1
A Partnership for Development:
International Human Rights Law as an Assessment Instrument
Wouter Vandenhole
Executive Summary
For the development partnership of Millennium Development Goal No. 8 to gain
practical relevance, and to be susceptible to evaluation, it needs to be
operationalised in multilateral and/or bilateral development contracts or agreements.
A major deficiency of such a contractual approach of development is however that
the contracting partners – Northern countries and/or international organisations on
the one hand, countries in the South on the other hand – have uneven bargaining
power.
Human rights law could and should play an important role here, by functioning first of
all as imperative law that protects the weaker contracting party. Human rights law
would thus impose constraints on the contractual freedom of countries in the North
and international organisations, in that they would not be allowed to impose
conditions that are contrary to international human rights law. At the same time,
human rights law also limits the contractual freedom of developing countries, in that
they cannot agree to contractual development obligations that are contrary to
international human rights law. Secondly, international human rights law can also
normatively inform development contracts, and thus assure that they are instrumental
in fostering human development, rather than only economic growth.
A fundamental aspect of the evaluation of the realisation process of MDG No. 8 is
therefore the degree in which international human rights law, and in particular
economic, social and cultural rights, are being respected, protected and fulfilled by all
States and organizations involved. While this does not require the elaboration of new
standards or criteria, it may necessitate the creation of a new monitoring scheme.
Table of Contents
I. Human Rights Law as Imperative Law for Development Contracts............................. 2
II. Third State Obligations under the International Covenant on Economic, Social and
Cultural Rights .......................................................................................................................... 4
A. Legal Recognition ........................................................................................................... 4
B. Meaning and Scope ....................................................................................................... 5
C. Duty-Sharing Between the Domestic State and Third States ................................. 7
D. Duty-Sharing Among Third States ............................................................................... 8
III. Conclusions....................................................................................................................... 10
2
I. Human Rights Law as Imperative Law for Development Contracts
1. A key aspect of a development partnership is the idea of a contractual approach to
development. For a development partnership, such as the one agreed upon in
Millennium Development Goal No. 8, to gain practical relevance, and in order to be
susceptible to evaluation, it is to be operationalised in multilateral and/or bilateral
development agreements. These agreements might well take the form of
development contracts, i.e. specific binding arrangements between cooperating
partners.1 A basic characteristic of development contracts is that they contain mutual
obligations, and thus offer structures through which the contracting partners can hold
each other to account.
Moreover, for development partnerships to contribute to the realisation of the right to
development, they need to be grounded in human rights. 2 This means that
development contracts are to be normatively informed by human rights law: progress
in human development, i.e. the realisation of all human rights for all, is to be the
ultimate goal of the partnership for development, and its elaboration in development
contracts.
2. Most likely if not inevitably, many elements of the current donor conditionality will
be inserted by donor countries and international organisations into such development
contracts. Donor conditionality often relates to the macro-economic sphere, and
typically includes an increase in the role of markets and private enterprises
(liberalisation and privatisation), and a reduction of the public sector (“rolling back of
the state”) in the pursuit of good governance.
Such macro-economic measures may well conflict with human rights obligations of
both donor countries and recipient countries. It would however be extremely difficult
for the latter to oppose the inclusion of these requirements in a development contract,
even if these requirements are sincerely believed to be detrimental for human
development. For the contracting parties are not on a level playing field, where
parties enjoy more or less equivalent bargaining power. The reality is one of
fundamentally uneven development “partners”, with the developing country inevitably
being the weaker contracting party. Genuine negotiations of development contracts
are therefore impossible without recognition of these pervasive “inherent
asymmetrical power relations”3 between donor and recipient countries, and without
some minimal regulatory framework.
3. Absolute contractual freedom is therefore not an option in the context of
development contracts, and measures to level the playing field are necessary. A
minimal international legal framework that regulates the contractual freedom of
countries entering into development contracts is required.
Domestic legal orders are quite familiar with such a minimal legal framework for the
protection of a weaker contracting party, be it a tenant or a labourer. Typically, in
case of asymmetrical power relations and unequal bargaining power, imperative law
as opposed to permissive law or ius dispositivum will be used to offer some legal
protection to the weaker contracting party.
