Discussion of a New Treatise on Extraterritorial Application of Human Rights Treaties – Opini

Do you remember your law school course on international human rights treaties? Neither do I. Most of us over 40 do not have such a memory because the course did not exist. But today some number of law students will learn about the treaties through courses and work. For the rest of us, there’s an apparently strong new treatise on the subject by Marko Milanovic.

In a post at Opinio Juris, Professor Milanovic provides some comments, including the following apt observation about the increasing prominence of human rights law:

"The book’s main focus is on case law, and most of the case-law that I examine is of fairly recent extraction. It appears that the problem of the extraterritorial application of human rights treaties has been growing progressively more acute in the past decade or so. It is indeed rather startling that such a fundamental issue regarding the scope of application of these treaties has not been definitively resolved much earlier during their life-span. One, almost trite response to this observation would be that in the age of globalization states are increasingly affecting the human rights of individuals outside their borders, and that this explains both the increase of litigated cases on extraterritorial application and the growing importance of the issue generally."

The treatise is being discussed at Opinio Juris for the next few days, as you can read below from a cut and paste of this post this morning:

Opinio Juris and EJIL: Talk! are happy to announce that over the next few days we will both be hosting a discussion of Marko Milanovic’s recently published book: Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford Univ Press). Marko’s book examines the question when a State owes human rights obligations under a treaty to persons located outside its territory. This is a question on which there has been conflicting case law and much confusion.

This [book] attempts to clear up some of this confusion, and expose its real roots. It examines the notion of state jurisdiction in human rights treaties, and places it within the framework of international law. It is not limited to an inquiry into the semantic, ordinary meaning of the jurisdiction clauses in human rights treaties, nor even to their construction into workable legal concepts and rules. Rather, the interpretation of these treaties cannot be complete without examining their object and purpose, and the various policy considerations which influence states in their behaviour, and courts in their decision-making. The book thus exposes the tension between universality and effectiveness, which is itself the cause of methodological and conceptual inconsistency in the case law. Finally, the work elaborates on the several possible models of the treaties’ extraterritorial application. It offers not only a critical analysis of the existing case law, but explains the various options that are before courts and states in addressing these issues, as well as their policy implications.

A very distinguished group of scholars, from both sides of the Atlantic, will offer their views on Marko’s book and on this vexed question of extraterritorial application of human rights obligations. On EJIL: Talk!, Yuval Shany (Hebrew University of Jerusalem), Vaughan Lowe (Oxford) and Irini Papanicolopulu (Milan-Bicoca and Oxford) will offer their views. On Opinio Juris, it will be Sarah Cleveland (Columbia), Kal Raustiala (UCLA) and OJ’s own Peggy McGuinness (St John’s). We are grateful to them for agreeing to participate in what I am sure will be a fascinating discussion.

The discussion will start with an introduction by Marko (on both blogs) of his book. Our commentators will weigh in with comments through the rest of this week. Marko will respond to their comments early next week. Readers are invited to join in the discussion.

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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