A Response to Milanovic

by Kal Raustiala

In Extraterritorial Application of Human Rights Treaties: Law, Principles, Policy, Marko Milanovic has written an illuminating and comprehensive analysis of the increasingly contested question of the geographic scope of human rights treaties. Of course, this is a dynamic area of law—as Marko notes, many of the cases he examines are of quite recent vintage—so undoubtedly  he will be at work on second addition in a few years. But for now, this book provides a closer reading and a more detailed, one might even say exhaustive, survey of the relevant issues than anything else I have seen. He focuses especially on the jurisprudence of the European Court of Human Rights. But as he shows, there is a wider pattern to these cases that transcends any particular regional context or, to use a term of art in this domain, any espace juridique.

The jurisdictional scope of human rights treaties is at one level a narrow doctrinal issue. Yet at another it is a challenge to the human rights framework. As Marko notes, the human rights revolution is grounded in the ideal of universality. The idea that a state can do the same bad act in two different locations, and in only one will it violate its human rights treaty obligations, is in tension with that commitment to universality. And of course such a system creates perverse incentives to engage in bad acts offshore, as the use of Guantanamo Bay amply illustrates.

Still, treaties have jurisdictional clauses for a reason. When negotiating treaties, states seek to control or at least cabin the treaty’s ultimate impact on their behavior. Human rights treaties may well be strongly expressive in nature, but they are also regulatory, and states—at least those who believe these treaties must be complied with—endeavor to calibrate those commitments accordingly. Jurisdictional scope is central to that effort. So whatever the desire to push back against limiting principles, doing so can both violate the intent and expectation of the drafters and, given the dynamic nature of lawmaking, have unwanted impacts on future treaty negotiations.

Since space is short let me turn to a few big issues raised in the book. One is Marko’s interpretive prescription. He explores in depth the two main approaches to extraterritorial application—broadly, territorial and personal– and finds them both wanting. As he shows, a territorial approach pushes courts inexorably toward ever smaller definitions of relevant territory in order to ensure, at least in cases that present uncomfortable or shocking fact patterns, that justice is done. (Rather than a nation or region or city, perhaps the relevant territory over which a state exerts control is a facility or building. And so on.) An approach based on persons, by contrast, has no real limiting principle in practice: in Marko’s words, ultimately it cannot “be limited on the basis of any non-arbitrary criterion.”

His prescription is a third way: to distinguish between the duty of a state party to refrain from infringing the rights of individuals and the duty to secure or ensure the human rights of those individuals.  In other words, a distinction between negative and positive obligations. This approach seems reasonable and workable in practice, but of course the devil will be in details.

Marko has a second area of prescription, which turns on how courts generally adjudicate these questions. He wants courts to more clearly and forthrightly separate out jurisdiction and merits. This is a noble goal, perhaps. But it strikes me as hard to imagine much improvement in practice. Certainly US jurisprudence on the extraterritorial application of constitutional rights does not really do this—at least with regard to non-citizens, the framework recently handed down in Boumediene (and elaborated since in a few lower court decisions) makes functional considerations an essential part of the discussion over geographic application.  And this inevitably brings merits-like considerations into play.

The third big point I want to raise here is something that bookends the study: why have these issues of extraterritorial application arisen so frequently now, and so rarely in the past. Marko claims that this is not because of globalization or other changes in the international system. States, he says, have always “killed, detained, or otherwise mistreated people outside their territory.” Instead, he argues that it is the internalization of human rights norms and of the ideal of universality that have forced these issues to the surface.

There is something to this. But is it really true that the rash of cases on extraterritoriality is not connected to globalization or other macro-political changes? At the most basic level, 50 years ago it would have been much harder to run the CIA black site prisons in Eastern Europe, or to employ offsore bases to hold so many detainees brought from so many parts of the world. The ability to project power at a distance, and to move people to distant places, is plainly not the same as it was then.

The other obvious difference, encapsulated in these examples, is the nature of the contemporary asymmetric conflict and especially the highly contested contours of the contemporary battlefield. A conflict that seems to bleed over to many discrete locations that are neither subject to pervasive armed conflict nor are belligerently occupied makes the extraterritorial application questions far harder, but also far more pertinent.

In short, I think Marko is right to argue that there has been a sea change in thinking about human rights, and that has led to a greater number of cases involving extraterritorial rights claims. But there are material factors at play as well. It would be interesting to consider to what degree these two claims are linked; that is, to what degree both the rise of human rights consciousness and the ability or propensity to violate human rights offshore reflect larger changes in society of the sort we often label globalization or interdependence.

http://opiniojuris.org/2011/12/02/a-response-to-milanovic/

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