Oxford Journal of Legal Studies, Vol. 29, No. 4 (2009), pp.

827847
doi:10.1093/ojls/gqp028

Global Responsibility for Human Rights

SIGRUN I. SKOGLY*

1. Introduction
In recent years, international human rights discourse has changed.
Traditionally, this discourse was based on a divisive good-vs-bad perspective,
where some states in the international community were promoting human
rights, while others violated them.1 It was, of course, always recognized that
no society was perfect,2 but that the gross and consistent violations were
committed by some bad states, and they needed naming and shaming. This
approach to human rights problems had at least three characteristics: first,
human rights violations were raised mainly in terms of violations of civil and
political rights; second, the territorial state was responsible for the protection
of human rights, and consequently if there were human rights violations, the
territorial state must have failed in its responsibility; and, third, human rights
violations were primarily conceived of as violations of one right in relationship to
one individual person. This latter point is particularly the case when addressing
human rights violations through judicial channels, both domestically and
internationally.

A review of Global Responsibility for Human Rights: World Poverty and the Development of International Law by
ME Salomon (OUP, Oxford 2007).
* Professor of Human Rights Law, Lancaster University Law School. Email: s.skogly@lancaster.ac.uk
1
Makau Mutua,Savages, Victims, and Saviors: The Metaphor of Human Rights (2001) 42 Harvard
International Law Journal 20145.
2
The significant jurisprudence of the European Court of Human Rights demonstrates this point.

The Author 2009. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oxfordjournals.org

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AbstractGlobalization has made the protection of human rights and the

prevention of violations of these rights more complex in recent years. This article
reviews a book that challenges the current wisdom of human rights obligations
that almost uniquely focus on the behaviour of states in relation to their own
populations. The focus of this review is the concept of shared responsibility for
human rights protection that is an essential topic of the book. It assesses the call
for responsibility for those states with the power to influence structures in the
international community that perpetrate poverty and human rights violations on
a large scale.

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Consistent with human rights instruments generally, there is an assumption that the
primary responsibility for the realization of the right to development lies with the state
acting domestically. However, integral to the logic of this right, is the recognition that
3
The following can be mentioned: Andrew Kuper (ed), Global Responsibilities: Who Must Deliver on Human
Rights? (Routledge, New York 2005); Thomas Pogge (ed), Freedom from Poverty as a Human Right (OUP, Oxford
2007); Bill Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of
Politics (Glass House, London 2008); David Bilchitz, Poverty and Fundamental Rights: The Justification and
Enforcement of Socio-Economic Rights (OUP, Oxford 2007).
4
Margot E Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International
Law (OUP, Oxford 2007) 5.
5
United Nations Declaration on the Right to Development, UNGA Res 41/128(4 December 1986)
(Hereafter DRD).

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However, in the past decade or so, this way of conceptualizing human rights
has been increasingly challenged. The protection and promotion of human
rights is changing to become a central aspect of much international concern,
both as a goal in itself, and also as a means to promote other goals, such as
poverty alleviation, anti-corruption, prevention of terrorism and resource
distribution. The debates concerning the promotion of human rights, and the
usefulness of human rights-conducive policies for other aims, have resulted in
a number of recent publications,3 one of which is reviewed in this article.
In her book Global Responsibility for Human Rights, Margot Salomon
addresses the current international debate on human rights protection and
promotion within the framework of increased international interdependence.
She holds that, given this interdependence, international cooperation and
shared responsibility have been entrenched as the twin principles upon which
the fundamental and collective values of human rights are to be realized.4 The
book discusses the structural impediments to human rights protection and
promotion in the current international system, and how these impediments are
perpetuating a fundamentally unequal society unable to deal with the most
basic of concerns: staggering human suffering resulting from poverty.
The overall aim of the book is to analyse the legal foundations for global
responsibility for human rights protection, and through such responsibility
achieve poverty reduction. It is envisaged that this will be achieved by framing
international economic structures around the parameters set by the right to
development in accordance with the Declaration on the Right to Development
(DRD) from 1986.5 Rather than the traditional focus on how one state, either
through act or omission, violates the rights of its people, the concern in
Salomons book is with the way in which the international community as a
whole, in spite of expressions of good intentions, is not providing sufficient
protection and promotion of human rights. Furthermore, this deficiency on
the part of the international community results in a failure to achieve other
objectives, such as poverty eradication and other Millennium Development
Goals (MDGs). She points to the shortcomings of the dominant debate by
holding that:

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its implementation domestically may be undermined by global structural disadvantage

that developing countries face in their dual role as both claimants and duty-bearers of
the right to development.6

6
7
8
9
10
11

Salomon (n 4) 53.
Ibid 61.
Ibid 178.
Ibid 179.
Ibid 186.
Ibid 195.

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The book is divided into five substantive chapters. In the first chapter, the
author provides the background for the current structural obstacles to human
rights enjoyment by elaborating on the increased interdependence among states
and globalization. However, she reminds the reader that the process that led to
interdependence and globalization was initiated through the establishment of
the United Nations, and that the raison detre of this philosophy of co-operation
was rooted in the concept of human dignity, and the approach was informed by
an appreciation that creating better conditions of life for every human being
would diminish the risks of political tensions and armed conflict.7 In the
remaining chapters, she demonstrates how the world community has failed to
focus on human dignity and, consequently, failed to tackle the problems of
human rights, poverty and development.
In Chapter Two, she analyses the sources and content of an international
responsibility to co-operate to secure human rights, and follows this with an
in-depth discussion on the right to development and human-centred globalization in Chapter Three.
In Chapter Four, Salomon challenges the predominant approach of positivism in international human rights law, arguing that a universal principle to
respect and observe human rights has been elevated to a level where it legally
binds all states.8 Through the careful analysis of human rights jurisprudence
and doctrine she arrives at the conclusion that [t]oday it can hardly be said
that socio-economic rights so central to survival, and to the ability of people
to live in conditions of dignity, and widely supported by the international
community of states, do not form part of [the] basic rights of the human
person that demand universal respect, and engage community legal interest.9
In the final substantive chapter, Salomon discusses the difficult issues
surrounding attribution of global legal responsibility. She introduces the concepts of due diligence and global standards of care, and argues that the
requirement of due diligence to prevent violations of human rights is now an
accepted rule of customary international law, also where states exercise
jurisdiction through effective control abroad.10 She further argues that current
international law encompasses a global duty of care and that the right to
development, as well as poverty reduction, can only be achieved through the
shared effort of the international community.11

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As will have become evident from this brief overview of the content of the
book, there are a number of themes that could merit further consideration and
discussion. However, in this review, I will concentrate on one of the key
concepts in the book: that of shared responsibility. This concept captures
much of the focus of the book, and will be addressed by analysing some of its
wider implications.

