Extraterritorial Human Rights Obligations Between a Rock and a Hard Place – Diverging Jurisprudence at the ECtHR and the UN
The European Court of Human Rights is resisting the expansion of extraterritorial application of the European Convention on Human Rights while UN treaty bodies seem more willing to broaden the scope of human rights treaties. At first glance, therefore, it is tempting to think that the European Court of Human Rights is no longer a forum that is particularly friendly to human rights. However, while broadening our interpretation of jurisdiction has clear advantages for individual litigants, at least some of the arguments in favour of this approach are on closer inspection problematic. This talk raises the possibility that the European Court of Human Rights may be right (to an extent) to resist the urge to broaden extraterritorial human rights obligations of states. Its argument is, on the hand, that stances on jurisdiction perceived to be overly broad or hopelessly narrow in fact share an important weakness: they lack a solid foundation in principled reasoning. Two cases will illustrate this point: a recent decision by the CRC on the potential repatriation of French children of suspected Islamic State supporters detained in Northern Syrian and the Georgia v Russia (No 2) judgment of the European Court of Human Rights. The reasoning in both cases could be strengthened if the respective bodies made their approaches less inductive and more explicitly principled. On the other hand, the seminar will explore if it is understandable or even desirable for bodies as different as the European Court of Human Rights and a UN treaty body to take differing views on extraterritoriality.
Lea Raible is a Lecturer in Public Law at the University of Glasgow and a 2020/21 re:constitution Fellow. Her research interests are in the areas of international and constitutional law, as well as their relationship with political philosophy. She has written on a range of topics, including the extraterritorial application of human rights, human rights adjudication and participatory democracy, and the theory and practice of referendums. She is the author of Human Rights Unbound: A Theory of Extraterritoriality (OUP 2020).
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