Rights Beyond Borders

[Chimène I. Keitner, Associate Professor of Law, University of California, Hastings College of the Law; Co-Chair, American Society of International Law Annual Meeting]

United States courts are not alone in confronting the question of whether certain domestic rights extend beyond the country’s territorial borders. Yet, the field of comparative constitutional law has largely ignored the question of extraterritoriality. My Article, Rights Beyond Borders, addresses that gap by examining recent case law from the United States, Canada, and the United Kingdom—three common law countries whose courts have grappled with claims by individuals seeking legal redress for harm that occurred beyond national borders, based on domestic rights guarantees.

The Article begins by identifying three basic ways of thinking about rights beyond borders, which I call country, compact, and conscience. Country-based reasoning takes a strictly territorial approach to regulating the government’s actions outside the national territory, even vis-à-vis citizens. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her status as one of the governed, regardless of territorial location. Conscience-based reasoning holds that a government should act the same way beyond its borders as it does within them. At the micro level, emphasizing one of these approaches over another can determine whether or not a given individual can successfully invoke domestic rights provisions as a basis for seeking relief from a domestic court. At the macro level, emphasizing one approach over another can both signal and reinforce a particular conception of political ordering based on territory (country), membership (compact), or a set of fundamental values (conscience).

This tripartite framework provides a vocabulary for identifying and describing certain patterns of reasoning in judicial decisions. The jurisprudence canvassed in detail in this Article (which I will not replicate here) includes U.S. cases culminating in Boumediene v. Bush and Al-Maqaleh v. Gates; Canadian cases including R. v. Hape and R. v. Khadr, as well as cases relating to extradition to face the death penalty; and U.K. cases including Al-Skeini v. Secretary of State for Defence, Al-Saadoon v. Secretary of State for Defence, and Smith v. Secretary of State for Defence. The analysis reveals several trends, notably:

(1) the persistence of country-based reasoning in all three jurisdictions;

(2) the presence of compact-based reasoning in U.S. jurisprudence, but its relative absence from Canadian and U.K. decisions; and

(3) the lack of judicial adoption of conscience-based reasoning, except as a backstop to perceived violations of the political branches of domestic separation of powers principles and certain fundamental human rights.

On a descriptive level, domestic courts have generally been more circumspect about curbing the activities of the political branches when they act abroad than at home. Whether or not one thinks such circumspection is problematic depends on one’s degree of confidence in the political branches to conform their own activities to applicable legal standards.

As a prescriptive matter, I suggest that U.S. Supreme Court should give greater weight to the exclusive control of U.S. authorities over U.S. military bases, even within foreign territory, when it considers the extraterritorial application of certain constitutional constraints to the activities of U.S. agents. I suggest that the Canadian Supreme Court should revisit Hape (which adopted a country approach, with an exception based on international human rights) in light of its extradition jurisprudence, and thus anchor judicially enforceable constraints on the activities of Canadian agents more firmly in the Canadian Charter of Rights and Freedoms, especially when those agents act vis-à-vis Canadian citizens. Finally, I suggest that the U.K. Supreme Court should incorporate elements of compact-based reasoning into its analysis of jurisdiction under the U.K. Human Rights Act, especially where the claimants are U.K. citizens. That said, I would stop short of endorsing a conscience approach that is not sensitive to the exigencies of conducting extraterritorial law enforcement or military operations, or that subjects the political branches to excessive legal uncertainty. In an ideal world, rather than using international rights violations as a trigger for the application of domestic law (as Canada currently does), I would strengthen the ability of domestic courts to enforce a limited set of clearly defined fundamental human rights guarantees, even when the political branches act beyond national borders.

In contrast to domestic rights, which remain tethered to ideas of territoriality (country) and membership (compact), international human rights seem particularly well suited to a conscience approach, and thus to extraterritorial application. This is because they are based explicitly on the intrinsic dignity and worth of individual human beings regardless of geographic location or national membership. As a predictive matter, however, it seems likely that many of the practical considerations that drive restrictive interpretations of domestic rights would also tend to limit the interpretation and application of international rights by domestic courts, notwithstanding the relatively broader interpretations adopted by international bodies. Unless and until international bodies face the same political and institutional constraints as domestic courts, we might expect their (generally unenforceable) interpretations to remain relatively more expansive, and the (generally enforceable) pronouncements of domestic courts to remain relatively more narrow. That said, if domestic courts focus excessively on the constraining role of territorial borders, this could have the paradoxical effect of fostering increased reliance on international, rather than domestic, rights in legal and political discourse and, eventually, in legal and political institutions.