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

 Posted by: Have Nienke van der

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.

Who’s responsible for protecting terrorist suspects?

 Posted by: Heijer Maarten den

In its recent judgment in Othman, the European Court of Human Rights held that the United Kingdom could not expel a Muslim cleric suspected of ties to Al-Qaeda to Jordan. The judgment is of interest for our SHARES project, as the Court on the one hand cautions against international cooperation in the sphere of extradition of terrorist suspects – stressing the responsibilities under human rights law of expelling States – but on the other hand urges States that definitely wish to expel or extradite to do so only in close cooperation with receiving States so as to protect against maltreatment and to ensure a fair trial.

Othman, who had been allowed to reside in the UK as refugee in 1993 and was detained there in 2002 under the Anti-terrorism, Crime and Security Act which was introduced two months after 9/11, is facing charges of terrorist conspiracies in Jordan. The European Court found that there was a real risk that evidence obtained by torture would be used against Othman during his trial in Jordan. The judgment, together with other recent pronouncements of the European human rights court, constitutes important guidance for those countries struggling with the twofold objective of bringing to trial and permanently relocating terrorist suspects, while at the same time guaranteeing their human rights. On this very issue, also see André’s post on the UK Court of Appeals decision in Yunus Ramhmatullah v Secretary of State for Foreign and Commonwealth Affairs et ano.

Although the judgment was not well received in the United Kingdom (see here and here) and Prime Minister Cameron publicly voiced his disappointment over it only days after it was published in a speech before the Council of Europe – in support of his argument that the European Court is in dire need of reform – the judgment is on closer inspection also receptive to on-going efforts of Western countries to extradite or expel terrorists. Indeed, Amnesty’s Julia Hall describes the judgment as ‘an alarming setback for human rights’, in view of the Court’s holding under Article 3 of the Convention that the diplomatic assurances negotiated between the Jordanian and UK governments effectively removed the risk that Othman would be tortured or otherwise ill-treated in Jordan.

Thus, notwithstanding the Court’s strong stance on the admissibility of evidence obtained by torture, the judgment may open a path for Western countries facing the problem of not being able to remove terrorist suspects due to human rights concerns, to try to alleviate these concerns by procuring diplomatic assurances and cooperate in post-expulsion monitoring. That the European Court sees diplomatic assurances as a viable option in this respect is also confirmed in last week’s judgment in M.S. v Belgium (French only) where the Court found that the expulsion from Belgium to Iraq of a Al-Qaeda suspect would violate Article 3 of the European Convention but adding, notably, that the Belgian authorities should have obtained a series of safeguards from the Iraqi authorities with a view to ensuring his safety in Iraq. Although the Court has in the past shown reluctance to accord weight to diplomatic assurances from countries which systematically violate human rights (see for example the judgment in Saadi v Italy, the Court is now signalling that even in respect of such countries, it may be worthwhile to consider the procurement of diplomatic guarantees and the setting up of monitoring mechanisms with and in the receiving country.

The M.S. v Belgium case also underscores that it may well be that, in some cases, diplomatic assurances will be the only realistic option for States who want to remove terrorist suspects – since these persons are not particularly welcome in third countries. Like the U.S. government in respect of the Guantanamo Bay detainees, Belgium had sought resettlement possibilities in a whole range of countries (the judgment mentions Venezuela, Burundi, Vietnam, Burkina Faso and Costa Rica) – but all apparently refused. Absent any resettlement possibilities, it will be the ‘joint responsibility’ of the country of origin and the country of residence to find a solution which is satisfying to all parties.

One positive offspring of this development is that Western countries have a clear interest in contributing to improving the quality of justice systems in receiving countries. One example of a country where international efforts in this respect appear to bear fruit is Rwanda. The International Criminal Tribunal for Rwanda in 2011 in the case of Uwinkindi considered the justice system in Rwanda sufficiently improved so that it for the first time allowed for a case to be transferred to the Rwanda prosecutor. This reasoning was some months later confirmed by the European Court in the case of Ahorugeze v Sweden. In both cases, mention was not only made of successful international efforts to improve the quality of the Rwandese judiciary and detention conditions, but the Courts also referred to diplomatic guarantees as a means to ensure international standards are met. In respect of Kenya, international efforts are also underway to ensure the fair prosecution of piracy suspects. However, as we reported, a German court found the current agreements in place between the EU and Kenya to insufficiently remove the risk of ill-treatment.

The Responsibility to Protect Temporarily Stranded in Syria

 Posted by: Have Nienke van der

On 14 October , High Commissioner for Human Rights Navi Pillay publicly stated that the ‘onus to take protective action’ for the benefit of the Syrian people now lies with the international community. This reference to the international community is a moderate formulation of what seem to be forceful intentions. In concrete terms, the statement can be seen as a call for action by the international community of states under a mandate of the United Nations Security Council (UNSC) based on the responsibility to protect (R2P). Pillay describes the continuing reports of assaults on and killings of civilians by the Syrian government as strong evidence that crimes against humanity are taking place. This is one of the four categories of violations for which operationalization of the R2P is warranted.

