The extraterritorial application of human rights is a controversial feature of the modern international human rights framework. A key source of resistance to it is the foundational principle of State sovereignty and its anchorage in State territory. The topic of this book can therefore be seen to address more recent developments in the evolution of a traditional tension that persists between human rights and State sovereignty. Skogly's analysis addresses the conceptual origins of extraterritoriality, its foundations in public international law and its connections to international human rights law. The thesis is an ambitious one, argued from a contextual perspective, which advocates a broadened understanding of the concept of extraterritoriality, and criticizes the idea that national territory should circumscribe the scope of application of international human rights law. At the heart of Skogly's thesis is the principle of accountability, and State accountability in particular, which is grounded in the degree to which a State exercises control and authority over persons wherever they are located.
The book addresses extraterritoriality in international law from a variety of loosely related perspectives relevant to human rights. The political and historical context of extraterritoriality is discussed in chapter one, which highlights the concentration of power in a small number of States and an exponential increase in the influence of companies, especially multilateral enterprises. This context is contrasted with the traditional structures and processes of international human rights law which were developed at a time when States were the only recognized international actors. The premise that jurisdiction can be extraterritorial to the extent not prohibited by international law underpins the argument in chapter two which traces the concept of extraterritoriality through principles such as States' sovereign equality, State responsibility, subjective and objective obligations, and the notion of shared responsibility. The chapter includes a discussion of evolving conceptions of jurisdiction from traditional, territorially bounded interpretations of jurisdiction related to a State's application of domestic law, to more expansive understandings of jurisdiction, connected with the upholding of a State's human rights obligations, which it is argued, imply an extraterritorial dimension. While several persuasive lines of argument are advanced in support of the latter, the discussion might have benefited from a clearer explanation of the distinction between the law of jurisdiction as being about entitlement to act and the law of State responsibility about obligations incurred when a State does not act. The analysis concludes that, in a human rights context, jurisdiction should be understood as ‘a tightly knit web of protection from violations, where one state's protection ends where another state's begins.’
Extraterritorial human rights obligations are discussed in chapter three through the tripartite framework of respect, protect and fulfill. The analysis reveals a clearer applicability of extraterritoriality in respect of the obligations to respect and protect, which are seen as ‘more negative’, than with the obligation to fulfill, which could require States' extraterritorial activities to positively improve the human rights situation of individuals in other States. The discussion also highlights that both civil and political rights, and economic and social rights can imply obligations of both a positive and negative sort. Chapter four contains an analysis of the relevant sources of international human rights law, including provisions of the UN Charter and the Covenant on Economic, Social and Cultural Rights, with special emphasis placed on Article 2(1) of the ICESCR under which States undertake to take steps, individually and collectively, to the maximum of their available resources, with a view to achieving progressively the full realization of the rights recognized under the Covenant. Skogly argues that in the years since the Covenant came into force, the understanding of its obligations has become more sophisticated and that meaning of international cooperation and assistance has advanced substantially. Provisions of the ICCPR are subjected to a similar analysis, although the textual limitations of this Covenant are conceded; provisions on international cooperation in the Convention Against Torture and the Convention on the Rights of the Child are also analysed for their potential to support extraterritorial application of the instruments' provisions. Chapter five considers the application of customary international law and general principles of law, as well as the idea of jus cogens obligations, and includes an analysis of the Universal Declaration and its provisions considered to form part of customary international law.
The importance of soft law and the recognition of the principle of extraterritoriality in the work of UN treaty bodies and Charter-based bodies are considered in some depth in chapter six, with particular attention devoted to the 1986 Declaration on the Right to Development, and the Vienna Declaration and Program of Action. In chapter seven, the jurisprudence of the International Court of Justice, the European Court of Human rights and the Inter-American Court of Human Rights are scrutinized for the discernable approaches adopted by each to the subject of extraterritorial effect. This analysis reveals little consistency in the rulings of the various international bodies seised with adjudicating international human rights law on the subject of extraterritorial application of human rights treaties, although it also demonstrates their willingness to accept the extraterritorial application of human rights norms despite the territorial limitation of the text of certain instruments. Chapter eight examines the practical application of the analysis of extraterritorial obligations from the perspectives of preventing human rights violations and contributing positively to human rights enjoyment. The discussion covers trade, participation in intergovernmental organizations, security cooperation, military cooperation and occupation. It concludes with the following key insight: ‘taking into account the human rights effects of the activities of states needs to become a regular feature in any extraterritorial activity, and in cases of threats to individuals' enjoyment of all human rights, a review of the proposed activity needs to be undertaken.’ A central tenet of this book is that international legal obligation can be derived through the impacts or effects of State action or inaction, or through de facto control exercised, which is redolent of ‘sphere of influence’ analysis employed in the context of discussions on human rights obligations and transnational corporations.
Skogly's book is a timely contribution to a number of current debates in international human rights law. It recognizes the fact that effective human rights protection requires flexible approaches in international law, sometimes going beyond reciprocity or traditional territorial concepts of jurisdiction. It raises critical questions about the nature and definition of jurisdiction in international human rights law, challenging the idea that traditional understandings of it are adequately equipped to address the challenges of the modern global context in which it operates. As in other international law debates, the principle of extraterritoriality here raises the challenges of competing, mutually defining principles: non-discrimination, jus cogens and obligations erga omnes on the one hand, and principles of sovereignty and territorial jurisdiction on the other. The book embodies a prescriptive thesis which does not reflect the status quo of international law thinking, but which may well define it in years to come.