3
At the international level and in the context of development contracts, the existing
human rights framework may well play this role of protector of the weaker party.
International human rights obligations, in particular economic, social and cultural
rights, offer strong guarantees that genuine human development and poverty
reduction will prevail over other concerns, when negotiating development contracts.
What makes international imperative law different from domestic imperative law is
that protection is offered to the weaker contracting party, i.e. a developing country,
not so much as a direct beneficiary itself, but for the benefit of its citizens. Human
rights protect individuals in the South, against acts of both their own government and
foreign governments.
4. Developing countries are to take into account their obligations under the
International Covenant on Economic, Social and Cultural Rights (ICESCR) in their
negotiations with donor countries and the international financial institutions, and in
trade agreements. The UN Committee on Economic, Social and Cultural Rights
(ESCR Committee) has urged States to fully integrate economic, social and cultural
rights in poverty reduction strategies,4 and to take the ICESCR into account in their
policies, programmes and projects on poverty alleviation.5 The ESCR Committee has
equally called on States to take into account their obligations under the Covenant “in
all aspects of [their] negotiations with the international financial institutions and other
regional trade agreements to ensure that economic, social and cultural rights,
particularly of the most disadvantaged and marginalised groups, are not
undermined.”6 Failure of a State to take into account its international legal obligations
regarding ESC rights when entering into agreements with other States or with
international organizations has been qualified as a violation of the obligation to fulfil. 7
It is therefore obvious that developing countries are to take into consideration their
obligations under the ICESCR when negotiating developing contracts too. And they
have the leverage to do so, for donor countries, most of which are States parties to
the ICESCR, are to respect, protect and fulfil economic, social and cultural rights not
only domestically but also abroad. Though these extraterritorial obligations may still
be in need of further conceptualisation, their existence should go undisputed. For
respect for human rights cannot stop at the borders. Whereas the extraterritorial
application of treaties on civil and political rights might be restrained by the (territorial)
jurisdiction clause in most of these treaties, the extraterritorial application of the
ICESCR is not hampered by any restrictive jurisdiction clause. To the contrary,
several articles in the Covenant refer to an obligation of international assistance and
cooperation.
5. The advantages of relying on the existing international human rights framework, in
particular but not exclusively economic, social and cultural rights, for assuring that a
true spirit of partnership is maintained and for evaluating the degree to which a
development contract – as a tool for realising the partnership for development – is
conducive to human development, are at least three. First of all, the human rights
framework (of which the ICESCR is of particular importance in a developmental
context) offers precise and clear standards, which most States are already
accustomed to at the domestic level, and which are moreover binding for the vast
majority of States (i.e. the more than 150 States that are a party to the ICESCR).
Secondly, there is already a basic mechanism in place to monitor observance of the
basic legal framework, i.e. the UN Committee on Economic, Social and Cultural
4
Rights (see also further). Thirdly, third state obligations under the ICESCR help to
shift away from exclusive attention for development aid – which is a legitimate issue,
but should not be overemphasized in development contracts –to a variety of equally
important issues, such as coherence and consistency between aid and trade policies,
or between aid and agricultural policies, and the impact of macro-economic
prescriptions on human development for ordinary people in the South.
II. Third State Obligations under the International Covenant on Economic,
Social and Cultural Rights
6. There has been a growing interest in the extraterritorial application of the ICESCR
in recent years, from activists, UN bodies and experts (in particular the ESCR
Committee and special rapporteurs) and scholars8 alike. While the UN Committee on
Economic, Social and Cultural Rights tends to use the term “international
obligations”, others refer to transnational obligations or third state obligations. The
term “transnational obligations” reflects the perspective of donor countries, which do
not only face obligations within their territory, but also transnationally, outside their
borders. The concept of “third state obligations” originates from the perspective of
individuals in the South, whereby next to their domestic State, third States are under
certain conditions duty-bound to contribute to the realisation of these individuals’
economic, social and cultural rights. It cannot be emphasized enough from the outset
that those third state obligations in no way lower or obliterate the domestic State’s
primary responsibility under the ICESCR. Third state obligations are always
complementary (though not necessarily secondary, see further para. 14) to domestic
state obligations.
