Author Archive for
Marko Milanovic

LJIL Symposium: A Comment on Samantha Besson’s Article on the Extraterritorial Application of the ECHR

by Marko Milanovic

[Marko Milanovic is lecturer in law at the University of Nottingham School of Law.]

It is a pleasure to participate in this discussion organized by the Leiden Journal of International Law and Opinio Juris, and to comment on Professor Besson’s interesting article, which I enjoyed reading. Not to beat around the bush, I (very amicably!) disagree with much of Professor Besson’s article, just as much as she disagrees with much of what I wrote in my recent book on the topic (discussed here on Opinio Juris and at EJIL: Talk!). So there. Let me try to explain why.

Professor Besson’s main claim is that prior scholarship on the ECHR’s extraterritorial application, most of it very critical of the European Court’s case law, has not given serious thought to normative considerations that underpin the issue, ‘except for vague and often misleading gestures to the  universality of human rights that allegedly requires their extraterritorial application.’ Generally speaking, in Besson’s view that scholarship is under-theorized and the vague references to universality fail to account for the relational nature of rights and obligations under human rights treaties. To remedy that, the ‘article endeavours to bring some normative human rights theorizing to bear on the ECtHR’s recent practice on extraterritoriality [and] hopes thereby to provide a different reading of the Court’s case law and show that it has been wrongly depicted by some authors as fragmented and even contradictory.’  (more…)

The Oxford Guide to Treaties Symposium: Validity of Reservations Revisited

by Marko Milanovic

[Marko Milanovic is Lecturer at the University of Nottingham School of Law]

I am grateful to Duncan for inviting me to contribute to this conversation, inspired by his important new book. Let me continue where David Stewart and Harold Koh left off, namely with the issue of the validity of reservations and the innovations in that regard in the ILC’s freshly minted Guide to Practice. I would disagee with Professor Koh that the approach ultimately adopted by the ILC ‘makes little sense and smacks of unfairness’. On the contrary – the ILC has not only brought much needed clarity to the Vienna Convention regime, but has succeeded in reconciling seemingly irreconcilable doctrinal and ideological positions, in a compromise that I hope most governments will in the end find palatable. Let me try to explain why.

When one reads the (rather paltry) Articles 19-22 VCLT, particularly in light of the ICJ’s Reservations to the Genocide Convention opinion, one cannot avoid the impression that the process of determining whether a reservation was invalid as being contrary to the object and purpose of a treaty was meant to be more or less inter-subjective: each state should determine for itself whether a given reservation was compatible with the treaty’s object and purpose, and if it was not it should make an objection to that effect. But such an inter-subjective approach looks remarkably unappealing from the perspective of major multilateral normative treaties, particularly in the human rights context. The rights of individuals, so the reasoning among many human rights lawyers went, should not depend on the existence of objections, vel non, by third states, especially when reciprocity of state obligations has little place in the human rights context and when for a variety of reasons states routinely fail to object to reservations even when there are perfectly good reasons to do so. While objections to reservations would be probative, they could not be dispositive. It would indeed primarily be upon courts or treaty bodies to determine whether a reservation is compatible with the object and purpose of the human rights treaty, while the consequence of invalidity would normally not only be the nullity of the reservation, but also its severability, so that the reserving state would remain bound by the human rights treaty without the benefit of its reservation.

Many governments were less than pleased with what they saw as a power-grab by human rights bodies and a usurpation of their sovereign prerogatives. The ILC, being the bastion of international law orthodoxy, was no more pleased, nor was Alain Pellet as its Special Rapporteur. How could international law survive as a coherent, unified system if more of its branches followed the human rights example and asserted that because they were special they needed special rules, rather than the outdated Vienna framework. If that was true for human rights, why would it not be true for trade, the environment, or whatever other topic people became strongly devoted to. Fragmentation had to be resisted, and Pellet and the ILC could not, would not accept the ‘human rights are special’ argument. No true international lawyer, even a gentle, human rights-loving one, could accept its basic ideological premise.