The R2P is not yet fully considered to be lex lata. Introduced by the ICISS in 2001, it has been a vehicle for the gradual acceptance of intervention in grave humanitarian crises. Where the notion of humanitarian intervention always remained controversial, the novelty of rephrasing sovereignty to responsibility and adding the focus on prevention and rebuilding seemed to slowly bend the will of the international community of states in favor of concerted action. In 2005, after numerous reports and debates on its shape and content, the concept was accepted in non-binding form in the World Summit Outcome Document. In 2007, pressure by the international community and a mediation process under the skilled leadership of former Secretary-General Kofi Annan helped halt post-election violence in Kenya. Despite it only being labeled as an R2P situation in retrospect, it is still widely seen as a model for implementation of the norm in practice.

Recently, supporters of the R2P have eagerly acclaimed the intervention in Libya as a new sign of the norm’s progressive acceptance. From the start, commentators referred to the crack-down in Libya as a clear-cut case fitting the model of the R2P. However, the precedent set in Libya has become a rather questionable point of reference now that the next crisis calling for operationalization of the R2P is discounted based on a political deadlock in the UNSC. Is this indecision perhaps proof of the fact that the R2P is merely a legal concept justifying politically motivated executive action which would be undertaken regardless?[1] Or is there hope that former Secretary-General Dag Hammarsjköl’s vision of neutral and impartial executive action by the UN will one day be realized? In any case, the hypocrisy of the current situation can hardly be ignored. The UNSC will not easily discard its stigma of acting arbitrarily and being driven by neocolonialism.

It seems that the only manner in which the much needed neutral basis for operationalization of the R2P could be strengthened is reforming the decision making process. A multitude of ideas to this effect, have already been forwarded, one more feasible than the other. An example is imposing an obligation to give reasons for a veto on the permanent members of the UNSC and the possibility of overriding a veto in certain cases.[2] Erecting an independent advisory body to determine when measures based on the R2P should be taken could also be of great added value. However, such drastic acts of reform are unlikely to take place without being inspired by a new grand twist in the history of mankind. It looks like it might take a crisis beyond Syria to bring the R2P back into fashion.

[1]    Orford, Anne, International Authority and the Responsibility to Protect (Cambridge UP, 2011).

[2]    Peters, Anne, ‘The Responsibility to Protect and the Permanent Five – The Obligation to give reasons for a veto’ in Nollkaemper, André and Julia Hoffman (eds), The Responsibility to Protect (awaiting publication, 2011).

Business, Human Rights and Shared Responsibility

 Posted by: Jacobs Dov

On the 21 March 2011, after six years of research, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations issued its final report which includes its guiding principles on Business and Human Rights. The general idea of the guidelines is to guarantee the implementation of the UN “Protect, Respect and Remedy” Framework. In this sense, the guidelines are a combination of references to “hard rules” and recommendations to improve prevention of violations of human rights.

A few brief points of interest, both in general and in relation to Shared Responsibility.

First of all, this is another striking confirmation of the trend towards the horizontalisation of human rights. Not only do States have Human Rights obligations, but so do business enterprises (see guideline 11). The idea that private entities can violate “human rights” has certainly entered the public domain, but its conceptual consequences are often ignored. What does it say of the nature of human rights? What does it mean for other branches of law, such as tort law or criminal law?

Second of all, it is interesting to see that, contrary to the trend in many human rights institutions towards the ‘criminal law’-oriented approach to punishing human rights violations, the guidelines provide for a wide range of possible remedies, which they call ‘grievance mechanisms’, and don’t particularly insist on criminal investigations and sanctions. It would be interesting to know if this can be an important UN contribution to this debate, or is just circumscribed to the area of the guidelines.

Third of all, the guidelines require that States promote human rights in the multilateral institutions they are members of (guideline 10). This is certainly interesting from the point of view of the unity/fragmentation debate, and more specifically in relation to the debate that exists in most specific regimes of international law about the articulation with HR law.

Finally, this could be a perfect case study for Shared Responsibility in International Law. For one, the guidelines clearly indicate that States should minimise human rights violations by businesses in other countries, thus going beyond the traditional jurisdictional criteria for HR obligations. This necessarily leads to questions of joint responsibility between various States (the State where the violations occured, and the State of ‘origin’ of the business). Second of all, in the relation between the States and the Businesses, there is no clear indication of the distribution of responsibility should any human rights violations occur. Finally, the guidelines, if they were to evolve as ‘solid’ obligations, could more particularly have far-reaching consequences in conflict situations. Indeed, the guidelines require that States support business respect for Human Rights in conflict-affected areas (guideline 7), and consider that businesses should “treat the risk of causing or contributing to human rights abuses as a legal compliance issue wherever they operate” (guideline 23, my emphasis). This is a strong obligation based on risk and could possibly cover any business with any government in the world that might have a poor track-record in human rights, more particularly in relation to graves breaches of international criminal law.

In a nutshell, if you combine this with the extra-territorial jurisdiction mentioned above and the traditional debate about ‘complicity’ of States and businesses in war-torn countries, you have an elaborate web of possibly responsible entities, with no clear indication as to how exactly to distribute responsibility among them. In this sense, and if only for that, the guidelines should be welcomed as yet another testimony to the utility of SHARES…