2. Reluctance to Recognize Structural Impediments

12
This is confirmed in the UN Charter, where Art 1 provides that two of the main purposes of the UN are to
maintain international peace and security (Art 1(1)), and to achieve international co-operation . . . in promoting
and encouraging respect for human rights and for fundamental freedoms (Art 1(3)).
13
David S Weissbrodt and Connie de la Vega, International Human Rights Law: An Introduction (University of
Pennsylvania Press, Philadelphia 2007) 6.
14
Amnesty International, Rendition and Secret Detention: A Global System of Human Rights Violations
(Report POL 30/003/2006) (1 January 2006) <http://www.amnesty.org/en/library/info/POL30/003/2006/en>
accessed 2 February 2009.

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States willingness to become bound by international human rights law has

varied over time. In the aftermath of the Second World War, there was
recognition that minimum standards for treatment of the human being not only
represented a morally laudable goal, but also that there was a strong link
between the preservation of international peace and security and respect for
human rights.12 In the decades immediately following the adoption of the UN
Charter and the Universal Declaration of Human Rights, recognition of the
importance of human rights standard setting, and the willingness to become
bound by these standards, were fairly widespread. The importance of human
rights acceptance remained strong in the international community up to the
end of the 20th century, where new (or newly independent) states tended
rapidly to ratify international human rights treaties to gain legitimacy in the
community of nations.13 However, in recent years, the willingness of states to
remain bound by international human rights law seems to have diminished,
particularly in the context of the war on terror and counter-terror policies.
This is evidenced by reports of torture being used when interrogating terror
suspects,14 and by debates surrounding fair trial provisions, etc. This
demonstrates that governments have, in light of changed global political
realities, diminished their commitment to the protection of human rights
domestically as well as internationally. It is therefore not surprising that these
governments are also reluctant to recognize that they are perpetuating human
rights violations globally through their unwillingness to include human rights
considerations in their international activities, both economic and noneconomic.
The structural impediment to global human rights promotion is well
documented in Salomons book. It becomes clear that the logical extension
of human rights concerns to international structures governing the international

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A rights-based approach to globalization seeks to place international human rights

standards and principles at the centre of international economic affairs; to have them
successfully inform all cooperative endeavours that may impact on their exercise.
However, the international law of human rights will only provide the humanizing
force that the negative trend in globalization requires if it evolves to meet these
challenges.21

15

Salomon (n 4) ch 2.
World Conference on Human Rights Vienna Declaration and Programme of Action (12 July 1993) UN
Doc A/CONF157/23.
17
Millennium Declaration, UNGA Res/55/2 (18 September 2000) UN Doc A/Res/55/2.
18
Ibid para 24.
19
UN OHCHR, Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies (2002);
Philip Alston, Ships Passing in the Night: The Current State of the Human Rights and Development Debate
Seen Through the Lens of the Millennium Development Goals (2005) 27 HRQ, 755829; Rights and
Democracy, Implementing The Millennium Development Goals: Our Human Rights Obligation Conference Report
(Ottawa 89 June 2005).
20
Salomon (n 4) 100.
21
Ibid 11.
16

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community in terms of trade, finance, military cooperation and other forms of

international interaction has not taken place.15 This is in spite of the rhetoric
of human rights promotion remaining strong among states, as evidenced in a
number of documents, starting with the DRD in 1986, confirmed in the
Vienna Declaration and Programme of Action from 1993,16 and most recently
in the Millennium Declaration adopted in September 2000.17 Through this
latter Declaration, all states pledged not to spare any effort to promote
democracy and strengthen the rule of law, as well as respect for all internationally recognised human rights and fundamental freedoms, including the
right to development.18 Yet, when the MDGs were agreed on the basis of
the consensus with which the Declaration had been expressed, there was no
mention of human rights. Nevertheless, the connection between the MDGs
and human rights has been made on a number of occasions,19 including in the
book subject to this review.20
However, the MDGs are only one example of how states fail to extend their
human rights concerns into their international agendas for operational policy.
Too often, human rights commitments remain rhetorical, while operational
programmes and policies fail to incorporate these commitments in their
design and implementation. Moreover, states have generally accepted their own
human rights obligations at the domestic level, but not the effect that their
international activities, such as trade, security cooperation, development
assistance and investment may have on human rights enjoyment globally.
It is rarely recognized that states have legal obligations in relation to their
impact upon the human rights enjoyment of individuals in other states, or that
the international community as a whole has such obligations. According to
Salomon:

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3. The Concept of Shared Responsibility

The concept of shared responsibility is now added to a new set of terms used to
describe the deficiency in international human rights protection addressed by
an increasing number of academics, NGOs and international institutions.
Other related terms (but not necessarily synonymous with shared responsibility) are international obligations;23 extraterritorial obligations24 and
transnational obligations.25 In her book, Salomon introduces additional
concepts, some of them applied interchangeably. She uses the terms shared
responsibility,26 global responsibility,27 collective obligations28 and obligations of international cooperation.29 She gives special consideration to some
of these terms. For instance, she holds that [t]he right to development
was proclaimed by the international community on the premise of a shared
responsibility (although the term only entered the human rights lexicon 14 years
later) . . .30; that the collective obligations of the international community . . .
pertain to obligations to ensure arrangements that are just, and thereby conducive to the fulfilment of the socio-economic rights of all people;31 and that
22

See n 65, below and accompanying text.

