The Routledge Handbook on Extraterritorial Human Rights Obligations

Mark Gibney, Gamze Erdem Türkelli, Markus Krajewski, Wouter Vandenhole

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000466157
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Diritti umani

The Routledge Handbook on Extraterritorial Human Rights Obligations brings international scholarship on transnational human rights obligations into a comprehensive and wide-ranging volume.

Each chapter combines a thorough analysis of a particular issue area and provides a forward-looking perspective of how extraterritorial human rights obligations (ETOs) might come to be more fully recognized, outlining shortcomings but also best state practices. It builds insights gained from state practice to identify gaps in the literature and points to future avenues of inquiry. The Handbook is organized into seven thematic parts: conceptualization and theoretical foundations; enforcement; migration and refugee protection; financial assistance and sanctions; finance, investment and trade; peace and security; and environment. Chapters summarize the cutting edge of current knowledge on key topics as leading experts critically reflect on ETOs, and, where appropriate, engage with the Maastricht Principles to critically evaluate their value 10 years after their adoption.

The Routledge Handbook on Extraterritorial Human Rights Obligations is an authoritative and essential reference text for scholars and students of human rights and human rights law, and more broadly, of international law and international relations as well as to those working in international economic law, development studies, peace and conflict studies, environmental law and migration.

The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license

Part I Conceptualization and theoretical foundations

1The historical development of extraterritorial obligations

Mark Gibney

DOI: 10.4324/9781003090014-2

The year 2021 marks the ten-year anniversary of the signing of the Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social, and Cultural Rights (Maastricht ETO Principles), and this Handbook is testament to how the notion of extraterritorial human rights obligations has challenged and fundamentally changed our understanding of ‘human rights’. A simple way of framing these issues is this: while international law regulates the (horizontal) relationship between sovereign states, and international human rights law regulates the (vertical) relationship between a state and its own citizens – ETOs are concerned with the ‘diagonal’ relationship between a state and individuals living in other countries. Or to put this in even more basic terms: what human rights obligations (if any) do states have to individuals who are outside its territorial borders (Skogly and Gibney 2002)?

One other introductory remark relates to terminology. At one point, scholars employed a variety of terms to describe what was essentially the same phenomenon: transnational; third state; transborder; international; cross-border; global; and so on. However, the most commonly used term was ‘extraterritorial’ and that is the term that has gained general acceptance and is used here (Gibney 2013). Still, there are several problems with this term, most notably that ‘extraterritorial’ might seem to refer to human rights obligations that are separate and distinct – in a word, extra – from those a state is already bound by in its domestic sphere. Because this is a misnomer, the better term would be to simply refer to a state's ‘human rights obligations’, with the understanding that these obligations have both an international and domestic application. Unfortunately, international law has not yet progressed to this point. Thus, ‘extraterritorial’ is used to describe a state's legal responsibilities to individuals living in other lands.

This introductory chapter is divided into two sections. Following this brief introduction, Part I analyzes some of the perceived shortcomings in human rights protection that have ensued from a ‘territorial’ reading of international human rights law. Particular focus is given to two rulings of the International Court of Justice (ICJ) – Nicaragua v. United States (1986) and Bosnia v. Serbia (2007) – both of which involve a state providing massive levels of military and economic assistance to paramilitary forces located in another country that carried out gross and systematic human rights violations (ICJ 1986) or genocide (ICJ 2007), and the question was whether the state providing such assistance had thereby acted in violation of international law. In both cases, the Court ruled that the ‘assisting’ state had not. The landmark ruling of the European Court of Human Rights (ECtHR) in the Bankovic case presents yet another ‘territorial’ reading of international human rights law. Finally, although these cases involve war and the violation of civil and political rights (CPR), similar issues, with similar results, have also arisen in the context of economic, social, and cultural rights (ESCR).

One of the great ironies at work here is that international human rights law has been heralded for the manner in which it has pierced the shell of state sovereignty in that states can no longer hide their egregious practices from international scrutiny on the grounds that this constituted a ‘domestic’ matter. However, what repeatedly happens in the extraterritorial context is that one state uses the state sovereignty of another state as a way of avoiding any responsibility for its own actions.

