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Home Human Rights Archive for category "Extraterritorial Application" (Page 12)

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…

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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.

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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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Extraterritorial Application of Human Rights Treaties: An Overview

Published on November 30, 2011        Author: 

I am very grateful for the opportunity to discuss my book on EJIL: Talk! and Opinio Juris, as am I grateful to the commentators on both blogs for taking the time to read and discuss it. In this introductory post I’ll try to outline the book’s main arguments and themes and my approach generally in analysing a very complex topic.

The book is divided into five chapters. The first, introductory chapter sets out the scope and purpose of the whole study. It defines the notion of the extraterritorial application of human rights treaties, explains that the law of treaties sets no general rules on extraterritorial application, and outlines the basic normative framework of the human rights treaties which are the object of the study, looking in particular at the various types of state jurisdiction clauses that one finds in these treaties, and their relationship with other relevant provisions, such as the colonial clauses. Whether a human rights treaty protects a particular individual in an extraterritorial context is legally a matter of treaty interpretation, and this chapter sets the stage for this interpretative exercise. My main focus is on treaties protecting civil and political rights, for the sole reason that there is much more case law and other material to work with in respect of these treaties than with those protecting socio-economic rights. That said, the book proceeds from the assumption that there is something to be gained from focusing on problems common to all or most human rights treaties, and views these treaties as a whole. Hence, it is generally structured thematically, issue by issue, not chronologically or treaty by treaty.

Of all the treaties, I give most attention to the European Convention on Human Rights, for two reasons. First, the ECHR system is by far the strongest of all human rights regimes (if far from perfect) in its ability to effectively secure compliance and have a direct impact on state policy. The stakes are highest in Strasbourg, because it will be listened to. Second, it is precisely because the stakes are highest in Strasbourg that the jurisprudence of the European Court of Human Rights on extraterritorial application is the richest and the most developed. At the same time, it is the most problematic, suffering from rampant casuistry and conceptual chaos. It is a jurisprudence of (at times quite unprincipled) compromise, caused mostly be the Court’s understandable desire to avoid the merits of legally and politically extremely difficult cases by relying on the preliminary issue of extraterritorial application. At the same time, the jurisprudence of the European Court has the most to teach us on questions of both law and policy that are relevant for all human rights treaties.

Read the rest of this entry…

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Book Discussion: Marko Milanovic’s Extraterritorial Application of Human Rights Treaties

Published on November 30, 2011        Author: 

Opinio Juris and EJIL: Talk! are happy to announce that over the next few days we will be both be hosting a discussion of Marko Milanovic’s recently published book: Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford Univ Press).  Marko’s book examines the question when a State owes human rights obligations under a treaty to persons located outside its territory. This is a question on which there has been conflicting case law and much confusion.

This [book] attempts to clear up some of this confusion, and expose its real roots. It examines the notion of state jurisdiction in human rights treaties, and places it within the framework of international law. It is not limited to an inquiry into the semantic, ordinary meaning of the jurisdiction clauses in human rights treaties, nor even to their construction into workable legal concepts and rules. Rather, the interpretation of these treaties cannot be complete without examining their object and purpose, and the various policy considerations which influence states in their behaviour, and courts in their decision-making. The book thus exposes the tension between universality and effectiveness, which is itself the cause of methodological and conceptual inconsistency in the case law. Finally, the work elaborates on the several possible models of the treaties’ extraterritorial application. It offers not only a critical analysis of the existing case law, but explains the various options that are before courts and states in addressing these issues, as well as their policy implications.

A very distinguished group of scholars, from both sides of the Atlantic, will offer their views on Marko’s book and on this vexed question of extraterritorial application of human rights obligations.  On EJIL: Talk! Yuval Shany (Hebrew University, Jerusalem), Vaughan Lowe (Oxford) and Irini Papanicolopulu (Milan-Bicoca and Oxford) will offer their views. On Opinio Juris, it will be Sarah Cleveland (Columbia), Kal Raustiala (UCLA) and OJ’s own Peggy McGuinness (St John’s). We are grateful to them for agreeing to participate in what I am sure will be a fascinating discussion.

