A Comment on Chimène Keitner’s “Right Beyond Borders”

First of all, I would like to thank Chimène for the opportunity to comment on “Rights Beyond Borders.” I have also had the opportunity to read Marko’s insightful comments, and I will refer to them later on. The article takes on a thorny question that constitutional courts around the world have faced in recent years: whether, and to what extent, rights protected by national constitutions apply to acts of the state abroad. In a world of transnational law enforcement, global cooperation against terrorism, and extensive counterinsurgency campaigns, the lack of a satisfactory theoretical framework to approach this question is increasingly problematic. The article proposes a careful comparison of cases from the United States, Canada and the United Kingdom, and uncovers three competing approaches: country, compact and conscience. How, then, do courts choose among these approaches and put them in practice?

One might have thought that a natural starting point would be the international law of prescriptive jurisdiction. The first lesson from the cases, however, is that international law does not get us very far. R. v. Hape, the one decision that relied most extensively on customary international law, misunderstood it and sent Canadian courts down a conceptually confused road. The Hape court purported to find a prohibition on extraterritorial application of constitutional rights, but as a general rule states plainly are entitled to regulate the actions of their agents abroad, including by requiring compliance with such rights. It is conceivable that, in some circumstances, extending constitutional rights abroad might interfere with the territorial sovereign’s authority to the point of raising prescriptive jurisdiction issues, but it is clear that international law does not demand anything like the blanket rule in Hape. This is why prescriptive jurisdiction does not play a significant role in the U.S. and U.K. cases. The extraterritorial reach of constitutional rights is primarily an internal question, to be resolved by interpreting the relevant national instruments rather than by reference to international law.

Of course, this is where the real problems begin. As Marko points out, there are many reasons why national courts are hesitant to extend rights extraterritorially. These reasons, however, are not external to the constitutional interpretation process; they are entirely legitimate and proper considerations for a court trying to interpret provisions that rarely speak directly to the issue. For instance, U.S. courts have long recognized the centrality of separation of powers and institutional capacity concerns in deciding the extent to which they should interfere with foreign affairs. In this context, territoriality may be quite relevant, as it informs both the expectations of the parties involved and the extent to which other states are likely to look upon application of a foreign constitution as an affront to their sovereignty. In other words, the problem is not so much that the home state lacks authority to regulate the acts of its agents, but that doing may obstruct effective cooperation with the host state or, in more severe cases, harm diplomatic relations and the accomplishment of important foreign policy objectives. This is, after all, why extraterritorial prescriptive jurisdiction is politically controversial and used sparingly, despite often being permissible as a matter of international law.

Of course, the gravity of such concerns will depend on the circumstances, and must be considered in light of the seriousness of the potential rights violations. It is one thing to prohibit state agents from taking part in torture or unlawful executions abroad, but it is quite another to require the details of multinational investigations to be overseen and approved by judges in each participating country, or to apply the same procedures and conditions to the handover of detainees in a conflict zone as to an ordinary extradition case. More generally, the issues become more complicated, and controversial, as one contemplates applying constitutional protections to military operations abroad. In most cases, those rights have been developed and interpreted in peaceful democracies. Can they be applied to conflict zones abroad and if so, how? Will national courts have to develop exceptions to accommodate the law of armed conflict and the realities of the battlefield? The interaction of international human rights and the laws of war has caused much controversy and uncertainty, and national courts may be less than eager to subject their constitutions to the same stress test.

Each court is also working within the constraints of its own constitutional text, structure and history. For instance, Chimène suggests that the compact approach has found more support in the United States because of its unique constitutional history. Other features of the U.S. Constitution have also shaped the debate, including the lack of a general provision that would shed light on the extraterritorial application of the instrument as a whole. The relevant U.S. cases are decided by interpreting individual provisions, and their distinctive texts and histories shape the discussion in cases like Reid v. Covert and Verdugo-Urquidez. By contrast, in Hape, the Supreme Court of Canada faced the difficult task of interpreting Section 32 to establish a general rule that would apply across the entire Charter. In this light, it is perhaps somewhat understandable that it recoiled from extraterritoriality. While the implications would have been manageable in Hape itself, the Court was surely concerned that other rights would not be flexible enough to handle state action abroad. Section 1, of course, provides that all rights are subject to certain “reasonable limits,” but systematically placing the burden on the government to justify such limits could cause substantial interference with foreign relations.

One critical issue that the article does not develop at length is the relationship between the extraterritorial application of constitutional rights, on the one hand, and international human rights obligations, on the other. In recent years, human rights bodies have sometimes held that the relevant treaties apply to the actions of member states outside their own territory. How should this affect the reach of constitutional rights? Chimène notes that while UK courts must follow the European Convention, they have restrictively interpreted ECHR decisions on extraterritoriality. After Hape, the Supreme Court designed a conceptually unsatisfying international human rights exception to ensure compliance with Canada’s international obligations. To believe this is necessary, one must assume that states cannot effectively ensure respect for their human rights obligations abroad unless constitutional rights also extend extraterritorially. This is, however, neither legally nor logically necessary. International human rights law does not require constitutional protection of all rights. Efforts by states to improve “self-compliance” are of great practical importance. If one believes a more robust approach is needed, a possibility would be to develop or enhance statutory regimes specifically designed to regulate state action abroad, to avoid some of the interpretive and practical difficulties of applying constitutional rights extraterritorially.

Chimène’s article lays out the issues with great clarity and, in so doing, opens up a rich field for scholarship that will continue to expand as more cases reach the courts. For years to come, it will be an indispensable starting point for any scholar interested in the extraterritorial application of national constitutions and human rights.