Reply to Raustiala, McGuinness, Parrish and Cleveland

by Marko Milanovic

I am very grateful to Kal Raustiala, Peggy McGuinness, Austen Parrish and Sarah Cleveland for taking the time to read my book – and I’m even happier that they liked it. They each make a number of important points, and I’ll now take the opportunity to respond to some of them.

Kal is right in saying that one of my goals in the book was to separate preliminary, jurisdictional issues from the merits of any particular case, but that in reality such a separation is difficult to achieve. Peggy mentions this as well, and I for my part completely agree. It is precisely because they want to avoid very complex substantive issues on the merits that courts resort to the preliminary question of application as a judicial avoidance technique. This is, in effect, where the tension between universality and effectiveness plays itself out. What irks me is when courts pretend that this is not what they are doing, as e.g. with the European Court hiding in Bankovic behind the formalities of the general international law doctrine of prescriptive jurisdiction, rather than openly saying that they don’t want to take the case for various practical and perhaps some principled reasons. That said, I don’t think the possibility of separating the preliminary from the substantive would ultimately be as unattainable as Kal does. If courts are persuaded that the instrument that they are applying is flexible enough to effectively operate in an extraterritorial context, much of the incentive to use the preliminary threshold question as a proxy for dealing with the merits would be eliminated. If balancing between competing interests is necessary, it can be and should be done on the merits. The model of application that I offer is designed to broadly facilitate this process – but as Kal says, the devil is in the details.

As for Kal’s point that globalization and technological progress do help to explain the increased incidence and relevance of these extraterritorial cases, I can again only express my agreement. No amount of human rights internalization would lead to cases like these without the necessary material environment. My point was primarily that globalization alone is not a sufficient explanation, nor is technological innovation. True, we didn’t have drones 30 or 40 years ago, but the Cold War did witness many examples of extraterritorial projection of state power, with assassinations through poisoned-tip umbrellas and the like – but few gave human rights treaties more than a second thought in such situations. Without the cultural shift that we have been experiencing, the increasing emphasis on individual rights and law generally, I don’t think we would be discussing these cases no matter how powerful globalization turned out to be. It is the synergy of these two social developments that has led us to fully grasp the extraterritoriality problem. Austen is also right that these cases are driven by a particular kind of activism, but that activism wouldn’t be possible, let alone fruitful, without the underlying social shifts.

In her comment, Peggy argues for the virtues of judicial minimalism. I do not necessarily disagree, so long as the minimalism is coupled with honesty. The reason why I focus so much on how judges see the extraterritorial application of human rights treaties is precisely that unlike say governments who can easily espouse blatant self-interest, they have to offer a principled reason or reasons why a particular individual is entitled to some rights, while another is not. I also agree that the practical problems of applying a treaty that has evolved in one social context can be very difficult in a different society, which is why I emphasize the need for substantive flexibility in applying human rights treaties extraterritorially. A doctrinaire, absolutist approach by human rights activists coupled with extremely broad claims will not persuade courts to embrace them – if anything, it will do exactly the opposite. And balancing tests and deference doctrines like the margin of appreciation can precisely provide the needed flexibility on the merits – although Peggy’s point about the inherent dangers of such doctrines is also well taken.

Similarly, Austen argues that the overflow of unprincipled compromise in the extraterritoriality jurisprudence might not be such a bad thing, as a nominally expansive approach to extraterritorial application might actually diminish the actual enjoyment of human rights in reality, inter alia by encouraging states to leave existing human rights regimes and discouraging them from joining new ones. I think that is a real danger – and that courts do see this as a real danger. As I argue in the book, universality’s tension with effectiveness has several faces. Courts are reluctant to impose on governments overly burdensome human rights obligations that they would find it very difficult to comply with in practice, and they are similarly worried about antagonizing their constituency, which is comprised not only of human rights activists and lawyers but also of states and governments. This is a delicate balance that courts try to achieve both generally and in the extraterritorial context, and different courts can politically afford different levels of human rights generosity. Similarly, courts are reluctant to endanger the integrity of the human rights regime by diluting it too much for the sake of extraterritorial application. Both the need for flexibility and the need for regime integrity thus call for an incremental, modest approach to extraterritorial application.

So, in sum, I agree with Austen that there is a real risk that an extravagantly utopian approach to extraterritorial application could lead to less, rather than more, human rights in the real world. But at the same time this is only a risk, not an inevitability. And while Austen is primarily referring to the United States in making his argument, I would also caution against overly generalizing only from the US example – just as we should not overly generalize from the European one. As the world’s most powerful (liberal) state, the US government both has the most to lose if it accepts a broad approach to extraterritorial application since it is exerting its power extraterritorially all the time, and the least to lose by resisting such constraints, i.e. it can afford to buck the trend more easily than, say, a state subject to the jurisdiction of the European Court of Human Rights. Similarly, because human rights law is not directly applicable within US domestic law, it is unlikely that US courts will push the government to change its position on the extraterritorial application of human rights treaties. Rather, the real danger for the government is in the extraterritorial application of the US Constitution, but even here the lower courts have taken out much of the sting of Boumediene.

Having said all that, and accepting all the risks, I still think that the various competing interests in each individual case or class of cases should be balanced on their merits, rather than this being done furtively, sub silentio, by relying on various unprincipled formalistic excuses. For instance, I could live with the European Court (or any court) saying that it can conduct only a very deferential and cursory review of the lawfulness of the taking of an Afghan civilian’s life in the course of an active combat operation, because of the lack of reliable factual information, the need to preserve intelligence sources, the intensity of combat on the ground and so forth. But I think it serves no purpose for the Court to pretend that this result is somehow warranted by the general international law doctrine of prescriptive jurisdiction, which it’s not.

Finally, I’m most grateful to Sarah very substantial comments – and of course I pretty much agree with all of them. I’d just want to briefly clarify why I don’t spend a lot of time in the book exploring the travaux of the various human rights treaties to either confirm or deny my central arguments. With regard to some of the treaties, like the ECHR, the usable parts of the travaux are perhaps reducible to a paragraph or two – and they are not very illuminating, to put it mildly. By and large the travaux show that the drafters of the various treaties simply did not give much, if any thought to the issue of extraterritorial application. The only possible exception is the drafting process of the two international human rights covenants, but even there the travaux are so confusing, even contradictory, that they can be used to support any position that one wants to argue. So yes, I’d agree with Sarah that some parts of the ICCPR travaux would tend to support my argument – but others would not. I remember how in the early stages of writing the book I realized that most of the travaux were not available on ODS, and that I’d have to trawl through the University Library in Cambridge for the documents themselves – which I promptly did over the next two weeks or so, looking at these documents on microfilm! Microfilm! I wanted to die from twentieth-century culture shock, if nothing else. And having suffered through these two weeks of almost feeling like a proper scientist or historian, not to mention feeling completely intellectually inadequate when compared to say a work as masterful as Brian Simpsons’ Human Rights and the End of Empire, I realized just how little use there would be for an extensive analysis of the travaux, at least in my project. Not only could the travaux be easily instrumentalized to reach a pre-determined result, as in many other cases, but even if they can show us how the drafters thought about one particular extraterritorial situation or other, they do not give us any clue on the first principles we need to have to organize the issue of extraterritorial application about. And this, I think, is what we need desperately, and this is what I had hoped to provide in the book. That, of course, does not mean that I have entirely succeeded.

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