Part II provides a brief overview of the growing acceptance of Extraterritorial Obligations (ETO) principles. One of the central roles in all this was the establishment of the Extraterritorial Obligations (ETO) Consortium in Heidelberg, Germany in 2007, an initiative led by Rolf Kunnemann of FIAN, which is where the ETO Secretariat has been placed ever since. Later that same year, the first global ETO conference was held in Geneva and since then Consortium membership has continued to expand not only in terms of size but also in terms of global coverage.

No doubt the crowning achievement of the ETO Consortium was the adoption of the Maastricht ETO Principles by a group of eminent international lawyers in 2011. There is only space in this chapter to provide a brief overview of these principles; however, it is important to emphasize at the outset that these constitute lex lata (law as it is) and are not lex ferenda (law as it should be). In short, for the signatories of the Maastricht ETO Principles, extraterritorial human rights obligations exist under present international law.

Still, there is little question that the ‘territorial’ approach continues to dominate the interpretation of international human rights law. For one thing, there is not a single state that has been willing to publicly acknowledge having extraterritorial human rights obligations. In addition, and making specific reference to the ICJ rulings mentioned above, there is a continued hesitancy to move away from a territorial interpretation of international law. Yet, international human rights law is changing, and given the growing recognition of the manner in which a state can have an enormous effect (both positive and negative) on human rights practices and protections in other countries, it is indeed noteworthy that ETO principles have come to be widely accepted by the U.N. treaty bodies and in other international law venues as well (Wilde 2013).

Territory and human rights

Although human rights are declared to be “universal”, until fairly recently it was commonly accepted that a state's human rights obligations extended no further than its own territorial borders. There are at least two reasons for this. The first involves the international law principle that while a state can always lawfully act within its own territory, it must have permission to act in another state, otherwise it will be violating this other state's sovereignty.

The second reason comes from international human rights law itself. Although there are slight variations in terminology, human rights treaties oftentimes make reference to a state's ‘territory’ or to its exercise of ‘jurisdiction’ (or both) as a way of limiting the nature and scope of state's obligations. For example, Article 2 (1) of the International Covenant on Civil and Political Rights (ICCPR) provides: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…’. Article 2 (1) of the Torture Convention employs similar language: ‘Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction’. The final example comes from Article 1 of the European Convention on Human Rights, which references ‘jurisdiction’ but makes no mention of ‘territory’. ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in … this Convention’.

What has evolved is a sharp divide between states, on the one hand, and various U.N. institutions. Seemingly without exception, states continue to act as if their human rights obligations are confined to their own domestic borders. In contrast to this, the U.N. treaty bodies and a number of Special Rapporteurs have interpreted international human rights law more broadly. For example, notwithstanding the restrictive language quoted above, both the ICCPR and the Torture Convention have been given an extraterritorial reading by the treaty bodies that monitor their implementation.

The Human Rights Committee (HRC) in its General Comment 31 (2004) on the scope of the ICCPR:

States Parties are required … to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.

Similarly, in its ruling in Lopez v. Uruguay (HRC 1981), the HRC unanimously rejected the position put forth by Uruguay that its treaty obligations did not apply to its actions in another state (Argentina), instead holding that the key was the ‘relationship between the individual and the State in relation to a violation of any of the rights set forth in the Covenant, wherever they occurred’. Employing even stronger language, in an individual opinion, Christian Tomuschat noted that Uruguay's territorial interpretation of the ICCPR would naturally lead to ‘utterly absurd results’. Going even further, Tomuschat argues:

Never was it envisaged … to grant States parties unfettered discretionary power to carry out willful and deliberate attacks against the freedom and personal integrity against their citizens abroad. Consequently, despite the wording of article 2 (1), the events which took place outside Uruguay come within the purview of the Covenant.

