Justifying Extraterritorial Human Rights Obligations and Climate Change as a Counterexample

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Why and What to Justify

Extraterritorial human rights obligations are contentious. In the UK, for example, the ECtHR’s findings that armed forces deployed abroad have human rights obligations have met with criticism. Extraterritoriality is also routinely named as one of the most difficult aspects of the next generation of potentially groundbreaking human rights litigation: climate cases. In general, governments struggle to accept that the human rights of distant strangers are really for them to worry about. The intuition seems to be that it is not their burden to carry and that they certainly do not need to explain to a human rights body why this is so. This attitude says something about two reasons why it is important to justify such obligations. One of these reasons is a normative one: obligations, and particularly stringent obligations such as the ones flowing from human rights, are burdensome and so raise questions of fairness. Whenever there are demands for them to be allocated and discharged justification is required. The second reason is prudential and concerns institutions interpreting and enforcing international human rights law – principally regional courts and UN human rights bodies. Their legitimacy is important to carry out their task (on the ECtHR specifically see, eg, here). And this legitimacy is undermined whenever the reasoning is not principled (see, eg, here and here). Explicitly invoking tools related to justification has the potential to make reasoning (more) principled. It is thus important to international human rights law as a system of accountability.

The next question is what it is that needs to be justified. Human rights are claims of individuals (and sometimes groups) on the actions of an actor other than the rights-holder, usually to do something for the right holder’s sake, regardless of whether it benefits the actor who is called upon to act. This means that, principally, two aspects of an obligation need to be justified: what is to be done and who needs to do it. The question of what needs to be done concerns the content of human rights obligations. The question of who needs to fulfill that obligation can also be called the question of allocation – particularly as regards positive extraterritorial obligations, which may well rise to prominence in the adjudication of climate cases in particular. The focus of this post is this question of extraterritoriality as allocation.

How (Not) to Justify

One way of understanding jurisdiction in international human rights law is to say that it captures how to justify allocating an obligation to a particular state (see here). But even where there is no jurisdiction clause – as in the ICESCR – justification is still necessary (see here). A successful justification will give a reason for the allocation of an obligation and will consist of a combination of facts and principles that explain why these facts are relevant (on this see here). Candidates for this reason at present include at least the following: (de facto) authority, effective control (over an area or an individual, or rights), but also capability and control over potential sources of (transboundary) harm. These are all facts. The principles that would identify the relevant facts are often only implicit in the arguments. This makes it difficult to evaluate how well each of these facts work as a reason for duty allocation within international human rights law.

To counter this problem, I argue elsewhere that international human rights law is principally informed by the values of integrity and equality (see generally here). These values generate the principle that whatever agent is in a position to guarantee equal treatment in an area of human existence covered by a recognised international human right is justifiably allocated the burdens of the corresponding obligations. This is because this position best describes the power that human rights are meant to channel and constrain.

When Justification Fails

There are compelling counterexamples that are not covered by the above account. The key challenge to justifying human rights obligations building on a guarantee of equality (in addition to the often-cited poverty, eg, here) is climate change and the associated harms. Current approaches to extraterritoriality generally suggest that many climate harms may not be qualified as human rights obligations although human rights bodies might follow domestic courts in their more open findings. This would not solve the problem of justification in my view, however. Given this, I want to offer a tentative way forward.

Courts as well as academic analysis could respond to the fact that extraterritorial components pose limits on climate cases by adopting an ecumenical approach to principles we accept as justification. This would allow for picking whatever principle is most suited while still acceptable in a given case. Beitz (ch 7) and Besson, for example, have already argued that human rights should be understood to be grounded in many principles instead of only one or two. I would like to add another option to this possibility. Perhaps one might argue that in some cases human rights law needs to stand in for lack of a better alternative, say, in the form of an international legal order that takes global justice seriously. On this note I have raised the possibility of reading part of international human rights law precisely to allow for an entry point to explicitly distributive concerns (see ch 2 here). But explicitly conceptualising international human rights law as a stand-in, to some extent against or over and above its purposes, needs an additional layer of justification. While not the focus of this post, similar arguments would need to be made, I think, regarding human rights obligations in armed conflict.

Non-Ideal Human Rights

Currently, most human rights theory to my mind is designed for a world in which relevant agents comply with their duties, and background conditions are generally favourable. This is John Rawls’s definition of ‘ideal theory’ (see here ch 1). Background conditions regarding climate change are not favourable. We are running out of time, there are currently not enough resources to do everything we need to do in order to tackle climate change, and individual redress is mostly absent from international environmental law. In addition, theories like Rawls’ generally assume that responsibility can be allocated and apportioned, and this is a feature international human rights law shares with such theories. The problem regarding climate change is that precisely this aspect of apportioning responsibility or obligations is difficult to do: the cause of climate harms and the effect of actions and omissions can be described in the aggregate but not regarding specifics (see here). Although attribution science is now able to specify the likelihood of specific causal connections of human behaviour and extreme weather events to a remarkable degree. Nevertheless, partial or non-compliance with duties in this area is most likely the norm, but it is still difficult even to know in the first place. Some political philosophers respond to unfavourable background conditions or partial compliance by changing their methodology: they switch from ideal theory to non-ideal theory (on this and other distinctions between ideal and non-ideal see here).

I would like to suggest that we could do the same and start doing non-ideal theory of human rights law. When concerned with theories of (distributive) justice, non-ideal theory concerns itself with what agents might be required to do when not everyone is complying with their duties. Imagine a scenario where some states diligently work towards reducing emissions causing climate change, while others do not. To provide individual redress, human rights law would sometimes need to obligate diligent states to do more than their fair share. This happens to be exactly what would be required to make human rights obligations useful when it comes to climate change. It involves expanding human rights obligations and weakening causal links of responsibility. Non-ideal theory might provide a route to accommodate these changes without abandoning principles. In particular, whenever non-ideal theory asks an agent to do more than their fair share, the overarching principle is to require them to do what is reasonably within their power to do. Reasonableness constraints already feature in human rights law when it comes to climate cases (see eg, here at paras 94, 120, 194), but the factors that are taken into account to shape it are not usually assessed in a principled manner. Shifting our inquiry from using reasonableness to shape obligations in general to relying on it to respond to unfavourable conditions and partial compliance would allow principles to play a greater role again. Given that justification is in part important because of the legitimacy and integrity of the human rights system, this would be preferable.

Overall, the fraught relationship between extraterritoriality and climate change suggests two important conclusions. First, if the integrity of human rights protection is important, then so is justifying obligations. Second, we should not abandon justification in the face of urgency but to look for principled alternatives, changing, if warranted the parameters of what needs to be justified.

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