Transnational Human Rights Obligations

I. Introduction

In the Trail Smelter case, United States vs. Canada, the Court held that:

Under the principles of international law . . . no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. ¹

This case was heard close to a century ago, yet little has developed in terms of states' obligations or responsibility for transnational effects of their actions. This is true for international law generally, and for international human rights law more specifically.

The topic of transnational human rights obligations for states has not been widely explored. ² By transnational obligations, we imply the possibility that states may have obligations relating to the human rights effects of their external activities, such as trade, development cooperation, participation in international organizations, and security activities. Most work of human rights institutions focuses on the national or internal obligations that states have and how states that have ratified the various human rights instruments implement these provisions within their national borders. Although human rights guarantees stem from international treaties and the obligations, therefore, are of an international nature, the subjects of the human rights protection are normally the state's own nationals and residents. International human rights law is part of the general regime of international law in that its sources stem from treaty law, customary international law, and general principles of law. International human rights law, however, is different from other areas of international law because the implementation of the provisions of these treaties, or the norms of customary international law in this field, commonly is done domestically. Thus, there is a vertical relationship between a state and its subjects, rather than a horizontal relationship among states. ³

Accepting that this is the main thrust of international human rights law obligations, this article will challenge the notion that this is the only sphere in which states have obligations pertaining to this part of international law. In this article, we will address the following questions:

In which areas do states' trans- or cross-border operations play a role in terms of human rights enjoyment? What are the legal foundations for obligations in this field? What are the experiences of the international bodies responsible for human rights monitoring and international judicial bodies in dealing with cross-border obligations? Are there implications in terms of "obligations of result" and "obligations of conduct"? What is the sovereignty paradox that this approach may imply?

This article will only address the effects of states' direct involvement in transnational activities. Although interesting and important, we will not be able to address the extent to which states are under obligations to regulate the transnational conduct of private parties under their jurisdiction (third party regulation). This should not be taken to imply that we regard it as less important, but rather a choice of focus for this article.

II. Transnational Activities

In these times of globalization, the role of the individual state has changed and, in some measure, diminished. ⁴ The role of the state in guiding economic policy, which may enhance or threaten human rights enjoyment, is largely reduced. ⁵ International forces increasingly determine national decision making, particularly in smaller states and poorer states, and the power of private international forces, such as transnational corporations (TNCs), often imply that governments' scope of choice is limited. ⁶ This reality has not only been recognized by academics but also has been acknowledged by the United Nations. In his study from 1992 on the realization of economic, social, and cultural rights, the UN Special Rapporteur, Danilo Türk argues:

The legal basis upon which economic, social and cultural rights rest, essentially assumes the presence of a "strong" State as the motor behind realizing these rights, combined with a correlative national...