Beyond Territoriality: Symposium on Jurisdictional “Hooks” for (Extraterritorial) Human Rights Obligations – Introduction

[Elif Durmuş is postdoctoral researcher at the University of Antwerp in the Flemish inter-University (iBOF) project “Future-Proofing Human Rights: Developing Thicker Accountability” [grant number 42367], focusing on an inclusive reconceptualisation of duty and duty bearers in international human rights law through inspiration from other legal fields.]

Why Would States and Others Have (Extraterritorial) Human Rights Obligations?

The extraterritorial application of human rights obligations has been one of the richest sources of debate, cutting-edge development, anticipated case law and creative theorisation in international human rights law in the past decades. The prevalence of this fascinating topic has also been reflected in both longstanding scholarship as undertaken by e.g. Coomans and Kamminga, Gibney et al., Milanovic and Langford et al., and newer forms of scholarship. While multiple courts and treaty bodies have spoken to this issue (such as the UN Human Rights Committee in its General Comment No. 36 and in the A.S. et al. v. Malta, and the Inter-American Court of Human Rights), the most extensive engagement has arguably happened in Strasbourg due – inter alia – first to a line of case law relating to armed operations by European States outside of their territories such as Bankovic, Jaloud, and Al Skeini, and later cases relating to (the externalisation of) migration and asylum control, such as Hirsi Jamaa, M.N. and Others v. Belgium, and cases relating to the procedural duty to investigate any potential Art. 2 (right to life) violations as in Güzelyurtlu and Hanan. The ECtHR’s confusing and often seemingly arbitrary track record has led some scholars like Milanovic and Mallory, among others, to creatively read reason and structure into the precedent, many to criticise this inconsistency, and still a few others to point to political and strategic concerns and considerations as reasons behind the Court’s inconsistency, resulting in a failure to develop a coherent and logically consistent theory of extraterritorial application of human rights. Why then, have yet another blog (symposium) on the extraterritoriality of human rights? And what is meant by “jurisdictional hooks”?

What is meant by “jurisdictional hooks” in this blog post can be explained by dissecting the “supply side” of human rights – or the duty or obligation side – into three logically consequential steps: a) the justification of obligations (jurisdiction, relations of duty, applicability); b) the content of the obligations (negative-positive; respect, protect, fulfil; etc); c) responsibility (once those obligations are violated). This distinction is used, among others, by Gombeer, who has played a key role in explicating the question of justification both through his doctoral thesis entirely dedicated to the topic, and in contributing to conversations and events that led to the development of this blog series. These different aspects of the duty-side or the “supply side” of human rights are often handled simultaneously, and sometimes for good reasons. For instance, one could argue that only negative obligations, or the obligation to respect, should apply extraterritorially, if territorial application is the principle. One could note that such dissections of different types of human rights duties arise whenever we are at the frontiers of human rights theory: not only on the topic of extraterritoriality, but also on the question of assigning non-state armed groups (see also Bellal’s excellent overview) or corporations and corporation-like actors human rights obligations. Or, we could argue (as Gombeer suggests) that a sliding scale applies: the stronger the ties between the duty-bearing actor and the rights-holding individual, the more extensive the content of the obligations. One potential logical fallacy would be however to make the question of whether responsibility can arise (as a consequence for a breach of an obligation and attribution, as understood in ARSIWA Art.1) due to an extraterritorial obligation (step (c) listed above), into a condition for whether there could be extraterritorial obligations in the first place (step (a) listed above). I would argue that this error is one plaguing scholarship on extraterritoriality today. We let – for instance –  the question of whether the ECtHR, as an enforcement mechanism relating to the third aspect (responsibility in case of violation), could possibly – within its socio-political context – find and announce the violation of an extraterritorially applicable obligation, determine whether or not we think that relationship between the right holder and the duty bearer was established in the first place. This is perhaps due to a difference in legal theoretical and ontological approaches. The preceding question is where and when we believe rights and duties exist, and who gets to determine that. If one believes that a right or duty’s presence in a legal instrument and/or a Court’s determination of its existence is a necessary prerequisite, one will limit their analysis to such documents and case law. If, however, we start from a point of reality and context, and look at empirical realities in the world to then make claims about rights and duties; in perhaps a jurisgenerative manner, we can open our analysis to all kinds of relationships between possible rights-holders and possible duty-bearers in a variety of settings, and make novel propositions which – if grounded convincingly – could help progressively develop international human rights law.

