12 September 2012

‘Extraterritorial Application of Human Rights Treaties and Shared Responsibility’, A Comment on Marko Milanovic’ SHARES Lecture

At his SHARES lecture at the ACIL on 6 September, Marko Milanovic discussed the relevance of his theory on the extraterritorial applicability of human rights treaties for questions of shared responsibility.

Milanovic’ 2011 book on the extraterritorial applicability of human rights treaties commences with a successful attempt at clarifying some of the misconceptions surrounding the term ‘jurisdiction’. He explains in clear fashion that the term ‘jurisdiction’ in human rights clauses does not refer to jurisdiction of a court or prescriptive jurisdiction of a state. By explaining the different meanings of the term, he provides a useful framework for further analysis and discussion of the matter of extraterritorial applicability of human rights treaties.

Milanovic construes jurisdiction, in the way the term is used in human rights treaties, as a factual form of control which is a necessary threshold for a state to incur certain human rights obligations. This form of control may exist on the basis of three models: the spatial and personal models, which can be derived from the case law of the European Court of Human Rights, and Milanovic’ mixed model, which he forwards as a basis for a more principled approach.

In the mixed model, Milanovic distinguishes between obligations to respect, which he also defines by and large as negative obligations, and obligations to secure or ensure human rights (also from acts of third parties), which he defines by and large as positive obligations. He submits that obligations to respect or negative obligations are not limited territorially and apply whenever and wherever states act extraterritorially. Obligations to secure/ensure or positive obligations are however limited to those areas or places under a state’s effective overall control.

This model, Milanovic explains, is based on a balance struck between the often conflicting demands of universality and effectiveness. Universality, which is the ideological basis for the framework of human rights law, basically prescribes universal respect for and observance of human rights. There is a tension between the pull of universality and concerns of effectiveness, effectiveness meaning the control over a territory or place that allows a state to realistically be able to secure human rights.

The implications of this approach are wider than merely striking a balance between policy considerations. Two points in particular can be noted. The first is that Milanovic argues that obligations to prevent violations by third parties are positive and should only apply when a state has effective overall control. This means that application of Milanovic’ mixed model would not be in line with the Bosnian Genocide case, a judgment delivered by the ICJ in 2007. It also may not leave sufficient room to accommodate the notion of a responsibility to protect, which is perhaps not accepted as positive international law, but does support the idea that states can have obligations to prevent or protect people from human rights violations by third parties outside their jurisdiction.

Milanovic’ model is based on the benchmark of realistic compliance. Following this logic, it is unclear why lesser forms of control than effective overall control could not mean that states have certain positive obligations to prevent or protect outside their jurisdiction. I suggest that other types of distinctions, for instance between obligations to respect, protect and fulfil, might also serve as the basis for a mixed model. In this example, obligations to respect would be territorially unbound and obligations to fulfil would apply when a state has effective overall control. The obligation to protect, seen as an obligation to protect people against harm by third parties, would be a middle category which is lacking in Milanovic’ mixed model. Instead of jurisdiction based on effective overall control, such obligations could be based on the requirement that a state has the capacity to effectively influence the situation. This latter criterion of factual control was introduced by the ICJ in the Bosnian Genocide case, as a threshold criterion to determine whether Serbia was at all obligated to prevent the genocide in Bosnia.

A second comment concerns the implications of extraterritorial applicability of human rights treaties for shared responsibility. Milanovic concludes that effective overall control does not need to be exclusive. In his book, he gives several examples in which multiple states may simultaneously have effective overall control over one territory or place. Relating back to the previous comment, the criterion of a capacity to effectively influence offers an even broader basis for shared responsibility. The implication is that two or more states can exercise such forms of control and, presumably, could incur responsibility in case of wrongdoing. This leads to the question how responsible states should deal with these types of situations. Does it mean that states have joint obligations and should they perhaps cooperate to ensure human rights? Or, in non-hostile situations, should they make arrangements for which state will secure the rights of people in a territory over which multiple states exercise relevant forms of control? These points are not addressed in Milanovic´ book, but the discussion at the lecture demonstrated that there is much reason to develop them in further research.

Several other good points were made during the discussion that followed. One important point of critique was that the mixed model contains a circular aspect, by first stating that the matter of jurisdiction should be dealt with as a preliminary question, but at the same time making the relevance of this preliminary question dependent on a distinction between positive and negative obligations, which already requires some form of substantive assessment of the rights and obligations at issue. This touches directly on the question in what situations human rights are to be applied extraterritorially, and in what situations shared responsibility may be triggered. All in all, the lively debate begged to show that Marko Milanovic’ insightful lecture and book offered a great deal of food for thought for taking further the discussion of the relationship between extraterritorial application of human rights treaties and shared responsiblity.

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