Extraterritorial Application Of Human Rights Research Articles

‘Between the Devil and Deep-Blue Sea’: Comparing the Extraterritorial Application of the ECHR and the ICCPR in the Protection of Migrants at Sea

The concept of jurisdiction is often said to encapsulate the very essence of human rights “qua normative relationship between rights holders and institutions as dutybearers” (Besson, 2012; 860). Twenty-first century human rights jurisprudence has highlighted one of the most contentious issues in relation to jurisdiction: the limits that human rights place on State behaviour outside national territory. In the context of migration, the extraterritorial application of human rights is a particularly critical concern. Loss of life on the high seas, refoulement at sea, and the striking systematic ineptitude of search and rescue operations by European countries have placed the debate on extraterritoriality at the heart of the human rights discourse on migrants and refugees. This Paper will compare and contrast extraterritoriality at the European Court of Human Rights and the Human Rights Committee (HRCttee), in order to put their jurisprudence into perspective and assess the current state of the law. A functional account of jurisdiction will be supported, whereby the State should protect human rights wherever in the world it operates, and whenever it can reasonably do so. Through a comparative analysis, I will argue that the principles of universality and effectiveness render extraterritorial applicability a necessary doctrine in human rights law. By juxtaposing the ECtHR with the HRCttee, I will illustrate the wide acceptance of extraterritoriality in the migration context, highlight the needs for improvement in future jurisprudence, and justify the functional approach to human rights protection that this Paper advocates.

Digital Rights and the Outer Limits of International Human Rights Law

AbstractThis article explores the extent to which key normative and institutional responses to the challenges raised by the digital age are compatible with, or interact with, changes in key features of the existing international human rights law (IHRL) framework. Furthermore, the article claims that the IHRL framework is already changing, partly due to its interaction with digital human rights. This moving normative landscape creates new opportunities for promoting human rights in the digital age, but might also raise new concerns about the political acceptability of IHRL. Following an introduction, Section B of the article will describe the development of digital human rights, using a “three generations” typology. Section C will explain how new developments in the field of digital human rights coincide with broader developments in IHRL, including: the extra-territorial application of human rights, obligations on governments to actively regulate private businesses and the erosion of normative boundaries separating specific human rights treaties from other parts of IHRL and international law. These two segments are followed by concluding remarks.

The Extraterritorial Application of Human Rights Treaties in the Context of Environmental Transboundary Harm

This article treats the issue of jurisdiction under human rights treaties in cases of environmental transboundary harm. It aims to cover the definitions of the environment and transboundary harm as well as the relevant rules under international environmental law applicable to environmental transboundary harm. Thereafter, it analyses the territorial scope of human rights treaties and focuses on the establishment of a jurisdictional link in cases of environmental transboundary damages. It suggests that the classical approach, which is focused on effective control over an area or persons, is not apt in this context. Rather, this article proposes the use of other approaches to jurisdiction, such as the functional approach adopted by the Inter-American Court of Human Rights which is based on an effective control over the activities causing environmental harm and consequent human rights violations. It further argues that the general rule under customary international law which prohibits States from engaging in acts causing transboundary harm could also be applied as a special feature in the context of international human rights law. Finally, this article concludes by pointing out some current challenges that need to be clarified with respect to the obligations of States arising from human rights breaches caused by environmental transboundary damages.

A Turn of the Tide in the Extraterritorial Application of Child Rights: On the French Approach towards ISIS’ Child Returnees

There are hundreds of children of French jihadists detained in northeast Syrian camps, being in direct danger of irreparable damage to their physical and psychological development. France has been denying the existence of any competence in Syria that could impose international obligations regarding these children. However, in November 2020, the Committee on the Rights of the Child decided in an individual communication procedure that the French State has jurisdiction over these children, marking a significant development in the extraterritorial application of human rights that is not immune to severe criticism. The Committee established that competence is found entirely upon a factual assessment and used the nationality of the children as a central criterion, posing arbitrariness concerns. The decision is nevertheless a decisive basis to uphold the positive obligation to protect child nationals, making the refusal of the State to systematically repatriate them less and less defensible. Finally, an understanding of security concerns was found to be crucial in a policy change. Any future decisions should therefore strike a better balance between public security and the rights of the child.

