Extraterritorial, Universal, or Transnational Human Rights Law?

Abstract

AbstractTraditionally, international human rights adjudication relied on the paradigm of extraterritoriality on the rare occasions when it was confronted with cross-border cases. This paradigm recognises only limited circumstances in which states bear extraterritorial human rights obligations. However, with globalisation, transboundary human rights cases have multiplied. This emerging litigation increasingly reveals that the paradigm of extraterritoriality is no longer fit to address global crises. Extraterritoriality demands effective control over a territory, or authority and control over a person, for a state to exercise jurisdiction outside its territory. Thus, several cases of cross-border human rights abuses are inevitably barred on jurisdictional grounds. This is particularly true for obligations of a global character, which are, by their very nature, completely unrelated to the control that states exercise over territories or people. It is therefore necessary to look beyond extraterritoriality. This article analyses the competing paradigms of universality and transnationality as they have been adopted by domestic courts. It argues that international human rights adjudication should reconceptualise extraterritoriality against the background of universality and transnationality to address global crises.