But, during the (very) lengthy process of working on the Guide, the ‘generalists’ and the ‘human rightists’ actually talked to one another, including at a series of meetings organized in Geneva between the ILC and human rights treaty bodies. Rather than harden, their respective positions evolved. While from the generalist perspective the specialty claim could never be accepted, there was still room for compromise. Perhaps it was the general regime itself that could be so interpreted – or adjusted – to accommodate the concerns of the other side, and this time not just for the benefit of human rights. And so we have now the Guide, in which Pellet so very cleverly succeeded in reconciling positions that before seemed irreconcilable. He and the ILC did so by making a series of crucial conceptual moves.

First, according to the Guide, Article 19 VCLT should be regarded as laying down objective criteria for the validity of reservations, as inter-subjectivity is a recipe for chaos. Secondly, Articles 20-23 VCLT only deal with those reservations which are objectively valid under Article 19; they do not mention nor pertain to reservations which are in fact invalid. Thirdly, while states may object to reservations that they consider invalid, this is merely persuasive evidence of invalidity. In fact, objections only have real legal effect if they are made against reservations which are objectively valid; the objecting state may object for any reason whatsoever, simply because it does not want to accept the modified treaty bargain that the reserving state is offering. Fourthly, while the VCLT does not say what are the consequences of an invalid reservation, the only sensible option is to accept that such a reservation is null and void. Fifthly, however, saying that an invalid reservation is a nullity does not resolve the issue of the reserving state’s status as a party to the treaty. That will depend on the intention of the reserving state, which has a choice – either stay on as a party to the treaty without the benefit of the invalid reservation, or say that it no longer considers itself bound by the treaty, while acting under a rebuttable presumption that the reserving state intends to remain a party. (See gudelines 4.3 and 4.5).

Whether this is really the Vienna regime, ‘Vienna-plus,’ or something else entirely will, I imagine, be the object of some debate. But what seems to be beyond debate is that the Guide’s approach to the invalidity of reservation accommodates most of the human rights-inspired critique of Vienna without giving any ground to the idea of specialty. This is a general regime applying to all treaties, but it still moves from the inter-subjective approach in which state objections are the only thing that matters, it treats invalid reservations as a nullity, and it allows them to be severed. Yet they can only be severed if the reserving state does not actively oppose its continued status as a party to the treaty, with the presumption of severability operating on the unstated assumption that passivity is frequently the politically most likely reaction by states, and that the retention of the state within the treaty regime but without the reservations would be a probable outcome.

The Guide thus achieves a compromise that avoids fragmenting international law, accommodates concerns arising from the context of normative multilateral treaties, including human rights ones, yet still gives ultimate say on the matter to the principle of state consent. For instance, all the United States would need to do to avoid the severability of any of its reservations to the ICCPR, on the assumption that some of them in fact are objectively invalid, would be to say (as it has done so several times already) that it considers them an integral component of its consent to the entire treaty. That does not seem to be too onerous a burden, and is indeed a far cry from the approach articulated by the Human Rights Committee in its General Comment No. 24.

There is, in short, much to be commended in this anti-fragmentationist yes still progressive compromise, but it of course remains to be seen whether both governments and human rights institutions will appreciate it for what it is. I certainly hope they do.

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…

Extraterritorial Application of Human Rights Treaties: An Overview

by Marko Milanovic

I am very grateful for the opportunity to discuss my book on EJIL: Talk! and Opinio Juris, as am I grateful to the commentators on both blogs for taking the time to read and discuss it. In this introductory post I’ll try to outline the book’s main arguments and themes and my approach generally in analysing a very complex topic.