Odgovornost države za kršenje ljudskih prava u slučaju prekogranične ekološke štete - novo shvatanje eksteritorijalnosti u primeni međunarodnih ugovora o ljudskim pravima?

The paper provides an in-depth analysis of the issue of extraterritorial application of human rights treaties in the specific context of transboundary environmental harm. The classic criteria for extraterritorial jurisdiction established through the landmark judgments of the European Court of Human Rights are revisited and compared with the extensive extraterritoriality threshold introduced by the Inter-American Court of Human Rights in its 2017 advisory opinion on environment and human rights. The author examines the features, requirements and limits of the new extraterritoriality threshold which is based on the effective control over intraterritorial activities that result in extraterritorial human rights' violations. The paper attempts to offer arguments for perceiving the new extraterritoriality threshold as a general standard of international human rights, as well as to examine whether it represents a (mis)interpretation of the duty to prevent transboundary environmental harm as a well-established rule of international environmental law. The author also discusses the prospects of expanding the application of the new jurisdictional threshold to other areas not necessarily linked to environmental degradation.

Targeted Killings and Human Rights Law

This article presents targeted killing as a means of counterterrorism, with special attention to unmanned aerial vehicles – commonly referred to as drones – and the challenges they pose to human rights. After dealing with the definition of targeted killings and placing it in the system of the combat against terrorism, the article briefly explores the use of drones for counterterrorism purposes, and their human rights- relevant technical details. Next, the article examines the legality of targeted killing from the point of the right to life, and the arbitrary deprivationnthereof. The article also deals with the issue of the extraterritorial application of human rights treaties in the context of targeted killing conducted via armed drones.

EU Trade Agreements and Human Rights: From Extraterritorial to Territorial Obligations

Abstract As the European Union (EU) pursues bilateral trade agreements with third states, the EU should be cognizant of the potential ‘extraterritorial’ impacts of these agreements on the enjoyment of human rights in third states when designing and concluding bilateral trade agreements with third states. This article develops a jurisdictional model to determine the geographic scope of EU human rights obligations in the context of the adoption of EU bilateral trade agreements. It is submitted that the doctrine’s classic semantic focus on ‘extraterritoriality’, captured by such constructs as control, impact, or functional competence, clouds rather than illuminates matters of scope of human rights obligations in the context of trade agreements. Instead of looking for justifications for the extraterritorial application of human rights, it is suggested to turn the justificatory gaze to the internal territorial aspects of the human rights risks created by EU decisions on the conclusion of bilateral trade agreements. An internal-territorial model obviates the need for an elaborate conceptualization of ‘extraterritorial’ obligations.

Constitutional Mindset: The Interrelations between Constitutional Law and International Law in the Extraterritorial Application of Human Rights

Applying human rights beyond state borders is thorny. Which law governs the property rights of a Palestinian whose orchard lies across the Israeli border, or the cross-border shooting of a Mexican citizen by a United States border control agent? This article explores the relationship between constitutional law and international law in the extraterritorial enforcement of human rights by offering a typology of models: the American, European and Israeli models. These models are analysed comparatively, highlighting their chosen legal source of rights: the American model applies constitutional law, the European model uses international law, and Israel combines the two.The article argues that the choice between constitutional and international law is important as it affects the nature and scope of rights, and reflects the relationship between the state and the territory it controls or within which it acts. The dynamic formation process of the Israeli model demonstrates the multiple possible ways to combine these two sources of law and formulate the relationship between them.All three models share a ‘constitutional mindset’: the use of basic legal concepts and reasoning in legally grey zones. However, these transnational processes are not deterministic and could result in original concepts, contradictions and discrepancies, as well as serve different political visions.

Can Robocop Serve and Protectt within the Confines of Law Enforcement Rules?

