02 Dec Extraterritorial Application of Human Rights Treaties: An Overview
I am very grateful for the opportunity to discuss my book on EJIL: Talk! and Opinio Juris, as am I grateful to the commentators on both blogs for taking the time to read and discuss it. In this introductory post I’ll try to outline the book’s main arguments and themes and my approach generally in analysing a very complex topic.
The book is divided into five chapters. The first, introductory chapter sets out the scope and purpose of the whole study. It defines the notion of the extraterritorial application of human rights treaties, explains that the law of treaties sets no general rules on extraterritorial application, and outlines the basic normative framework of the human rights treaties which are the object of the study, looking in particular at the various types of state jurisdiction clauses that one finds in these treaties, and their relationship with other relevant provisions, such as the colonial clauses. Whether a human rights treaty protects a particular individual in an extraterritorial context is legally a matter of treaty interpretation, and this chapter sets the stage for this interpretative exercise. My main focus is on treaties protecting civil and political rights, for the sole reason that there is much more case law and other material to work with in respect of these treaties than with those protecting socio-economic rights. That said, the book proceeds from the assumption that there is something to be gained from focusing on problems common to all or most human rights treaties, and views these treaties as a whole. Hence, it is generally structured thematically, issue by issue, not chronologically or treaty by treaty.
Of all the treaties, I give most attention to the European Convention on Human Rights, for two reasons. First, the ECHR system is by far the strongest of all human rights regimes (if far from perfect) in its ability to effectively secure compliance and have a direct impact on state policy. The stakes are highest in Strasbourg, because it will be listened to. Second, it is precisely because the stakes are highest in Strasbourg that the jurisprudence of the European Court of Human Rights on extraterritorial application is the richest and the most developed. At the same time, it is the most problematic, suffering from rampant casuistry and conceptual chaos. It is a jurisprudence of (at times quite unprincipled) compromise, caused mostly be the Court’s understandable desire to avoid the merits of legally and politically extremely difficult cases by relying on the preliminary issue of extraterritorial application. At the same time, the jurisprudence of the European Court has the most to teach us on questions of both law and policy that are relevant for all human rights treaties.
The second chapter tries to clear up some of the conceptual confusion in existing case law. It examines the notion of state jurisdiction in human rights treaties, and attempts to place it within the framework of international law. Is this notion the general concept of jurisdiction one finds in public international law, which sets out limits on the prescription and enforcement of domestic law, as contemplated by the European Court in Bankovic, or is it a distinct, autonomous concept, which is a part of a self-contained human rights regime? Is it a simple admissibility requirement for an application, or a test of attribution in the framework of state responsibility, as assumed by the International Criminal Tribunal for the Former Yugoslavia in the Tadic case, or is it in fact a threshold criterion determining whether a human rights obligation exists in the first place? These are some of the questions that this chapter hopes to answer.
The second chapter begins the inquiry into the semantic, ordinary meaning of the jurisdiction clauses in human rights treaties, and of their construction into workable legal concepts and rules. Their interpretation cannot be complete, however, without examining the object and purpose of these treaties, and the various policy considerations which influence courts in their decision-making. This is the object of the third chapter, which focuses on the tension between universality and effectiveness, which is, I argue, the prime cause of methodological and conceptual inconsistencies in the case law. The chapter looks at a number of normative considerations, such as the universality and indivisibility of human rights, territorial sovereignty, citizenship, cultural relativism and regionalism and attempts to establish which of these considerations do and which should matter. In doing so, I look not only at international jurisprudence but also at cases dealing with the extraterritorial application of domestic, often constitutional human rights protections, particularly in the US and Canada, as these cases are often based on the same policy considerations as the international ones and can hence be quite instructive.
The fourth chapter concludes the interpretative inquiry into the meaning of the jurisdiction clauses, and elaborates on the several possible models of extraterritorial application of human rights treaties. These include the spatial model of jurisdiction, which grounds the application of human rights treaties in state effective control over territory; the personal model of jurisdiction, based on various forms of state authority and control over individuals; and a mixed model which is based on the distinction between positive and negative obligations under the treaties. This last model is in fact the one that I prefer. The spatial model of jurisdiction suffers from a universality-driven tendency to collapse – in a number of situations it makes little sense to say that a state should not respect the rights of a specific individual merely because it does not control the territory in which the individual is located, when it is in fact perfectly capable of respecting his rights. The personal model of jurisdiction is similarly prone to collapse, as it cannot be limited by reference to any non-arbitrary criterion. In essence, if jurisdiction means authority and control over an individual, then any state act capable of violating the individual’s rights would appear to qualify as such authority and control. There is no reason, for example, why state custody over an individual should constitute jurisdiction, but its power to kill that individual by a drone-fired missile would not (cf. the recent Al-Skeini judgment of the European Court, which basically tries to limit the personal model of jurisdiction by mixing it with the spatial one). I thus argue that while the state’s overarching positive obligation to secure or ensure human rights even from violations by private actors should be conditioned by a spatial notion of jurisdiction as control of an area, since in the overwhelming majority of cases the state would need such control to effectively comply with its obligations, its negative obligations – e.g. not to kill an individual without sufficient justification – should be territorially unlimited, since the state can always refrain from a specific act.
The final chapter explores the relationship between international humanitarian law and international human rights law from a norm conflict perspective, as the interaction between these two bodies of law is frequently a concurrent issue with that of extraterritorial application, implicating the same policy considerations. In doing so, it looks at various forms of norm conflict avoidance and resolution, and examines – and rejects – the traditional lex specialis model for explaining the relationship between these bodies of law.
