have present and future serious implications for preserving the human dignity and securing the human development of individuals who do not take part in hostilities or “find themselves, in the case of a
conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”. In
other words, a primary question arises as to whether and if so how the applicable international law takes into
account such effects and contributes to their mitigation.
Another basic consideration justifies the proposed inquiry on the evolving legal framework addressed in the course of this study. The partial evolution of the traditional notion of State sovereignty - mainly consequent to the progresses in the protection of the human being as favoured under United Nations auspices - has led to emphasise the discourse about the legal obligations of the State which is
regarded as an entity functionally organised to protect the individuals under its jurisdiction.16 Although the relevant State obligations may vary under the different applicable branches of international law, and notwithstanding the growing involvement of other entities such as international organizations and transnational corporations, that basic understanding of State’s function will shape the present research on the ESC rights of civilians in contexts of armed conflict and military occupation.
3. Defining the approach to the research focus
It will be primarily argued that the contributions of customary law and treaty-based law as set forth in international humanitarian law (IHL) no longer exclusively base the existing international legal framework relevant to deal with the protection of civilians in the area of ESC rights.
16 Conversely, the traditional Westphalian concept of sovereignty put emphasis on the nation-state’s ‘right’ to dominate
Nevertheless, the normative responses progressively provided under this branch of international law represent the starting point of the present study. Relevant IHL rules are mostly enshrined in the 1949 Fourth Geneva Convention and the 1977 Additional Protocols17 and they basically respond to two distinct situations.
On the one hand, these rules aim at protecting the civilian population or individual persons under the control
of the enemy against violent or arbitrary actions. These are rules against the misuse of power. Some of them
refer to all civilians,18 but most of them are set for “protected civilians” only (i.e. those who fall into the hands of the enemy19); precisely, according to a tripartite framework, the rules on the treatment of protected civilians apply to those who find themselves on enemy territory,20 then to those whose territory is occupied by the enemy,21 and finally to those in the enemy’s own territory as well as occupied territories.22
On the other hand, these rules aim at protecting the civilian population against the effects of military
operations and individual acts of hostility. These are rules limiting admissible methods and means of
warfare.23 They are mostly set forth in the 1977 Additional Protocol I and customary law (in part grounded on the 1907 Hague Regulations);24 they apply to all civilians who are on the territory of the parties to the conflict.25
Such an extensive IHL regime set down several obligations for those into whose hands civilians have fallen as well as for the belligerents opposing the party in whose hands civilians are.
17 The adoption of the 1977 Additional Protocols have blurred the borders between two subsections of the laws of
armed conflict: the “Law of the Hague” concerning the means and methods of warfare, and the “Law of Geneva” or “Red Cross Law” concerning the protection of victims of war (i.e. wounded and sick, shipwrecked, prisoners of war, civilians, persons hors de combat). As corroborated by the International Court of Justice, “these two branches of the law applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law. The provisions of the 1977 Additional Protocols give expression to the unity and complexity of that law”, see ICJ, Legality of Threat or Use of Nuclear Weapons, Advisory Opinion, 9 July 1996, ICJ Reports 1996, para. 75. Nonetheless, important differences are noteworthy: e.g., while the “Law of the Hague” applies also in enemy territory, the “Law of Geneva” only applies in the belligerents’ own territory and occupied territory; further, the notion of “protected persons” features only the “Law of Geneva” (Article 4 GC IV).
18 Articles 13-26, Part II, GC IV; Articles 72-79; Article 4 AP II.
19 Consistent with the inter-State structure of international humanitarian law, this term in Article 4 GC IV does not
protect those in the hands of a belligerent party of which they are nationals; the rules on the treatment of protected civilians cover only enemy civilians who are on the territory of a belligerent party or on an occupied territory.
20 Articles 35-46 GC IV.
21 Articles 47-78 GC IV, which contain further detailed and protective rules. 22 Articles 27-34 GC IV.
23 In treaty law the rules on the conduct of hostilities goes back to the 1868 St. Petersburg Declaration, the 1899 and
1907 Hague Conventions, the 1925 Geneva Gas Protocol, the 1972 Biological Weapons Convention, the 1977 Additional Protocols, the 1980 Convention on Certain Conventional Weapons and its five Protocols, the 1993 Chemical Weapons Convention, and the 1997 Ottawa Convention banning anti-personnel landmines. The 1954 Hague Convention and its two Protocols regulate the protection of cultural property in the event of armed conflict. Then, the 1998 Statute of the International Criminal Court include a list of war crimes subject to its jurisdiction.
