Extraterritorial Application of Human Rights Treaties

by

Joana Abrisketa, María Nagore Casas

• LAST REVIEWED: 28 April 2016
• LAST MODIFIED: 28 April 2016
• DOI: 10.1093/obo/9780199796953-0136

Introduction

The conduct of states may affect the human rights of individuals located outside their national territories. This phenomenon is attracting the growing attention of the international community due to certain factors such as the rise of military interventions of states, economic globalization, and the externalization of border controls. This article will address the issue of whether states have to observe the human rights treaties to which they are party when acting abroad. The majority of human rights treaties contain the so-called jurisdiction clause, which aims to identify the range of persons to whom states owe their human rights obligations under the treaty. However, the meaning of the word “jurisdiction” under human rights law is by no means a resolved issue. No two jurisdiction clauses contain the same wording and the criteria developed by the supervisory bodies are extremely casuistic and variable. Neither have states maintained a common position and some of them are expressly contrary to the extraterritorial scope of their human rights obligations. The tension between values such as the universality of human rights and the need to ensure a realistic approach to human rights obligations, which a state could assume beyond its borders, is behind this question. From a methodological perspective, human rights treaties are international treaties with a “special character,” as stated by the European Court of Human Rights (ECtHR) in Loizidou v. Turkey (preliminary objections and merits, paragraph 43). Therefore, the Vienna Convention on the Law of Treaties is applicable to them. In particular, Article 29 establishes that “a treaty is binding upon each party in respect of its entire territory” unless a “different intention appears from the treaty or is otherwise established.” Therefore, a treaty could be applicable outside the borders of the state stricto sensu. Thus, the question to be analyzed is how this rule established in the Vienna Convention is related to the “jurisdiction clauses” contained in human rights treaties. The first sections of this article explore two conceptual problems: the meaning of jurisdiction under the human rights treaties and the role of this concept in the determination of the responsibility of states for extraterritorial violations of human rights. Then, how extraterritoriality is conceived within the main human rights systems is examined. After this analysis, the article addresses the question of the interactions between human rights law and international humanitarian law (IHL), which has also been frequently raised by scholars as many of the extraterritorial activities of states are conducted in the context of armed conflicts. Finally, the article looks at the state practices related to the establishment of external border controls at sea. A major role is given to analysis of the case law of the relevant courts and supervisory bodies whose role in developing the territorial scope of human rights, in particular the concept of jurisdiction, is crucial.

Monographs

Most of the monographs dealing with the extraterritorial reach of human rights are very recent, which reflects the fact that development of the issue in international human rights law is ongoing. The majority of studies focus on the territorial scope of civil and political rights. Arguably, they do so because the jurisdictional clauses contained in these treaties raise important legal questions and there is much more case law on the territorial scope of the treaties dealing with these rights (in contrast, there is no jurisdictional clause in the main treaty dealing with economic, social, and cultural (ESC) rights, namely the International Covenant on Economic, Social and Cultural Rights [ICESCR]). With regard to the scope of the study, works differ on their approach to the subject of analysis. Coomans and Kamminga 2004 covers the relevant contributions of regional and international monitoring bodies. Da Costa 2013 makes a critical analysis of the interpretation of treaty provisions by monitoring bodies and state parties, and Gondek 2009 argues for a flexible approach to extraterritorial application of human rights treaties. Milanovic 2011 explains in a clear way the various options that are available to courts and states in addressing the issue, as well as their policy implications. Other works, such as Gibney and Skogly 2010 and Skogly 2006, place emphasis on the obligations of states toward individuals located in the territory of another state. These latter studies follow the tripartite classification of obligations to respect, protect, and fulfill and their scope is broader in covering also considerations of customary international law. Finally, a common feature of these works, which can also be applied to any work addressing the extraterritoriality of human rights, is that the legal analysis is strongly based on the decisions of the relevant human rights monitoring bodies and courts. This is indicative of the way in which this aspect of human rights law is developing: as no legal definitions of the main concepts involved exist, most especially the notion of “jurisdiction,” the development of this area of international law depends heavily on the criteria adopted by jurisprudence.

• Coomans, Fons, and Menno T. Kamminga, eds. Extraterritorial Application of Human Rights Treaties. Antwerp, Belgium: Intersentia, 2004.

  Edited collection of essays written by scholars and human rights practitioners. This is one of the first collected works to have raised the main legal questions involved in the extraterritorial application of human rights treaties. In addition, the book examines extraterritoriality in the main human rights instruments, including the instruments of the inter-American system, which are underexamined by scholars.

• Da Costa, Karen. The Extraterritorial Application of Selected Human Rights Treaties. Leiden, The Netherlands: Martinus Nijhoff, 2013.

  The book focuses on the extraterritorial application of three human rights treaties: the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and the Convention against Torture; includes an in-depth analysis of their preparatory works and the decisions of courts and monitoring bodies tasked with their interpretation and application.

• Gibney, Mark, and Sigrun I. Skogly, eds. Universal Human Rights and Extraterritorial Obligations. Philadelphia: University of Pennsylvania Press, 2010.

  Through the analysis of specific human rights (i.e., the rights to life, health, food, housing, water) and some cross-cutting issues (environmental law and refugee law) this book explores the theoretical foundations for the assertion of extraterritorial human rights obligations of states as well as how foreign policy decisions can affect the human rights of individuals in third countries and how states could become more accountable for the negative effects of those policies.

• Gondek, Michal. The Reach of Human Rights in a Globalizing World: Extraterritorial Application of Human Rights Treaties. Antwerp, Belgium: Intersentia, 2009.

  A comprehensive analysis with a chronological focus on the case law concerning the interpretation of the territorial scope of the main human rights treaties, although state practice is also examined. Extraterritorial application of treaties on economic, social, and cultural rights is given a separate and prominent treatment as one of the main controversial challenges of the subject.

• Langford, Malcom, Wouter Vandenhole, Martin Scheinin, and Willem van Genugten, eds. Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law. Cambridge, UK: Cambridge University Press, 2013.

  Excellent book assembling contributions by many of the leading experts on the issue of extraterritoriality and human rights. It addresses the main concerns in five building blocks: obligation, jurisdiction, causation, attribution of responsibility, and remedies and accountability. Though focused on the underexamined economic, social, and cultural rights, it also refers to the main jurisprudence in civil and political rights.

• Milanovic, Marko. Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy. Oxford: Oxford University Press, 2011.

  DOI: 10.1093/acprof:oso/9780199696208.001.0001

  An essential reading to understand the conceptual challenges and the main legal and policy issues that lie behind this topic. Focused mainly on the extraterritorial application of treaties on civil and political rights, especially the European Convention on Human Rights. The author defends a territorial notion of jurisdiction tantamount to de facto effective overall control of areas and places that would be applicable to the state’s positive obligations to secure or ensure human rights.

• Skogly, Sigrun I. Beyond National Borders: States’ Human Rights Obligations in International Cooperation. Antwerp, Belgium: Intersentia, 2006.

  This is a comprehensive study of the extraterritorial obligations of states with respect to individuals located in third countries. The author postulates a different approach to the universality of human rights in the sense that universality refers not only to the enjoyment of human rights by all human beings, but also to the universal obligations of the state.