It is by now uncontroversial that states may owe human rights obligations to individuals outside their territory. The debate about extraterritoriality has, so far, focused on the concept and interpretation of jurisdiction. The role of territory in general, and title in particular, in the conceptual landscape has received less attention in comparison. This article aims to fill this gap by showing that (a) title to territory continues to shape interpretations of jurisdiction, and (b) that this should be avoided. To this end, the article first defines jurisdiction in international human rights law and title to territory. Jurisdiction is best understood as a threshold criterion that triggers human rights obligations of states towards particular individuals. Title to territory, on the other hand, is a set of claims to territory designed to uphold minimal stability. The article then introduces three models – the approximation model, the differentiation model, and the separation model – of the relationship between title to territory and jurisdiction in international human rights law and evaluates them in light of their fit with the relational nature of human rights. The result is that the approximation and differentiation models – that is, those that maintain title's influence on the interpretation of jurisdiction in various degrees – fail the success criterion, while the separation model satisfies it.
In Human Rights Watch v Secretary of State for the Foreign andCommonwealth Office the UK Investigatory Powers Tribunal found that the relevant standard of 'victim status' that applies in secret surveillance cases consists in a potential risk to be subjected to surveillance and that the European Convention on Human Rights does not apply to the surveillance of individuals who reside outside of the UK. This note argues that the Tribunal's finding regarding the victim status of the applicants was sound but that the underlying reasoning was not. The note further concludes that the Tribunal's finding on extraterritoriality is unsatisfactory and that its engagement with the European Court of Human Rights case law on the matter lacked depth. Finally, the note considers the defects of Human Rights Watch and the case law on extraterritoriality more generally against the backdrop of the place of principled reasoning in human rights adjudication.
This book develops a theory of extraterritorial human rights obligations in international law. It links debates on human rights theory with those relating to extraterritoriality and merges accounts of economic social and cultural rights with those of civil and political rights. It advances four main arguments aimed at changing the way we think about extraterritoriality of human rights. First, it is argued that the questions regarding extraterritoriality are really about justifying the allocation of human rights obligations to specific states. Second, the book shows that human rights as found in international human rights treaties are underpinned by the values of integrity and equality. Third, it is argued that these same values justify the allocation of human rights obligations towards specific individuals to public institutions—including states—that hold political power over said individuals. And fourth, the book argues that title to territory is best captured by the value of stability, as opposed to integrity and equality. If these arguments are successful, their consequence is a major shift in how we view extraterritorial human rights obligations. Namely, the upshot is that all standards in international human rights treaties that count as human rights require that a threshold of jurisdiction, understood as political power, is met. However, on the present account, this threshold is not just a conceptual necessity but a normative one as well. It is needed because it not only describes, but also justifies the allocation of obligations.
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