24 Articles 48-71 AP I; Article 13 AP II.
Conversely, they ultimately protect individual or collective interests of civilians. This aspect is more evident when terms such as “rights”, “benefits” and “entitlements” occasionally appear in the treaties concerned, mainly in provisions defining the treatment of civilians;26 nonetheless, this is also illustrated in certain provisions regulating the methods and means of warfare.27 In indicating them as subjects entitled to protection and specifying the ways in which it shall be provided, IHL rules inevitably address certain aspects of ESC rights relating to health, food, relief assistance, work and employment, family, education, culture, resources, environment. Actually, not only these rules are of primary relevance for ensuring that civilians are not denied, or have access to, basic needs, but also they contribute to generate positive conditions for peace as well as restoration of the affected situation, so supporting more generally the progressive realisation of civilians’ ESC rights.
In this regard two main areas covered by ius in bello - namely the legal regime governing the conduct of military hostilities (in international and non-international armed conflicts) and the law of belligerent occupation - will be critically appraised in light of the practice of presen-day warfare and administration of occupied territories in relation to the protection of civilians, the civilian population as such, and civilian objects. In doing so a comprehensive question is explored as to whether and to
what extent normative developments of international humanitarian law have marked, thanks to gradual
codifications or evolutionary interpretations, adequate steps forward in the sphere of ESC rights against the
effects of military operations as well as against civilians’ mistreatment when in the hands of the enemy, which may
include a party to a conflict or an occupying power. Therefore, two sub-questions may be articulated as follows: first, whether and to what extent IHL has come to deal with the ESC rights of civilians; second, whether violations of its norms have resulted in a loss of their enjoyment or other related consequences.
While the traditional reference to international law and armed conflicts primarily focused on international humanitarian law as regulating the use of force in such contexts, other legal regimes have been gradually taken into consideration to cover situations controversially classified as armed conflicts. Legal scholarship has especially examined the use of international human rights law, international criminal law as well as environmental law in order to regulate warfare or interfere with certain IHL norms by, for instance, “humanising”,28 “criminalising”,29 or “greening”30 them. Each of
26 In addition to direct references, several provisions of the Law of Geneva indirectly refer to the notion of ‘rights’: e.g.
Article 30 GC IV provides for all protected persons the right to file a complaint with the Protecting Powers, the ICRC or National Red Cross Societies concerning breaches of this Convention.
27 Article 51 AP I (which is one of the cornerstones of the Hague Law); Article 54 AP I, prohibiting starvation as a
method of warfare; Article 53 AP I protecting cultural objects and places of worship from the effects of hostilities.
28 See T. Meron, “The Humanization of Humanitarian Law”, American Journal of International Law (AJIL), 2000, pp.
these branches of international law have a potential to advance ESC rights and represent avenues of specific character that could offer further solutions to conflict-related issues. However, environmental law is beyond the scope of this study.
In this regard it will be posited, in the first place, that human rights law have ended up constituting an integral part of international law (rather than an autonomous and self concluded branch of the law). They are enshrined in treaties at a global and regional level, a certain number of customary norms, general principles of law and peremptory norms of jus cogens. In this sense the normative concept of human rights - understood as establishing legal entitlements for one or more
beneficiaries and imposing legal obligations for one or more duty bearers - has increasingly acquired relevance
in looking at public emergencies induced by armed conflict, military occupation or post-conflict collapse. This use as an essential lens through which framing relevant behaviours/conducts occurring in such contexts relies on the idea that human rights are fundamental standards to preserve the dignity of human beings as well as functional tools to develop the human person at any time as a matter of principle.
Moreover, it will be considered that the relevance gradually acquired by the normative concept of human rights has concerned either traditional vertical relationships of individuals vis-à-vis States or horizontal relationships between private actors,31 although the state-centric approach still remains the main rationale of the existing international legal order.
Then, it will be taken into account that international human rights law has progressively become part of the academic studies against the backdrop of complex contemporary conflict-related situations, especially when debating its relationship with international humanitarian law. This has been done by questioning whether it continues to apply and how the two regimes interact when they are simultaneously applicable, or by focusing on the role played by human rights bodies to seek
29 See A. Cassese, “On the Currents Trends towards Criminal Prosecution and Punishment of Breaches of International
Humanitarian Law”, European Journal of International Law (EJIL), 1998, pp. 2-17; Y. Beigbeder, Judging War Criminals. The Politics of International Justice, Basingstoke, Palgrave McMillan, 1999, pp. 1-26.
30 See E.F.J. Yuzon, “Deliberate Environmental Modification Through the Use of Chemical and Biological Weapons:
‘Greening’ the International Laws of Armed Conflicts to Establish an Environmentally Protective Regime”, AUJILP, 1996, pp. 793-846.