The book is divided into five chapters. The first, introductory chapter sets out the scope and purpose of the whole study. It defines the notion of the extraterritorial application of human rights treaties, explains that the law of treaties sets no general rules on extraterritorial application, and outlines the basic normative framework of the human rights treaties which are the object of the study, looking in particular at the various types of state jurisdiction clauses that one finds in these treaties, and their relationship with other relevant provisions, such as the colonial clauses. Whether a human rights treaty protects a particular individual in an extraterritorial context is legally a matter of treaty interpretation, and this chapter sets the stage for this interpretative exercise. My main focus is on treaties protecting civil and political rights, for the sole reason that there is much more case law and other material to work with in respect of these treaties than with those protecting socio-economic rights. That said, the book proceeds from the assumption that there is something to be gained from focusing on problems common to all or most human rights treaties, and views these treaties as a whole. Hence, it is generally structured thematically, issue by issue, not chronologically or treaty by treaty.

Of all the treaties, I give most attention to the European Convention on Human Rights, for two reasons. First, the ECHR system is by far the strongest of all human rights regimes (if far from perfect) in its ability to effectively secure compliance and have a direct impact on state policy. The stakes are highest in Strasbourg, because it will be listened to. Second, it is precisely because the stakes are highest in Strasbourg that the jurisprudence of the European Court of Human Rights on extraterritorial application is the richest and the most developed. At the same time, it is the most problematic, suffering from rampant casuistry and conceptual chaos. It is a jurisprudence of (at times quite unprincipled) compromise, caused mostly be the Court’s understandable desire to avoid the merits of legally and politically extremely difficult cases by relying on the preliminary issue of extraterritorial application. At the same time, the jurisprudence of the European Court has the most to teach us on questions of both law and policy that are relevant for all human rights treaties.

The second chapter tries to clear up some of the conceptual confusion in existing case law…

A Comment on Rights Beyond Borders

by Marko Milanovic

Chimène Keitner has written a powerful article in ‘Rights Beyond Borders.’ She is right that there have been few comparative discussions of the extraterritorial reach of domestic (constitutional) protections of individual rights. Her piece goes a long way towards filling that gap.

I am in complete agreement with Chimène that there is much to be learned from such a comparative examination. Judges in a number of countries are now increasingly faced with cases arising from extraterritorial situations, and their approaches in dealing with them are remarkably similar. This is even more the case when it comes to the policy considerations that underpin them. This is not to say that aren’t significant differences between the various domestic legal systems, and that we shouldn’t be cautious in making such comparisons. By and large, however, the problems faced by the courts are the same; the instruments they are applying either say nothing about their territorial scope (as e.g. with the US Constitution) or use remarkably vague and open-ended concepts (as that of state ‘jurisdiction’ in Art. 1 ECHR, that UK courts are applying under the Human Rights Act 1998). It is thus upon the judges themselves to articulate the rules on their (extra)territorial application.

Chimène identifies three types of judicial reasoning that percolate through the case law on the extraterritorial application of domestic individual rights instruments: country, compact, and conscience. I again completely agree with Chimène that all of these types of reasoning are present in the case law, but I am not sure that these pithy three Cs provide us with a sufficiently complete understanding of the outcomes of these cases. It’s one thing to identify what judges say they do, another to identify why they’re actually doing it. Other considerations also seem to be at play. For example, in the UK context in particular we have the additional dynamic of the relationship between the UK courts and Strasbourg, with the British judges essentially trying to follow Strasbourg but at the same time not overtake it – a particularly unenviable task considering the horrible mess that the European Court has made on the whole extraterritoriality front.

As Chimène rightly points out, it is compact-based reasoning, i.e. one which conditions the existence of rights by membership in the polity, that distinguishes domestic case law from that on the extraterritorial application of human rights treaties. This is a particularly distinguishing characteristic of US case law; we need only remind ourselves of the debate in Eisentrager between Justice Jackson, writing for the majority and emphasizing the importance of citizenship quite heavily, and Justice Black, admonishing the Court that ‘[o]ur nation proclaims a belief in the dignity of human beings as such, no matter what their nationality or where they happen to live.’

