Human Rights Unbound: A Theory of Extraterritoriality – book overview

by Lea Raible

Publishing a book on extraterritorial human rights obligations during a pandemic, is, shall we say, interesting in terms of timing. It is not something I ever imagined, and the manuscript was finalised a while before SARS-CoV-2 and COVID-19 – the illness it causes – made the news, let alone headlines. Now that they are here, impacting all of our lives, however, I want to do a little more than provide an overview of the book. Instead, I want to take the opportunity to think about what states’ responses to the public health emergency tell us about international human rights law, and what they might mean for the argument in Human Rights Unbound, which was developed with a rather different set of facts in mind. I will sketch my argument first, followed by some of the challenges posed by and responses to the pandemic, and how they reinforce or call into question what I think about extraterritoriality. I conclude with some thoughts on where we might go from here.

In Human Rights Unbound I develop a theory of extraterritorial human rights obligations. I argue that states owe human rights obligations to individuals abroad but that international human rights law – whether regarding civil and political rights or economic, social, and cultural rights – links these obligations to states having jurisdiction. Jurisdiction must be connected to the nature of human rights as a conceptual and normative necessity. This means that in order to understand it properly, we need to take a step back and ask what human rights are about; what they do.

My view, which I defend in chapter 2 of the book, is that human rights as we find them in international law are about guaranteeing the dignity (of which liberty forms part) and equality of persons. Guaranteeing, as opposed to recognising, these aspects of individual status requires significant power and resources and is tied intimately to the political realm. Because of this, I identify states as the primary bearer of human rights obligations. These traits of human rights also allow for the identification of the right holders. I argue that an individual has a human right against a state as soon as that state is in a position to guarantee their equality with a respect to a human activity protected by a human right. I call the ability to guarantee the equality of individuals political power (chapter 5). This is a high threshold to meet and as a condition is generally more stringent than other accounts of jurisdiction, particularly, but not only, in the area of economic and social rights (see here, here, and here, to give just a few examples).

The argument in Human Rights Unbound has two key characteristics. First, it presents a relatively narrow view of human rights and their function. For example, I spend some time distinguishing human rights and considerations of global distributive justice, arguing that not every issue of welfare, good governance, and justice can (or needs to be) thought of in terms of human rights. Second, my argument emphasises the importance of the state and public institutions for securing individual moral status as well as for providing a legal and political environment where this status is not routinely trampled upon.

How, then, does such a state-centric argument which identifies a high threshold for extraterritorial human rights obligations fare in the current circumstances? Might it not be undermined by the (to my mind) clear need for deep, and lasting, international cooperation regarding public health? Let us look at some of the measures taken in response to the emergence of SARS-CoV-2. Chief among them are travel restrictions and regional as well as national lockdowns. These are used to flatten the curve of infection in order to make sure health care systems remain in a position to treat serious cases of Covid-19. In other words, they are designed to save as many lives as possible. Some voices in the debate have framed these measures as a conflict of rights – between the right to freedom and security and the rights to life and health, for example, or have addressed human rights issues relating to the responses to the pandemic in domestic law (see here and here). Questions about extraterritorial human rights obligations could be raised as well. It would be fair to ask, for example, if measures taken in response to the pandemic may generate or violate extraterritorial human rights obligations. Or we could ask if there is a human rights obligation of less-affected states to support those states facing more serious outbreaks. And, finally, we might ask if any argument that emphasises the role of the state can succeed in the face of challenges that so clearly call for coordinated, and perhaps even global responses. I will take these questions in turn.

When it comes to evaluating measures, extraterritorial human rights obligations may well be of use. Travel restrictions are a good example. Imposing new checks and limitations on travel may well bring a state into a position of securing (or undermining) equal concern for individuals abroad. Imagine, for example, closing borders without making room for family or health considerations. Such closures are likely to generate political power over individuals that would qualify as jurisdiction. This does not yet mean that human rights obligations are violated, of course. It only means they may apply even to individuals abroad.

The answer to the second question, on assistance required by human rights law, as a matter of obligations owed to individuals abroad, would on my account be: no, international human rights do not require such assistance. This is not because I do not think such assistance might be a good idea. It may well be. But the considerations on who has to provide what and according to what criteria are not fruitfully answered by individual rights. For example, human rights do not generally provide criteria of priority. If several states are in need of assistance, how do we decide which one gets what? What we need here are criteria of priority, not absolute standards of treatment. This does not mean there are no answers. It just means human rights are not helpful in providing them.

Coordinating responses and what extraterritoriality has to say about this issue is another concern I raised. While some human rights instruments (notably articles 2 and 11 ICESCR and articles 23 and 28 CRC) require some cooperation of their contracting parties, I do not think human rights as standards or treatment and guarantees of equality, that is, in a strict sense, are helpful here. Rather, the relevant provisions signal something else. To my mind, they mean that international human rights law contains different kinds of obligations: those, which I call human rights, and provide a standard of treatment of individuals, and those, which may better be called obligations of global justice. These operate differently and need to be discharged according to criteria of priority, for example. This does not mean coordination is not a good idea, it just means that, once again and as I argue in Human Rights Unbound, human rights or possibly even international human rights law, are not the answer.

The final question concerns the role of the state. Can any argument about human rights – whether regarding extraterritoriality or not – still be successful if it relies as heavily on the role of public institutions as mine does? I think it can. In fact, if the pandemic has brought home anything at all it is just how indispensable states and their public institutions are. They may well make mistakes, apply questionable ethical standards, or violate human rights as they go. But they are, quite literally, the defence we have against societal collapse that still stands when much else (most prominently the market) has failed. This is as true for guaranteeing individual equality as required by international human rights law as it is for most other areas of life.

What do the answers to the questions raised tell us? I would emphasise two lessons. First, human rights, as important and valuable as they are, should never be regarded as our only legal or moral tool to further individual well-being. A public health emergency, such as the one we are living through illustrates this well: hard choices need to be made, many considerations are relevant, and one framework – no matter how fundamental – is unlikely to provide all the answers. Extraterritorial obligations do not change this. The second lesson is that we should value public institutions and the state precisely because of their political nature. This is not only because they are important for guaranteeing equality in a way we cannot in interpersonal relationships. It is also, and perhaps mostly, because they are what enables us to go on as the rules of entire areas of life are being torn up.