LJIL Symposium: A Response by Samantha Besson

by Samantha Besson

[Samantha Besson is a Professor of Public International Law and European Law, University of Fribourg and Fellow of the Wissenschaftskolleg zu Berlin]

I would like to start by thanking Dov Jacobs and the Leiden Journal of International Law for organizing this on-line symposium on my extraterritoriality piece, and, of course, for agreeing to publish the article in the first place. Many thanks also to Professor Marko Milanovic and Professor Cedric Ryngaert for their generous comments and not least for taking the time to deliver them at this busy time of the year.

In this brief reply note, I will start with Professor Ryngaert’s comments and then turn to Professor Milanovic’s.

Professor Ryngaert’s main critique is that the normative dimension of jurisdiction as I understand it is difficult to pin down (see also Professor Milanovic on its “vagueness”) and in particular to distinguish from mere coercion. I agree that it is a difficult element to grasp, but not less difficult than the concept of jurisdiction itself. Reducing jurisdiction to coercion by virtue of the sheer complexity of its normative dimension amounts not only to choosing the easy route but, as I have argued, a misguided approach to authority and hence to the normative relationship that underlies any human right. In fact, Ryngaert’s own work on the issue makes me believe he agrees with this normative understanding of jurisdiction. Further, the examples given by Ryngaert in order to show how difficult the distinction between coercion and authority is actually dilute the normative test by not focusing on the normative subjects of the laws enforced (and on human rights-holders as a result) and hence by avoiding the reasons that apply to them and not to others. Of course, Ryngaert is right: there will inevitably be a human rights protection gap and it is frustrating, but we know that gap in the context of democratic accountability for international action as well. As a matter of fact, I argue in the article that the tension this gap creates between international or European and domestic human rights law has proven beneficial –slowly certainly, but surely. 

Interestingly, Ryngaert then proposes an understanding of jurisdiction as one of “strong nexus” and, more precisely, as one that “cannot be defined in advance”. The difficulty I see with the broader notion of “nexus” is that it severs any link between human rights, on the one hand, and law and politics, on the other. This is a drawback I discuss in detail in the article. Another problem is that if (“strong” – how strong, exactly?) nexus cannot be defined in advance, obligations cannot arise in advance of action or omission either. And this comes very close to a position I criticize in the piece and that mistakes some agent’s violation of the interests protected by human rights for the existence of an obligation of that agent not to do so. Moreover, and more practically, one may wonder who would be in charge of the “case-by-case assessment” of the existence of “strong nexus” a posteriori: would European judges be called to generate extraterritorial human rights obligations, and not only to monitor their respect?

Ryngaert then draws an interesting distinction between civil and political rights, on the one hand, and economic and social rights, on the other, by claiming that the latter raise most issues of democratic legitimacy when given extraterritorial application. I am not sure I see how the distinction cuts any ice: positive duties may arise from both kinds of rights and the difficult questions pertaining to the egalitarian allocation of those duties and their burden are likely to be the same in practice. Finally, I am not sure I understand Ryngaert’s “reasonableness” criterion and how the reference to reason actually warrants a “case-by-case assessment” as opposed to a criterion that is “defined in advance” like mine. However, I am certainly eager to learn more and look forward to reading Ryngaert’s forthcoming piece on the subject.

Now to Professor Milanovic’s reply. Given how much disagreement there is between us and the specific counter-arguments to his book I presented in my piece, I was expecting detailed replies to those arguments. Instead, Milanovic makes four relatively minor points: two methodological and two substantive ones.

Milanovic’s two methodological points are, first, that the article’s argument is not innovative theoretically and, second, that it is too abstract. With respect to the latter, I should start by stressing that the point of the piece was to bring in a philosophical understanding of jurisdiction to bear on legal debates about the extraterritoriality of international and European human rights and so doing to contribute to the existing debate among lawyers albeit from a different angle. To the extent that this kind of endeavour is deemed useful and I think it is, I am afraid that an abstract style of argument comes with it. Whether it is persuasive will have to be left ultimately for the reader to judge. The persuasive authority of this kind of argument certainly is not conditional upon its “consequences” as Milanovic indicates. However, is the argument theoretically innovative, at least? Yes, I think so. I have tried over six pages (860-6) to defend a detailed normative understanding of jurisdiction in the human rights context, but in the light of discussions of authority within current political theory. Milanovic does not indicate what he questions in that argument, however. Should the argument have been longer? Doing more would certainly have been at the risk of more abstraction, something Milanovic would have disapproved of! In any case, all this goes well beyond, I hope, what Milanovic calls “the obligatory references to Dworkin and Habermas”. I argued in particular against the understanding of the universality of human rights that leads without further argument to the universality of human rights duties and duty-bearers, e.g. the kind of understanding that makes people say that there is a “calculus between universality and effectiveness, between utopia and apology” in the European Court’s case-law whatever “calculus” means here and whatever the reasons are for qualifying that claim to universality as utopian and hence for undermining it at the same time. Finally, Milanovic sees it as a problem that I then turn to the traditional questions in the extraterritoriality debate, but had I not, he may have objected that I did not engage seriously with those writing in the field!