7. The ICESCR contains a number of references to international assistance and
cooperation for the realisation of the rights contained in the Covenant (in particular
arts. 2, para. 1, 11, 22 and 23). Admittedly, the existence of third state obligations
under the ICESCR as legally binding obligations has not yet been established
beyond doubt. Out of a general reference to international assistance and cooperation
does not necessarily follow a specific legal obligation incumbent on individual third
states. Moreover, States parties to the Covenant may be rather reluctant to accept
the idea of legally binding third state obligations as long as their scope has not been
further clarified. Therefore, demystifying the concept of third state obligations is a
major challenge in order to increase their acceptability. This can only be done by
accurately spelling out what third state obligations do entail and what not. A first but
necessarily incomplete attempt is made in what follows.
A. Legal Recognition
8. The tripartite typology of state obligations that is usually employed to clarify
domestic state obligations (i.e. to respect, to protect and to fulfil), can be equally
useful for spelling out the meaning of third state obligations. Furthermore, that
typology may also prove extremely relevant for determining the degree of legal
recognition that particular third state obligations enjoy on a scale from soft to hard
law. In other words, some third state obligations may enjoy stronger legal recognition
than others, and the tripartite typology can be helpful in clarifying which one(s)
exactly.
5
9. The third state obligation to respect, i.e. to refrain from interfering with the
realisation of economic, social and cultural rights in other countries,9 has been said to
be a minimum obligation,10 which is moreover easy to identify and well-documented,
and which relates to direct conduct of the third states concerned. It is a “rather strong
obligation” that can be argued to be “part of existing human rights law (de lege lata).”
On the other hand, the third state obligations to protect (against third parties under its
control) and to fulfil have been said to be “still part of the law ‘under construction’, that
is the law as it ought to be (de lege ferenda).”11
The obligation to fulfil is clearly the most contentious one. Any suggestion of a legal
obligation to provide development aid for example has invariably been met by
hesitation or rejection from even the most generous donor countries. It is in any event
imperative not to reduce the discussion on third state obligations to the specific
obligation of fulfilment or, even more narrowly, to the duty to provide development
aid. Therefore, acceptance by States of certain third state obligations may be
facilitated by clearly specifying which type of obligation is being meant.
B. Meaning and Scope
10.
Guided by the ESCR Committee’s interpretation of third state obligations in
relation to several Covenant rights, the scope of the obligations to respect, to protect
and to fulfil will be clarified in what follows. Particular attention will be given to the
obligation to fulfil, for it generates most confusion and opposition.
11.
With regard to the obligation to respect (the obligation to abstain from
interference with an ESC right), the UN Committee has pointed out that international
agencies should scrupulously avoid involvement in projects which, for example,
involve the use of forced labour in contravention of international standards, or
promote or reinforce discrimination against individuals or groups contrary to the
provisions of the Covenant, or involve large-scale evictions or displacement of
persons without the provision of all appropriate protection and compensation. 12 In
relation to the right to adequate housing, it has made clear that international financial
institutions promoting measures of structural adjustment should ensure that such
measures do not compromise the enjoyment of the right to adequate housing. 13 The
World Bank and other agencies are moreover required to fully respect the World
Bank and OECD guidelines on relocation and/or resettlement, insofar as these
guidelines reflect the obligations contained in the Covenant.14
States should refrain at all times from embargoes or similar measures: food,
medicines and medical equipment, and water should never be used as an instrument
of political and economic pressure.15 Furthermore, food aid should be provided in
ways which do not adversely affect local producers and markets.16 With regard to the
right to water, the Committee has stressed that international cooperation requires
states to refrain form actions that interfere, directly or indirectly, with the enjoyment of
the right to water in other countries. It has clarified that any activities undertaken
within the state party’s jurisdiction should not deprive another country of the ability to
realize the right to water for persons in its jurisdiction.17 The Committee has also
underlined that when concluding international or regional agreements, States are to
ensure that these instruments do not adversely impact upon ESC rights.18
6
This third state obligation under the ICESCR to respect similarly applies to donor
countries and international organisations when negotiating and concluding
development contracts.
12.