Commonly applied by the UN Committee on Economic, Social and Cultural Rights. For an analysis of this
Committees approach to international obligations see Magdalena Sepulveda, Obligations of International
Assistance and Co-operation in an Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights (2006) 24 NQHR, 271303.
24
This term has been widely used by academics and NGOs. See for instance, Fons Coomans and Menno
Kamminga, Extraterritorial Application of Human Rights Treaties (Intersentia, Antwerp 2004); Sigrun Skogly,
Beyond National Borders: States Human Rights Obligations in their International Cooperation (Intersentia, Antwerp
2006); FIAN International, Germanys Extraterritorial Human Rights Obligations (FIAN, Heidelberg 2006).
25
See, for instance, Wouter Vandenhole, Economic, Social and Cultural Rights in the CRC: Is There a Legal
Obligation to Cooperate Internationally for Development? (2009) 17 Intl J Child Rtst 141.
26
Salomon (n 4), inter alia at 5 and 53.
27
Ibid, most notably in the title and in ch 5: Attributing Global Legal Responsibility.
28
Ibid, inter alia at 6 and 182.
29
Ibid, commonly used throughout the book.
30
Ibid 53. The reference to the entry into the human rights lexicon refers to the use of the term in the UN
Millennium Declaration (emphasis added).
31
Ibid 182 (emphasis added).
23

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Her view indicates one of the crucial challenges for the human rights
community: to achieve acceptance of the need to alter international human
rights law to make it relevant in a world characterised by porous national
borders, and the dominance of economic actors and structures, the interests of
which may well not coincide with human rights protection. In this endeavour,
it may be necessary to change or reinterpret structures or principles in
international law that may be taken for granted, but may in fact work against
human rights protection. One such concept is sovereignty, which will be
discussed below.22 Therefore, what is lacking in the international communitys
treatment of rights is a consistent approach to the human rights effects of
actions, and an acceptance of shared responsibility for the protection and
promotion of human rights.

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4. The Foundation for Shared Responsibility

In 1945, the states of the world came together with a common vision of
international co-operation to promote respect for human rights and fundamental freedoms.33 This principle was further solidified through the pledge
made in Articles 55 and 56 of the UN Charter to take joint and separate
action to promote universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language, or
religion. These articles confirm a commitment to what can be labelled shared
responsibility. The concepts used international co-operation, joint action,
universal respect for, and observance of, and for all without distinction
are all interesting elements in a discussion on shared responsibility.
Through the provision of joint (and separate) action in Article 56, the
UN Charter recognizes that the enjoyment of human rights by individuals
around the world is a responsibility for all Member States of the United
Nations, and that it is not an internal concern that can be left to individual
states alone. By 1950, Hersch Lauterpacht had already contended that the
UN Charter made human rights a legitimate concern for the international
community,34 and no longer a domestic matter only. Therefore, the concept
of joint action recognizes the importance of the need for common and
co-ordinated action to promote human rights and fundamental freedoms in all
societies.
Furthermore, the article provides that it is not only the promotion of human
rights that is the key, but indeed that human rights are supposed to be
respected and observed universally. The concept of universality has often been
related to the enjoyment of human rights, but far more rarely related to the
32
33
34

Ibid 6 (first emphasis added).

UN Charter, Art 1(3).
Hersch Lauterpacht, International Law and Human Rights (Stevens & Son, London 1950) 76.

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obligations of international cooperation for economic, social and cultural rights

require something over and beyond obligations derived from the extraterritorial reach of a human rights convention; they call for proactive steps through
international cooperation in securing these rights globally, rather than obligations attached reactively.32 What this richness of concepts demonstrates is
that states should act individually and collectively through the international
community to address the effect of their actions and omissions on the human
rights enjoyment of all people around the world, and that this is imperative in
times of ever increasing interdependence and globalization. In the remaining
parts of this article, I will address the concept of shared responsibility in more
depth, and assess the extent to which Salomons contribution indicates fruitful
directions for further work and attention in this area.

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35
Sigrun Skogly, Universal Human Rights without Universal Obligations? in Sarah Joseph and Adam
McBeth (eds) International Human Rights: A Research Handbook (Edward Elgar, Cheltenham 2009, forthcoming).
36
Salomon (n 4) 6.
37
UNGA International Covenant on Economic, Social and Cultural Rights (adopted 1966, entered into force
1976). As of February 2009, 160 states have ratified the Covenant.
38
Convention on the Rights of the Child (1989) provides in Art 4 inter alia that With regard to economic,
social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available
resources and, where needed, within the framework of international co-operation.
39
Convention on the Rights of Persons with Disabilities (Adopted 2006, entered into force May 2008).
40
Ibid Art 32.

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corresponding state obligations that the terms respect and observance

indicate.35 The debate on cultural relativism v universalism has focused on
how individuals may enjoy human rights in their cultural setting, while too little
attention has been given to the interpretation that human rights law generates
obligations for territorial states only (within the territory of the state that has
ratified a given treaty). This lack of attention to the effect of a states action on
the enjoyment of human rights outside its borders is contrary to the notion of
universality.36 (Therefore, the universal observance of human rights and
fundamental freedoms has lost much of the content given by the drafters and
ratifying states of the Charter. This argument is further supported by the
non-distinction (non-discrimination) provision in Article 56, as human rights
obligations which are differentiated as to whether violations occur towards
individuals within or outside a states territory clearly have discriminatory
underpinnings. If the human rights protection given to an individual differs
depending upon whether it is the domestic or a foreign state that has
perpetrated the atrocities, this is clearly contrary to the ethos of nondiscrimination.
Beyond these articles of the UN Charter which form the foundation for
international human rights law, and the common obligations of all members
of the UN, there are other sources of human rights obligations of direct
importance for shared responsibilities. One is the provision in Article 2(1)
of the International Covenant on Economic, Social and Cultural Rights
(ICESCR),37 which provides that Each State Party to the present Covenant
undertakes to take steps, individually and through international assistance and
co-operation, especially economic and technical, . . . with a view to achieving the full
realization of economic, social and cultural rights. A similar formulation is used
in the Convention on the Rights of the Child,38 and the recent Convention
on the Rights of Persons with Disabilities39 that contains a separate article
specifically covering international cooperation.40 Perhaps the most comprehensive approach to obligations shared among all states is found in the DRD,
discussed in detail in Salomons book. She holds that what she terms a
responsibilities approach characterises the DRD and that this reinforces the
position that this right is less about establishing a new substantive right,
and more about framing a system of duties that might give better effect to

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existing rights.41 Part of this responsibility is to promote an equitable

international order.42
Thus, the UN Charter and other sources of international human rights
law contain strong foundations for shared responsibility for human rights
protection and observance throughout the world. The important question to
ask is what the content of such shared responsibility may be, and how it can
be operationalized.