More seriously, let me turn to Milanovic’s substantive comments. He has two: one pertains to what he curiously coins as the “purpose” of the article and the other to its “conclusions”. With respect to the former, Milanovic is right: the European Court of Human Rights’ case-law has not always been as clear and consistent as it has aimed to be after Al-Skeini. For all the reasons given by Milanovic, it would have been foolish of me to claim the opposite. The Court’s case-law and its interpretations of the Convention work in a dynamic fashion of distinction and transformation, and what we face now is the attempt by the Court to offer a systematic re-interpretation of the jurisdictional issue in Al-Skeini, a re-interpretation it has specified since then and in particular in Hirsi and Catan. All this explains why I chose to work on Al-Skeini as a new referential precedent, and not on previous cases. Moreover, the point of my argument was not to identify a “grand theory about the notion of jurisdiction” allegedly followed by the Court nor to uncover a theory one would need to “discover”. My aims was not to systematize or “rationalize” (Ryngaert) the Court’s case-law, but to propose an independent theoretical understanding of jurisdiction that would help us in turn, in the second half of the paper, to see the case-law of the Court in a different light and maybe judge some of the bits and pieces in Al-Skeini, including its political dimension e.g.,in a more charitable way.

Milanovic’s core critique in his reply pertains to what he understands as my “conclusions”, i.e. claiming that jurisdiction ought to be understood as “domestic-law jurisdiction”. Curiously, I see this neither as a conclusion nor as a central step in my argument, but as one of the consequences of the proposed normative account of jurisdiction qua political and legal authority. I discuss domestic-law jurisdiction over two pages (268-70) only, and it is meant as a contrast to international-law jurisdiction. What is central to my argument, and in turn may help qualify the list of cases Milanovic mentions at the end of his comments, are the three elements of control I argue one should use, and that one may also find in Al-Skeini, and in particular the normative dimension of control (see my reply to Ryngaert above).

To be continued –hopefully once in a live symposium!


One Response

  1. The discussion is illuminating. I can hardly imagine a better panel to discuss Prof. Besson’s article given panelists’ recent contributions on different aspects of extraterritoriality. It’s hard to establish a consensus on extraterritoriality. I don’t think that such a consensus is even possible. Still, the introduction of normative theorizing raises a couple of open-ended questions. I will pose them because I think that normative theorizing about extraterritoriality is exceedingly difficult; thus, it entails a great deal of groundwork. I imagine that the article did not engage in this ground work simply because of the publishing restrictions: the bête noire of every scholar who wants to squeeze too much information in too little allotted space.
    1.      What is the added value of normative theorizing in the present case? In recent years, there is a good deal of social science work on extraterritoriality especially in US context. Tonya Putnam published an excellent article on what motivates US federal courts to find and exercise extraterritorial jurisdiction.  Kal Raustiala’s “Does the Constitution Follow the Flag?” was already a subject of a different symposium on OJ. What does normative theorizing add to the social scientific understanding of extraterritoriality?
    2.       Normative theorizing consists of conceptual claims. These claims are non-falsifiable. How do we adjudicate between competing normative claims with respect to extraterritorial jurisdiction?
    3.      At the end of his post, Prof. Milanovich posed a couple of hypotheticals. I read them to mean an invitation to provide examples of  normative theorizing for the sake of proving its utility. If this reading is correct, it will be a good idea to connect normative theorizing with these particular stylized fact patterns. The instantiation of normative theorizing in these fact patterns, then, will give us a better idea about the causes for, the consequences of, and the difference the normative theorizing makes.

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