The debate on whether AWS are consistent with international law has largely focussed on International Humanitarian Law. This is so because AWS are considered military weapons - therefore, meant to be used in armed conflict where international humanitarian law is the applicable regime. However, other scholars emphasise that international human rights law is equally relevant in the AWS debate. When the UN Special Rapporteur on extrajudicial executions first presented his report on AWS to the UN Human Rights Council in 2013, there was a number of states who felt that the issue of AWS is not within the mandate of the Human Rights Council because it concerns military weapons, a subject that is governed by International Humanitarian Law and belonging to the disarmament forum. In this paper, I consider the relevance of International Human Rights Law to the AWS debate and the question whether AWS are consistent with human rights norms that seek to protect important rights such as the right to life and dignity.In summary, the arguments I make in this paper are that International Human Rights Law is relevant to the AWS debate and discussions should occur both in disarmament and human rights fora. This precisely because of three major points: firstly, when assessing the legality of new weapons, the Martens Clause specifically provides that principles of international law – of which human rights are part – must be taken into consideration. Secondly, International Human Rights Law continues to apply in armed conflict. Thirdly and finally, in most cases weapons that are initially made to be used only in the context of armed conflict always find their way to law enforcement situations because of their utility. In view of human rights standards, I argue that AWS, if used in law enforcement situations, may be incapable of complying with the right to life, dignity, remedy and due process rights. With regards to the right to life, the argument is that AWS may not comply with the ‘protect life principle’ which is a high standard as far as the protection of the right to life is concerned.As for the right to dignity, the argument is that just in as much as soldiers in armed conflict are entitled to dignity, so are suspected criminals and other people who may be caught up in a situation where law enforcement officials use force. Dignity to this end, may not allow that the decision to take life and the legal calculations to comply with the high standard of the ‘protect life principle’ or other norms pertaining the use of force against humans be taken by machines. I also argue that if AWS are used in law enforcement scenarios, they are unlikely to comply with due process rights that should be accorded to suspects. Furthermore, the protection of human rights is dependent on accountability of violations. Now that AWS pose problems to responsibility mechanisms in international law, their use threatens victims’ right to remedy.I also discuss the use of AWS across state borders and how it is likely to raise the issue of extraterritorial application of human rights in the case of armed drones. Similarly, I observe that the use of AWS is likely to be met with lack of transparency as has been the case with armed drones.

Extraterritorial Application of Human Rights Treaties Law, Principles, and Policy

1. Introduction 2. From Compromise to Principle 3. Policy Behind the Rule 4. Models of Extraterritorial Application 5. Norm Conflicts, International Humanitarian Law, and Human Rights Law 6. General Conclusion

The «Colonial Clause» and Extraterritorial Application of Human Rights: The European Convention on Human Rights Article 56 and its Relationship to Article 1

Article 56 of the European Convention on Human Rights is often referred to as the «colonial clause» and it has received little attention by commentators, whereas there has been extensive writing on Article 1of the Convention regarding the extraterritorial reach of that treaty. Article 56 has nevertheless the effect of limiting the responsibility of Member States for acts and omissions of the authorities of its dependent territories, although the Member State is still responsible if it acts directly through its own metropolitan officials in such territories. By employing an example of Norway, this paper finds it unnecessary for this country to undertake obligations pursuant to Article 56 in relation to its dependent territories in and around Antarctica, since there is currently little activity there which is not already covered by the extraterritorial regime of Article 1 of the Convention. The paper additionally considers the pros and cons of extending the Convention to territories under Article 56 should future devel- opments lead to a larger and more permanent population of these areas.Keywords: European Convention on Human Rights, extraterritoriality, dependencies, South Atlantic, AntarcticaCitation: Arctic Review on Law and Politics, vol. 4, 1/2013 pp. 21–41. ISSN 1891-6252

Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy

Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy

The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to

AbstractThe extraterritoriality or extraterritorial application of international and European human rights treaties refers to the recognition by those treaties' states parties of the international and European human rights of individuals or groups of individuals situated outside their territory and, in a second stage, to the identification of their corresponding duties to those individuals. Examples of extraterritoriality abound in international human rights practice, and in particular in the European Court of Human Rights’ case law. Except for vague and often misleading gestures to the universality of human rights, which allegedly requires their extraterritorial application, however, many of the normative considerations underlying the extraterritorial applicability of human rights have not been broached in the human rights law literature. Nor, conversely, have human rights theorists, even among those who take the supply side of human rights seriously, devoted much attention to the threshold criteria for the abstract recognition of human rights and the trigger of the corresponding duties. To remedy some of those shortcomings, this article endeavours to bring some normative human rights theorizing to bear on the European Court of Human Rights’ recent practice on extraterritoriality. More specifically, the article delves deeper into the notion of ‘jurisdiction’ qua threshold criterion for the applicability of the European Convention on Human Rights both within and outside its states parties’ territories; distinguishes it from related notions such as authority, coercion, power, or control; and explains its normative consequences.

