Beyond Territoriality: Symposium on Jurisdictional “Hooks” for (Extraterritorial) Human Rights Obligations – Why We Need a Firm Justificatory Basis for Extraterritorial Human Rights Obligations and How We Could Get There

[Angela Müller is Executive Director at AlgorithmWatch CH and heads AlgorithmWatch’s international policy team. She holds a PhD in law and an MA in Political and Economic Philosophy.]

Today, opportunities for states to affect human rights abroad abound: global phenomena like organized crime, global warming, or terrorism multiply the scope of individuals a state can and does affect—at home as well as abroad. New technologies, including AI-based systems or surveillance tools, open up novel ways to infringe human rights without setting foot on a territory, and intelligence strategies like extraordinary renditions or ‘terror by proxy’ that intend to exploit ‘legal black holes’ abroad are on the rise, as Wilde and Borelli have pointed out. In light of these developments, addressing the question of whether states are bound by human rights when they act with effects on people on foreign territories—states’ extraterritorial human rights obligations—is an urgent and timely task. I argue for the foundational need to combine legal and philosophical perspectives on this question, bridging the gap between the two perspectives and spotlighting the normative underpinnings of a topical and concrete legal challenge. In doing so, I follow and summarize the approach and main line of argument of my recent book on the topic. The claim is: If we want to convincingly argue for extraterritorial human rights obligations at the legal level, we need to base this on a justificatory normative theory.

The question of extraterritorial human rights obligations has, up until today, mostly been discussed within legal scholarship, initiated in the late 1990s (see the introduction to this symposium by Durmuş). The impressive body of research developed over the last three decades has turned the topic of extraterritorial obligations into one of the most prominent within legal scholarship on international human rights law. Philosophers, though extensively analyzing issues of global justice and human rights in general, have put less focus on the specific question of whether there are normative reasons for such obligations, i.e. for the assumption that law should put states under human rights obligations to individuals abroad. As a result, there exists a certain lacuna when it comes to normative perspectives on the extraterritorial applicability of human rights—and this lacuna stimulates my call for an interdisciplinary approach that does not shy away from addressing the foundational ethical questions that underlie the issue.

Moreover, in scholarship, critiques of the general idea of universal human rights are on the rise (e.g. Mutua 2002, Moyn 2012, Greene 2014, Posner 2014, Koskenniemi 2018), stemming from a variety of theoretical outlooks. In the political realm, nationalist agendas are gaining grounds all over the world, and many of them are openly critical of the idea of duties to strangers abroad. In addition, many states still—generally and/or in concrete cases—oppose the extraterritorial applicability of human rights law. And lastly, the judiciary still struggles to develop consistent principles in approaching the extraterritorial applicability of human rights, and it continues to be influenced by a ‘territorial paradigm’, as I have argued in my recent book on the topic and as Vandenhole reiterates in this symposium).

Against this background, this contribution starts from the assumptions that (i) establishing a firmer normative basis of extraterritorial human rights obligations could eventually contribute to more consistency in the development of legal principles behind them—and thus, ultimately, improve their standing in practice, too—and (ii) this requires a systematic analysis of the grounds on which the persistent opposition to the extraterritorial applicability of human rights rests. The concerns behind this opposition must be discerned and engaged with. Hence, the overall aim is to contribute to closing the gap between judicial and normative perspectives on extraterritorial human rights obligations by inquiring into the justificatory basis on which these norms stand and translating this back to the legal level by taking legal reality into account.

The approach I think this should take is characterized by three main steps, to which I will now turn.

Step I: Identifying the Concrete Legal Problem at Hand

First, we should start by identifying the concrete legal problem at hand, addressing different legal regimes at different legal levels. This must provide the impetus and starting point for the ethical discussion. Thus, the approach must be a genuinely interdisciplinary one. In my book’s analysis of these legal levels, focusing on different legal regimes (the national level in the US, the supranational level of the EU, and the international level focusing on the ECHR, ICCPR, and ICESCR), I come to two conclusions:

1. The strong territorial underpinnings of the legal protection of fundamental and human rights, traditionally conceptualized as rights of individuals against the state on the territory of which they reside, continue to be felt. Even though there is a tendency to expand human rights obligations beyond states’ own borders, other jurisprudential approaches at various levels indicate that the territorial paradigm has not yet been overcome (see also Vandenhole in this symposium)

1. Related to the first point, I conclude that the extraterritorial applicability of human rights law constitutes a pressing legal problem and an unresolved jurisprudential matter. The provision of coherent approaches to the issue continues to challenge judicial bodies, in international human rights law epitomized by the controversies on the interpretation of the concept of jurisdiction, which conditions the applicability of a wide range of international human rights treaties.

Step II: Addressing Counterarguments

These two findings provide the starting point for a philosophical analysis. The persistence of this territorial paradigm and the related skepticism towards extraterritorial human rights obligations appear to contribute to the lack of coherence in addressing the issue. In other words, to develop consistent principles for extraterritorial applying human rights, it is necessary to address the normative underpinnings of this territorial paradigm.

