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Reply to Shany, Lowe and Papanicolopulu

Published on December 5, 2011        Author: 

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).

Read the rest of this entry…

 

A Response to Milanovic on Extraterritorial Application of Human Treaties: The Significance of International Law Concepts of Jurisdiction

Published on December 4, 2011        Author: 

Irini Papanicolopulu is Marie Curie Fellow, Faculty of Law, University of Oxford and a Senior Researcher in international law at the University of Milano-Bicocca (on leave).

In his book, Marko Milanovic addresses the fascinating topic of the extraterritorial application of human rights treaties. The strengths of this book are numerous. In a style that is clear, well-structured and captivating, the author engages in an in-depth analysis of the relevant provisions of the main human rights treaties as well as an analysis of the case-law produced by international courts and quasi-judiciary bodies in applying these provisions. The examination does not shy away from sensitive, complex, or dangerous topics, such as the policy considerations which often underlie treaty making and treaty interpretation or the unwelcome consequences of excessively broadening the scope of application of human rights treaties.  Marko Milanovic is not only aware of these and other problematic aspects, but honestly acknowledges them and bravely engages in their discussion. He is not afraid of acknowledging the inconsistencies, drawbacks or limitations of the different approaches – even his own! But this is not all; he also goes further and proposes an alternative model for the determination of the scope of human rights treaties, intended to ensure that considerations of effectiveness do not curtail excessively the aspiration to universality.

One of the greatest merits of this book is that it finally provides order where there was confusion, especially at the time when it was written but also, to some extent, after the European Court of Human Rights decisions in the Al-Skeini and Al-Jedda cases. The extensive and attentive discussion and evaluation of the territorial and personal concepts and their constituent elements is one such example. The taxonomy of the different meanings that the word ‘jurisdiction’ may assume in the human rights context is another. With respect to the latter point, the author rightly distinguishes between the meanings of jurisdiction under general international law and the notion of the same term in the context of determining the applicability of human rights treaties. Attribution of the power to legislate, enforce, or judge, indeed, is different from the actual exercise of the legislative, enforcement or judicial function by a state. Similarly relevant is the distinction between positive and negative obligations pending on States. The consequence is that negative obligations bind states whenever their agents act, irrespectively of the place and person addressed, while positive obligations require that there should be jurisdiction by the state. While the means used for reaching this result may benefit from further elaboration, in particular with respect to the textual analysis, the   conclusion itself appears unassailable.

The one point with which I have some difficulties is however the inference that the author draws from the distinction between different notions of jurisdiction, in combination with his distinction between positive and negative obligations of states. As the author poses it, there is jurisdiction when a state exercises power and:

‘This power is a question of fact, of actual authority and control. Despite its name, it is not a legal competence, and it has absolutely nothing to do with that other notion of jurisdiction in international law which delimits the municipal legal systems of states’. (p. 53).

The conclusion is that one should completely disregard the ‘legal’ notion of jurisdiction, in favour of a purely factual one and that the application of human rights treaties ‘should never depend on naked title over a territory, but on actual power exercised over it’ (p. 61).

This thesis however brings with it some problems that do not seem to be sufficiently addressed. Read the rest of this entry…

 

Vaughan Lowe on Marko Milanovic’s Book

Published on December 2, 2011        Author: 

Vaughan Lowe is Chichele Professor of International Law at the University of Oxford and Fellow of All Souls College, Oxford

In his perceptive and incisive analysis, Dr Milanovic argues that the concept of jurisdiction in the European Convention on Human Rights is not the same as the concept of jurisdiction in general international law. Specifically, he argues that the State obligation to respect human rights is not limited territorially but that the obligation to secure or ensure human rights is limited to those areas that are under a State’s effective overall control. The analysis is convincing, and the approach gives a robust and powerful tool for determining the scope of human rights obligations.  Applauding that achievement, I wonder if there is not also room for an equally fundamental challenge, arguing that the concept of ‘rights’ in human rights conventions is not the same as the concept of ‘rights’ in general international law.

In an article in the 2006 British Yearbook of International Law, Lea Brilmayer argued that human rights treaties should be seen as pledges rather than contracts, so that analyses based upon reciprocal rights and obligations, of the kind that characterise the traditional discussions of treaties, should not be thought to be necessarily appropriate to discussions of human rights treaties. A comparable shift in perspective would see the commitments in human rights treaties not as reciprocal agreements between States Parties or even as agreements to confer rights upon individuals, but rather as limitations upon the legal power (or at least upon the authority) of governments. There would, in short, be some things that States bind themselves not to do, anywhere.

 Those limitations would limit the power of governments and constrain its exercise, no matter what the particular geographical destination of the government action might be. States Parties to human rights treaties would not be seen as agreeing between themselves that they will not arbitrarily deprive human beings of liberty; rather, governments would commit themselves to the principle that no State has the legal power or authority arbitrarily to deprive a human being of liberty, and would agree that in all circumstances in which a determination of the legality of their action is in question their conduct should be appraised by reference to that and other principles set out in human rights treaties.

On this basis, it would not matter where the act had occurred: the question would be simply whether conduct attributable to the State was or was not consistent with the principles which the State had committed itself to observe. That, surely, is more in harmony with the notion of human rights as intransgressible norms than is the view that one has to be standing in a particular place in order to benefit from human rights.

