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.