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This subject considers whether and to what extent international human rights law applies to the actions of states outside their sovereign territories. The focus is on international law only, not domestic law.
The extra-territorial application of international human rights law is one of the most contested and fast-moving areas of human rights law today. It is concerned with important and high-profile activities performed by states outside their borders, from war to occupation and anti-piracy and migration-related activities. This relatively under-explored area of law is of considerable current interest to governments (including their armed forces), international organisations and human rights non-government organisations (NGOs).
Principal topics include:
- The nature and scope of extra-territorial State activity, from war to occupation, the interception and detention of migrants and ‘pirates’, and the operation of embassies, military bases and detention facilities
- The main contours of international human rights law
- Relevant principles of general international law, including treaty interpretation, and relevant features of human rights law, including applicability in times of war and occupation, and co-application with other areas of law
- Arguments of principle in favour of and against applicability, including concerns about ‘legal black holes’, indirect nationality discrimination, abuses of detainees, double standards and ‘human rights imperialism’
- The main treaty provisions on applicability, including ‘jurisdiction’ and colonial extension clauses
- Key general features of extra-territorial applicability, including the substantive meaning of human rights law extra-territorially, and the relevance to this of self-determination; the possibility of activating ‘derogation’ clauses; and whether human rights treaties can and should apply to the actions of contracting states in the territories of other states not also parties to the same treaties
- The meaning of the two ‘jurisdiction’ triggers for extra-territorial applicability, based on the exercise of control over territory or individuals
- The extra-territorial application of other human rights treaties that use different triggers, notably the anti-discrimination treaties and the 1951 Refugee Convention
- The application and significance of the non-refoulement obligation extra-territorially.
Intended learning outcomes
A student who has successfully completed this subject will:
- Be proficient in understanding and applying the relevant areas of international law
- Have an appreciation of the underlying issues of policy at stake and how they mediate, and are mediated by, the legal framework
- Appreciate the wide range of human rights issues and novel international legal challenges presented by the expanding actions of states outside their sovereign borders
- Have a highly developed understanding of the jurisdictional issues involved
- Have the cognitive and technical skills to independently examine and critically evaluate current issues in this field
- Understand the core principles of international human rights law and their application in different treaty regimes
- Be able to demonstrate autonomy, expert judgment and responsibility as a practitioner and/or advocate in the field of international human rights law
- Have a more sophisticated and critical understanding of, and aptitude for, the law in general.
Last updated: 12 November 2021