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

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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. Attribution of power to a state by international law is certainly different from the actual exercise of the power by the state. In addition, de facto jurisdiction may be lawful, that is, exercised within the limits determined by the relevant rules of international law and thus may coincide with de iure jurisdiction, or may be unlawful, when there is no rule justifying the exercise of power. While this distinction is instrumental to the evaluation of the conduct of States, in order to establish whether they have violated their obligations, it cannot be accepted as the basis for determining the extraterritorial application of human rights. I do not think that the existence of a formal power, attributed by international law to a State, does not have any role to play in a human rights context, as explicitly affirmed by the author and as is implicit in his treatment of vessels and aircraft. There are two reasons for that. On one hand, there do exist rules of international law that oblige a state to exercise its jurisdiction. On the other hand, since most rules of international law attributing power to a state are framed in permissive terms, authorising, rather than obliging, a state to exercise that power, such a conclusion would only benefit States who prefer to disregard their duties.

The case of vessels is illuminating.  If a private person on board a vessel kills another person, and the vessel is navigating in the high seas, the author considers that it is

 “far from obvious that the mere fact of formal registration, absent any tangible degree of control, should matter at all”. (p. 170).

However, this is exactly the case in real world. There are in fact many states (the so called “flags of convenience” states), who register vessels in their registries without then exercising any form of control on what is happening on board. Apart from any exceptional incident that may happen occasionally, everyday conditions on board these vessels often significantly depart from the minimum acceptable standards and may well amount to inhuman or degrading treatment. Should the flag state be permitted to get away with its positive obligations to ensure human rights only because it does not effectively exercise control over the vessel? This is illogical, and in fact there is a substantive rule obliging the state to ‘effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag’ (Art. 94(1), United Nations Convention on the Law of the Sea). Many states, however, try to justify their non-compliance by referring to the practical difficulty in controlling ships that often sail hundreds or thousands of miles away from its coasts and hardly, if ever, visit its ports. Should a State be permitted to use such an excuse? If one where to apply Marko Milanovic’s approach literally, these cases would not amount to the existence of jurisdiction for the purposes of applying human rights law, since

‘When, however, states are expected to do more than just refraining from adversely affecting the lives of others, when they need to take positive steps … they cannot fulfil such obligations effectively without having the tools to do so. Such obligations should, therefore, be territorially limited to areas and places under the state’s jurisdiction’. (p. 219).

While I agree with the last sentence, I think that limiting the existence of jurisdiction to cases in which a state de facto exercises its powers would mean lowering too much the applicable standard. I do not advocate an unlimited applicability of positive obligations, but cannot also admit that a State may choose to take advantage of a power given to it – in this case the right to give its nationality to vessels – without at the same time accepting the obligations that flow from it – by simply referring to its inability to control the object over which it can exercise this power.

The same reasoning applies to control over territory. If a State does not exercise its control over territory that is subject to its jurisdiction, for example because it is controlled by armed groups or is occupied by a foreign state, or because it does not have the technical means to reach every remote spot of its land territory, this should not completely relieve the state from its obligations under human rights law. This approach has been endorsed by the European Court of Human Rights in the Ilascu case, when the court recognised the existence of (limited) duties also for Moldova.

While the existence of practical difficulties, or the willingness or otherwise of a state to relinquish control, may play a significant role in determining the merits of a case, they should not be considered at the admissibility stage, in particular in determining whether the relevant human rights treaty is, in principle, applicable. As Marko Milanovic shrewdly points out, the intensity of positive obligations differs according to the circumstances, but this should not be considered as a circumstance totally excluding human rights obligations. Everything considered, his assumption that ‘human rights grounded in universal human dignity are a good thing’ (p. 6) is unassailable and his insistence in distinguishing between the applicability of human rights treaties and their actual application is not only legally sound but also particularly appropriated to the human rights context, when incomprehensible and contradictory decisions often mask policy considerations. His book is certainly a powerful tool for achieving these objectives and will unquestionably serve as the basis for future treatment of the topic.

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Dawood I Ahmed says

December 5, 2011

On de facto v de jure control of a territory, this brings an interesting question of who, at all, would be responsible in so-called "ungoverned spaces" - where de jure there is a sovereign, but de facto there is none.