First and most importantly, my sincere thanks to Marko Milanovic and Pierre-Hugues Verdier for taking the time to offer such careful and insightful reactions to my work. I’m extremely fortunate to have them as “virtual” colleagues, and I appreciate the efforts of the YJIL editors and folks at Opinio Juris in creating a forum for this online exchange.

As Marko and Pierre-Hugues note, I focus on the interpretation and application of constitutional and quasi-constitutional rights — what I call “domestic rights regimes” — by domestic courts. This is both because the domestic rights story had not yet been told in comparative perspective, and because there are qualitative differences in how judges reason about domestic, as opposed to international, rights.

As Marko rightly notes, and as I discuss in the article (pp. 96-98), the case of the United Kingdom is peculiar insofar as the U.K. Human Rights Act is intended to give effect to protections under the European Convention on Human Rights. In some sense, then, rights under the HRA are hybrid, rather than purely domestic. Marko expresses the view that “citizenship shouldn’t have any relevance whatsoever for the extraterritorial application of human rights, whether before a British court or in Strasbourg.” To the extent that one views a constitution or domestic rights regime as protecting certain fundamental human rights, I would certainly agree. However, as Marko points out, I take the view that there are certain differences between constitutional rights and human rights, grounded in the idea of a constitution as a “compact.” I would take a more expansive view of the beneficiaries of that compact in many cases, and I would also increase the ability of domestic courts to enforce a clearly defined set of fundamental human rights, based on international instruments (p. 112). But I do stop short of advocating what I call a “conscience” approach to constitutional rights, even though this has generated pushback from some of my colleagues who find the conscience model more appealing.

Marko also rightly points out that “It’s one thing to identify what judges say they do, another to identify why they’re actually doing it.” This is a concern that I lived with for much of this project, which consists largely of the exegesis of case law. That said, I don’t believe (and I don’t take Marko as suggesting) that judicial opinions are purely epiphenomenal. Particularly in common-law systems such as those examined in the article, patterns of judicial reasoning foster path-dependence by shaping which arguments will be recognized as legitimate and persuasive. It is these patterns that I characterize under the rubrics of country, compact, and conscience. At the same time, I concede that extrajudicial factors will often influence outcomes, and I agree with Marko that judges are to a large extent engaged in a balancing act between judicial intervention and restraint (e.g., pp. 110-111).

Pierre-Hugues appropriately points out that recent case law involving the extraterritorial application of domestic rights has often involved an overlay of the potential applicability of the laws of war, as well as international human rights obligations. He notes that the human rights exception in Canadian jurisprudence (under which the Canadian Charter applies extraterritorially if Canadian agents violate an individual’s fundamental human rights) must stem from an assumption that “states cannot effectively ensure respect for their human rights obligations abroad unless constitutional rights also extend extraterritorially.” He questions this assumption, and suggests that some extraterritorial regulation of state agent conduct could be done for example by statute, rather than through constitutional means. This raises important and interesting questions of institutional competence and, as Pierre-Hugues indicates, “self-compliance” by states (which I consider briefly, e.g., p. 111).

To a large extent, delineating the extraterritorial reach of domestic rights also defines the role of domestic courts in enforcing those rights against the political branches. Talking about the reach of rights thus naturally leads to conversations about the role of judges. As I suggest in the article, declining to extend rights extraterritorially in the cases I discuss often seems to have more to do with deference to the domestic political branches than it does with deference to foreign sovereigns. Theorizing extraterritoriality in this context thus has more in common with other forms of constitutional theorizing than is sometimes acknowledged. As I suggested on a “Hot Topics” panel discussing “The Cutting Edge of Extraterritoriality” at the AALS Annual Meeting in January, cases involving the extraterritorial application of the U.S. Constitution in fact constitute at least three types of internal boundaries:

(1) the boundary between executive and judicial roles;
(2) the boundary between law and policy; and
(3) the boundary between legislative and judicial remedies.

In some ways, then, the “borders” in the title of my YJIL article are primarily, but not exclusively, territorial. I hope that my analysis will encourage others to continue exploring and interrogating how these borders are constructed, and with what implications – both for individuals affected by extraterritorial state action, and for states grappling with difficult policy choices and demands from competing constituencies.

First of all, I would like to thank Chimène for the opportunity to comment on “Rights Beyond Borders.” I have also had the opportunity to read Marko’s insightful comments, and I will refer to them later on. The article takes on a thorny question that constitutional courts around the world have faced in recent years: whether, and to what extent, rights protected by national constitutions apply to acts of the state abroad. In a world of transnational law enforcement, global cooperation against terrorism, and extensive counterinsurgency campaigns, the lack of a satisfactory theoretical framework to approach this question is increasingly problematic. The article proposes a careful comparison of cases from the United States, Canada and the United Kingdom, and uncovers three competing approaches: country, compact and conscience. How, then, do courts choose among these approaches and put them in practice?