This is the result that Dr Milanovic achieves by his distinction between the obligation to respect human rights and the obligation to secure or ensure them. But the route to that result is slightly different. Concentration on ‘human rights as pledges’ would enable arguments to be built upon a wider range of materials than treaties that have entered into force with the State concerned; and on some accounts of the principle of good faith (such as that in Bin Cheng’s enduring classic, General Principles of International Law) would also entail legal constraints upon the abandonment of the pledge. It would also attach the obligation firmly to the substantive rule governing State behaviour, and avoid any temptation to confine the obligation to a particular system for the handling of complaints that the State has violated its duties.

The questions would not, of course, end there. It would be necessary to go on to ask what consequences flow from conduct that is not consistent with the applicable principles of human rights law. But that approach may itself carry benefits. Action by a victim of a human rights violation would follow the forms of action in national law – actions for assault or trespass to the person or whatever. The point would be that the State lacks the legal power to authorize the injurious conduct.

Marko Milanovic has described a powerful and innovative approach to the conceptualisation of human rights norms, and it is a project which deserves not only the closest attention but also the most vigorous pursuit.

 

Fatou Bensouda to be Next ICC Prosecutor

Published on December 2, 2011        Author: 

It has now been announced by the International Criminal Court that Fatou Bensouda, the current ICC Deputy Prosecutor will be the sole candidate for election to be Prosecutor of the ICC. The decision to nominate her as the sole candidate This means that Fatou Bensouda will be the next ICC Prosecutor.  The elections will take place in December and she will take over from Luis Moreno-Ocampo in June next year. As I stated in a previous post of a couple of days ago the list of candidates has been whittled down from the four recommended by a search committee and there was a strong feeling that the next prosecutor should be African. For the reasons that I gave in that earlier post Fatou Bensouda seems to be an excellent choice and has been the front runner in this race for quite some time. She is from Gambia (though she studied law in Nigeria – in fact at the same University I went to)  and was the candidate endorsed by the African Union. However, she has also been vigorous in defending the  prosecution by the ICC of Africans. I had the pleasure of speaking with her at a workshop on the ICC held in Botswana (and also here) in July of this year . In her speech, “Does the ICC Target Africa: Is the ICC Selectively Prosecuting Cases?”   she said:

“Let me turn squarely to the question you would like answer today. All the persons accused by the ICC are African. That is true. Why? Because the Rome Statute says that we should select the gravest situations under the Court’s jurisdiction. There are also more than 5 million African victimes displaced, more than 40,000 African victims killed, hundreds of thousands of African children transformed into killers and rapists, thousands of African victims raped. In Northern Uganda, the LRA displaced more than a million people, and abducted boys and girls and forced them to kill. We cannot turn a blind eye to justice for 2.5 million people in Darfur, for 2 mllion victims in the DRC. The Ituri region in DRC is still plagued by militia killings, looting and raping. These African victims are calling for more ICC intervention, not less.”

She then went on to note that in six of the situations currently before the Court, African leaders had requested ICC intervention.

She is taking on a job with immense responsibilities but appears very well suited to the task. We wish her all the very best!

 

Bad Cases Make Bad Law, But Good Law Books!

Published on December 1, 2011        Author: 

Dr. Marko Milanovic’s book on the Extraterritorial Application of Human Rights Treaties (OUP, 2011), which grew out of his doctoral studies in Cambridge, offers an excellent analysis of the jurisprudence of international and national courts and committees on the extraterritoriality of state obligations in the field of human rights. It is by far the most comprehensive book that has been written on the subject, and I have no doubt that it will quickly become the standard reference text on human rights and extraterritoriality, if it has not already become so. As can be expected, especially by those who have followed Milanovic’s earlier works in the field, he reaches the compelling conclusion that the case law on the extraterritoriality of human rights obligations is hopelessly casuistic and unprincipled, and as a result inconsistent and confusing. Furthermore, he argues that the main ECtHR decision on extraterritoriality – Bankovic v Belgium (2001)– is built on erroneous legal foundations, and runs contrary to previous cases, as well to core human rights values.

 Milanovic is correct in diagnosing most of the reasons for this unhappy state of affairs: The debate over the extraterritorial application of human rights is mired up in a Koskenniemic tension between an ideal (the universality of human rights) and political reality (the principle of effectiveness, which militates against normative overreach). In fact, one can identify a parallel tension at play between the need to ensure effective protection of human rights  (e.g., through eliminating legal ‘black holes’) and the continued commitment to territoriality as an organizing principle of the international legal order, notwithstanding the tenuous connections between borders and human welfare.  A third tension, further complicating the debate on the extraterritoriality of human rights obligations, which Milanovic addresses on a number of occasions, involves the institutional relationship of courts to governments, or law to politics. While the extraterritorial projection of state power is not a new phenomenon in itself, regulating it through legal norms and, even more so, by courts applying international legal norms is a relatively novel development. It is therefore not surprising that courts often treat extraterritoriality as a preliminary jurisdictional question (which Milanovic rightly criticizes as a category error) – jurisdiction to adjudicate being a principal tool that courts employ in order to avoid politically undesirable decisions. Read the rest of this entry…

 
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