When monitoring human rights compliance or supervising states in their efforts

to implement human rights as provided for in the treaties they have ratified,
attention by monitoring bodies has almost uniquely been focused on how states
implement human rights domestically. The exception to this is the emerging
practice of the UN Committee on Economic, Social and Cultural Rights,
where states are questioned about their attempts to include human rights
concerns when acting through international financial institutions, such as the
IMF or the World Bank;43 or how human rights obligations are considered in
states international development assistance.44 Similarly, human rights litigation
before the regional human rights courts (the European Court of Human Rights
and the Inter-American Court of Human Rights) is commonly addressed from
the perspective that it is the territorial state that has the obligations. Alternatively, in situations where another state may be involved in the violations, the
issue is normally addressed from the perspective that it is either the domestic
state or the foreign state that are in breach of obligations,45 rather than a
shared responsibility between the two or more states involved in the situation.
The notable exception here is the case of Ilascu v Moldova and Russia,46 where
the European Court of Human Rights held that both Moldova and Russia had
acted in breach of the European Convention on Human Rights (ECHR), and
in particular Articles 3 and 34. As a consequence of this, both states were
ordered to pay compensation to the victims.47 This is one of the very few
examples where more than one state has been found to be responsible for
breach of the Convention in relation to one claim. However, it is a good
example of how a concept of shared responsibility may work. Further
41

Salomon (n 4) 7.
Ibid 14.
See UN Committee on Economic, Social and Cultural Rights, UN Doc E/C.12/2000/SR.6, para 40.
44
See UN Committee on Economic, Social and Cultural Rights, for questions concerning the allocation of
development assistance budgets for Switzerland, UN Doc E/C.12/1998/SR.37, para 27, and for Finland UN Doc
E/C.12/2000/SR.61 para 66. For further analysis of this practice, see Sepulveda (n 23).
45
See, for instance, European Court of Human Rights, Loizidou v Turkey (1997) EHRR 513.
46
European Court of Human Rights, Ilascu and Others v Moldova and Russia (App no 48787/99) 8 July 2004.
47
Ibid paras 494 (20) and (21).
42
43

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5. The Content and Operationalization of

Shared Responsibility

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elaborations on such situations, and the definition of what shared responsibility implies, are necessary.

A. The Meaning of Responsibility?

B. Two Different Approaches to Shared Responsibility

Part of the difficulty when discussing responsibilities or obligations that go
beyond the territory of the individual state is to determine where such obligations begin and end. Critics of an extraterritorial approach to human rights
obligations have contended that it would be impossible to determine who is
responsible for the action or omission that has led to the human rights violation, or, in other words, that causation between a foreign states act or omission
and violations of individuals human rights within another states territory is too
48
The International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts
in 2001 in Yearbook of the International Law Commission (2001), Vol II (Part 2). (Hereafter: Articles on State
Responsibility.)
49
Ibid Arts 1 and 2.
50
Salomon (n 4) 86.

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The concept of responsibility has a very specific meaning in international law.

According to the Articles on State Responsibility,48 an act attributable to a
state, which is a breach of an international obligation, entails the international
responsibility of that state.49 In this sense, responsibility is something that is
triggered by an act (or omission) by a state, and is a reactive concept. However,
more common usage of the term responsibility includes moral/ethical connotations. For instance, we are taught from an early age to take responsibility
for our actions. Such use of the term responsibility implies not only that we
should face the consequences of wrongdoing, but also that we should consider
the potential negative effect of future actions that we may plan to carry out. To
capture this broader understanding of the concept, it is important that shared
human rights responsibility be interpreted to consist of preventative elements
as well as the reactive definition of responsibility found in the Articles on State
Responsibility. While it is important to have a structure that can be applied in
situations where human rights have been violated, it is equally important to
have a system that prevents human rights violations from occurring in the first
place. As argued by Salomon, the term shared responsibility should be applied
to the duty of the international community to set up structures, interpret
international agreements, and carry out policies in compliance with the human
rights norms that are agreed by all states as expressed through the International
Bill of Rights, and later reiterated in a number of global statements, such as the
Millennium Declaration.50 The understanding of the term shared responsibility should therefore encompass both proactive and reactive responsibilities.

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As a creditor country Norway has a shared responsibility for the debts that followed.
In cancelling these claims Norway takes the responsibility for allowing these five
countries to terminate their remaining repayments on these debts. . . . Cancelling these
debts will have consequences for how we think about responsible lending in the
future. . . . By cancelling these debts we want to give rise to an international debate on
lender responsibility.53

Second, there is a more general understanding of shared responsibility

where states collectively have obligations to construct the international
community and its structures, processes and policies in ways that protect and
enhance human rights enjoyment globally. This is the focus of Salomons book,
and she argues convincingly that:
Despite the fact that human rights are concerned with challenging abuse of power at
all levels preventing it, protecting people from it, providing for claims against
its coercive use, ensuring a system of accountability, and remedying the violations
brought about by its occurrence - the global system offers no meaningful method
for attributing responsibility, and determining accountability within an order that
51
Kjetil Abildsnes, Norway Cancels Illegitimate Debt and Rakes Responsibility for Failed Development
Policy (2006) <https://www.50years.org/cms/updates/story/345> (accessed 2 February 2009).
52
The Campaign was based on developing countries being granted cheap credit by Norwegian authorities in
return for buying ships from Norwegian shipyards that were struggling to get orders. Audits of these credits have
shown that quality controls were lowered, as the main issue was to sell Norwegian ships. Credits were given for
projects that would otherwise have been regarded as too risky. For further information on this case, see Kjetil
Abildsnes, Why Norway took Creditor Responsibility the Case of the Ship Export Campaign (Norwegian Debt
Campaign/The Norwegian Forum for Environment and Development, Oslo 2007) 3.
53
Abildsnes (n 51) (emphasis added).