The discussion will start with an introduction by Marko (on both blogs) of his book. Our commentators will weigh in with comments through the rest of this week.  Marko will respond to their comments early next week. Readers are invited to join in the discussion.

 

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Al-Skeini and Al-Jedda in Strasbourg

Published on August 29, 2011        Author: 

I’ve posted on SSRN an article which will be published in the EJIL next year on Al-Skeini and Al-Jedda before the European Court of Human Rights. The pre-print draft will be available on SSRN until the article comes out in the Journal. The abstract is below, and comments are welcome, as always.

The article analyses the European Court of Human Rights’ recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.

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Keitner on Rights Beyond Borders

Published on March 8, 2011        Author: 

I’d like to draw our readers’ attention to an excellent recent article by Chimene Keitner, ‘Rights Beyond Borders,’ published in the Yale Journal of International Law, and dealing with the extraterritorial application of domestic guarantees of individual rights. It is a timely piece which engages in a comparative examination of relevant US, UK and Canadian case law; there are certainly lessons to be learned here with regard to the extraterritorial application of human rights treaties. A symposium/discussion of the article is available on Opinio Juris.

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UK Supreme Court Decides R (Smith) v SSD

Published on June 30, 2010        Author: 

Today the UK Supreme Court decided R (Smith) v Secretary of State for Defence [2010] UKSC 29 (press summary), yet another fascinating addition to the unfolding saga on the extraterritorial application of human rights treaties.

The plaintiff was the mother of a UK soldier stationed in Iraq who died there from a severe heatstroke. She demanded an inquiry into her son’s death that would be compliant with Article 2 ECHR, that would be able to expose what in her view were systemic faults in the UK’s provision of equipment and facilities to its soldiers in Iraq which ultimately led to her son’s death. In other words, the case is a mirror-image of Al-Skeini, which also dealt with Art. 2 procedural obligations in Iraq, but that time with respect to inquiries into the deaths of Iraqi nationals at the hands of UK troops. As the readers are aware, the Grand Chamber of the European Court held hearings in Al-Skeini just a few weeks ago (see my old post for more background).

With regard to extraterritoriality, the issue before the Supreme Court in Smith was this: does a UK soldier in Iraq enjoy the protection of the ECHR while stationed in an area not under the UK’s effective control? Incidentally, on the facts of the case, Private Smith actually died on a UK military base. Per the UK government’s concession in Al-Skeini, the House of Lords’ quite dubious analogy between a military prison or base and an embassy, and the European Court’s recent admissibility decision in Al-Saadoon, that fact alone would have brought Private Smith within the UK’s jurisdiction. Readers will recall that in Al-Saadoon the European Court brought the spatial model of Art. 1 jurisdiction as state effective overall control of a geographical area to its extreme, but saying that a military prison or base qualified as an ‘area’ susceptible to such jurisdiction and control.

In other words, under the spatial model Private Smith would have been within the UK’s jurisdiction, and therefore entitled to protection under Art. 2 ECHR. However, issue was raised in the lower courts as to whether he would have been within the UK’s jurisdiction even if he did NOT die on the base, but in essentially the same circumstances. Like the lower courts, therefore, the Supreme Court was now faced with a set of questions in a quasi-advisory posture – something that several judges openly lamented. The Court nonetheless decided to rule on the matter, because it is one of great practical relevance of UK military operations abroad; Private Smith is obviously not the only UK soldier to have died in Iraq or Afghanistan, and many soldiers lost their lives outside areas under UK effective control.

The lower courts applied to Private Smith a variant of the personal model of Art. 1 jurisdiction, as state authority and control over individuals, finding that he indeed fell within the scope of Art. 1. In their view, simply by virtue of being a part of the UK military, Private Smith was within the UK’s authority and control, and accordingly within its jurisdiction.

Today the Supreme Court disagreed. By a majority of 6 to 3 (Lady Hale and Lords Mance and Kerr dissenting), the justices found that mere membership in the armed forces was insufficient to establish a jurisdictional link for the purposes of Art. 1 ECHR.