31 See N. Rodley, “Can Armed Opposition Groups Violate Human Rights?”, in K.E. Mahoney et al. (eds.), Human
Rights in the Twenty-First Century: A Global Challenge. 1993, p. 297 ff.; A. Clapham, Human Rights in the Private Sphere, 1996; M. Gibney and D. Emerick, “Human Rights: Holding Multinational Corporations Accountable to Domestic and International Standards”, 10 Temple International and Comparative Law Journal, 1996, p. 123 ff.; S. Ratner, “Corporations and Human Rights: A Theory of Legal Responsibility”, 11 Yale Law Journal, 2001, p. 443 ff.; F. Francioni, “Four Ways of Enforcing the International Responsibility for Human Rights Violations by Multinational Corporations”, in M.A. Moreau and Francioni (eds.), La Dimension Pluridisciplinaire de a Responsabilité Sociale de l’Entreprise, 2007, p. 155 ff.
remedies against States which violate the laws of war.32 The hitherto conducted academic analysis supporting its applicability has primarily tended to explain why it should apply during armed conflicts as well as how in such situations the two international law branches may concur and complement or at times converge towards each other on specific issues.33 Subsequently, scholars’ focus has shifted to exploring how human rights law applies, addressing certain issues encountered in its application regarding the extraterritorial scope of ensuing legal obligations, regarding the mandate and expertise of human
rights monitoring bodies, and the terminological and conceptual distinctions between legal regimes having different paradigms. However, these studies have generally focused more on civil and political rights, especially
dealing with arbitrary deprivation of life and liberty, torture, and the use of force. Conversely, internationally recognised economic, social and cultural rights have been mostly and undeservedly reduced to a silent role.34
In view of all these points, the present thesis will look at international human rights law to inquire either limits or opportunities to upholding socio-economic and cultural justice in contemporary public emergencies prompted by situations of armed conflict, military occupation and post-conflict collapse. It will be argued that the challenges for the imperative of civilian protection in the
socio-economic and cultural spheres may be better addressed under international law even in light of this
developing regime. In particular, it is its potential as twofold normative and accountability framework that has been mostly underestimated. This matters either for contemporary understanding of civilians’ needs in such complex situations and the elaboration upon legal validity and content of obligations resulting from ESC rights, or the provision for effective and adequate remedies to civilian victims of corresponding violations. Moreover, the potential of international human rights law gains specific
32 On the renewed interest for the interactions between international humanitarian law and human rights, see O.
Ben-Naftali (ed.), International Humanitarian Law and International Human Rights Law, Oxford, 2011; R. Arnold and N. Quénivet (eds.), International Humanitarian Law and Human Rights Law, Martinus Nijhoff, 2008; C. Green, “Human Rights and the Law of Armed Conflict”, in L.C. Green (ed.), Essays on the Modern Law of War2, Transnational Publishers, 1999.
33 See Draper, “The relationship between the human rights regime and the laws of armed conflict”, 1 IYHR, 1971, p. 71
ff.; L. Doswald-Beck and S. Vité, “International humanitarian law and human rights law”, International Review of the Red Cross (IRRC), 1993, p. 94 ff.; R.E. Vinuesa, “Interface, correspondence and convergence of human rights and international humanitarian law”, 1 Yearbook of International Humanitarian Law (YIHL), 1998, pp. 69-110; R. Provost, International Human Rights and Humanitarian Law, Cambridge, 2002; H. Heintze, “On the relationship between human rights law protection and international humanitarian law”, 86 IRRC, 2004, p. 789 ff.; A. Orakhelashvili, “The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?”, 19 EJIL, 2008, p. 161 ff.
34 Few scholars have noticed this issue, see N. Lubell, “Challenges in Applying Human Rights Law to Armed Conflict”,
IRRC, 2005, pp. 751-3; I. Schobbie, “Principle or Pragmatics? The Relationship between Human Rights Law and the Law of Armed Conflict”, JCSL, 2009, pp. 449-457. For some further exceptions in discussing their relevance, see M. Dennis, “Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation”, AJIL, 2005, pp. 139-141; S. Vité, “The interrelation of the law of occupation and economic social and cultural rights: the examples of food, health and property”, IRRC, 2008, pp. 629-651; E. Mottershaw, “Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law”, International Journal of Human Rights (IJHR), 2008, pp. 449-470.
relevance from the perspective of articulating its manifold relationship with the law of armed conflict as well as the laws of occupation in the area of ESC rights.
With regard to such a potential and its various dimensions, it is noted that modern dynamic contexts of armed conflicts and military occupation, in which a multiplicity of actors may play various roles affecting ESC rights, raise open questions on a number of aspects.
