In association with the International Commission of Jurists

Author: Marko Milanovic

21 Dec

[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.’ 
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05 Dec

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...

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08 Mar

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...

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11 May

My time as guest blogger here at Opinio Juris is coming to an end. Many thanks to Chris and the other permanent contributors for inviting me, as well as to all of the readers and commenters of my posts. I've enjoyed it, and I certainly hope you did too. All the best, Marko ...

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10 May

Many people today think of humanitarian law or the law of armed conflict as essentially part and parcel of human rights law. This is, of course, historically incorrect, as the law of war predates human rights law by centuries, the latter truly emerging only in the crucible of World War II. Philosophically, however, the idea that humanitarian law guarantees a...

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07 May

The use of comparative jurisprudence in constitutional jurisprudence remain a very controversial issue, and one which I don’t want to go into in detail at this particular time. There’s one thing, however, that strikes me as rather interesting. Namely, at practically all of his appearances at which he discusses the use of foreign law, Justice Scalia loves using the European...

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05 May

Lest I be accused of being overly critical of the US Supreme Court, I will now try to the show what must qualify as one of the worst examples of manipulation and instrumentalization of international law in recent memory. Predictably, that legal manipulation was not a brain child of the Supreme Court, but of the ever inventive lawyers working for...

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