Human Rights Abroad: When Do Human Rights Treaty Obligations Apply Extraterritorially?

Abstract

The second half of the twentieth century saw an explosion of human rights law. Before World War II, there were almost no significant multilateral human rights agreements. In the years following the war, sixteen multilateral agreements were concluded through the United Nations alone. These twentieth-century agreements were distinctive from mostinternational law that came before them in that they placed the international community between a sovereign state and its own citizens. No longer couldstates act within their own borders with absolute impunity. Yet even before the ink was dry on these post-war agreements, a question emerged thatremains a subject of intense debate today: What limits, if any, do human rights agreements place on the behavior of states outside their own territory? In this Article, we begin to answer that question. We do so by examining developments in the extraterritorial application of human rights treaties in foreign jurisdictions and international tribunals across the globe. Building upon earlier scholarship, we review the recent developments in the jurisprudence of the Supreme Court and Federal Court of Appeal ofCanada, the Supreme Court of the United Kingdom, the European Court of Human Rights, the Inter-American Commission on Human Rights, the International Court of Justice, the Committee Against Torture, and the Human Rights Committee of the International Covenant on Civil and Political Rights. Our goal in this cross-national examination is to discover whether these courts have developed a coherent standard or approach from which the United States might learn.