This blog symposium was convened with the goal to do precisely that: to contribute to the debate on extraterritoriality in human rights law by zooming in on the theoretical and conceptual foundations for the existence of human rights relationships (in the extraterritorial context). The added value of this symposium is that we, those contributing to the symposium, are not departing in this endeavour from individual human rights treaties as da Costa or Gondek, or the corresponding pronouncements of treaty bodies, but instead examine and ponder upon the nature of  relationships that can develop between an individual and an actor (often a state) which could be argued to give rise to a right-duty relationship that could be perceived within the context of (international) human rights law. Let us elaborate further.

One way to look at extraterritoriality, a very common way, would be to depart from human rights treaties which have a jurisdictional clause that hints at territoriality as a norm (for instance the ECHR or the ICCPR) and the case law of their corresponding treaty bodies. In this paradigm, extraterritoriality is an exception to the norm. It must be defined by what it is beyond: which is territoriality. In this context, scholars often look at instances in which courts and treaty bodies – mostly the ECtHR – have accepted or rejected an extraterritorial application of the treaty, and try to casuistically infer a pattern and a secret line, a threshold within which extraterritorial exercises of government authority could trigger human rights obligations. Here, the cases which do indeed “trigger” those obligations must be narrowly described and listed. To say it even more simply: in this paradigm, if not “triggered”, there are no human rights obligations beyond the territory.

Another way to look at the issue of extraterritoriality is not to depart from the paradigm of territoriality at all. In fact, some, such as Moreno-Lax and Costello have taken pains to point out that extraterritoriality as the narrow exception need not be the norm for all (treaty) regimes, such as is the case with the EU regime, where there isn’t even a jurisdiction clause akin to those of the ECHR and ICCPR in the case of the EU Charter of Fundamental Rights. Yet others have demonstrated that the paradigm of territoriality could be critically tackled and evaluated in and of itself, and that other paradigms and principles, such as relationality, or thinking in terms of the common concern of humankind (see also Benedek et al.) could replace that norm. What this would mean, is that we would, instead of trying to casuistically organise the often chaotic case law of politically limited courts into some sort of structure; take a theoretical and principled look at what kind of relationships between an individual and a state or other actor could constitute a relationship that is relevant to (international) human rights law, and could be construed of as a relation of duty. This latter path is the one we (Wouter Vandenhole, Gamze Erdem Türkelli and myself) wished to take in embarking into this inquiry by initiating this Symposium.

What this approach could contribute to is the realisation that – at its essence – the question at hand is not one of extraterritoriality, but one of duty. The fundamental question is thus not “When do human rights apply extraterritorially?” but “What is the essence of (human rights) duties?”. This then links beautifully to other questions of human rights theory, such as the more traditional “Who can be a human rights duty bearer?” which can in turn be alternatively phrased as “What kind of relationship can constitute a human rights (and duty) relationship, and which – if any – characteristics of the duty bearing party matter?”

I argue that these are the questions we should (also) ask, to expand rather than restrict the future of human rights theory, in order to – albeit temporarily – free ourselves from the bonds of “what courts would decide” and “what states would do” in order to allow ourselves the intellectual freedom to go back to and rethink the fundaments of human rights: What they are for and what kind of factual realities they aim to protect us from? We can thus go back to theory and reconceptualize what relationships human rights aim to, or should aim to, regulate. The state vs citizen relationship? Or the relationship between the relatively powerful and the relatively powerless, no matter their identities and locations? These are indeed not individuallyrevolutionary views on the question of extraterritoriality and its interrelationship with other core questions, and have been examined as early as a decade ago by for instance Gibney, Skogly, and Vandenhole, Erdem Türkelli and Hammonds. However, the mainstream approach seems to remain within the confines of the case law of politically limited courts; and thus, a renewed call to this alternative perspective is called for.

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In this blog symposium, participants who have previously engaged in depth with these fascinating questions, have honoured us by joining us in this conversation through the format of the blog series. This blog symposium is an output of the Scientific Research Network ‘Extraterritorial Human Rights Obligations in Practice’ which is funded by the Research Foundation Flanders, in Belgium (Project ID: W002420N). This Network connecting researchers from the University of Antwerp, the University of Ghent, the Free University of Brussels, the Friedrich-Alexander University of Erlangen-Nürnberg, and the University of North Carolina – Asheville, holds among its scientific targets, “take[ing] stock of conceptual progress (since the 2011 Maastricht Principles) and propose[ing] ways forward”. As part of the work within the Network, the Network organized an Expert Meeting on the Justification of Extraterritorial Human Rights Obligations in Brussels in October 2022. This Expert Meeting, organized with the crucial efforts of Gamze Erdem Türkelli and Kristof Gombeer, who defended his PhD on the very topic of this blog symposium in June 2022, was a catalyser for efforts to engage with the questions in the format of a blog series. We thank all participants of that meeting, both those who are members of the Network and our guests who accepted our invitation, for their invaluable contributions to our thinking. In the months following the expert meeting, as members of the “Antwerp branch” of the Network, Wouter Vandenhole, Gamze Erdem Türkelli and I decided to go forward with convening a blog symposium to be able to engage more deeply on the matter and share our thoughts with the wider academic community, which has resulted in the pieces you are reading now (some of which have been written by colleagues who were not involved in the Expert Meeting). Wouter and I have (pre-)edited all of the pieces in this symposium, and Gamze has kindly contributed with a piece of her own. You will notice that – despite us as conveners not proposing such a cross-cutting theme –every contribution other than this Introduction dealt with the challenges of the climate crisis upon the traditional understanding of human rights in a territorial paradigm. This is yet another reason why a renewed principled and theoretical engagement with the questions of the essences of (extraterritorial) human rights duties is necessary at this time in history. Such an engagement has become even more pressing after the ECtHR’s dismissive approach in the recent Duarte Agosthino case.

