Milanovic on Extraterritorial Application of Human Rights Treaties: Judicial Interpretation and the Future of IHR Regulation

by Peggy McGuinness

Marko Milanovic’s impressive treatment of the rapidly evolving jurisprudence of extraterritoriality of human rights treaties is a must read for anyone teaching or thinking about the international human rights system.  What is most significant for me is Marko’s systematic effort to put doctrinal and policy meat on the bones of the argument that has been developing over the last decade or so that human rights obligations are “everywhere.”  I agree with both the sentiment and policy objectives of arguing that the universality of human rights means that they belong to all humans without regard to nationality or location within a particular territory.   And Marko is correct in positioning his comprehensive analysis of the cases addressing extraterritoriality within the “humanization” of all dimensions of international law, the process Ruti Teitel has described nicely as “humanity’s law.”

This is a book fundamentally about treaty interpretation, and it leaves aside the development of customary international law of human rights or of norm transformation more generally. It is a work of formal law — and in that regard is a really welcome shift toward the doctrinal in these debates.  The central question Marko seeks to address is the scope of application of specific treaty obligations undertaken by states to observe human rights  – and whether and how those obligations are triggered when a state engages in extraterritorial political, law enforcement, military or intelligence operations. Globalization has expanded the availability of extraterritorial acts from beyond the traditional notion of sovereigns acting through territories, colonies or militarily occupied areas, to include myriad cross-border law enforcement and regulatory cooperation arrangements of states of varying sizes and power.  The potential for conflicts of law is dizzying; the potential for human rights abuses is depressing.

Because we are talking about treaty interpretation, it bears focusing on the method of interpretation that Marko employ and also on the problem raised by relying on judicial (or in the case of the ICCPR quasi-judicial) interpretation, rather than looking to the treaty makers themselves to clarify and better articulate the current morass of jurisdictional clauses in the regional and international treaties.  Marko focuses mainly on the ECHR for a reason:  It actually has a developed and evolving jurisprudence of textual interpretation through the court in Strasbourg.  Is that a good thing or a bad thing?  On the one hand, Marko disagrees with much of the ECtHR’s jurisprudence on extraterritorialty in quite strong terms; indeed, he spends a good part of the book dismantling the Bankovic opinion. On the other, he feels quite comfortable that the scope of extraterritoriality of the ECHR and other IHR instruments are proper subjects for the kind of judicial teleological interpretation of treaties that he espouses and he sees, more or less, the judges in Strasbourg as his target audience.  I am sympathetic to Marko’s overall claim — and find his “third way” model of extraterritoriality quite useful way of thinking about distinguishing between circumstances in which states are bound to the positive obligation “secure and ensure” human rights (territorial jurisdiction) and those in which states “respect” human rights (territorially unbound).  But I wonder whether a more modest judicial interpretive approach is better for the substantive development of rights and rights adherence on the ground.

The very inconsistency of ECtHR caselaw in the area of extraterritoriality that Marko exposes in his book serves as a reminder of the delicate balance that any rights adjudicator must strike between adherence and respect for its rulings and the institutional bounds set out for it by the treaty states.  While the delegations problems are not unique to international human rights institutions, they raise different concerns and dangers than do other international judicial delegations.  The experience of the U.S. Supreme Court on the extraterritoriality of American constitutional rights (see Kal Raustiala’s fine book, discussed here on Opinio Juris) suggests that courts and adjudicators will always, for example, have trouble disentangling the jurisdictional question from the merits of the claim.  Marko’s book describes in great detail the ways in which IHR courts and committees likewise muddle jurisdiction and merits.  This further suggests that a move toward judicial minimalism might better serve the regional and subject-matter treaty systems over the long-haul.  Such a minimalism might start with a presumption against extraterritoriality, which would then push the discussion of the scope of extraterritorial obligations — including, perhaps, Marko’s conceptually attractive “third model” — to the political realm of the states party to the treaty.  I don’t find the term “prescriptive comity” as poisonous or vacuous as Marko does, so am happy to use it as a starting point. But it is not the only reason for counseling prudence.  One can imagine a human rights regime that is strengthened by a “democracy-forcing” ruling from its court or commission that requires the political actors to grapple with the question of extraterritoriality a bit more directly.

Marko sees little danger in allowing the ECtHR, for example, to export its own balancing tests and limiting principles like the “margin of appreciation” to extraterritorial questions.  I am not so sanguine.  The expansion of rights charter to include peoples who are not connected to the political arrangements creating that charter will necessarily raise difficult questions.  Marko does not adhere to the membership or social-contract view of the ECHR (or the U.S. Constitution for that matter), but those rationales have been extremely helpful in grounding rights within particular societies and attracting political buy-in and long-term commitment to rights projects.  The farther a court must travel — figuratively speaking — from those membership roots, the more difficult is the task of balancing governmental interests or “margins of appreciation”, and the more likely a backlash against the legitimacy of the court from within the political membership.

Of course, even as I write this I am reminded of how poorly the U.S. Congress has responded to these challenges from the U.S. Supreme Court in the post-9/11 detention cases.  Just because a court acts prudentially does not mean the political organs will respond with dispatch to fill the gap.  So it may be an unhappy result for human rights advocates seeking to vindicate a concrete legal claim in the short term.  But in the meantime it forces discussion to the places and subjects that deserve attention in the first place:  importation of IHR standards into local law; revisions to the content of international humanitarian law to take into account changes in the nature of military operations (or, as Marko describes it, harmonizing IHR law and IHL); more effective oversight of international military operations, etc.

This is a terrific book that has already had a significant impact on the conversation about international human rights law.   Marko’s framework for thinking about extraterritoriality and normative conflict between IHR and other international legal regimes has the potential for broader application beyond the IHR/IHL conflict (e.g., IHR and trade, IHR and private law). I look forward to seeing where Marko takes this in the future.

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