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hard to establish to apportion responsibility. Based on shared responsibility,

this criticism can be addressed through two separate approaches.
First, shared responsibility can be addressed on a case-by-case basis. In some
cases, for example, where actions or omissions by one state (or more states)
may influence human rights enjoyment in another state, or where a relatively
clear line of causality can be established, then shared responsibility can be
attributed. This was clearly the case in Ilascu v Moldova and Russia as indicated
above. Other examples of such situations may include rendition of detainees
where co-operation between two states or among several states is necessary for
the action to take place, or situations where conditions have been added to
develop co-operation agreements (for instance, initiated by the donor, accepted
by the recipient) that may lead to discrimination in human rights enjoyment
based on gender, race or religion. One example where shared responsibility has
been accepted (without specifically implying human rights problems) was when
Norway unilaterally and without conditions cancelled US$80 million in
illegitimate debts owed by 5 countries: Egypt, Ecuador, Peru, Jamaica and
Sierra Leone.51 The debt was a result of the Ship Export Campaign
(197680), which the Minister of International Development, Erik Solheim,
characterized as development policy failure.52 He held:

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provides for yet another person from a developing country to die of starvation every
3.6 seconds, the large majority of whom are children under the age of five.54

The DRD seen in the light of Articles 55 and 56 of the UN Charter and
Article 28 of the Universal Declaration on Human Rights,55 recognizes the
significant importance of the international communitys responsibility and
obligations, in that it inter alia provides that:

This is why Salomon holds that the DRD is about framing a system of duties
that would give better effect to existing rights, rather than creating a new
substantive right.60 This is also how the DRD responds to the need for shared
responsibility in order to ensure global protection and respect for human rights
and fundamental freedoms.
In her book, Salomon seems to adhere to, or at least to focus almost uniquely
on, this second approach to shared responsibility. She argues that in determining responsibilities of the international community of states we need to
release ourselves from the instinct to identify a causal chain from international
state behaviour to violations of socio-economic rights,61 reasoning that the
structure of the global institutional system as currently designed, allows for
the perpetuation of poverty, or, at a minimum, has failed sufficiently to relieve
poverty, and the situation is worsening.62 The present author does not,
however, agree with this exclusion of the causality approach from the issue of
global structural impediments. As was shown above, there are situations where
54

Salomon (n 4) 148.
Article 28 of the Universal Declaration on Human Rights reads: everyone is entitled to a social and
international order in which the rights and freedoms set forth in this Declaration can be fully realized.
56
DRD, Art 3(1) (emphasis added).
57
DRD, Art 3(3).
58
DRD, Art 4(1).
59
DRD, Art 10 (emphasis added).
60
See nn 41and 42, above and accompanying text.
61
Salomon (n 4) 194.
62
Ibid.
55

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 States have the primary responsibility for the creation of national and international
conditions favourable to the realization of the right to development.56
 States have the duty to co-operate with each other in ensuring development and
eliminating obstacles to development. States should realize their rights and fulfil
their duties in such a manner as to promote a new international economic order
based on sovereign equality, interdependence, mutual interest and co-operation
among all States, as well as to encourage the observance and realization of human
rights.57
 States have the duty to take steps, individually and collectively, to formulate
international development policies with a view to facilitating the full realization of
the right to development.58
 Steps should be taken to ensure the full exercise and progressive enhancement of
the right to development, including the formulation, adoption and implementation
of policy, legislative and other measures at the national and international levels.59

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C. Who Shares Responsibility?

To avoid a gap in human rights protection, it is necessary to address all actors
involved in human rights violations or in potential human rights promotion,
to be able to hold the relevant parties responsible. But to do this, it is necessary
to shift the focus from attempting to find the one actor that has committed the
wrongful act and to recognize that more actors may be involved (rather like
the criminal law concept of complicity). Therefore, as argued by Salomon,
the shared responsibility will be among domestic and foreign states, as well as
states acting through intergovernmental organizations, such as the WTO,
the IMF and the World Bank.64 Furthermore, states also share responsibility for regulating the conduct of private parties, such as transnational
corporations (TNCs).
Two arguments against the concept of shared responsibility or shared
obligations is that it is contrary to state sovereignty, and that it is impractical to
try to apportion responsibility for human rights violations. Even if human rights
are now legitimate concerns for the international community, sceptics to shared
responsibility would argue that human rights violations should be addressed to
the territorial state where the victims reside, and should not include human
rights concerns in the foreign policy of states, or policies carried out through
international institutions. It would be seen as contrary to the sovereignty of the
recipient state if, for instance, donor states included human rights concerns in
their development assistance policies, or if contracts for the sales of weapons
or military equipment were to include human rights clauses and safeguards.
However, this approach to sovereignty misses a crucial point. As rightly stated
63
Report of the Secretary-General, Renewing the United Nations: A Programme for Reform (1997) UN
Doc A/51/950, para 28.
64
Salomon (n 4) 102.

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direct causality can be established and in such situations responsibility should

be apportioned accordingly. Therefore, I find that these two approaches to
shared responsibility are not mutually exclusive, but rather complement each
other in securing as complete an observance of human rights obligations
as possible. The first approachwhere direct action or omission resulting in
human rights violations involves more than one stateshould be considered
from the traditional state responsibility perspective to ensure accountability for
failure to comply with obligations. The second approach is far more proactive
and demands that states take their human rights commitment seriously in all
areas of their international co-operation, whether bi- or multilateral. The
former UN Secretary General Kofi Annan called for mainstreaming of human
rights in all UN activities.63 To implement the proactive content of shared
responsibility, such an approach should be adopted by all states and extended
to their foreign affairs and international co-operation generally.

