My thanks go out to Yuval Shany, Vaughan Lowe and Irini Papanicolopulu for their comments on my book. It is truly a pleasure and a privilege to engage them in this discussion. Let me begin by responding to some of the points made by Vaughan. I fully agree that the rights set out in human rights treaties could perhaps be reconceptualised as pledges within the framework given by Lea Brilmayer in her BYBIL article; they are not simply reciprocal bargains between states. And I certainly agree that the treaties could – like domestic constitutions – be seen as limiting the powers of governments on the basis of fundamental principles. But that reconceptualization does not necessarily entail that these principles are territorially unbound. After all, issues that mirror the extraterritorial application of human rights treaties have also arisen with respect to the extraterritorial application of domestic bills of rights. In the final analysis, the scope of all these instruments depends on underlying ideological or value judgments – e.g. should citizenship matter in determining whether a state could take an individual’s life or deprive him of liberty on a preventive basis, a debate of great relevance in the United States today.
Turning now to Yuval’s comments, he and I are in basic agreement as to the causes of the confusion and conflicts in the case law, founded as they are in the underlying tension between universality and effectiveness. But even if he agrees with the diagnosis, Yuval takes issue with my prescription – the model with distinguishes between positive and negative obligations, and applies a territorial control requirement to the former but not to the latter, which it treats as territorially unlimited. Yuval argues – quite persuasively – that my model would also lead to some arbitrary results, as in the Ecuador v. Colombia example, where Colombia would under my model not have the duty to ensure the human rights of the people of Ecuador endangered by transboundary harm emanating from the activities of private persons operating from Colombian territory. He opts instead for a ‘a single concept of jurisdiction, applicable both to negative and positive obligations, which centers on the strength of the governmental power that is being applied or can be applied vis-à-vis the individuals in question’, a flexible, functional criterion which would in essence mean that the state would have a particular obligation as soon as it gained the ability to comply with it or violate it. (Note, of course, how in the Colombia example Colombia may have some power over the private perpetrators of human rights violations, but has not exerted any power over their victims – and it’s the victims who have to be subject to its jurisdiction).