Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law

Abstract

International human rights law (IHRL) has struggled to define a standard for determining the extraterritorial applicability of its norms that would reconcile the ethos of universal entitlement, on the one hand, with the centrality of borders in delineating state powers and responsibilities under international law, on the other hand. The case law of the UN Human Rights Committee and the European Court of Human Rights (ECtHR) favors barring states from engaging in conduct outside their borders that would be impermissible if undertaken inside their borders. Still, attempts to demarcate the precise scope of extraterritorial application through allusion to degrees of control over individuals or areas, or by the nature of the obligation itself – have led to unsatisfactory, if not arbitrary results. This article opines a move to functionalism as the basis for extraterritorial applicability – requiring states to protect IHRL in situations they can do so. Under this approach, which takes universality seriously, borders lose much their normative significance. I suggest limiting the functional approach to extraterritorial applicability in accordance with two key notions: (1) the intensity of power relations – factual relations of power entailing direct, significant and foreseeable potential impact – should result in the application of IHRL obligations; or, alternatively, (2) special legal relations – relations of power that put the state in a unique legal position to afford IHRL protection would also justify the imposition of extraterritorial obligations.