With regard to the obligation to protect, the ESCR Committee has emphasized
that States are to prevent their own citizens and companies from violating for
example the right to water of individuals and communities in other countries. Where
possible, States have to take steps to influence third parties to respect the right to
water, through legal or political means.19
The third state obligation to protect is applicable whenever a State is in a position to
regulate the behaviour of actors under its control, while respecting the UN Charter
and applicable international law. Criteria to trigger off a State’s responsibility for
failure to abide by its third state obligation to protect might be a State’s awareness or
reasonably expectable awareness of the harmful behaviour of individuals or
companies under its control,20 or the permitting or failing to take appropriate
measures or to exercise due diligence to prevent, punish, investigate or redress the
harm caused by acts by private persons or entities under its control in other
countries.21
When concluding development contracts too, donor countries (and international
organisations) are to take into account their third state obligation to protect against
human rights violations committed by actors under their control on foreign soil.
13.
Finally, the ESCR Committee has also identified some fulfilment obligations,
which require positive action. The third state obligation to fulfil disaggregates into
obligations to facilitate, to provide and to promote.
The obligation to fulfil-facilitate requires active measures that enable and assist
individuals and communities to enjoy a right. A third state obligation with regard to the
right to food implies e.g. that food aid should be organized in ways that facilitate the
return to food self-reliance of the beneficiaries.22 States are also under the obligation
to ensure that their actions as members of international organizations take due
account of ESC rights, for example by influencing the lending policies, credit
agreements and international measures of these institutions.23 Agreements
concerning trade liberalization e.g. should not curtail or inhibit a country’s capacity to
ensure the full realization of the right to water.24 The international financial institutions
are to pay greater attention to ESC rights in their lending policies, credit agreements,
international measures to deal with the debt crisis, structural adjustments and
development projects.25 Appropriate UN programmes and agencies should assist in
drafting framework legislation for the implementation of a national strategy
concerning the right to food, and in reviewing sectoral legislation.26
The domestic obligation to fulfil-provide is understood as an obligation for the
domestic state to realize a right “whenever an individual or group is unable, for
reasons beyond their control, to enjoy an ESC right by the means at their disposal.” 27
The third state obligation to fulfill-provide can be understood in the same way. The
ESCR Committee has for example identified the following obligations of fulfilment for
donor countries or the international community at large:
7
- States parties, both recipients and providers, should ensure that a substantial
proportion of financing is devoted to creating conditions leading to a higher number of
persons being adequately housed;28 states are to take monitoring measures with
regard to the right to adequate food in order to implement their obligations under
articles 2, para. 1 and 23 of the ICESCR;
- where a State party is clearly lacking in the financial resources and/or expertise
required to work out and adopt a detailed plan of action for primary education, the
international community has a clear obligation to assist;29
- States and international organizations have a joint and individual responsibility to
cooperate in providing disaster relief and humanitarian assistance in times of
emergency.30 In disaster relief and emergency assistance, priority is to be given to
Covenant rights.31
An element of the obligation to fulfil-promote ESC rights could be the obligation for
international agencies to act as advocates of projects and approaches which
contribute also to enhanced enjoyment of the full range of ESC rights. 32 The
Committee has thus recommended to the international community to support the
diversion of resources to social welfare measures by the Guatemalan government,
and to ensure the regular and close monitoring and reviewing of projects undertaken
pursuant to peace agreements.33
In the context of development contracts, the third state obligation to fulfil should
therefore not be reduced to an obligation to provide development assistance. On the
one hand, the obligation to fulfil is much broader than that. On the other hand, an
obligation to provide development assistance will always be qualified. To the latter
point we now turn.
C. Duty-Sharing Between the Domestic State and Third States
14.
While the third state obligations to respect and protect apply simultaneously
with domestic state obligations, though they do not in any way waiver a domestic
state’s obligations, the third state obligation to fulfil is of a different nature. The
relationship between the domestic state party and third state duty-holders under the
obligation to fulfil is characterised first of all by subsidiarity: third state obligations to
fulfil are always secondary obligations. The first and primary obligation rests with the
domestic state. For this reason, the Special Rapporteur on the right to food e.g.
prefers to qualify the third state obligation to fulfil as one of “support to fulfil”, i.e. as
an obligation of assistance.34 It may only be triggered off if the domestic state is
unable, for reasons beyond its control, to fulfil the right or rights concerned by the
maximally available means at its disposal.35
15.