Ultimately, the question whether rights should depend on citizenship admits only of an ideological answer. It is in the final analysis for American lawyers and people to determine how their Constitution applies abroad. However, other legal systems have already decided that citizenship should not be the basis for the protection of individual rights, whether extraterritorially or not. It is above all international law that has unambiguously adopted the principle of universality of human rights. To that extent I must part ways with Chimène somewhat – in my view citizenship shouldn’t have any relevance whatsoever for the extraterritorial application of human rights, whether before a British court or in Strasbourg. A UK national in Iraq should never have more rights vis-a-vis the UK than an Iraqi national in the same situation. To that extent, as I discuss here, the UK Supreme Court’s recent decision in Smith v Secretary of State for Defence, in which it held that UK soldiers do not have rights against the UK under the ECHR when operating outside an area under UK effective control, was in accordance with the principle of universality. Its flaw lies not in failing to engage in compact-based reasoning, but in following the prior Al-Skeini judgment of the House of Lords which denied Iraqis rights under the ECHR outside a custodial context.

This brings me to my main point. In many cases judges simply disguise the real policy considerations behind their decisions in pure legalisms, offering nothing more than formalist justifications for a denial of rights. This was the case, for example, with the European Court’s exegesis in Bankovic on the concept of state ‘jurisdiction’ in Art 1. ECHR (see more here), or with the Canadian Supreme Court’s equally flawed discussion and reliance on the general international law concepts of jurisdiction to prescribe and enforce in R v. Hape (see more Pierre-Hugues Verdier’s case note in (2008) 102 AJIL 143). This is I think also the case more generally with all types of ‘country’-based reasoning, as Chimène puts it, i.e. those based on strict considerations of territorial sovereignty. I have never understood (nor seen it explained) why exactly should naked territorial title at all matter in deciding whether an individual affected by a particular state action should have rights against that state. Cuba’s sovereignty over Guantanamo is an irrelevancy, as is the United States’ lack thereof; it is de facto control over territory and individuals, not the right to exercise such control, that enables either the protection or the violation of the rights of individuals.

Judges hide behind ‘sovereignty’ as if it was some sort of magic word simply because it is easier for them to do so than to openly acknowledge that they are engaging in policy-making on the basis of considerations of practicality and effectiveness. It was not the arcana of the concept of state jurisdiction that guided the judges of the European Court in Bankovic, but their own (perfectly understandable and reasonable) fears: do we want to micromanage the use of force by states? Even if we wanted to, how would we do so? Do we have an adequate institutional capacity? Are we, for example, sufficiently familiar with IHL and with how it should interact with human rights? Are we prepared to pay the price that introducing the starkly realist calculus of IHL into the oh-so-fluffy and cuddly world of human rights might carry? (and vice-versa; see more this excellent article by Naz Modirzadeh). Are we able to engage in effective fact-finding? Where do we get the evidence? And so forth. It is these same considerations of effectiveness that led Justice Kennedy in Boumediene to confine the Court’s holding to Guantanamo, and leave Bagram and the rest for the future.

In short, in my view the real tension is between these considerations of effectiveness and practicality on the one hand and those of conscience (including the universality of human rights, if that is one’s ideological framework) on the other. It is primarily this tension which explains the conflicting strands of case law across several jurisdictions. While Chimène of course does take note of this tension in her article, it is perhaps a bit too overshadowed by the three Cs. This small criticism notwithstanding, her article is a must-read for anyone interested in the extraterritoriality of individual rights, whether under domestic or under international law.

Signing Off

by Marko Milanovic

The Interplay Between Human Rights and Humanitarian Law

by Marko Milanovic

Why Justice Scalia Ought to Like the European Court of Human Rights, or at Least Not Detest It So Much

by Marko Milanovic

Epilogue: Torturing Mr. Martens

by Marko Milanovic

Footnote Filching and other Unsavory Practices in the US Supreme Court: Conclusion

by Marko Milanovic

Hamdan, the ICRC Commentary to Protocol II, and Conflict Party Structure: A Response

by Marko Milanovic

Footnote Filching and other Unsavory Practices in the US Supreme Court, Part III

by Marko Milanovic