The applicability regime of human rights treaties setting out ESC rights and the implications of ensuing
obligations deserves primary scrutiny, in particular for the rationale behind omitted derogation
clauses or included specific and general limitation clauses. In the same vein, the concept of
justiciability of ESC rights may affect (enabling/favouring) both compliance with, and enforcement of,
international norms enshrining ESC rights when breached in such contexts. Then, the availability of
remedies, both judicial and non-judicial,35 before an independent authority for violations of civilians’ ESC rights may be difficult: the enjoyment of the right to an effective remedy36 and the corresponding state obligation to provide appropriate remedies may be challenged regarding possible mechanisms to holding relevant actors (e.g. governments, insurgents, corporations) to account for involvement in such violations, especially in view of existing underdeveloped accountability mechanisms under international law. These include the accountability gaps to respond to “international interdependent structures” (States as parties of intergovernmental institutions and private international actors) that may impair the enjoyment of human rights beyond national borders in conflict-related settings.
Furthermore, the legal effect of applicable international human rights law is examined in relation to
international humanitarian law. A major question is whether and how such relationship positively affects the imperative of civilian protection in the socio-economic and cultural spheres. Relevant aspects include its impact
on the appraisal of applicable IHL rules as well as its ability to afford further normative content of the ESC rights which civilians are entitled to. The function of IHL in understanding the ESC rights and
ensuing human rights obligations is also important to define such relationship.
Conversely, in light of the absence of provisions specifying the general scope of application of treaties on ESC rights, the extraterritorial scope and applicability of ensuing human rights obligations gain relevance for situations in which State parties’ conduct (whether carried out wholly beyond their sovereign territory or producing effects overseas) could impair the access to, and enjoyment of, ESC
35 Non-judicial remedies may include access to complaints mechanisms established under the auspices of international
organizations, national human rights institutions and ombudspersons; other accountability measures available at the national level (i.e. access to parliamentary bodies tasked with monitoring governmental policies) and international level.
36 It is widely recognised that remedies, to be effective, must be capable of leading to a prompt, though and impartial
investigation; to the cessation of the violation if it is ongoing; and to adequate reparation, including, as necessary, restitution, compensation, satisfaction, rehabilitation and guarantees of non-repetition.
rights of civilian individuals, groups and peoples (non-nationals) located in foreign territories affected by armed conflicts or periods of occupation. In other words, relevant acts or omissions may put to question whether and under which conditions they entail obligations on States due to their international commitments in the area of ESC rights (so giving rise, possibly, to state international responsibility).
Nonetheless, due account will be given also to the contentious issue that the recognition of, and compliance with, human rights extraterritorial obligations pose theoretical challenges to the approaches conventionally assumed in international law. In debating on the phenomenon of globalisation and the ever-greater interactions between various actors having considerable imbalanced powers within the international community, legal scholarship has addressed the need to
revise some key concepts in order to “operationalise” extraterritorial human rights obligations.
Particularly, the notions of State jurisdiction,37 State responsibility and accountability have been at stake of the debate over the obstacles to recognise extraterritorial obligations.38 In considering such attempt to “re-conceptualise” the basic tenet of international human rights law that places obligations primarily on the territorial State, two recent soft-law norm-setting efforts elaborating principles, policy and regulatory options to develop a multi-duty-bearer framework will be examined.
In the same vein, the issue of corporate liability for breaches of international law that directly or indirectly may inhibit the exercise of, or adequate access to, ESC rights will be explored. This is functional to highlight existing limits of international law.
A further perspective for research presents itself if we considers that certain violations of ESC rights
may be interpreted to amount to certain dimensions of international crimes that are defined in treaties and in
customary international law and give rise to individual criminal responsibility.39 Therefore,
37 The notion of jurisdiction in the provisions of human rights treaties relates to the issue of whether a State (that was or
not entitled to exercise jurisdiction under international law) is to be held accountable for a human rights violation resulting from its conduct. If referred to the interstate relationships then it relates to the issue of which State has, pursuant to international law, sovereign jurisdiction over a certain subject or area.
38 See M. Langford, W. Vandenhole, M. Scheinin, and W. van Genugten (eds.), Global Justice, State Duties: the
extra-territorial scope of economic, social and cultural rights in international law, Cambridge University Press, 2012. F. Coomans, “The Extraterritorial Scope of the International Covenant on Economic, Social and Cultural Rights in the Work of the United Nations Committee on Economic, Social and Cultural Rights”, Human Rights Law Review (HRLR), 2011, pp. 1-35. S. Skogly and M. Gibney (eds.), Universal Human Rights and Extraterritorial Obligations, University of Pennsylvania Press, 2010. M. Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application of Human Rights Treaties, Intersentia, 2009, pp. 56 and 168. R. Higgings, Problem and Process - International Law and How We Use It, Clarendon Press, 1994, p. 146.
39 The principle of individual criminal responsibility forms the basis of international criminal law. This was
acknowledged by the International Military Tribunal in the context of the issue of criminal accountability of some Nazi organizations, holding that “one of the most important (legal principles) … is that criminal guilt is personal, and that mass punishments should be avoided”, see Judgment of the International Military Tribunal for The Trial of German Major War Criminals,