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65
66
67
68
69

Ibid 26.
Ibid.
International Law Commission, Art 16 of Articles on State Responsibility, 2001.
Article 17.
Article 18.

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by Salomon, sovereignty as a concept does not operate in isolation; it is not

separate from international law, and has no independent value.65 Furthermore,
she argues that the relevance of sovereignty is measured against its compatibility with precepts of a judicially-based international community and the
demands of international co-operation in securing inter alia human rights.66
Thus, the argument that sovereignty denies legal obligations beyond national
borders and shared responsibility for human rights violations fails to recognize
that the concept of sovereignty is established by and operates in conjunction
with international law as a legal regimea legal regime that inter alia protects
human rights universally, and therefore incorporates requirements of shared
responsibility and international co-operation. In this way, Salomon provides an
important clarification of sovereignty, which refutes the argument that human
rights is a matter for domestic concern only and shows that sovereignty cannot
be used as a shield against collective obligations and shared responsibility.
In terms of determining which states are involved in the work for human
rights protection and the operationalization of shared responsibility, it is again
important to address these issues from the two rather distinctive positions
of direct responsibility, for harm caused either through action or omission;
and common responsibility as part of an international community based on
the values contained within international law, including international human
rights law.
In the first scenario, one or more states may be involved in situations
where violations of human rights have occurred, or where human rights are
threatened. In such situations, it is possible to analyse the situation, to
determine which states have been involved, and what share of responsibility
each state may have for the human rights situation that has occurred. This is
where provisions of the Articles on State Responsibility may be helpful in
determining the role of the collaborating states. Chapter IV of the Articles on
State Responsibility deals with the Responsibility of a State in Connection with
the Act of another State, and confers responsibility, under certain conditions,
if a State aids or assists another State in the commission of an internationally
wrongful act,67 directs or controls another state in commission of such an
act,68 or coerces another state to commit such an act.69 It is not possible
within the confines of the present article to consider all the implications of
applying this Chapter of the Articles on State Responsibility to human rights
violations where more than one state is involved. However, the wording
of these articles confirms that international law contains principles that are
highly relevant for shared responsibility in concrete situations of human

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70
Menno T Kamminga, Inter-State Accountability for Violations of Human Rights (University of Pennsylvania
Press, Philadelphia 1992) 1923.
71
Salomon (n 4) ch 5.
72
Ibid 1856.
73
Ibid 194.
74
Ibid.
75
Ibid 4.

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rights violations. Yet, they are rarely used, as extraterritorial obligations have
not been sufficiently recognized.70 This approach to responsibility is not
addressed by Salomon, and further research in this area is needed in order to
determine the extent to which states may be complicit in human rights
violations in other states.
In the second scenario, where we are addressing a more comprehensive
approach to shared responsibility, the foundation is to be found in the
commitments made by states through international human rights law in treaty
ratification, adoption of declarations and statements. The importance of this
broader approach has been duly documented in Salomons book, and relates to
states common obligations to ensure that international structures provide
sufficient human rights protection. In the chapter on attribution of global legal
responsibility,71 she identifies both general and specific sources of obligations.
One of these sources of obligations is the due diligence requirement, which
according to Salomonprovides in the first instance, a positive duty to
prevent the violations of human rights, and which is a rule of customary
international law, including in the context of extraterritorial obligations where
states exercise jurisdiction through effective control abroad.72
This is one of the important contributions to current human rights discourse
made in Salomons book. Implicitly addressing the traditional reactive approach
to human rights violations, she emphasises the need to design policies and
methods to implement programmes in a manner that avoids future human
rights violations. Yet, Salomon is not only envisaging this change in emphasis or
focus in terms of policies or programmes; she calls for a paradigm shift in the
structure of global institutions to overcome structural impediments and arrive
at a system where due diligence [is] the global standard of care applied at the
international level.73 Her analysis of the current global structures and their
systemic obstacles to human rights enjoyment and poverty eradication fills a
significant gap in human rights and international relations literature.
However, there are certain implications of this global structural approach
that the present author takes issue with. In terms of attributing shared responsibility, it is argued in several places in the book that influential,74 powerful75 or
richer states will have more responsibility than less influential, less powerful
or poorer states. The present author takes issue with this view on a principled
level. If shared responsibility is to be considered from the perspective of the
effect that certain actions or omissions have on the human rights situation
globally, then there isin my viewno objective reason to consider the

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D. Attribution of Responsibility
In the final chapter of her book, Salomon addresses the issues of attribution
of responsibility, and again focuses on shared responsibility for global structures
and institutions that are not conducive to human rights protection and
promotion. She applies the concept of due diligence to capture the content of
the obligations to ensure that arrangements [. . .] are just, and thereby conducive to the fulfilment of the socio-economic rights of all people.77
In addition to the domestic factors that prevent human rights enjoyment,
a number of global factors have significant effect on such enjoyment as well,
including externally imposed requirements to privatize public services, the
skills drain, and even the worsening of the weather.78 Therefore, she calls for
recognition of the due diligence requirement, where the negative effect of
76
77
78

Ibid.
Ibid 182.
Ibid 184 (footnotes omitted).