One might have thought that a natural starting point would be the international law of prescriptive jurisdiction. The first lesson from the cases, however, is that international law does not get us very far. R. v. Hape, the one decision that relied most extensively on customary international law, misunderstood it and sent Canadian courts down a conceptually confused road. The Hape court purported to find a prohibition on extraterritorial application of constitutional rights, but as a general rule states plainly are entitled to regulate the actions of their agents abroad, including by requiring compliance with such rights. It is conceivable that, in some circumstances, extending constitutional rights abroad might interfere with the territorial sovereign’s authority to the point of raising prescriptive jurisdiction issues, but it is clear that international law does not demand anything like the blanket rule in Hape. This is why prescriptive jurisdiction does not play a significant role in the U.S. and U.K. cases. The extraterritorial reach of constitutional rights is primarily an internal question, to be resolved by interpreting the relevant national instruments rather than by reference to international law.

Of course, this is where the real problems begin. As Marko points out, there are many reasons why national courts are hesitant to extend rights extraterritorially. These reasons, however, are not external to the constitutional interpretation process; they are entirely legitimate and proper considerations for a court trying to interpret provisions that rarely speak directly to the issue. For instance, U.S. courts have long recognized the centrality of separation of powers and institutional capacity concerns in deciding the extent to which they should interfere with foreign affairs. In this context, territoriality may be quite relevant, as it informs both the expectations of the parties involved and the extent to which other states are likely to look upon application of a foreign constitution as an affront to their sovereignty. In other words, the problem is not so much that the home state lacks authority to regulate the acts of its agents, but that doing may obstruct effective cooperation with the host state or, in more severe cases, harm diplomatic relations and the accomplishment of important foreign policy objectives. This is, after all, why extraterritorial prescriptive jurisdiction is politically controversial and used sparingly, despite often being permissible as a matter of international law.

Of course, the gravity of such concerns will depend on the circumstances, and must be considered in light of the seriousness of the potential rights violations. It is one thing to prohibit state agents from taking part in torture or unlawful executions abroad, but it is quite another to require the details of multinational investigations to be overseen and approved by judges in each participating country, or to apply the same procedures and conditions to the handover of detainees in a conflict zone as to an ordinary extradition case. More generally, the issues become more complicated, and controversial, as one contemplates applying constitutional protections to military operations abroad. In most cases, those rights have been developed and interpreted in peaceful democracies. Can they be applied to conflict zones abroad and if so, how? Will national courts have to develop exceptions to accommodate the law of armed conflict and the realities of the battlefield? The interaction of international human rights and the laws of war has caused much controversy and uncertainty, and national courts may be less than eager to subject their constitutions to the same stress test.

Each court is also working within the constraints of its own constitutional text, structure and history. For instance, Chimène suggests that the compact approach has found more support in the United States because of its unique constitutional history. Other features of the U.S. Constitution have also shaped the debate, including the lack of a general provision that would shed light on the extraterritorial application of the instrument as a whole. The relevant U.S. cases are decided by interpreting individual provisions, and their distinctive texts and histories shape the discussion in cases like Reid v. Covert and Verdugo-Urquidez. By contrast, in Hape, the Supreme Court of Canada faced the difficult task of interpreting Section 32 to establish a general rule that would apply across the entire Charter. In this light, it is perhaps somewhat understandable that it recoiled from extraterritoriality. While the implications would have been manageable in Hape itself, the Court was surely concerned that other rights would not be flexible enough to handle state action abroad. Section 1, of course, provides that all rights are subject to certain “reasonable limits,” but systematically placing the burden on the government to justify such limits could cause substantial interference with foreign relations.

One critical issue that the article does not develop at length is the relationship between the extraterritorial application of constitutional rights, on the one hand, and international human rights obligations, on the other. In recent years, human rights bodies have sometimes held that the relevant treaties apply to the actions of member states outside their own territory. How should this affect the reach of constitutional rights? Chimène notes that while UK courts must follow the European Convention, they have restrictively interpreted ECHR decisions on extraterritoriality. After Hape, the Supreme Court designed a conceptually unsatisfying international human rights exception to ensure compliance with Canada’s international obligations. To believe this is necessary, one must assume that states cannot effectively ensure respect for their human rights obligations abroad unless constitutional rights also extend extraterritorially. This is, however, neither legally nor logically necessary. International human rights law does not require constitutional protection of all rights. Efforts by states to improve “self-compliance” are of great practical importance. If one believes a more robust approach is needed, a possibility would be to develop or enhance statutory regimes specifically designed to regulate state action abroad, to avoid some of the interpretive and practical difficulties of applying constitutional rights extraterritorially.

Chimène’s article lays out the issues with great clarity and, in so doing, opens up a rich field for scholarship that will continue to expand as more cases reach the courts. For years to come, it will be an indispensable starting point for any scholar interested in the extraterritorial application of national constitutions and human rights.