Read the rest of this entry…

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Grand Chamber Hearings and Preview of Al-Skeini and Al-Jedda

Published on June 9, 2010        Author: 

Today the Grand Chamber of the European Court of Human Rights held joint hearings in  Al-Skeini and others v. UK (no. 55721/07) and Al-Jedda v. UK (no. 27021/08) – webcast available here, statements of facts available here. It would be no exaggeration to say that these are some of the most important cases to come before the Court in recent years, with possibly wide-ranging implications, on matters ranging from the extraterritorial application of the ECHR and the use of force generally, to occupation and targeted killings, up to the responsibility of international organizations, the relationship between the ECHR regime and the UN Security Council under Article 103 of the Charter. The Court will probably deliver its judgments by the end of the year.

Let me now try to provide a preview of some of the most important issues – particularly threshold issues – that that the two cases raise, and of the possible ways in which the Court might rule.

(Again, apologies for a long post!)

Read the rest of this entry…

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ECHR Rights at Sea: Medvedyev and others v. France

Published on April 19, 2010        Author: 

Dr Douglas Guilfoyle is a Lecturer in Law at University College London.  His research has focussed on the law of the sea and international and transanational criminal law. His book Shipping Interdiction and the Law of the Sea was published by Cambridge University Press in 2009. His previous EJIL Talk! posts can be found by clicking on his name in the tab on the right.

The application of the European Convention on Human Rights (ECHR) to law-enforcement operations at sea raises a number of issues concerning the scope of the ECHR’s extra-territorial application and how ECHR rights are to be interpreted and applied extra-territorially. The limited case law to date has concerned maritime migrant and narcotics smuggling, but has significant implications for counter-piracy operation in the Gulf of Aden, an issue I have explored in a recent article in the Int. & Comp. Law Quarterly (see here).

We now have a European Court of Human Rights (ECtHR) Grand Chamber authority on point, Medvedyev v France (Application no. 3394/03), which illuminates some of these issues. In Medvedyev French authorities interdicted a Cambodian vessel (inaptly named the Winner) suspected of drug smuggling on the basis of Cambodian consent; those aboard were confined aboard during the 13 day voyage into a French port. The suspects were later convicted in France of drug-smuggling offences and brought proceedings before the ECtHR challenging the legality of their detention at sea and the delay involved in bringing them before a court under articles 5(1) and (3), ECHR. An earlier ECtHR case, Rigopoulos, similarly involved a Spanish high-seas interdiction of drug smugglers and a 16-day voyage to port. In both cases the Court held that such delays, where materially impossible to avoid, did not violate ECHR article 5(3). In Medvedyev, however, a violation of article 5(1) was found. France appealed to the Grand Chamber, and the decision was handed down on 29 March 2010. The Grand Chamber held, unanimously, that the applicants were within the jurisdiction of France; upheld, by 10 votes to seven, the decision that there had been a violation of article 5(1); and denied (by nine votes to eight) the claim that there had been a violation of article 5(3). The focus here will be on the jurisdictional and article 5(1) issues.

Extra-territorial application of the ECHR

The Grand Chamber shed little new light on the ECHR’s extra-territorial application (paras 63-66). It reiterated the Banković proposition that the ECHR’s extra-territorial application based on State jurisdiction is exceptional. It did not cite any State agent authority and control cases, but did note that exceptionally “the acts of the Contracting States performed or producing effects, outside their territories can constitute an exercise of jurisdiction”. It then resorted to the rather tired line that “clearly defined and recognised” cases of extra-territorial jurisdiction at international law included consular activities abroad and jurisdiction over flag vessels. Without more it concluded that French special forces boarding the Winner constituted an exercise of jurisdiction engaging the ECHR. It is hard to fault the result, but the lack of intermediate logic is odd given the judgment’s stress elsewhere on the ordinary rule of exclusive flag State jurisdiction. What in the act of placing forces aboard a foreign vessel (with flag State consent) transforms that vessel into a space analogous to an embassy or those forces into officials similar to consular agents? The desire to avoid the issue seems creakingly obvious. Nonetheless, it now seems firmly established that exercising coercive law-enforcement jurisdiction over a foreign vessel on the high seas will bring it within ECHR jurisdiction. Read the rest of this entry…

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