Beyond Territoriality: Symposium on Jurisdictional “Hooks” for (Extraterritorial) Human Rights Obligations – Back to the Drawing Board: Debordering Human Rights Law

[Wouter Vandenhole is full professor of human rights and children’s rights at the Law and Development Research Group of the University of Antwerp’s law faculty.]

What if we could get back to the drawing board in human rights law? What would be the most decisive game changer? For some, it may be adding new rights or reframing existing rights. For others, it may be rebuilding the institutional architecture for monitoring and accountability. Both have their merits. Nonetheless, in my view, the most fundamental and most needed redraw relates to whom the duty-bearers are, how obligations are allocated to those duty-bearers, and how responsibility for violations is assigned.

The Current Paradigm

In human rights law, a territorial-state-centric paradigm prevails. Human rights obligations are incumbent on the state on whose territory an individual or group find themselves on. This is often captured by the notion ‘territorial jurisdiction’. The default position is that a state has human rights obligations if and when it exercises territorial jurisdiction. Very exceptionally, and almost grudgingly, exceptions to territorial jurisdiction have been accepted. Such extraterritorial jurisdiction has been further confined to certain models of personal and spatial jurisdiction, with rather rare excursions to cause-and-effect and nationality-based jurisdiction, as a non-exhaustive review of work by Besson, Den Heijer and Lawson, Gondek, Haeck, Burbano-Herrera, and Ghulam Farag, Janig, King, Lawson and Milanovic bears out. The European Court of Human Rights’ take on jurisdiction is the following, as reiterated (regrettably) most recently in the Duarte Agosthino case:

[…] from the standpoint of public international law, a State’s jurisdictional competence is primarily territorial. […] The Court has recognised that, as an exception to the principle of territoriality, acts of the States Parties performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 of the Convention. […] In each case, it was with reference to the specific facts that the Court has assessed whether there existed exceptional circumstances justifying a finding by it that the State concerned was exercising jurisdiction extraterritorially

paras 98, 101 and 102

While monitoring bodies in the Inter-American system as well as United Nations human rights treaty bodies may have been more open to extraterritorial obligations, they too have been constrained by the shackles of the territorial state paradigm and jurisdiction as the concept with which to allocate obligations to a particular state or to particular states.

Human rights law has not only been territory-based, it has also been extremely state-centric. The only duty-bearer that has been identified in hard law is the state, to the exclusion of other powerful actors: corporations, international organisations, armed groups, and so on. In a world in which each and every state is able and willing to protect human rights against those and other actors, that could make sense. In practice, many states are much less powerful than those actors. In practice, quite some states may be able, but are unwilling, to reign in those powerful non-state actors.

Universal Design

So how should human rights law be redrawn? Sticking to the language of architecture and design, universal design (design for all) should guide any redraw: human rights law must work to the greatest extent possible for all, in all situations. It should therefore be grounded firmly in society and societal needs, rather than merely in reinterpretations of the law. Human rights realities are far more complex, and more often than not, involve a multiplicity and diversity of actors. Climate change is caused by states and businesses alike. Human rights issues in exploitation of natural resources and value chains are caused by businesses and states, through omission or commission. Labour exploitation in the context of major sports events results from the action of companies, and the host state, and from the inaction of sports federations and other states. International organizations, businesses, armed groups, drugs cartels, sports federations, multistakeholder partnerships: they all have an impact on human rights enjoyment and realisation. Global challenges require global solutions. If human rights law is to be relevant in identifying and providing those global solutions – without any overconfident claim that human rights law is the solution – it needs to be debordered beyond the territory-based and state-centric model that has governed it so far.

Debordering of human rights law is also a fundamental element in the decolonisation of human rights law, away from Eurocentrism and approaches that mainly serve the Global North, and back to the idea of human rights as truly universal rights, to be realised through solidarity and global obligations, as proposed by Gibney and Skogly, Pribytkova, Salomon and Skogly.