In the following contributions to this symposium, Angela Müller presents an approach and a roadmap to establish a firmer normative basis of extraterritorial obligations. The underlying argues is that if one wants to convincingly argue for extraterritorial human rights obligations at the legal level, one needs to base this on a justificatory normative theory. This requires a systematic analysis of the grounds on which the persistent opposition to the extraterritorial applicability of human rights rests. Müller suggests three steps to that effect: 1. to identify the concrete legal problem; 2. to address counterarguments; and 3. to translate a justificatory philosophical theory to the legal level. For that third step, she presents a two-legged approach: that of a controlling relationship between a state and an individual, and that of a special legal position of a state towards an individual.

Charlotte Blattner brings us insights arising from her work on the transboundary protection of animals as well as the climate crisis, discussing effects-based extraterritorial jurisdiction as an alternative and its risks, the difference between the law of jurisdiction in the PIL sense and the concept of jurisdiction in the field of extraterritorial human rights law, and three learning outcomes arising from both issues. She argues generally that the burden of proof on extraterritoriality should be shifted from the rights-holders to the duty-bearing State. She then asks whether the concept of jurisdiction is useful at all for human rights law. Finally she asks whether a more robust system of PIL-like jurisdictional theory could be introduced to human rights law, which could bring about a theory of common but differentiated responsibility or concurrent responsibility in human rights.

In the fourth contribution to this series, Ademola Oluborode Jegede first explores whether territorial accountability among states in Africa can address their direct acts and/or omissions linked to climate change and interventions or acts and omissions of the entities under their control that negatively affect rights extraterritorially. He argues that the legal basis for extraterritorial accountability of states in Africa among themselves for human rights wrongs associated with climate change and climate interventions is embodied in the African Charter’s general obligation clause, and illustrates how the emerging jurisprudence of the African Commission in particular can be engaged in advancing extraterritorial accountability among states in Africa.

Sara Seck discusses extraterritorial human rights obligations through feminist perspectives and the critique of the Anthropocene (or of the “Capitalocene”). She argues, similar to this introduction, that territoriality as a paradigm should not be protected in human rights theory, and that relationality should instead take its place. She then discusses some of the risks and advisable limits of extraterritorial exercise of (permissive) jurisdiction in a manner that seeks to avoid human rights violations, as this could violate the sovereignty of States on the receiving end of investment by companies extraterritorially regulated by well-meaning States in which businesses are registered.

Sixth, Gamze Erdem Türkelli provides an overview of climate litigation cases against transnational corporations which had strong extraterritorial aspects. She then argues that corporations should have direct obligations under international law, that the justification of these obligations would be their active participation in and benefitting from the international legal system, and third, that such obligations ought not depend on the existence of responsibility frameworks to enforce them.

In the seventh contribution, Caroline Omari Lichuma continues the reflection on responsible busies conduct and submits that mandatory human rights due diligence laws may contribute to the lessening of the corporate accountability gap. Those laws make due diligence obligations function as a proxy for the realisation of human rights and environmental protection in global value chains.

Finally, Wouter Vandenhole closes the Symposium in a forward-looking manner, bringing us “back to the drawing board” and proposing guidelines in “debordering” human rights law: first, by recognising a plurality of state duty-bearers (including those who are not the territorial state) as well as a diversity of duty-bearers (including international organisations, corporations, armed groups, others); then, by going beyond territoriality and state-centrism as paradigms and instead focussing on types of relationships that could constitute a human rights-duty relationship; and finally by appropriately distributing, allocating and prioritising these rights and duties for an effective operationalisation.

We hope you enjoy this symposium as much as we enjoyed engaging with the issue at hand and each other’s perspectives.

* This work was supported by the Research Foundation Flanders [grant number W002420N] and the University of Antwerp Special Research Fund [grant number 42367]