A Response to Milanovic: The Lure of Extraterritoriality

Austen Parrish is a Professor of Law and the Vice Dean at Southwestern Law School.

I’m grateful to Opinio Juris for inviting me to comment on Marko Milanovic’s book on the Extraterritorial Application of Human Rights Treaties. The book makes a meaningful contribution to an increasingly important issue of treaty interpretation, and the book’s sweeping treatment of how different courts and entities have addressed whether treaty-based human rights obligations apply beyond borders deserves praise. Few authors have provided this sort of detailed doctrinal description, and none to this degree of thoroughness. For these reasons, the book is a valuable resource.

Because I see much to praise in Marko’s work, my comments are less in the form of a critique and more in the form of a set of observations, with the hope that they will spur further discussion. Given space constraints, I’ll limit myself to three.

First, a key assessment underlying much of the book’s prescription is that current approaches to jurisdiction are often unprincipled and conceptually confused. Marko is likely correct in that diagnosis. But is that a bad thing? Unlike Marko, I’m not as convinced that this confusion is necessarily problematic, at least if I confine my objectives to the goal of promoting human rights. Broadly interpreting human rights treaties to be geographically unbounded will not for certain advance human rights. Nor do I believe Marko’s particular prescription – advocating for a distinction between positive and negative obligations – will necessarily do so either.

Treaties, as with other laws, have jurisdictional limitations for reasons. Reading treaty obligations to have greater extraterritorial reach may discourage, on the margins, states from ratifying future human rights treaties (or may make it more difficult for them to remain signatories to existing ones). In this way, perhaps paradoxically, the confusion and inconsistency surrounding the interpretation of a treaty’s geographic scope serves some benefit. To the extent the default interpretative rules are clarified and court find human rights treaties to more commonly apply outside a state’s territory – while some states, like the U.S. remain opposed to restricting their conduct abroad at least in conflict zones – it may make it more difficult politically for states to become signatories.

The point can be underscored in a different way. Some scholars have a tendency to present the development of human rights as a teleological process, with a degree of inevitable evolution because of the perceived universality inherent in those rights. For those who believe that human rights are not so universal, and that the acceptance of human right norms reflect hard fought and contested battles, unpredictability and fuzziness can have its advantages. Clarity on the extraterritoriality issue may erect a roadblock to powerful liberal states joining treaty regimes. In contrast, limiting human rights treaties territorially may make it politically feasible for a greater number of states to participate in those regimes, with the potential that once involved with those regimes human rights norms will slowly infiltrate domestic systems, cultivate legitimacy, and change behavior. In fact, the lack of clarity provides courts, in the most egregious cases, the flexibility to bend what otherwise might wisely be a default presumption against extraterritorial application absent a clear contrary intent by the drafters (i.e., the judicial minimalism point that Peggy raises in her thoughtful response, and to which I find myself pulled towards). Courts overreaching to advance respect for human rights beyond what is currently politically palatable, may end up unraveling hard fought gains. Viewed in this light, slow advancement may lead to more meaningful respect for human rights in the long term.

Second, while I don’t take Marko himself to say this, I tend to see it as a mistake to equate, as some have done, the extraterritorial application of human rights treaties with the declining importance of territorial sovereignty as a key organizing principle to the international legal order. That a state can agree to limit its acts in areas under its effective control is hardly an attack on territorial limits to law. The key benefit of formal treaty law over custom is its consent-based legitimacy, which fits nicely within theories of territorial sovereignty. In fact, in many ways the extraterritorial application of human rights treaties (so long as that was the drafters’ intent), reaffirms foundational international law principles. Reflecting principles of sovereign equality and nonintervention, the main reasons for limiting a state’s jurisdiction beyond borders is to reduce conflict and prevent interference with other states and their citizens. There’s something unseemly and in tension with those basic principles when a state purports to have free reign to engage in atrocities against foreign nationals in foreign lands.

In this regard, it has always struck me as odd that some states are so reluctant to embrace the idea that treaty obligations place constraints on state conduct overseas, and yet are more willing to allow its own courts to adjudicate claims by foreigners against foreigners for alleged human rights violations occurring abroad. I say odd, not to suggest unexpected. There’s nothing surprising about this version of U.S. and European exceptionalism (unilateral extraterritorial application of domestic law is on the rise in both places). But odd in the sense that imposing limitations on one’s own government and citizenry to not violate human rights norms hardly seems radical. In contrast, having domestic courts adjudicate claims by foreigners against foreigners engaged in solely foreign conduct, is significantly more problematic. Nationality jurisdiction where a country exercises authority to limit the acts of its own citizens no matter where located (the prescriptive and legislative jurisdiction issues involved in Marko’s book) may pose pragmatic difficulties, but is well accepted. Having national courts exercise universal or effects-based jurisdiction over activity with no connection to that state is much more contentious: its undemocratic, undermines rights to self-determination, and often violates international law. The idea, for example, that U.S. or European courts can unilaterally define contested human rights standards for the world through its own courts is a particularly strong form of legal imperialism. In some ways then, extraterritoriality in the human rights field seems at its least interesting when discussing the extraterritorial application of treaties. But the topic is a window to a much more touchy topic tied to attempts to promote a new legal orthodoxy that fundamentally refashions international law.

My last observation relates to a claim that Marko makes about the reason that issues of extraterritoriality have come to the fore now – a topic that Kal raises in his post too. Marko implies that extraterritoriality has become a more common issue as the human rights movement matures, norms are internalized into domestic systems, and the ideal of universality becomes more accepted. Kal, in contrast, offers that globalization may have played a greater role in this trend than Marco suggests. I’m less convinced that either explanation is satisfactory.

In many ways, the recent scholarly fascination with extraterritoriality in human rights treaties is part of broader attempts to diffuse the power of the nation-state and recreate the rules of the international order. For me, the attempts are better understood — in many contexts — as a continuation of domestic power struggles within powerful states and reflect changes in legal thought. In the U.S., the debates about international law often mimic debates found domestically (debates over federalism, state rights, the role of courts etc.). Territorial, state-centered conceptions of international law are commonly caricatured as outdated and ill-equipped to handle the demands of a globalized world, not because they actually are but because they don’t advance the interests of particular groups seeking to reinforce political power. It may be that globalization and the resulting changes in communication and commerce has aided those struggles, but understanding why extraterritoriality has become prominent requires a greater understanding perhaps for why different groups have adopted different strategies and promoted new legal theories.

But these observations are much an aside. Marko Milanovic’s book is a welcome addition to the growing literature that examines issues of extraterritoriality in law, and he deserves a hearty congratulations