Transformative occupation and the unilateralist impulse

AbstractThe 2003 occupation of Iraq ignited an important debate among scholars over the merits of transformative occupation. An occupier has traditionally been precluded from making substantial changes in the legal or political infrastructure of the state it controls. But the Iraq experience led some to claim that this ‘conservationist principle’ had been largely ignored in practice. Moreover, transformation was said to accord with a variety of important trends in contemporary international law, including the rebuilding of post-conflict states along liberal democratic lines, the extra-territorial application of human rights treaty obligations, and the decline of abstract conceptions of territorial sovereignty. This article argues that these claims are substantially overstated. The practice of Occupying Powers does not support the view that liberal democratic transformations are widespread. Human rights treaties have never been held to require states parties to legislate in the territories of other states. More importantly, the conservationist principle serves the critical function of limiting occupiers' unilateral appropriation of the subordinate state's legislative powers. Post-conflict transformation has indeed been a common feature of post-Cold War legal order, but it has been accomplished collectively, most often via Chapter VII of the UN Charter. To grant occupiers authority to reverse this trend by disclaiming any need for collective approval of ‘reforms’ in occupied states would be to validate an anachronistic unilateralism. It would run contrary to the multilateralization of all aspects of armed conflict, evident in areas well beyond post-conflict reconstruction.

Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy. By MARKO MILANOVIC.

Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy. By MARKO MILANOVIC.

Application of Human Rights Treaties Extraterritorially During Times of Armed Conflict and Military Occupation

The panel was convened at 10:45 a.m., Thursday, March 30, by its chair, Anthea Roberts of Debevoise & Plimpton LLP, who introduced the panelists: Orna Ben-Naftali of the College of Management Academic Studies, Rishon LeZion, Israel: Michael Dennis of the U.S. Department of State; Shaheed Fatima of Blackstone Chambers, London; and Robert McCorquodale of the University of Nottingham. INTRODUCTORY REMARKS BY ANTHEA ROBERTS ([dagger]) States are increasingly acting outside their borders, but do their human rights obligations follow them? This panel will consider whether human rights treaties apply extraterritorially and, if so, to what extent. Inherently controversial, this topic touches upon many debates currently in the news, including actions by the United States in Guantanamo, allied forces in Iraq, and Israel in the occupied territories. A live issue before many national, regional and international tribunals, this topic involves important normative questions about the universality of rights and the relationship between human rights and humanitarian law. It also requires analysis of the jurisdictional provisions of individual treaties to ascertain what states have consented to and the content of those treaties to determine which rights can meaningfully be applied extraterritorially. Seeking to examine this question from a variety of perspectives, this panel will begin with Shaheed Fatima of Blackstone Chambers, England, who will be discussing her work on the applicability of the European Convention on Human Rights (ECHR) and the UK Human Rights Act (HRA) to actions by British forces in Iraq. * As she is junior counsel in the AI Skeini case, she will lead us through the decision of the English Court of Appeal that the HRA and the ECHR applied to actions by British forces with respect to an individual in a British run prison in Iraq, but not to five other test cases where the United Kingdom lacked effective control over the area in which the incidents occurred. After hearing from an advocate who has represented applicants against governments, we will hear from Michael Dennis, who is an attorney-advisor for the U.S. State Department. In addition to working for the U.S. government on human rights issues, Michael has published articles in leading journals arguing that the International Covenants on Civil and Political Rights and Economic and Social Rights do not apply extraterritorially. His recent AJIL article on the Wall Opinion was cited by the Israeli Supreme Court. Michael will be discussing the text and negotiating history of the ICCPR to make the case against the extraterritorial application of that treaty. One of the recurring themes on this panel is whether international human rights and humanitarian law are or should be co-applied, or whether humanitarian law ousts human rights law completely or to some extent. Orna Ben-Naftali, who is a Professor of International Law at the College of Management, Academic Studies, Israel, will be addressing this topic with a particular focus on occupied territories. In her recent work, she has argued for the co-application of international human rights and humanitarian law (as the lex specialis) in occupied territories, to the extent that the occupying power exercises potential or actual effective control over the occupied territory. Orna nonetheless recognizes that there are some difficulties with this approach and seeks to outline them as an agenda for future work. Finally, we will hear from Robert McCorquodale who is a Professor and the Head of School at the University of Nottingham, and who is a leading writer on corporate liability under international law. Instead of looking directly at the issue of states acting outside their territorial boundary, Robert will focus on whether a state can be held responsible for human rights violations by corporations acting outside that state's territory. As many human rights treaties require states to not only respect but also ensure human rights, this is an important area of state responsibility often over-looked in the issue of the extraterritorial application of human rights. …

