The multi-state responsibility for extraterritorial violations of economic, social and cultural rights.

• Author: Howland, Todd

"At some point in the development of every legal system, the original strict and formal application of rules is supplemented by a freer approach which aims to go beyond the positivist strictures." (1)

1. INTRODUCTION

   This article argues for a change of perspective in the enterprise of promoting and protecting human rights. Long the province of the relationship of individual citizens to their state, this article goes beyond the present trends related to human rights obligations of non-state actors and its extraterritorial application. This article posits that multiple states can and do hold legal responsibility to protect and promote the human rights of the same individual.

   The idea that multiple states have human rights obligations to the same individual is derived, in part, from the author's own experience working in "failed states" and as part of multilateral efforts to bring peace, respect for human rights, and stability to war-torn and dysfunctional countries. Often the resources (e.g., power and financial capacity) at the disposal of the "host state" were extremely limited, while the United Nations Member States choosing to intervene in that country, either bilaterally and/or multilaterally, had extensive resources and at times more political power than the host country.

   Oddly, considering legal developments in other fields and the nature of human rights, there is a continuing practice of placing all legal obligations for violations of human rights on the country where such violations occur. Those states that have voluntarily joined in efforts to rehabilitate failed states have enjoyed total impunity. This impunity is enjoyed regardless of the relative power and financial capacity brought to bear in what these states would call a collective endeavor to bring peace, the respect for human rights and stability to war torn and dysfunctional countries. (2)

   Most relevant to development of the theory presented in this article is the author's recent work related to Haiti. Thus, the article begins with contextual information about Haiti. It continues with a discussion of theoretical considerations regarding the multi-state responsibility for extraterritorial violations of economic and social rights. This discussion first addresses historic humanitarian purposes, intervention industry reality, (3) the essence of human rights law, the legal concept that sovereignty is not jurisdiction, the criminal and civil nature of human rights law, and voluntarily assumed legal obligations. These theoretical considerations will then ground a discussion of specific hurdles to achieving multi-state responsibility for extraterritorial violations of economic and social rights, including marginalization of economic and social rights, exterritorial application of human rights law and multi-state responsibility. The article will conclude with a policy suggestion.

2. How RECENT EXPERIENCE IN HAITI INFORMS THE ARGUMENT

   Every year, the Robert F. Kennedy Memorial bestows its Human Rights Award on a creative and courageous activist. (4) During the period when the author directed the Memorial's Center for Human Rights, the Center committed to working for many years with the recipient to help her or him achieve specific human rights changes. In 2002, Loune Viaud, a right to health activist from Haiti, won the award.

   After the ouster of President Aristide in February 2004 (5) Viaud was skeptical about the new transitional govemment, (6) although she was hopeful that this international intervention, the 5th UN peacekeeping operation to Haiti, (7) would become more engaged in and supportive of development in Haiti than past missions. She was skeptical about the change because her organization had developed a number of projects implemented with the Aristide government that were measurably improving access to health care and had a positive impact on the AIDS crisis in the country. In fact, this was one of the reasons why she won the award. After Aristide's ouster, however, programs such as these, run jointly with the new government, were negatively impacted.

   Haiti was considered a "failed state" and had a temporary or interim administration that was established extra-constitutionally with a good deal of support, cajoling, arm-twisting, and imposition by important states such as the United States. Much against the council of experience and of experts, the US militarily intervened to facilitate Aristide's removal and the "restoration" of order when regional actors were against the idea and most favored preventive measures. (8) The US obtained UN Security Council support for the US led "multinational interim force" intervention and quickly turned the intervention over to the UN. (9) The Member States voluntarily intervening in Haiti, acting bilaterally and collectively, were better resourced and arguably may have exerted more influence over the country's direction than those nominally running the transitional government. But what is key here is that power and resources were brought to bear by various Member States to achieve a common objective: to bring peace, respect for human rights and stability. They brought resources that were much greater than those of the Government of Haiti. (10)

   Haiti is not the exception. The author has seen the problem first hand while working with the UN in post-genocide Rwanda, where those participating in the international intervention were much better resourced than the post-genocide government. When the author arrived in Rwanda, the Ministry of Justice, tasked with responding to the genocide, had almost no resources. Most of the infrastructure of the Ministry had been destroyed. The only vehicle the Ministry had was the Minister's old worn out private car, which on most days needed to be push started. Situations vary in terms of relative resource capacity and political power, but every country in crisis with an international intervention shares some of the same characteristics. In the absence of a war, a ceasefire, a peace process, or a peace accord, the UN Stabilization Mission to Haiti (MINUSTAH) (11) was an especially clear example of a relatively well-resourced peacekeeping mission sent to a country with extreme poverty and a long history of bad governance.

   A few months after the UN established a peacekeeping operation in Haiti, Loune Viaud would call the author and complain that "the UN was in Haiti on vacation" or that the donors say they have pledged over a billion dollars, but that she saw no visible impact from this money and questioned if any had actually been disbursed. (12) Given she runs one of the largest NGOs in Haiti, if she and her staff are unaware of the positive impact there probably was none. Viaud became more and more outraged at the fact that the UN had taken over Haiti's only medical school for its troops. The UN troops had electricity, running water and transport, but Haitian communities did not. She would call and complain that kids were lining up outside the UN compound to read because it was one of the few places in town with good light at night. Research done at that time by the RFK Memorial Center for Human Rights demonstrated an enormous gap between significant pledges, their disbursement, and their operationalization. This research supports Viaud's anecdotal account. (13)

   There was no hot war in Haiti, so it was unclear why the main response of the UN Security Council was to send troops. Making change on the ground is no easy task, (14) but sending the wrong tool does not make it any easier.

   MINUSTAH's annual budget was larger than that of the Government of Haiti. Larger. This is without considering other multilateral and bilateral support not already part of the annual governmental revenue or loan stream, or the amounts that come into Haiti which are not part of Government revenue. For example, the US in 2004 and 2005 disbursed $352 million in assistance for Haiti; most of it through US based NGOs. (15)

   The Haitian government had annual revenues of about US$400 million and expenditures of about US$600 million in 2005, (16) whereas the approved 2005 MINUSTAH budget was US$518.30 million. (17)

   Remarkably, an ally of former President Aristide, his former Prime Minister, was elected President a little more than two years following Aristide's ouster. (18) His election brought about a reduction in political violence, which could indicate that international intervention may have contributed to, as opposed to minimizing, the political violence.

   Viaud's complaint can be boiled down to the following:

   Has the international intervention, with all its expenditures, actually measurably improved the human rights situation in Haiti?

   Her complaint begs the question: do those participating in the international intervention collectively (e.g., as the UN or World Bank) and/or as individual States actually have an obligation to spend monies allocated or design programs in a way to consciously maximize their positive impact on the human rights situation? This article sets out to demonstrate that the answer to this question is yes. At present there is a gulf between those scholars who convincingly assert that such human rights obligations exist (19) and operational entities that seem to even begrudge being bound by humanitarian law after a directive from the UN Secretary General. (20)

3. THEORETICAL CONSIDERATIONS

   As odd as it may sound, political and bureaucratic concerns trump human rights obligations in the organization of international missions, mainly because Member States and multilateral and bi-lateral bureaucrats do not consider themselves bound by human rights law in the organization and operation of an intervention.

   How human rights obligations can more effectively organize mission resources and hold accountable those involved in international interventions needs to be better defined. For a variety of reasons, the questions "Who holds human rights?" and "Who has the obligation to...