The book’s main focus is on case law, and most of the case-law that I examine is of fairly recent extraction. It appears that the problem of the extraterritorial application of human rights treaties has been growing progressively more acute in the past decade or so. It is indeed rather startling that such a fundamental issue regarding the scope of application of these treaties has not been definitively resolved much earlier during their life-span. One, almost trite response to this observation would be that in the age of globalization states are increasingly affecting the human rights of individuals outside their borders, and that this explains both the increase of litigated cases on extraterritorial application and the growing importance of the issue generally.
There is some truth in this remark, particularly with regard to socio-economic rights and transnational criminal law enforcement. There is also, however, something profoundly mistaken in suggesting that most of the situations which today involve the extraterritorial application of human rights treaties are truly novel. States, especially powerful states, have always acted outside their borders and have always affected the lives of foreigners. They have moreover continued to do so even in the period after the Second World War, in which the modern human rights instruments were created. It seems that the better explanation for the increasing urgency of this topic is that society at large has changed and is changing still. Our culture has been permeated with law generally and human rights specifically to such a level that even those state acts that have hereto been considered as the ultimate expressions of sovereign prerogative have become exposed to human rights scrutiny, in public discourse as well as in the courts. We live in an age of rights, and the rhetoric of rights is no longer solely the province of increasingly aggressive lawyers and human rights activists, but is employed by policy makers and actors of all stripes.
Hence, people complain to human rights bodies more frequently and they do so in situations undreamed of even fairly recently. If, for example, an international lawyer had predicted even just a decade or two ago that Saddam Hussein, of all people, would soon be lodging an application with the European Court of Human Rights, he would have been thought eccentric at best. Yet this is exactly what happened after the 2003 invasion of Iraq, and that particular case turned on the territorial scope of application of the European Convention.
In another example straight out of the pages of a spy novel, the family of Alexander Litvinenko, a former high-ranking officer of the Russian security services who was mortally poisoned in London in November 2006 with polonium, a highly radioactive substance, is reported to have lodged an application against Russia with the European Court. On his death bed, Mr. Litvinenko accused the Kremlin of involvement in his death and his family now argues that Russia violated several articles of the European Convention. The case is still pending, and clearly the applicants’ prospects depend on whether Russia’s obligations under the European Convention can be interpreted to extend to a person killed in London.
There is no small of amount of irony in the fact that today even deposed dictators, former KGB officers or Marxist-Leninist revolutionaries cum notorious terrorists try to avail themselves of the protections granted by international human rights law. Indeed, one could also view this phenomenon as a corollary of the widespread ‘humanization’ that international law has been subjected to under the influence of human rights. That humanizing effect is furthermore not confined to international law and international courts, as similar issues have arisen before domestic courts as well. For example, US courts have grappled with the question of the extraterritorial application of the US Constitution to detainees in Guantanamo or in US bases in Afghanistan, while UK courts have dealt with the acts of UK armed forces in Iraq under the ECHR and the Human Rights Act 1998. In sum, human rights and their universalist premise have become internalized to such an extent that their extraterritorial application is no longer merely a theoretical issue.
At this point I must say that my book is a product of the same process. It is not just an attempt to solve a doctrinal puzzle, or to bring together the disparate strands of the case law. It necessarily has an ideological bent. Human rights treaties are themselves not value-neutral instruments, and the process of their interpretation cannot be completely value-neutral either. I start from the assumption that human rights grounded in universal human dignity are a good thing, but this is not an assumption that I am able or wish to defend here. What matters is that this assumption is not just my own personal view, but the normative premise of the entire body of law that I am analyzing. Thus, to the extent that value judgments prove to be necessary, this study is part of a project – an academic, and not an activist project, but a project nonetheless – with the general aim of furthering the humanization of both international law and the reality of international relations.
In sum, this is a study on human rights which is unconcerned with the actual substantive content of human rights treaties, but is concerned instead with the preliminary conditions for their application. However, although the interpretation of the jurisdiction clauses is conceptually distinct from the substantive application of a treaty to a specific issue, I try to show in the book that this is simply not the case in practice. Rather, the preliminary question of application is frequently used as a proxy for dealing with the merits, as nothing more than a judicial avoidance technique. My central argument is that the only way that the case law on the threshold issue of extraterritorial application can be sensible and coherent is if it is divorced from such an unstated assessment of the merits. This, however, will only be possible if due regard is given to considerations of effectiveness, so that the actual substantive application of a human rights treaty in an extraterritorial context does not appear to be hopelessly unrealistic or utopian.
Judge Bonello argued something similar to your argument in his separate opinion in Al-Skeini: “I resist any helpful schizophrenia by which a nervous sniper is within the jurisdiction, his act of shooting is within the jurisdiction, but then the victims of that nervous sniper happily choke in blood outside it. Any hiatus between what logical superglue has inexorably bonded appears defiantly meretricious, one of those infelicitous legal fictions a court of human rights can well do without.” He argued that the court should go back to the drawing board and come back with a functional model. If it is in the power of the state to respect the human rights, the state is obligated to do it: “A ‘functional’ test would see a State effectively exercising ‘jurisdiction’ whenever it falls within its power to perform, or not to perform, any of these five functions. Very simply put, a State has jurisdiction for the purposes of Article 1 whenever the observance or the breach of any of these functions is within its authority and control.”