HEAL Seminar - Beyond Jurisdiction: Responsibilities for the Right to Health Event

Abstract:

Today we are often confronted with situations in which peoples’ enjoyment of their human rights cannot be secured by states of jurisdiction alone. Among the examples of such situations are so-called ‘complex’ emergencies caused by armed conflicts or natural disasters; effects of financial crises, austerity policies and structural adjustment programmes on the enjoyment of human rights; human rights protection undermined by cross-border tax evasion and corruption; or by the enforcement of international law that contradicts human rights law, e.g. in the areas of trade, investment or the protection of intellectual property rights by international courts and tribunals; and, last but not least, situations concerning the protection of human rights of migrants who voluntarily or involuntarily move between different states’ jurisdictions. In all these situations, protecting human rights can only be achieved through the coordinated implementation of multi-level legal, political, economic and other measures taken by various actors, among them states of jurisdiction, other states, international organisations and a range of other non-state actors, such as multi-national corporations, non-governmental organisations, non-state armed groups and even individuals.  

Many attempts to address such situations under human rights law rely on expanding the notion of jurisdiction which, as a threshold criterion, usually triggers the applicability of human rights treaty law in the relationship between a specific state and specific individuals. Arguing that these attempts do not take sufficient account of the (democratic) institutional character of states’ human rights duties, an omission that can have detrimental effects for existing protection of human rights, this paper takes a different route: it suggests that, in addition to states’ human rights obligations that they owe to individuals under their jurisdiction, so-called ‘responsibilities for human rights’ addressing states that do not exercise jurisdiction as well as a range of non-state actors as potential responsibility-holders, are emerging in human rights law. These ‘responsibilities’ become particularly relevant in the above-mentioned situations to secure human rights.

However, there is little clarity on the legal basis of these responsibilities, on their character and scope, on the question to whom exactly they are owed, on the criteria based on which they are allocated to various state and non-state ‘responsibility-bearers’, and on their relationship to human rights obligations of states of jurisdiction. By mapping relevant provisions in international and regional treaties as well as their interpretation by regional and international judicial and non-judicial bodies and experts, the paper attempts to contribute to the clarification of ‘responsibilities for human rights’ and to offer some thoughts about how they could be developed in the future in a normatively convincing way, to eventually allow for their improved implementation. Particular weight is put on clarifying ‘responsibilities for the right to health’.