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responsibility to be stronger for richer than for poorer states. Or put differently,
insofar as states have a negative influence on the human rights enjoyment of
individuals outside their own borders (whether in neighbouring countries, or in
distant lands), they share in the responsibility to prevent and remedy such
situations. In practice, it is evident that the more powerful or influential states
will have a greater effect on both human rights enjoyment (negatively and
positively), and on the structures of the international community that may be
considered obstacles to reducing poverty, and furthering socio-economic
rights,76 and thus their shared responsibility will be triggered more often than
less influential states. This distinction between equal objective responsibility on
the one hand, and responsibility triggered more often for powerful states than
for poorer/less influential states on the other, may not seem of particular
practical importance. After all, in the reality of international co-operation, it
may be argued that it is practice that counts. There are, however, two strong
arguments in favour of keeping the distinction. First, in terms of international
law, states are considered equal actors, and to argue that just because a state is
poor it does not carry the same legal obligations may be seen as discriminatory
and perhaps condescending. Second, and of more immediate significance, to
insist on the equal responsibility of all states will help to avoid situations where
states may point to their relative weakness in the international community and
therefore claim to be exempted from their shared responsibilities for current
human rights violations. In many poor countries in the world, the government
and individuals within the public administration may actually benefit personally
from current international structures, even if the population is suffering from
poverty and lack of human rights fulfilment. To focus only on the responsibility
of the wealthy countries may result in skewed attention.

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79
80

Ibid 187.
Ibid 186.

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actions taken by the international community implies that the actors ought to
have acted differently, or that they should have foreseen such an outcome of
their actions.
In addressing this attribution of responsibility, Salomon accepts that much is
still needed in terms of recognition of these obligations. She describes the first
challenge as the need to define clearly the obligations to co-operate of the
undifferentiated international community required to address the structural
impediments to the realisation of fundamental human rights.79 In this, she is
clearly pointing to important priorities for the international human rights
community in the near future. The relevance of human rights law to impoverished and oppressed people worldwide is at stake. The present author agrees
with Salomon that, without such recognition of common obligations and
shared responsibility, combined with concrete action to alter current behaviour
and structures, we are in danger of rendering human rights law irrelevant to
millions of people.
However, without taking issue with the focus of Salomons discussion here,
it seems that it is necessary to preserve the more traditional approach to
attribution of responsibility as well. According to Salomon, responsibility need
not be limited to the establishment of a direct causal relationship between
people suffering from poverty and the actions and omissions of specific
states.80 While the present author agrees with this, there is nonetheless a
danger if we remove attention completely from the issue of direct causality.
Attribution of responsibility should clearly be made where it is possible to
identify direct causality, and this should be followed by action to hold the
attributed actors accountable.
Salomon does not deal with accountability in great detail in the book. This is
perhaps understandable as much of the focus lies in altering international
structures to prevent human rights violations in the first place. However, even
with the best structures and intentions, human rights problems will continue to
occur, and one way the international community can demonstrate its intentions
to take human rights obligations (domestic and collective) seriously is through
effective accountability structures.
Current international accountability structures are notoriously weak with
regard to remedies for human rights violations. They are most developed on a
regional level, such as in the human rights courts in Europe, the Americas and
Africa. Yet, access to these Courts is dependent upon state ratification of the
relevant instruments, as well as more informal accessibility issues such as
knowledge, access to funding and legal advice. In addition to the three regional
systems, the United Nations Committees established by the various human

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81
Most of the UN Conventions and Covenants now include a right to individual petition for human rights
violations. However, whether this right is available to individuals depends on a states acceptance of the given
Committees competence to receive such complaints, as well as other admissibility rules.
82
See inter alia, European Court on Human Rights, Issa v Turkey (App no 3183116 November 2004;
calan v Turkey (2003) 37 EHRR 238; Inter-American
Bankovic v Belgium et al (2001) 11 BHRC 435; O
Commission of Human Rights, Report No 86/99, case no 11.589, 29 September 1999; Lopez Burgos v Uruguay
(1981) 29, Human Rights Committee, UN Doc A/36/40, 176.
83
See n 46, above and accompanying text.
84
R (Al-Skeini and others) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153 [30][33].
85
According to the Protocol to the African Charter on Human and Peoples Rights on the establishment of an
African Court on Human and Peoples Rights (adopted 10 June 1998 in Ouagadougou, Burkina Faso, entered
into force 25 January 2004), Art 3 Jurisdiction provides that: The jurisdiction of the Court shall extend to all
cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and
any other relevant Human Rights instrument ratified by the States concerned.
86
Lorna McGregor, Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty (2007) 18
Eur J Intl L 903919, 906.

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rights covenants on conventions also provide some systems of accountability.81

These Courts and Committees have accepted that states other than the
territorial state may be responsible for human rights violations in extraordinary
circumstances.82 In most of these cases, it has been established that a state
other than the territorial state has had effective control or overall control
over the territory in which the violations have taken place, or effective control
over the individual that has suffered the violationsfor instance, through
detention. Only in a very limited number of cases have states been held to be
sharing responsibility for violations (such as the Ilascu case referred to above).83
The approach taken generally is that the states jurisdiction (as expressed
through effective control or overall control) needs to be established,
notwithstanding the opportunity the victim has to hold another actor (another
state) accountable, as well. The distinction between effective and noneffective control became very clear in the Al-Skeini case where the UK House
of Lords held that individuals detained by the UK forces in Iraq were within
the UK jurisdiction and therefore enjoyed the protection of the ECHR, while
individuals shot by UK forces in the streets of Iraq were not within the UK
jurisdiction, and therefore were not within the protection of the Convention.84
There is a significant limitation to the usefulness of these existing structures
in that they have quite restricted jurisdiction. Apart from the African Court on
Human and Peoples Rights, which may adjudicate on the basis of all human
rights treaties which the relevant states have ratified,85 the jurisdiction of the
Courts and Committees are limited to the treaties by which they have been
established. Furthermore, these treaties generally refer to human rights
violations committed by the territorial state where an individual is a victim of
the violation. Therefore, it is almost impossible for individuals to complain
about human rights violations committed either by a foreign state, or by his/her
own state in collaboration with a foreign state. This may lead to situations
where states can de facto act with impunity, as Courts and/or Committees with
jurisdiction over the action that led to the human rights violation are not
available.86

