AUTORE:
Caterina Aparo
ANNO ACCADEMICO: 2020
TIPOLOGIA: Tesi di Laurea Magistrale
ATENEO: Università degli Studi di Trento
FACOLTÀ: Giurisprudenza
ABSTRACT
The extraterritorial application of human rights has always been at the heart of a fervid scholar debate which, at the present day, has not find a definitive solution. Conscious of the many issues that touch each international human right treaty, the present work will focus on the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The choice is justified by the ICESCR’s peculiarities: firstly, it has never received much attention, neither from scholars nor from international courts, and secondly the lack of a jurisdictional clause within its text, that limits its application ratione loci, creates the room of manoeuvre for an interpretative analysis that favours the existence of extraterritorial obligations within its framework. Under this light the main question is whether the International Covenant on Economic, Social and Cultural Rights give rise to extraterritorial obligations. At the centre of the discussion lies the discussion on whether state parties to the Covenant should secure all the three-level obligations, to respect, to protect and to fulfil not only to individuals living on their territory but also to those who are outside their national borders (and thus extraterritorially).
The present work will firstly give the definitions of extraterritorial obligations and of economic, social and cultural rights and then present the scholarly debate that revolves around them by dividing it in three macro-categories: unilateral state conduct, participation in international organisations and lastly, the conduct of transnational corporations. Having presented the main issues concerning the extraterritorial application of economic, social and cultural rights the work will go further in analysing one of the main provision of the Covenant itself, namely article 2 paragraph 1.
The discussion will focus firstly on the absence of a jurisdictional clause within article 2 and secondly on the meaning of the wordings of the article in the view of the principles enshrined in the Vienna Convention on the Law of the Treaties. The last chapter is a case of study on the human right to water that analyses this right under both the International Covenant on Economic, Social and Cultural Rights and under the International Convention on the Law of the Non-navigational Uses of International Watercourses and lastly it discusses their interplay. After having analysed the above-mentioned issues the present work concludes by suggesting that the extraterritorial application of economic, social and cultural rights is in its infancy. Nonetheless, it has been put forward that if one divides the obligations between negative and positive ones, as Marko Milanovic suggests, the former seem to be part of the existing international human rights law (de lege lata) , while the positive obligation to fulfil rights extraterritorially is considered to be a “work in progress” (de lege ferenda). Taking notes of the results, it is clear that further legal confirmation and development are needed in order to be able to read the International Covenant on Economic, Social and Cultural Rights as the source of international legally binding obligations to assist and to cooperate.
In order to achieve this aspiration, state parties need to advance their practices and interpretation, since, without, their commitment these obligations would remain only on paper. In the era of globalisation, there is an urgent need for this.
The choice is justified by the ICESCR’s peculiarities: firstly, it has never received much attention, neither from scholars nor from international courts, and secondly the lack of a jurisdictional clause within its text, that limits its application ratione loci, creates the room of manoeuvre for an interpretative analysis that favours the existence of extraterritorial obligations within its framework. Under this light the main question is whether the International Covenant on Economic, Social and Cultural Rights give rise to extraterritorial obligations. At the centre of the discussion lies the discussion on whether state parties to the Covenant should secure all the three-level obligations, to respect, to protect and to fulfil not only to individuals living on their territory but also to those who are outside their national borders (and thus extraterritorially).
The present work will firstly give the definitions of extraterritorial obligations and of economic, social and cultural rights and then present the scholarly debate that revolves around them by dividing it in three macro-categories: unilateral state conduct, participation in international organisations and lastly, the conduct of transnational corporations. Having presented the main issues concerning the extraterritorial application of economic, social and cultural rights the work will go further in analysing one of the main provision of the Covenant itself, namely article 2 paragraph 1.
The discussion will focus firstly on the absence of a jurisdictional clause within article 2 and secondly on the meaning of the wordings of the article in the view of the principles enshrined in the Vienna Convention on the Law of the Treaties. The last chapter is a case of study on the human right to water that analyses this right under both the International Covenant on Economic, Social and Cultural Rights and under the International Convention on the Law of the Non-navigational Uses of International Watercourses and lastly it discusses their interplay. After having analysed the above-mentioned issues the present work concludes by suggesting that the extraterritorial application of economic, social and cultural rights is in its infancy. Nonetheless, it has been put forward that if one divides the obligations between negative and positive ones, as Marko Milanovic suggests, the former seem to be part of the existing international human rights law (de lege lata) , while the positive obligation to fulfil rights extraterritorially is considered to be a “work in progress” (de lege ferenda). Taking notes of the results, it is clear that further legal confirmation and development are needed in order to be able to read the International Covenant on Economic, Social and Cultural Rights as the source of international legally binding obligations to assist and to cooperate.
In order to achieve this aspiration, state parties need to advance their practices and interpretation, since, without, their commitment these obligations would remain only on paper. In the era of globalisation, there is an urgent need for this.