Extraterritorial obligations of importing States in the area of economic, social and cultural rights

Abstract

In this thesis I address, from a normative point of view, the question if Germany has extraterritorial obligations (ETOs) as the importer of Colombian coal for violations of economic, social and cultural rights (ESCR) occurring in the context of coal mining by transnational corporations (TNCs). Although Colombia is the first to enforce these rights, Germany and States which can regulate the TNCs also have obligations. The German State carries ETOs to protect and fulfil ESCR in Colombia. It must provide for transparency in its energy sector, regulate the German importing companies, cooperate with Colombia and the TNCs’ home States in view of a regulation of these corporations and a multilateral trading system conducive to human rights. The Maastricht Principles on ETOs in the Area of ESCR proved to be a useful tool to identify ETOs and give propositions for compliance. Since the home States of the TNCs and the German State were found to breach several of these ETOs, they have violated the human rights of the affected communities in Colombia . Currently, only non-judicial remedies can address Germany’s ETOs. Generally, opinions diverge on whether or not conclusions on ETOs of importing States can be drawn from this case. Overall, it became clear that the existing accountability gap of ESCR can only be closed under the following conditions: an extraterritorial application of human rights law is accepted, the primacy of human rights law over economic law recognised, and enforcement mechanisms for territorial and extraterritorial human rights obligations – especially as regards ESCR – are strengthened through judicial and non-judicial mechanisms.