A Response to Milanovic and Verdier on Rights Beyond Borders

First and most importantly, my sincere thanks to Marko Milanovic and Pierre-Hugues Verdier for taking the time to offer such careful and insightful reactions to my work. I’m extremely fortunate to have them as “virtual” colleagues, and I appreciate the efforts of the YJIL editors and folks at Opinio Juris in creating a forum for this online exchange.

As Marko and Pierre-Hugues note, I focus on the interpretation and application of constitutional and quasi-constitutional rights — what I call “domestic rights regimes” — by domestic courts. This is both because the domestic rights story had not yet been told in comparative perspective, and because there are qualitative differences in how judges reason about domestic, as opposed to international, rights.

As Marko rightly notes, and as I discuss in the article (pp. 96-98), the case of the United Kingdom is peculiar insofar as the U.K. Human Rights Act is intended to give effect to protections under the European Convention on Human Rights. In some sense, then, rights under the HRA are hybrid, rather than purely domestic. Marko expresses the view that “citizenship shouldn’t have any relevance whatsoever for the extraterritorial application of human rights, whether before a British court or in Strasbourg.” To the extent that one views a constitution or domestic rights regime as protecting certain fundamental human rights, I would certainly agree. However, as Marko points out, I take the view that there are certain differences between constitutional rights and human rights, grounded in the idea of a constitution as a “compact.” I would take a more expansive view of the beneficiaries of that compact in many cases, and I would also increase the ability of domestic courts to enforce a clearly defined set of fundamental human rights, based on international instruments (p. 112). But I do stop short of advocating what I call a “conscience” approach to constitutional rights, even though this has generated pushback from some of my colleagues who find the conscience model more appealing.

Marko also rightly points out that “It’s one thing to identify what judges say they do, another to identify why they’re actually doing it.” This is a concern that I lived with for much of this project, which consists largely of the exegesis of case law. That said, I don’t believe (and I don’t take Marko as suggesting) that judicial opinions are purely epiphenomenal. Particularly in common-law systems such as those examined in the article, patterns of judicial reasoning foster path-dependence by shaping which arguments will be recognized as legitimate and persuasive. It is these patterns that I characterize under the rubrics of country, compact, and conscience. At the same time, I concede that extrajudicial factors will often influence outcomes, and I agree with Marko that judges are to a large extent engaged in a balancing act between judicial intervention and restraint (e.g., pp. 110-111).

Pierre-Hugues appropriately points out that recent case law involving the extraterritorial application of domestic rights has often involved an overlay of the potential applicability of the laws of war, as well as international human rights obligations. He notes that the human rights exception in Canadian jurisprudence (under which the Canadian Charter applies extraterritorially if Canadian agents violate an individual’s fundamental human rights) must stem from an assumption that “states cannot effectively ensure respect for their human rights obligations abroad unless constitutional rights also extend extraterritorially.” He questions this assumption, and suggests that some extraterritorial regulation of state agent conduct could be done for example by statute, rather than through constitutional means. This raises important and interesting questions of institutional competence and, as Pierre-Hugues indicates, “self-compliance” by states (which I consider briefly, e.g., p. 111).

To a large extent, delineating the extraterritorial reach of domestic rights also defines the role of domestic courts in enforcing those rights against the political branches. Talking about the reach of rights thus naturally leads to conversations about the role of judges. As I suggest in the article, declining to extend rights extraterritorially in the cases I discuss often seems to have more to do with deference to the domestic political branches than it does with deference to foreign sovereigns. Theorizing extraterritoriality in this context thus has more in common with other forms of constitutional theorizing than is sometimes acknowledged. As I suggested on a “Hot Topics” panel discussing “The Cutting Edge of Extraterritoriality” at the AALS Annual Meeting in January, cases involving the extraterritorial application of the U.S. Constitution in fact constitute at least three types of internal boundaries:

(1) the boundary between executive and judicial roles;
(2) the boundary between law and policy; and
(3) the boundary between legislative and judicial remedies.

In some ways, then, the “borders” in the title of my YJIL article are primarily, but not exclusively, territorial. I hope that my analysis will encourage others to continue exploring and interrogating how these borders are constructed, and with what implications – both for individuals affected by extraterritorial state action, and for states grappling with difficult policy choices and demands from competing constituencies.