The Extraterritorial Application of Human Rights to Occupied Territories

Once upon a time, in that by-gone era known as modernity, we had some clarity: boys were boys; girls were girls; the private sphere was distinct from the public sphere; war was distinct from peace; wars were fought between states and against combatants, as distinct from civilians. Wars were regulated exclusively by the jus in bello. Well, that world is no more. We have gradually come to admit that in the DNA of the human condition, war and peace are the twining strands of the helix; that it is becoming ever harder to sustain those comforting distinctions. Accordingly, we have come to adjust our laws. Part of this adjustment involves the co-application of International Humanitarian Law (IHL) and Human Rights Law (IHR). A comprehensive discussion of this issue, involves three main points: (1) the justification for the co-application of both IHL and IHR in situations of armed-conflict in general, and of belligerent occupation in particular; (2) difficulties this co-application generates; and (3) development of modalities for co-application. Point 3 thus, moves from the question of whether both legal regimes apply (point 1) to the question of how to apply them, given the difficulties this co-application entails (point 2). Given time constraints, and particularly given the need to counter-argue the position presented by Michael Dennis, my discussion focuses only on points (1) and (2). Point 3 may well deserve a separate panel. Allow me to begin with the first point. IHR APPLIES EXTRATERRITORIALLY This application extends to situations of armed-conflict in general and to situations of occupation in particular: an occupying power, to the extent that it exercises potential or actual effective control over an occupied territory, bears responsibility for the HR of the inhabitants of the territory under both IHL--as the lex specialis--and IHR, which complements IHL either to fill gaps or for interpretation purposes. This is generally the case, and particularly so in cases of long-term occupations, as IHL, having envisaged a temporary--not a prolonged and certainly not an indefinite--occupation, is clearly insufficient. (1) This position rests on three interrelated grounds: (2) (a) the principle of the universality of IHR; (b) the interpretation of the term jurisdiction in HR treaties, an interpretation informed by the principle of universality, and which substitutes the test of effective control for the concept of territory; and (c) overwhelming practice and jurisprudence of diverse international and other bodies, including the Supreme Court of Israel (HCJ). I shall elaborate briefly on each point. The Principle of Universality There has been a paradigmatic shift in the drive of international law from focusing primarily on the interests of the sovereign state in its security to focusing on human rights of individuals and minorities. (3) This new focus is not a lofty vision of some utopian law professors tending to prefer fantasy to actual thought. Rather, it derives from post cold-war political realities which include a new understanding of security itself. It is none other than the US that takes the lead in arguing for the legality of humanitarian intervention, that is, for expanding the jus ad bellum rules to authorize the use of force in the light of human rights and humanitarian considerations: the latter, thus, have become an aspect of security and are no longer perceived as a distinct branch of law standing in dialectical opposition to the use of force. It does seem somewhat curious that force used with these considerations in mind should be exempt from the application of the very norms it is supposedly being exercised to protect. The principle of the universality of HR has infiltrated the hitherto distinct discourses not only of the jus ad bellum, but also of the jus in bello, appropriately re-named IHL: whereas traditionally IHL provided the rules governing the conduct of parties to an international conflict, today it has expanded to cover non-international armed conflicts, further blurring the distinction between war and peace. …