Secondly, domestic States that are unable to fulfil the economic, social and
cultural rights as guaranteed by the ICESCR are under an obligation to seek for
assistance.36 Third state obligations are therefore only potentially applicable upon a
request for assistance. Whether such a request is to be directed to a particular state
will be discussed below, in the context of the relationships among third states.
16.
Thirdly, the third state obligation to fulfil, like the domestic obligation to fulfil, is
subject to progressive realisation in light of the maximum available resources. It is in
other words no absolute and immediate obligation, but rather one qualified by time
and resources. However, as is the case with the domestic obligation to fulfil, there is
8
an immediate obligation for countries in a position to assist, to start the progressive
realisation upon request.
An assessment of the availability of resources may be based primarily on the
allocations in the national budget for development assistance and cooperation, and
for emergency aid, though it should not necessarily be limited to these. The very
existence of a third state obligation under the ICESCR would imply that a reasonable
proportion of the development assistance budget is to be earmarked for the
realisation of economic, social and cultural rights. It would also create a refutable
assumption that in case a country has not earmarked any resources for development
cooperation, it has no resources available. In other words, the very existence of a
third state obligation to fulfil would imply that donor countries make some resources
available for development cooperation, and that part of these resources is earmarked
for development cooperation in the field of economic, social and cultural rights.
17.
Fourthly, at least for the time being, third state obligations to fulfil may well be
limited to the minimum core content of economic, social and cultural rights.37 In the
view of the ESCR Committee, “[w]hen grouped together, the core obligations
establish an international minimum threshold that all developmental policies should
be designed to respect.”38 This minimum core obligation has been defined as the
obligation “to ensure the satisfaction of, at the very least, minimum essential levels of
each of the rights”.39 In respect of most economic, social and cultural rights, the
minimum core content and corresponding domestic core obligations have been
identified meanwhile by the ESCR Committee and/or by scholars. 40 While in the area
of domestic state obligations the concept has been used mainly to indicate which
elements of an economic, social or cultural right are non-derogable and are to be
realised immediately, regardless of the availability of resources, in the context of third
state obligations it is rather invoked to delineate the scope of the obligations.
D. Duty-Sharing Among Third States
18.
A second set of relations that is to be clarified in particular under the third state
obligation to fulfil pertains to the identification of specific duty-holders among all
potential third state duty-holders. Neither the ICESCR nor the ESCR Committee
provides much guidance on this point. The Covenant contains general references to
international assistance and cooperation, but these create only a kind of generic
obligation for all States parties (currently 154), which is not particularly helpful at a
practical level. In light of the Committee’s clarification that third state obligations are
incumbent on those states in a position to assist,41 the duty-holders might be
understood to be primarily those traditionally belonging to the donor community.
Some indication of which states in particular might be envisaged can be found in the
Committee’s concluding observations, for it has commended since 2000 States that
allocate 0.7 per cent or more of their gross domestic product to official development
assistance (Denmark, Luxembourg, Sweden),42 and it has encouraged other States
(Belgium, Finland, France, Germany, Iceland, Ireland, Italy, Japan and Spain) to
raise their level of development assistance to the UN target of 0,7% of GDP. 43 It
seems reasonable to assume that at least all member states of the Organisation for
Economic Cooperation and Development (OECD) are duty-holders of third state
obligations to fulfil, i.e. Australia, Austria, Belgium, Canada, Denmark, Finland,
France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, Netherlands, New
9
Zealand, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom, and the
United States. In addition, the Commission of the European Communities too has
been a member since 1961. This is by no means an exhaustive and invariable list.
The new member states of the EU e.g. have recently committed themselves to a
serious increase in the level of official development assistance,44 and qualify
therefore as duty-bearers as well.
19.
In order to further determine specific obligations for particular third states, it is
important to distinguish on the one hand, situations in which countries or
intergovernmental organisations are implicated in the non-realisation of Covenant
rights in other countries, and on the other hand situations in which there is no
obvious direct responsibility for non-realisation of economic, social and cultural rights.
It is submitted that the third state obligations of particular states will vary according to
the degree of causality between their policies and actions and the non-realisation of
Covenant rights in other countries. Therefore, among third states, states that are
implicated in the non-realisation of economic, social and cultural rights in a particular
country would be focused upon. Direct responsibility for non-realisation may for
example arise from a violation of the third state obligation to respect Covenant rights.
