LJIL Symposium: Response to Samantha Besson

LJIL Symposium: Response to Samantha Besson

[Cedric Ryngaert is an Associate Professor at KU Leuven and the University of Utrecht]

Samantha Besson has provided a fine normative account of the extraterritorial application of the ECHR. At the same time, she believes that this account may well offer a rationalization of the string of controversial ECtHR decisions in this matter. Besson’s argument may or may not have explanatory power as regards the ECtHR case-law, but what is sure is that the Court will be happy to hear that, as far as extraterritoriality is concerned, it can at least count on some academic supporters.

I concur with Besson’s analysis in many respects, but in the interest of the discussion I would like to elaborate on some points of disagreement.

In my view, that which Besson has added to existing analyses of extraterritoriality is the normative dimension of the concept of jurisdiction, as the third constitutive element of jurisdiction, apart from effective power and overall control. Drawing on legal theorist Joseph Raz’s writings, Besson submits that jurisdiction, qua de facto authority, ‘amounts to more than the mere exercise of coercion or power, as a result: it also includes a normative dimension by reference to the imposition of reasons for action on its subjects and the corresponding appeal for compliance (e.g., through giving instructions)’. Further on in her article, drawing on theorists of democracy, she cites the ‘all-subjected principle’, which ‘requires actual normative subjectedness and not only affectedness’.

On its face, the normative dimension restricts the number of state activities that bring affected individuals within the state’s jurisdiction, especially in respect of military operations, which may lack the normative element. Normativity might be present when an ECHR Contracting State exercises territorial control, e.g., over an occupied territory, or when, short of territorial control, its action involves the ‘exercise of some or all of the public powers normally to be exercised by a sovereign government’, i.e., the Court’s dictum in Al-Skeini. Presumably, normativity is not present when the State carries out extraterritorial targeted killings against designated terrorists, as such action amounts to the exercise of raw power and is not accompanied by an appeal for compliance on the part of the targeted individual. But where exactly to draw the line between ‘mere coercion’ and ‘normative subjectedness’? All (coercive) state action may be based on the exercise of public powers: when a state carries out targeted killings of presumed terrorists – whether territorially or extraterritorially – it does give reasons for its action (‘terrorists threaten national security and the lives of others’) and it does appeal for compliance (‘comply with our norms which outlaw terrorist activities’). I believe that ultimately, this criterion of ‘normative subjectedness’ obscures rather than enlightens, unless one understands ‘normative subjectedness’ as coterminous with being subject to the regulatory powers of a State short of State effective territorial control, i.e., the loose territorial model of jurisdiction  as set out in Al-Skeini and endorsed by Besson. The latter limited understanding of jurisdiction does not seem warranted, as it opens up an accountability gap for individuals whose fate is closely entwined with a foreign State’s extraterritorial actions.

In my opinion, any individual whose rights are compromised by a State’s actions should in principle fall within that State’s jurisdiction, whether this jurisdiction is normatively grounded or amounts to mere coercion, provided that there is a strong nexus between the individual and that State. The strength of this nexus cannot be defined in advance; a case-by-case assessment is called for. This assessment should also include democratic principles and the right to self-determination. In this sense, I share Besson’s concerns over the sort of human rights imperialism to which a liberal extraterritorial application of human rights can give rise: the risk exists that (mainly) Western States will impose their own interpretation of human rights standards on non-Western States, thereby denying the regulatory autonomy of the latter. Still, dangers of human rights imperialism cannot be evoked in the abstract; they depend on the circumstances and the rights at issue. I fail to see, for instance, how the extraterritorial protection of physical integrity rights, such as the right to life and the right to be free from torture, which can be characterized as peremptory norms, restricts the local population’s democratic choices. I do see, however, how the  extraterritorial application of economic and social rights may supplant local democratic choices. Think for instance about the extraterritorial effect given to corporate social responsibility legislation by investors’ home States: host State governments may well have an interest in CSR violations, or there may be no violation under host State law in the first place. Developing States typically woo foreign direct investment with seductive lower regulatory standards relating to the protection of certain socio-economic rights, labour rights in particular (no minimum wages, no regulation of working hours, no right to strike, no occupational safety rules, no unions, no labour inspections …). When the MNC’s home State starts regulating the overseas conduct of its corporations on the ground that individuals located overseas fall within its jurisdiction, a normative competency conflict with the host State may easily arise. Depending on the nature and the extent of the right violated, the home State may have to defer to the host State on democratic grounds.

In the final analysis, in spite of the differences between the concept of State jurisdiction under general international law and the concept of jurisdiction for purposes of applying human rights treaties, I believe that the principle of reasonableness which circumscribes, or should circumscribe, the exercise of State jurisdiction in the criminal or regulatory field (criteria of reasonableness are usefully listed in Section 403 of the Third Restatement of U.S.  Foreign Relations Law), could also apply to the extraterritorial application of human rights. As the ECtHR has drawn anyway – rightly or wrongly – on the concept of jurisdiction in public international law so as to further define the threshold criterion of jurisdiction under the ECHR (see Bankovic), it may be well-advised to draw on reasonableness-informed jurisdictional limitations developed in public international law to circumscribe the scope ratione loci of the ECHR. For those who are interested: a piece of mine on how reasonableness should exactly play out in respect of the extraterritorial application of human rights, economic and social rights in particular, is forthcoming as C. Ryngaert, “Jurisdiction: Towards a Reasonableness Test”, forthcoming in M. Langford, W. van Genugten, M. Scheinin, W. Vandenhole (eds.), Transnational Obligations and Economic, Social and Cultural Rights, Cambridge University Press, 2013.

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Alexander Panayotov
Alexander Panayotov

I agree with the argument that extraterritorial regulation creates a danger of democratic deficit.  Prof. Ryngaert tackles this argument in details in his superb book “Jurisdiction in International Law” (pp.188-190). This is one of the aspects of normative theorizing about extraterritoriality that is worth debating.  What I see as a problem, however, is the fact that democracy in itself is an essentially contested concept. There are several theories of democracy: participatory, minimalist, and deliberative to begin with. If we make a claim about extraterritorial regulation’s effect on democratic participation, it’s a good idea to specify which theory of democracy underpins it.
 I also think that connecting extraterritorial regulation and democratic theory is tempting, but problematic. If we want to understand the causes and consequences of extraterritorial regulation, it’s useful to formulate structured case-studies. At least, they will give us an idea about the politics of extraterritorial regulation. Prof. Milanovich claims that, for better or worse, politics cannot be expunged from the inquiries aimed at understanding extraterritoriality. The interesting part is to explain why.