To do so, on a philosophical level, we should analyze on what grounds skeptical positions rest. That is, we need to identify, reconstruct, and criticize potential arguments against extraterritorially applying human rights—associated with theories of moral, political, and legal philosophy and related fields. While some of them overlap and others have not explicitly been applied to the topic at issue, I identify the following theoretical approaches as the main strands on the basis of which arguments against extraterritorial human rights obligations have been or could be developed: international relations realism, communitarianism and accounts of patriotism, partialism and special obligations, neo-republicanism, political-institutionalist conceptions of justice, and relativism. In my book, I reconstruct their actual or potential arguments against applying human rights abroad, engage with these arguments, and criticize them. This is motivated by the conviction that there is something to learn from discerning the grounds on which their skepticism rests, and it will inform the development of any justificatory approaches to extraterritorial human rights obligations. The analysis, discussion, and critique of such counterarguments thus provides the basis for a justificatory theory of extraterritorial human rights obligations based on foundational ethical principles, taking into account

1. the nature of human rights obligations, as rights that every human has qua being human, that derive from the morally relevant shared core of human nature and its normative claim to dignity, that are moral rights that are mirrored in their legal recognition at different levels, that come with corresponding obligations, and that bind states (even if not only states);
2. the nature of the state as a human rights duty-bearer, with distinctive means of authority, with quantitatively enormous de facto power, and with a moral status that is entirely derived from the individual;
3. and the special exposedness that ‘outsiders’ (that is, individuals located beyond a state’s borders) find themselves in, who have much less political, judicial, and societal means to defend their rights. 

Step III: Translating a Justificatory Theory to the Legal Level

Lastly, I am convinced it is crucial to close the circle by showing how these ethically oriented reflections can be transposed to the legal level. A synthesis of legal and philosophical perspectives is needed, in which ethical justifications are applied to the concrete legal question the extraterritorial application of human rights poses.

A universalist starting point that forms the basis of a justificatory theory of extraterritorial human rights obligations can only serve as an approximation—for ethical justifications to have impact in practice, they must be poured into a legally workable solution to the concrete legal problem addressed. In the context of international human rights law, this problem boils down to the interpretation of jurisdiction, the central applicability condition of international human rights law. Thus, based on foundational ethical principles, we need a concrete way of how to interpret jurisdiction. In my work, I start from the two-legged approach by Shany, who regards human rights as applying by virtue of a relationship between individual A and state B that renders B “particularly well situated to protect” A. It can result from either a controlling relationship, where it depends on how direct, significant, and foreseeable the impact of state action is. Or, it can arise from a special legal position that B finds itself in towards A. I start from Shany’s two-legged approach and refine it by explaining my interpretation of the two legs in more detail. 

However, when translating such a justificatory theory that is based on universalist underpinnings to the legal level, two conclusions might follow. First, it might call for a reinterpretation of jurisdiction as the standard that positive law operates on for the applicability of human rights. In other words, this interpretation of jurisdiction covers extraterritorial obligations sensu stricto. Second, such an account of jurisdiction still leaves a gap, insofar as it cannot account for global obligations to promote the universal fulfillment of human rights—on territory and beyond—that are foremost obligations of political morality but that exhibit a legal dimension, too. It is here where an approach that focuses on reinterpretation reaches its limits or, in other words, where the proposed account may point to the need for progress in or evolvement of current human rights regimes.

Lastly, there are practicability-based objections against the project of transposing the justificatory theory of extraterritorial human rights obligations to the legal sphere: the critiques that to apply human rights extraterritorially is ineffective and inefficient, unenforceable, non-justiciable, and means an overburden for states. Any convincing account must explain what measures are necessary or helpful in order to facilitate the implementation of these undoubtedly complex norms. Dividing and tailoring rights, focusing on both obligations of result and obligations of conduct, and recognizing joint obligations and shared concepts of responsibilities might provide important starting points to get there (see also Vandenhole in this symposium).

Eventually, starting from a legal analysis to identify the core legal problem at hand, then developing a comprehensive ethically oriented approach to solving this legal problem, and finally closing the circle by explaining what this would mean for the interpretation and possible evolvement of positive law, could provide a promising way of finding more coherence when approaching this topical question in concrete cases. 

And Why Does It Matter?

From an abstract point of view, the problem of extraterritorial human rights obligations illustrates how societal transformations—be it increased mobility, globalization, or new technologies—challenge traditional frameworks, paradigms, and concepts of law. In addressing these challenges, an interdisciplinary approach is needed, which allows a comprehensive perspective on the approach law takes. The aim must be to substantiate, from an ethical perspective, universal obligations in the framework of positive law. The questions behind the extraterritorial applicability are not new ones—the distinction between ‘insiders’ and ‘outsiders’ have occupied political and legal philosophy for centuries. At the same time, these questions appear particularly important and urgent in light of contemporary global phenomena, which make state borders appear more porous than ever before, but also in light of political and societal tendencies to find reorientation in such concepts as the nation state or state sovereignty, and of increasing academic skepticism on the idea of human rights. In a world that not only offers countless opportunities for states to impact people abroad, but also one in which there is increasing criticism of and resistance to the general idea of universal human rights, the task of thoroughly justifying and defending why human rights also protect ‘distant strangers’ is of timely importance.