TY - JOUR
T1 - Taking universality seriously
T2 - A functional approach to extraterritoriality in international human rights law
AU - Shany, Yuval
PY - 2013
Y1 - 2013
N2 - 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.
AB - 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.
KW - Borders
KW - Extraterritorial
KW - Human rights
KW - International human rights law
KW - State power
KW - Universality
UR - http://www.scopus.com/inward/record.url?scp=84898867898&partnerID=8YFLogxK
U2 - 10.1515/lehr-2013-0004
DO - 10.1515/lehr-2013-0004
M3 - Article
AN - SCOPUS:84898867898
SN - 1938-2545
VL - 7
SP - 47
EP - 71
JO - Law and Ethics of Human Rights
JF - Law and Ethics of Human Rights
IS - 1
ER -