The Committee Against Torture (CAT) has taken a similar position, most notably in its General Comment 2:

Article 2 (1) requires that each State party shall take effective measures to prevent acts of torture not only in its sovereign territory but also ‘in any territory under its jurisdiction’. The Committee has recognized that ‘any territory’ includes all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law.

This same difference in interpretation also has arisen with respect to the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well. Article 2 (1) of ICESCR provides:

Each state Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Note that neither ‘territory’ nor ‘jurisdiction’ are referenced in the treaty itself (the Optional Protocol does refer to ‘jurisdiction’) and the states parties are also obligated under the Convention to engage in ‘international assistance and cooperation’ (Skogly 2006). In addition, the Committee on Economic, Social, and Cultural Rights has repeatedly affirmed that the Convention has an extraterritorial application (Wilde 2013).

Still, states continue to resist acknowledging ETOs of any kind. One of the most revealing examples of this was the country study of Sweden conducted by the former Special Rapporteur on the Right to Health (Paul Hunt). It is well known that Sweden has long been one of the most generous countries in the world in terms of the amount of foreign assistance it provides. However, when government officials were asked whether, as a state party to the ICESCR, there was a legal obligation to provide such aid, Swedish government officials demurred. In his report, Hunt soundly rejects such a position:

If there is no legal obligation underpinning the human rights responsibility of international assistance and cooperation, inescapably all international assistance and cooperation is based fundamentally upon charity. While such a position might have been tenable 100 years ago, it is unacceptable in the twenty-first century.

(Hunt 2007, p. 28)

As a final word on this, it is by no means clear that Hunt's scathing criticism brought about any change in state policy or practices – either in Sweden or in any other country. Instead, ‘territory’ has become the default position even for a treaty where there is no mention of this.

Security issues

When human rights scholars began to question the primacy of “territory”, it was generally on the basis of the kinds of inconsistent results this so often led to. As an example, one of the most widely recognized principles in international law is nonrefoulement: a state has an obligation not to send an individual (usually a foreign national who has arrived at its borders seeking refugee protection) back to a country where this person's life or freedom would be threatened. Yet, while there is strong adherence to this principle (at least in theory), at the same time international law seems to allow states to pursue policies that can have devastating consequences for those living in other states. One such example has been the ability to sell massive amounts of military equipment to countries that then use these weapons against civilian populations.

The ostensible difference between these two scenarios is that, in the first case, the foreign national is at some point on this other state's territory. This, among other things, helps explain how and why states are now making such efforts to prevent refugees from being able to reach their national borders in the first place (Gammeltoft-Hansen; Gombeer and Smis, this volume). In the scenario involving arms sales, no territorial link is present. Based on this distinction, in the first case the state has a legal obligation to provide human rights protection, while in the second case, at least under a territorial interpretation of international human rights law, the sending state has no obligations outside its borders. One question is whether the Arms Trade Treaty (ATT), which went into effect in December 2014, will significantly change this (Aksenova, this volume). The same issue arises with respect to the Responsibility to Protect (R2P) initiative, which places a duty on the international community to intervene in countries experiencing gross and systematic human rights violations (Gibney 2011). Still, the ‘territorial’ interpretation of international human rights law remains dominant.

This is not to suggest that states are able to act outside their own national borders with impunity. The clearest cases arise when a state acts directly in another state, as was the case in the ICJ's rulings in the Namibia Advisory Opinion (ICJ 1970), the Wall Advisory Opinion (ICJ 2004), and DRC v. Uganda (ICJ 2005) (Wilde 2013). The Court took a similar position in Nicaragua v. United States (ICJ 1986) when it ruled that the United States had acted in violation of international law when U.S. agents acted directly against the ruling government in that country, including mining Nicarag...

Table of contents

• Cover Page
• Half-Title Page
• Endorsements Page
• Title Page
• Copyright Page
• Contents
• List of contributors
• Preface
• Introduction
• PART I Conceptualization and theoretical foundations
• PART II Enforcement
• PART III Migration and refugee protection
• PART IV Financial assistance and sanctions
• PART V Finance, investment and trade
• PART VI Peace and security
• PART VII Environment
• PART VIII Conclusion
• Index