Among all potential third state duty-holders, third states that are co-responsible for
non-fulfilment can be argued to have an enhanced obligation45 to fulfil.
An example may well illustrate this. For many years, development assistance for
health care has included cost recovery mechanisms (e.g. user fees for drugs and
services), which are now widely recognised to seriously compromise access to
essential drugs and essential health care facilities, in particular for the vulnerable and
the poor. Case studies have shown their detrimental exclusionary impact on the poor.
In areas where a cost recovery system is in operation, mortality rates due to malaria
have increased dramatically. It seems fairly easy to demonstrate that those States
and international organisations that have promoted such cost recovery mechanisms,
have done so in violation of their third state obligation to respect the right to health in
the countries concerned. This failure to respect the right to health makes the donor
countries and international organisations concerned co-responsible for the nonfulfilment of the right to health. They may therefore be said to have an enhanced third
state obligation to fulfil the right to health, compared to other potential third state
duty-holders.
20.
When no direct responsibility of third states can be established, it may become
more difficult to single out particular states for living up to their third state obligation to
fulfil. It has been suggested that the third state obligation to fulfil could only be a
collective one, i.e. one that is to be fulfilled through international organizations. 46
Even then, the question remains how much each State might be expected to
contribute to these international organizations in light of its third state obligation to
fulfil. It is therefore necessary to determine more precisely the scope of the third state
obligation to fulfil as it is incumbent on particular States. The level of financial
contributions to be made to international organizations (presumably specialised
agencies) for the realisation of Covenant rights might for example be determined on
the basis of a State’s sustained political commitments at the international level (for
example to contribute to poverty reduction), as well as its legally or otherwise
enshrined commitments domestically.
10
21.
In sum, the third state obligation to fulfil under the ICESCR gives clear
indications as to where the limits of the contractual freedom of donor countries and
international organisations are to be situated.
III. Conclusions
22.
For the partnership for development as agreed upon in the Millennium
Development Goal No. 8 to become susceptible to implementation and evaluation, it
will have to be made concrete in more specific multilateral and bilateral development
agreements, which should be binding. Given the fundamentally uneven bargaining
power of the contracting partners, it is crucial to provide for a minimal legal
framework within which development contracts are to be concluded. Such a minimum
legal framework exists already, in that international human rights law (and in
particular the ICESCR) contains norms that are clear and precise, in order to
guarantee sufficient protection for the weaker contracting parties (i.e. States in the
South), and to ensure that both developing countries and donor countries are bound
to conclude development contracts which aim at fostering human development.
International human rights law thus offers substantive standards or criteria to
evaluate the process of concluding development contracts, and whether they will
contribute to human development.
23.
There is therefore no need to develop new standards or criteria for the
evaluation of instruments through which the partnership for development is realised,
even if the standards may still have to be made operational. A new supervisory
scheme will however be needed. Without downplaying the important role of the
ESCR Committee in this regard, that Committee will not be sufficient to properly
monitor and evaluate the realisation of the partnership for development. It has neither
the capacity nor the resources to do so. Moreover, although economic, social and
cultural rights have a crucial importance for human development, international human
rights law is broader than ESC rights. These other rights do not fall within the
mandate of the ESCR Committee. The challenge in setting up an evaluation
instrument may therefore lie in the creation of a specific monitoring scheme, which
should operate in close cooperation with inter alia the UN treaty bodies, but would
have a specific mandate to monitor the realisation of the partnership for development.
11
Endnotes

This paper draws on research which is funded by the Netherlands Organization for Scientific
Research (NWO).

Senior Researcher, Center for Transboundary Legal Development, Tilburg University (The
Netherlands); Research Fellow, Institute for Human Rights, Catholic University of Leuven (Belgium).
Contact: w.vandenhole@uvt.nl
1
Compare with Report of the Working Group on the Right to Development on its sixth session
(Geneva, 14-18 February 2005), UN Doc. E/CN.4/2005/25, para. 44.
2 Overseas Development Institute, The right to development: study on existing bilateral and multilateral
programmes and policies for development partnership, UN Doc. E/CN.4/Sub.2/2004/15, at 26.