Key Principles for Debordering Human Rights Law

Five key principles must inform a debordering redraw of human rights law. First of all, a plurality of duty-bearers, beyond the territorial state, needs to be recognized, in particular but not exclusively foreign states. Second, a diversity of duty-bearers, beyond the state, needs to be envisaged. This idea is self-evident in global governance scholarship, where it is taken for granted that the global system is made by states and non-state actors alike, but still heavily resisted in human rights law (p. 1035).

In an incremental approach, one could deborder human rights law by considering state-like actors as human rights duty-bearers (p. 1033). Arguably, international organisations, as they are made up of states, and armed groups that control a territory and exercise some basic state/governmental functions (ensuring security, levying taxes, organizing health care and education and so on), are state-like non-state actors. In a more fundamental debordering exercise, many more non-state actors may be considered as human rights duty-bearers. Every actor that holds or exercises ‘considerable or decisive and asymmetrical power which has, or has the potential to have, a considerable impact on a number of persons or situations’, stands to be checked by human rights law, and is therefore eligible as a human rights duty-bearer (p. 1036).

Third, principles are needed to attribute human rights obligations to a multiplicity and diversity of duty-bearers. How could such a functional equivalent to jurisdiction look like, that goes beyond the restrictive interpretation given to it so far, but also beyond its state-centric use? For sure, ‘facticity creates normativity’ – ‘the establishment of State jurisdiction over an individual results from the contextual assessment of the factual circumstances’ (p. 212) and effects create normativity, but that is not enough. I would add that ability creates normativity: the ability to contribute to human rights realisation, wherever in the world, creates obligations to do so. A smart mix of more abstract criteria like control and proximity (which of course have also factual manifestations in a concrete case) with more context- or case-specific ones (causation, impact) may be most amenable to operationalisation.

Of course, that raises questions of prioritisation, differentiation and distributive allocation of obligations. A fourth key principle of redrawn human rights law speaks therefore to the differentiation of obligations between the multiple and diverse duty-bearers. The scope of obligations of each duty-bearer is closely related to the allocation of obligations, and will also vary along the type of obligation (respect, protect, fulfil). As Bellinkx et al., Erdem Türkelli, Krajewski and Vandenhole, Salomon and Skogly, amongst others, have argued , the principle of common but differentiated responsibilities and respective capabilities in international environmental law can serve as a way forward in distributing global human rights obligations.

Fifth, responsibility in case of violations needs to be differentiated. Elsewhere, I have identified three building blocks for such a responsibility regime: shared responsibility; a continuum of differentiated responsibility; and liability for monetary compensation commensurate with the degree of responsibility. Erdem Türkelli has proposed polycentric governance of responsibility, drawing on legal and non-legal visions on attribution and distribution of responsibility.

Conclusion

Both a return to the foundational idea of human rights as universal or global, and a reality check as to how human rights law manages to address current realities, force us to go back to the drawing board. As Bhuta has sharply observed, ‘at their inception, human rights treaties took for granted, rather than broke from, the so-called “Westphalian frame”.’ (p. 2). Seventy-five years after the adoption of the Universal Declaration of Human Rights (UDHR), there is an urgent need to break from the ‘Westphalian frame’ and to deborder human rights law. The human rights obligations of foreign states and non-state actors must be defined, and principles for the (distributive) allocation of obligations and responsibility need to be identified. That is perhaps a daunting but certainly not an impossible task. Key principles and fundamental building blocks have been identified in innovative lawyering and creative scholarship. Further inspiration can be found outside human rights law and beyond the law. In many ways, it is the inevitable consequence of the promise held by Article 28 UDHR: ‘Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’

The author is PI of Scientific Research Network on Extraterritorial Human Rights Obligations in Practice (funded by the Research Foundation Flanders grant number W002420N) and co-PI of an interdisciplinary and interuniversity research project on Future-Proofing Human Rights: Developing Thicker Forms of Accountability (funded by the University of Antwerp Special Research Fund grant number 42367). This contribution was supported by both funders.