Conclusion

The conclusion revisits the central tenets and strands of the argument: how to understand interpretation, why jurisdiction is necessary, and how to account for it in international human rights law, how to relate it to territory, and how to apply jurisdiction as political power to a wide range of cases. It futher connects the theory of extraterritoriality developed in the previous chapters to wider considerations and takes stock of which questions have been answered and which questions remain. Finally, we consider why a narrow view of human rights might be our best option if we want to advance claims of global justice.

Title to Territory and JurisdictionThree and a Half Models

The very term ‘extraterritoriality’ implies that territory is significant. So far, however, my argument focuses on jurisdiction rather than territory. This chapter adds clarifications in this area. It examines the relationship of jurisdiction in international human rights law, whether understood as political power or not, and title to territory in international law. To this end, I start by looking at what international law has to say about jurisdiction as understood in international human rights law, and territory, respectively. The conclusion of the survey is that the two concepts serve different normative purposes, are underpinned by different values, and that they are thus not the same. Accordingly, an account of their relationship should be approached with conceptual care.

Jurisdiction as Political Power

Moving from the conceptual to the substantive, this chapter refines our account of jurisdiction based on a concept of power and argues that it is best understood as political power in particular, as opposed to coercion. I argue that political power in this context should be conceptualised to denote the ability of public institutions to determine how individual powers are transformed. That is, political power is the ability of public institutions to mediate the abilities of individuals into a different set of abilities. As such, it is constitutive of and necessary for public institutions, it affects individuals because it provides the very framework for them to pursue their lives in equality, and it is virtually unavoidable. The exercise of political power results in non-exclusive control on particular states of affairs in the area of the rights outlined in any given treaty. The vehicle through which this power is manifested is the choice and application of rules. Political power so understood is the best approximation of a factual position to guarantee equality, which, as we have seen in Chapter 2, is what justifies human rights obligations of public institutions in the first place.

Jurisdiction and Justification

This chapter argues, first, that existing accounts of jurisdiction are concerned precisely with capturing this necessary relationship between state and individual for a human rights obligation to be identified. It asks, second, what the desiderata for an account of jurisdiction are. I argue that the criteria are plausible guidance, a connection to an account of the nature of human rights, the ability to justify the allocation of obligations to a specific duty bearer, and non-arbitrariness in the sense of internal consistency. Third, the chapter analyses three sophisticated and influential accounts of jurisdiction. I ask, fourth, whether these accounts meet the desiderata and argue that they do not. The chapter concludes that there is a need to develop an account of jurisdiction that meets the success criteria.

Extraterritoriality as a Matter of Interpretation

This chapter considers the standard view that extraterritoriality is a matter of treaty interpretation and that, following on from this, all that is required to discover the extraterritorial scope of human rights treaties is following the rules of interpretation set out in the Vienna Convention on the Law of Treaties. I argue that the extraterritorial scope of a treaty is a matter of treaty interpretation, but that it is not sufficient to follow rules in order to give meaning to international legal instruments. What determines the outcome of an interpretation is, in addition to these rules, a question of values. That is, what lies at the heart of interpretation is the determination of the values and principles that underlie a human rights treaty.

Introduction

The introduction begins by setting out puzzles that any account of extraterritorial human rights obligations would need to address. These puzzles are meant to illustrate that economic and social rights bring to the fore two of the most foundational issues of international human rights law more broadly. These are, namely, what it means for a state to have a human rights obligation towards an individual, and how we justify the specification of the relevant right holder and duty bearer in each case. A clear textual basis or even a starting point is lacking in international law. Making reference to economic and social rights forces us to frame extraterritoriality as a question of identifying right holders and duty bearers. In turn, answering this question allows us to challenge conventional wisdom on extraterritoriality in general. The Introduction sets out the method, theoretical background, and aims of this book, outlining the arguments based on the analysis of legal practice and scholarly literature, and their implications.

A Concept of Power as the Basis of Jurisdiction

This chapter takes up the first, conceptual step to develop a successful theory of jurisdiction. Based on how jurisdiction is described in views analysed in Chapter 3, but also in the literature on extraterritorial obligations in the area of economic and social rights, it shows that jurisdiction is often described by reference to a concept of power. I also show that it is common for courts and commentators to use terms such as power, control, or influence interchangeably. Following on from these insights, the main argument of the chapter is that the concept of power is rightly placed at the core of jurisdiction. However, this is only true for a clearly defined concept of power best understood as an ability. Based on this understanding, I show that power should be distinguished from influence, (use of) force, and control, respectively. These distinctions allow us to capture the difference between power, its exercise, the means through which it is manifested, and the outcome of the exercise of a given power.

The Values of International Human Rights Law

This chapter addresses two crucial issues extraterritoriality presents—particularly when socioeconomic rights are taken into account. In order to identify extraterritorial human rights obligations we need to know why states are the primary duty bearers of international human rights law and which state owes international legal human rights obligations to which individuals. That is, we need to allocate the burdens that go along with human rights obligations and we need to justify this allocation. To do this, this chapter considers the Hohfeldian structure of rights, analyses accounts of justifying human rights, and argues that an interpretivist account of international human rights law as a normative context is the best way forward.

Connecting the DotsCase Studies

This chapter illustrates the findings of this work with three case studies. It demonstrates how the understanding of extraterritoriality developed and defended here differs from and improves upon previous accounts. The chapter analyses bilateral cooperation in higher education between Ireland and Bahrain, the implications of a Special Economic Zone, run by Chinese shareholders in Nigeria, and export subsidies for sugar produced in the EU. The case studies cover a range of issues that implicate civil and political, as well as economic and social rights. In each of these case studies, I compare my account of jurisdiction as political power with previous accounts of jurisdiction and extraterritoriality in general. In detailing the disagreements, I show that the present approach is more successful than others in explaining extraterritorial human rights obligations of states. It allows us to assess very different scenarios according to the same principle: jurisdiction is required, and it is based on political power and the application of rules because this is what integrity and equality make it. The case studies show the present theory’s potential to supply plausible guidance in a principled manner, and across a very wide spectrum of cases.