3 Supra note Error! Bookmark not defined., at 6.
4 See e.g. UN Doc. E/C.12/1/Add.84, 19 December 2002, para. 24 (Solomon Islands).
5 See UN Doc. E/C.12/1/Add.66, 24 September 2001, para. 41 (Nepal).
6 See e.g. UN Doc. E/C.12/1/Add.100, 14 May 2004 (Ecuador).
7 ESCR Committee, GC No 12, The right to adequate food (art. 11), para. 19; GC No 14, The right to
the highest attainable standard of health (art. 12), para. 50; GC No 15, The right to water (arts. 11 and
12), para. 44.
8 See inter alia Sigrun Skogly and Mark Gibney, “Transnational Human Rights Obligations”, 24 Human
Rights Quarterly 2002, 781-798; Sigrun Skogly, “The obligation of international assistance and cooperation in the International Covenant on Economic, Social and Cultural Rights, in Morten Bergsmo
(ed.), Human Rights and Criminal Justice for the Downtrodden. Essays in Honour of Asbjørn Eide,
Leiden: Martinus Nijhoff, 2003, 403-420; and the contributions of Coomans and Künnemann in Fons
Coomans and Menno T. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties,
Antwerp: Intersentia, 2004.
9 The obligation to respect corresponds to the traditional understanding of human rights (mainly civil
and political rights) as entailing a negative obligation on behalf of the state.
10 Fons Coomans, “Some Remarks on the Extraterritorial Application of the International Covenant on
Economic, Social and Cultural Rights” in Coomans and Kamminga, supra note 8, at 190.
11 Ibid., at 193 and 199.
12 ESCR Committee, GC No 2, International technical assistance measures (art. 22 of the Covenant),
para. 6.
13 ESCR Committee, GC no 4, The right to adequate housing (art. 11(1) of the Covenant), para. 19.
14 ESCR Committee, GC No. 7, The right to adequate housing (art. 11(1) of the Covenant): forced
evictions, para. 18.
15 ESCR Committee, GC No 12, The right to adequate food (art. 11), para. 37. A similar argument has
been made with regard to the right to health (GC No 14, The right to the highest attainable standard of
health (art. 12), para. 41); and the right to water (GC No 15, The right to water (arts. 11 and 12), para.
32).
16 ESCR Committee, GC No 12, The right to adequate food (art. 11), para. 39.
17 ESCR Committee, GC No 15, The right to water (arts. 11 and 12), para. 31.
18 ESCR Committee, GC No 14, The right to the highest attainable standard of health (art. 12), para.
39.
19 ESCR Committee, GC No 15, The right to water (arts. 11 and 12), para. 33.
20 See the European Court for Human Rights’ criterion for deciding whether or not a State can be held
responsible for failure to protect individuals against other individuals against life-threatening behaviour.
21 See HRC, GC No 31, Nature of the General Legal Obligation Imposed on States Parties to the
Covenant, para. 8.
22 ESCR Committee, GC No 12, The right to adequate food (art. 11), para. 39.
23 ESCR Committee, GC No 14, The right to the highest attainable standard of health (art. 12), para.
39; ESCR Committee, GC No 15, The right to water (arts. 11 and 12), para. 36.
24 ESCR Committee, GC No 15, The right to water (arts. 11 and 12), para. 35.
25 ESCR Committee, GC No 12, The right to adequate food (art. 11), para. 41; GC No 13, The right to
education (article 13), para. 60); GC No 14, The right to the highest attainable standard of health (art.
12), para. 64; GC No 15, The right to water (arts. 11 and 12), para. 60.
26 ESCR Committee, GC No 12, The right to adequate food (art. 11), para. 30.
27 Ibid., para. 15.
28 ESCR Committee, GC No 4, The right to adequate housing (art. 11(1) of the Covenant), para. 19.
12
29
ESCR Committee, GC No 11, Plans of action for primary education (art. 14), para. 9.
ESCR Committee, GC No 12, The right to adequate food (art. 11), para. 38; GC No 14, The right to
the highest attainable standard of health (art. 12), para. 40.
31 ESCR Committee, GC No 15, The right to water (arts. 11 and 12), para. 34.
32 ESCR Committee, GC No 2, International technical assistance measures (art. 22 of the Covenant),
para. 6.
