Milanovic on Extraterritorial Application of Human Rights Treaties: Judicial Interpretation and the Future of IHR Regulation
Marko Milanovic’s impressive treatment of the rapidly evolving jurisprudence of extraterritoriality of human rights treaties is a must read for anyone teaching or thinking about the international human rights system. What is most significant for me is Marko’s systematic effort to put doctrinal and policy meat on the bones of the argument that has been developing over the last decade or so that human rights obligations are “everywhere.” I agree with both the sentiment and policy objectives of arguing that the universality of human rights means that they belong to all humans without regard to nationality or location within a particular territory. And Marko is correct in positioning his comprehensive analysis of the cases addressing extraterritoriality within the “humanization” of all dimensions of international law, the process Ruti Teitel has described nicely as “humanity’s law.”
This is a book fundamentally about treaty interpretation, and it leaves aside the development of customary international law of human rights or of norm transformation more generally. It is a work of formal law — and in that regard is a really welcome shift toward the doctrinal in these debates. The central question Marko seeks to address is the scope of application of specific treaty obligations undertaken by states to observe human rights – and whether and how those obligations are triggered when a state engages in extraterritorial political, law enforcement, military or intelligence operations. Globalization has expanded the availability of extraterritorial acts from beyond the traditional notion of sovereigns acting through territories, colonies or militarily occupied areas, to include myriad cross-border law enforcement and regulatory cooperation arrangements of states of varying sizes and power. The potential for conflicts of law is dizzying; the potential for human rights abuses is depressing.
Because we are talking about treaty interpretation, it bears focusing on the method of interpretation that Marko employ and also on the problem raised by relying on judicial (or in the case of the ICCPR quasi-judicial) interpretation, rather than looking to the treaty makers themselves to clarify and better articulate the current morass of jurisdictional clauses in the regional and international treaties.