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6. Conclusion
Global Responsibility for Human Rights carefully documents the need for, and
current lack of, commitment by states to expand the reach of human rights
concerns beyond their national borders. If states are serious about their pledge
to do something significant about world poverty, it is necessary to go beyond
the rhetoric presented in declarations, resolutions and statements, and
demonstrate the political will to operate in accordance with the legal obligations
they have freely undertaken through international human rights law. However,
these commitments are dependent upon a shift in governmental attitudes. Few
will argue with the statement that human rights law limits the actions of
governments domestically, and this is generally accepted by states as well. Yet,
the wider implications of international human rights law as also limiting the
conduct of states internationally, and requiring certain obligations of conduct
in international affairs, are still not accepted to the same extent.
87
Martin Scheinin, The Proposed Optional Protocol to the Covenant on Economic, Social and Cultural
Rights: A Blueprint for UN Human Rights Treaty Body Reform Without Amending the Existing Treaties (2006)
6 HRLR, 13142; Manfred Nowak, The Need for a World Court of Human Rights (2007) 7 HRLR, 2519;
Geir Ulfstein, Do We Need a World Court of Human Rights? in O Engdahl and P Wrange (eds), Law at War
The Law as it was and the Law as it Should Be (Koninklijke Brill BV, Leiden 2008) 26172.

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Accountability structures for shared responsibility in the more comprehensive

sense are of a different nature. As this approach requires a more proactive
strategy, accountability through judicial means of Courts and Committees is
less useful. A more political/diplomatic approach may be more appropriate in
these circumstances, such as scrutiny of state reports by the UN Committees,
the special procedures of the UN Human Rights Council, as well as pressure
from the NGO community and individuals. Work to influence the policies of
international financial institutions and other dominant structures outside the
UN human rights structures is also crucial.
There have been proposals for the establishment of a World Court for
Human Rights.87 The ideas for such a Court are partially based on the need
to have an international structure whose jurisdiction to hear cases would be
far more comprehensive than is offered by the existing judicial bodies.
In particular, the idea is that the Court could hear cases where more than
one actor was involved in violations, as well as where private entities may be
responsible for violations, such as TNCs. It is imperative that the proposals for
such a World Court include structures that are capable of responding to the
increased complexity in human rights enjoyment and violations, as a result of
a globalized world. With wider and more comprehensive jurisdiction, and a
recognition that more than one actor may share in the responsibility for human
rights violations, such a proposal may address many of the concerns raised in
this article and in Salomons book.

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In this regard, Salomon provides important and carefully thought through

principles for the recognition and operationalization of collective obligations to
eradicate poverty through the use of existing human rights obligations. She
holds that:

Thus, she argues that in determining responsibilities of the international

community of states we need to release ourselves from the instinct to identify a
causal chain from international state behaviour to violations of socio-economic
rights.89 While the present author agrees with the premise of that argument, it
still seems somewhat limited. As identified above, shared responsibility may be
addressed both in terms of a direct causal link between a states action and
human rights violations in another state, as well as in terms of a wider responsibility for structural impediments to global human rights enjoyment for
people in the international community. While significant obstacles remain to be
addressed before states readily accept these propositions, there is growing
evidence that attitudes may be shifting. The acceptance of shared responsibility
in terms of illegal debt by the Norwegian government was referred to above.90
At the time of writing, news reports from a High Court ruling in the UK
concerning the torture of a Guantanamo Bay detainee are emerging.91 The
Court heavily criticized the United States and the UK governments for their
insistence on keeping evidence concerning the torture allegations secret.92
Commenting on the case, David Davies, MP, said to the BBC that the case
implied that torture had taken place and British agencies may have been
complicit.93 This approach taken by a former Shadow Home Secretary
demonstrates that UK politicians are now willing to consider the possibility
that the UK may be complicit in human rights violations with other states,
and that the UK shares responsibility with other countries in such situations.
88

Salomon (n 4) 192.
Ibid 194.
See nn 513, above and accompanying text.
91
Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs, Case No CO/4241/2008, in the
High Court of Justice, (QBD), Divisional Court, 04/02/09.
92
Ibid [26] vii (a) and (b).
93
Evidence of torture buried by ministers BBC News (4 February 2009) <http://www.guardian.co.uk/
world/2009/feb/04/guantanamo-bay-torture> accessed 5 February 2009.
89
90

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Human rights violations are structurally provided for through a failure of the creators,
controllers, and primary beneficiaries of the global order to offer a feasible alternative,
and their failure to exercise due diligence, which could reasonably avoid the
continuation of widespread world poverty. The obligations of states to respect and
observe human rights owed to people everywhere, might impose negative obligations
in so far as they are required to abstain from any act that would violate the human
rights of people anywhere in the world. However, if basic rights have already been
violated in a global context, and, for example, people are starving, then the obligation
imposed is also positive that is, every state to a greater or lesser degree, is under an
obligation to take action to remedy that violation and to prevent its continuation.88

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While this case does not address socio-economic rights (or poverty), which is
the theme of Salomons book, the recognition of the principle that states may
share in this kind of responsibility is of utmost importance. It can then be
demonstrated that such responsibility is as relevant to socio-economic rights as
to civil and political rights.
In addition to including direct causality in the focus of shared responsibility
in the book, the present reviewer would also have wished for an explicit
discussion of the relationship between poverty and (the violation of) human
rights. Throughout the book, the link between poverty and violations of socioeconomic rights is taken for granted, and at times the two terms are used
interchangeably. While agreeing with Margot Salomon that many of the facets
of poverty and conditions under which poor people live represent blatant
violations of human rights, some considered thought of the relationship
between them would have been merited. Without such reflection, it may at
times be hard to distinguish between social benefits on the one hand and
human rights on the other. This is, however, a minor complaint about a book
that clearly provides a significant contribution to current human rights
literature.
In Global Responsibility for Human Rights, Salomon has given the international
human rights community substantial food for thought. She takes on the whole
world in one book, and challenges the traditional wisdom as to how human
rights obligations work. She also provides impressively researched and
documented arguments for a shift in attention to enable the world community
to combat world poverty through the application of the right to development
and other aspects of current international law. The book is essential to
academics, NGOs and policy makers alike. It should be the initiator of much
debate and further deliberation on principles and practice in international
human rights promotion.