33 UN Doc. E/C.12/1/Add.3, para. 25 (Guatemala).
34 Report of the Special Rapporteur on the Right to Food, Jean Ziegler, 24 January 2005, UN Doc.
E/CN.4/2005/47, para. 47. Contrary to the Special Rapporteur, we prefer the term “secondary” over
“complementary”. In our view, all third state obligations are complementary to the domestic states’
obligations, i.e. in addition to the obligations of domestic states. However, whereas third state
obligations to respect and to protect are on an equal footing and apply simultaneously with the
domestic state obligations to respect and to protect, the third state obligation to fulfil is fundamentally
different in that it is only a subsidiary or secondary obligation, that is triggered off by the inability of the
domestic state to abide by its obligation to fulfil.
35 See mutatis mutandis the ESCR Committee’s threshold for triggering off the obligation to fulfilprovide for the domestic state, see e.g. GC No 12, The right to adequate food (art. 11), para 15.
36 For some indications of this obligation in general comments, see e.g. ESCR Committee, GC No 4,
The right to adequate housing (art. 11(1) of the Covenant), para. 10; GC No 11, Plans of action for
primary education (art. 14), para. 11.
37 GC No 14, The right to the highest attainable standard of health (article 12), para. 45; GC No 15,
The right to water (arts. 11 and 12), para. 38; Poverty and the International Covenant on Economic,
Social and Cultural Rights - Statement of the Committee on Economic, Social and Cultural Rights to
the Third United Nations Conference on the Least Developed Countries, 4 May 2001, UN Doc.
E/C.12/2001/17, Annex VII, para. 16: “In short, core obligations give rise to national responsibilities for
all States and international responsibilities for developed States, as well as others that are “in a
position to assist”.” See also Committee members Hunt and Bonoan-Dandan, who both linked the
obligation relating to international cooperation and assistance with the fulfilment of the core obligations
under the right to health (UN Doc. E/C.12/2000/SR.10, paras. 27 and 29).
38 Ibid., para. 17.
39 See GC No 3, The nature of States parties’ obligations (art. 2, para. 1, of the Covenant), para. 10.
40 Audrey Chapman and Sage Russell (eds.), Core Obligations: Building a Framework for Economic,
Social and Cultural Rights, Antwerp: Intersentia, 2002, 351 p.
41 GC No 3, The nature of States parties’ obligations (art. 2, para. 1, of the Covenant), para. 14.
42 UN Doc. E/C.12/1/Add.109, para. 3 (Norway); UN Doc. E/C.12/1/Add.102, para. 5 (Denmark); UN
Doc. E/C.12/1/Add.86, para. 6 (Luxembourg); UN Doc. E/C.12/1/Add.70, para. 7 (Sweden).
43 UN Doc. E/C.12/1/Add.103, para. 34 (Italy); UN Doc. E/C.12/1/Add.99, paras. 10 and 27 (Spain);
UN Doc. E/C.12/1/Add.89, paras. 11 and 20 (Iceland); UN Doc. E/C.12/1/Add.77, para. 389 (Ireland);
UN Doc. E/C.12/1/Add.72, paras. 14 and 24 (France); UN Doc. E/C.12/1/Add.68, paras. 15 and 33
(Germany); UN Doc. E/C.12/1/Add.67, para. 37 (Japan); UN Doc. E/C.12/1/Add.54, paras. 16 and 30
(Belgium); UN Doc. E/C.12/1/Add.52, paras. 13 and 23 (Finland).
44 On 24 May 2005, the 10 “new” member states of the EU committed themselves to spending 0.33 %
of their GDP on development cooperation by the year 2015; the 15 “old” member states promised to
reach the 0.7 % target by the same date.
45 The concept of an “enhanced obligation” was introduced by the ESCR Committee in its general
comment on the right to education, GC No 14, The right to the highest attainable standard of health
(article 12), para. 48. The Committee introduced the concept to highlight that States have principal
responsibility for the direct provision of education in most circumstances.
46 Rolf Künnemann, “Extraterritorial Application of the International Covenant on Economic, Social and
Cultural Rights”, in Coomans and Kamminga, supra note 8, 223-227.
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