The final exam in my International Human Rights Law course included an essay on the issue of extraterritorial human rights. I’ve copied my answer below.
#10 — Consistent with the development agenda that accompanied the establishment of the post-war Bretton Woods order, article 28 of the Universal Declaration of Human Rights referred to the need to move towards an international order that enables countries’ efforts to implement economic, social and cultural rights at home, stating that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized”. Is the emergence of extraterritorial human rights obligations, which have been increasingly recognized in recent years, sufficient to ensure that this promise is fulfilled?
“Sufficient” is the operative term in this question, and the answer must be NO.
The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (adopted in 2011) are a very important milestone in building the “international order” envisioned in article 28, but as current events clearly demonstrate, the nations of the world have not effectively acknowledged or fulfilled their extraterritorial human rights obligations.
The Great Return March initiated by the Palestinian civil society in Gaza on March 30, 2018 illustrates the failure of Israel and other nations to respect, protect, and fulfill the human rights guaranteed to everyone, including Palestinians living in the Gaza Strip.
Despite the fact that the State of Israel doesn’t acknowledge that it is a belligerent occupying force maintaining effective control over the Palestinians in Gaza (for the purposes of this discussion, I’m limiting the focus to Gaza and not the West Bank), the facts clearly demonstrate the contrary. The State of Israel strictly controls:
1) the movement of people and goods in and out of Gaza,
2) the territorial air space, waters and land borders,
3) the electromagnetic sphere,
4) the population registry, and
5) life and death.
The Maastricht Principles (#18) spell out that a “State in belligerent occupation or that otherwise exercises effective control over territory outside its national territory must respect, protect and fulfill the economic, social and cultural rights of persons within that territory. A State exercising effective control over persons outside its national territory must respect, protect and fulfill economic, social and cultural rights of those persons.”
For more than 10 years, the State of Israel has imposed an economic, social and cultural blockade on the Palestinians living in the Gaza Strip. As a result of the blockade, and three military operations which have directly targeted the civilian population and infrastructure in Gaza (2008-09, 2012 and 2014), the United Nations has reported that the Gaza Strip is expected to be unlivable by 2020. (Some would argue that the Gaza Strip is unlivable today.)
Few objective observers would argue that the Palestinians’ human rights are not being violated on a daily basis, but no one has been able to hold the State of Israel accountable under international law. No one has found any effective remedies for the Palestinians. In fact, when the United Nations General Assembly speaks with a nearly unified voice condemning Israel’s violations of international norms and laws, the United States steps in to condemn the United Nations.
In light of this history and current events, what does the principle that “All States have obligations to respect, protect and fulfill human rights, including civil, cultural, economic, political and social rights, both within their territories and extraterritorially” mean in practice?
What are Israel’s obligations? What obligations does the United States have as a primary financial sponsor (providing more than $3 billion to Israel every year) and supporter of Israel’s blockade and military operations? What obligations do other nations have to step in and take affirmative action to protect and fulfill the Palestinians’ human rights? Each of the three entails extraterritorial obligations. Perhaps, the answer is different for each.
The Universal Declaration of Human Rights, the Maastricht Principles, human rights treaties and international common law provide important and laudable goals but they can’t function in a vacuum. They represent the collective desires of the human community, and reflect U.S. Senator Paul Wellstone’s famous quote: “We all do better when we all do better.”
Human rights treaties are promises that States have made regarding the interests of individuals, as opposed to interests of the States themselves, and therefore holding States accountable for fulfilling those promises is challenging. Even more challenging is holding states accountable for protecting the human rights of people outside of their borders.
When and how can States intervene within the borders of another sovereign State to protect the human rights of individuals? Refraining from acts that may cause harm to individuals (#13 of the Maastricht Principles) in another country may be easier than taking affirmative actions, but there are serious hurdles nevertheless. For example, in the case of the U.S.’s responsibility to protect the human rights of the Palestinians in Gaza, withholding political support for Israel at the United Nations and reducing military aid to Israel might be actions that the U.S. could take unilaterally without infringing on Israel’s sovereignty, but domestic politics in the U.S. render those ideas very unlikely.
Ultimately, extraterritorial human rights obligations will gain traction when the actions of the human community leads or shames their States to do the right thing. The people must lead and the governments will follow. In the case of the Palestinians in Gaza:
1) Education – There are complex reasons for the human rights violations perpetrated by the State of Israel against the Palestinians, but it may stem from a fear that one side gains human rights at the expense of the other. Us vs. Them. Israeli society must learn that human rights are not a zero-sum game. In fact, their security is greatly enhanced when every man, woman and child within Israel and the occupied Palestinian territories have secured their basic human rights. Maintaining the belligerent occupation is not only contrary to international law but impedes the security and fulfillment of many human rights that Israelis seek for themselves.
2) Communication with decision-makers – Americans have a responsibility to communicate with our leaders about the long-standing human rights violations occurring in Gaza with our government’s complicity. International human rights are strongest when they are understood viscerally at the local level. The link between the Palestinians in Gaza, the Black Lives Matter Movement, the Standing Rock Water Protectors, the climate justice movement, and others, must be made clear to all because everyone’s actions to enforce human rights norms reinforces the human rights of others.
3) Changing the narrative – Israel’s hasbara has controlled public opinion in Israel and around the world for many years. Although it’s increasingly being met with skepticism, especially among the younger generation, Israel’s power and influence in controlling the narrative of the human rights violations in Gaza can even be traced back to the New York Times which refuses to denote Gaza as “occupied” since Israel removed its settlers and military from the Gaza Strip in 2005. Palestinian voices must be given greater attention by the mainstream media if the world is going to understand the human rights issues involved in the occupation. Until the mainstream media fulfills that role, social media activists and others must elevate the Palestinian voices.
4) Boycott, Divestment and Sanctions – Palestinian civil society launched the BDS movement about 10 years ago, very similar to the BDS movement which toppled Apartheid South Africa. There’s little doubt that the BDS movement has gained traction in the past few years, and has had a significant impact. Israeli leaders recently passed a law to prevent BDS activists from traveling to Israel and Palestine. In December 2017, Israel’s government approved a plan setting aside $72 million to fighting the campaign to boycott Israel. Tying human rights to the State’s treasury and bottom line is helping move Israel towards recognizing and fulfilling Palestinian human rights by ending the occupation.
5) Freedom Flotillas and the Great Return March – Some people believe physical action is necessary to force States to recognize and fulfill their basic human rights. People from many different countries have joined together in several Freedom Flotillas to try to break Israel’s maritime siege, costing a number of them to lose their lives when the Israeli military boarded their boat and fired on them. On March 30, 2018, thousands of Palestinians in Gaza launched a peaceful march towards the border with Israel to highlight their determination to obtain their right to return to their homes and lands from which they were expelled in 1947-48 when the State of Israel was created. On the first day of the Great Return March, 16 or 17 Palestinians were killed by Israeli sharpshooters at the border.
Physical actions such as these, when combined with all of the actions described above, move world opinion and action closer to fulfilling the human rights obligations set forth in the UDHR, treaties and other formal legal mechanisms. States will move in the right direction when individuals create the parade for them to lead.