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.

[Chimène I. Keitner, Associate Professor of Law, University of California, Hastings College of the Law; Co-Chair, American Society of International Law Annual Meeting]

United States courts are not alone in confronting the question of whether certain domestic rights extend beyond the country’s territorial borders. Yet, the field of comparative constitutional law has largely ignored the question of extraterritoriality. My Article, Rights Beyond Borders, addresses that gap by examining recent case law from the United States, Canada, and the United Kingdom—three common law countries whose courts have grappled with claims by individuals seeking legal redress for harm that occurred beyond national borders, based on domestic rights guarantees.

The Article begins by identifying three basic ways of thinking about rights beyond borders, which I call country, compact, and conscience. Country-based reasoning takes a strictly territorial approach to regulating the government’s actions outside the national territory, even vis-à-vis citizens. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her status as one of the governed, regardless of territorial location. Conscience-based reasoning holds that a government should act the same way beyond its borders as it does within them. At the micro level, emphasizing one of these approaches over another can determine whether or not a given individual can successfully invoke domestic rights provisions as a basis for seeking relief from a domestic court. At the macro level, emphasizing one approach over another can both signal and reinforce a particular conception of political ordering based on territory (country), membership (compact), or a set of fundamental values (conscience).

This tripartite framework provides a vocabulary for identifying and describing certain patterns of reasoning in judicial decisions. The jurisprudence canvassed in detail in this Article (which I will not replicate here) includes U.S. cases culminating in Boumediene v. Bush and Al-Maqaleh v. Gates; Canadian cases including R. v. Hape and R. v. Khadr, as well as cases relating to extradition to face the death penalty; and U.K. cases including Al-Skeini v. Secretary of State for Defence, Al-Saadoon v. Secretary of State for Defence, and Smith v. Secretary of State for Defence. The analysis reveals several trends, notably:

(1) the persistence of country-based reasoning in all three jurisdictions;

(2) the presence of compact-based reasoning in U.S. jurisprudence, but its relative absence from Canadian and U.K. decisions; and

(3) the lack of judicial adoption of conscience-based reasoning, except as a backstop to perceived violations of the political branches of domestic separation of powers principles and certain fundamental human rights.

On a descriptive level, domestic courts have generally been more circumspect about curbing the activities of the political branches when they act abroad than at home. Whether or not one thinks such circumspection is problematic depends on one’s degree of confidence in the political branches to conform their own activities to applicable legal standards.

As a prescriptive matter, I suggest that U.S. Supreme Court should give greater weight to the exclusive control of U.S. authorities over U.S. military bases, even within foreign territory, when it considers the extraterritorial application of certain constitutional constraints to the activities of U.S. agents. I suggest that the Canadian Supreme Court should revisit Hape (which adopted a country approach, with an exception based on international human rights) in light of its extradition jurisprudence, and thus anchor judicially enforceable constraints on the activities of Canadian agents more firmly in the Canadian Charter of Rights and Freedoms, especially when those agents act vis-à-vis Canadian citizens. Finally, I suggest that the U.K. Supreme Court should incorporate elements of compact-based reasoning into its analysis of jurisdiction under the U.K. Human Rights Act, especially where the claimants are U.K. citizens. That said, I would stop short of endorsing a conscience approach that is not sensitive to the exigencies of conducting extraterritorial law enforcement or military operations, or that subjects the political branches to excessive legal uncertainty. In an ideal world, rather than using international rights violations as a trigger for the application of domestic law (as Canada currently does), I would strengthen the ability of domestic courts to enforce a limited set of clearly defined fundamental human rights guarantees, even when the political branches act beyond national borders.

In contrast to domestic rights, which remain tethered to ideas of territoriality (country) and membership (compact), international human rights seem particularly well suited to a conscience approach, and thus to extraterritorial application. This is because they are based explicitly on the intrinsic dignity and worth of individual human beings regardless of geographic location or national membership. As a predictive matter, however, it seems likely that many of the practical considerations that drive restrictive interpretations of domestic rights would also tend to limit the interpretation and application of international rights by domestic courts, notwithstanding the relatively broader interpretations adopted by international bodies. Unless and until international bodies face the same political and institutional constraints as domestic courts, we might expect their (generally unenforceable) interpretations to remain relatively more expansive, and the (generally enforceable) pronouncements of domestic courts to remain relatively more narrow. That said, if domestic courts focus excessively on the constraining role of territorial borders, this could have the paradoxical effect of fostering increased reliance on international, rather than domestic, rights in legal and political discourse and, eventually, in legal and political institutions.

We are pleased to introduce to you today an online symposium discussing Hastings Law Professor Chimène Keitner‘s article, Rights Beyond Borders, published in the Yale Journal of International Law. Her interlocutors will be Marko Milanovic of the University of Nottingham and Pierre-Hugues Verdier of Virginia Law School.