Positive Obligations, Extraterritoriality, and the Kind of Society We Want

As our awareness of social problems evolves and an increasing variety of complex scenarios call for assessment under human rights lenses, it becomes increasingly evident that determining the content of human rights requires making sensitive choices between different values and worldviews held by different groups of individuals. This is even more so when positive human rights obligations are involved, as they mandate States to interfere in different spheres of social life. Adopting a more protective approach towards the rights of certain groups may thus require reducing protection of other groups’ rights. Requiring further State action to prevent human rights violations may entail loss of individual privacy and increased use of criminal punishment as a form of sanction. This is not to say that human rights should shy away from thorny discussions or that the quest for a more equitable world is for naught; rather, it is a call to openly acknowledge how positive human rights obligations are the reflection of value judgments. Once we are mindful of what these values are, what they entail, and how they change, we have a clearer picture of how positive obligations can manifest and evolve.

This consciousness is at the centre of Vladislava Stoyanova’s new book, Positive Obligations under the European Convention on Human Rights. Stoyanova approaches the topic by exploring the European Court of Human Rights (ECtHR, Court)’s practice in interpreting and applying positive obligations within the European Convention on Human Rights (ECHR). This is done with regard to two non-derogable provisions [i.e. the right to life and the prohibition of ill-treatment (arts. 2 and 3)] and a derogable one [i.e. the right to private and family life (art. 8)]. The book first discusses the legal standards that trigger the emergence and shape the scope of positive obligations, namely State knowledge about a risk of harm or actual harm, causality between the State’s conduct and the harm, and reasonableness of the State’s response. Then, it analyses how these standards interact in different scenarios, i.e. the presence of competing positive obligations, procedural obligations to investigate, substantive obligations, and extraterritorial obligations.

Stoyanova brings forth an impressively thorough compilation of case-law that is certain to serve as a key point of reference on positive obligations for scholars and practitioners alike. More importantly, however, throughout the book, Stoyanova not only identifies inconsistencies and points of departure from previous reasoning by the ECtHR, but also assesses the practical reasons why these deviations have or might have occurred and what they reveal about the Court’s perception about the role of the State within the European space. In this short contribution, I would like to discuss how this is done in relation to the extraterritorial scope of positive obligations under the ECHR.

Extraterritorial Positive Obligations: Always Too Much, Never Enough

Extraterritorial jurisdiction remains one of the most contentious topics in international human rights law, especially where positive obligations are involved. Some human rights bodies have advanced rather broad interpretations of jurisdictional thresholds. For instance, the Committee on Economic, Social and Cultural Rights has accepted that extraterritorial jurisdiction is exercised where States fail to take the necessary steps to prevent human rights violations committed abroad by corporations registered in their territory (General Comment No. 24, para. 26). The Inter-American Court of Human Rights has further acknowledged the exercise of extraterritorial jurisdiction where the State exercises effective control over private activities that produce harm to human rights abroad [Advisory Opinion OC-23/17, para. 104(h)], while the Human Rights Committee has done so with regard to situations where the State has the capacity to act to save lives of persons with whom it has ‘a special relationship of dependency’ (A.S. and others v. Italy, para 7.8).

In contrast, the ECtHR has generally preferred narrower interpretations and rejected suggestions that jurisdiction be understood as a cause-and-effect link (Banković and others v. Belgium and others, para 75). The Court has actually formulated an array of different tests for verifying whether extraterritorial jurisdiction has been triggered depending on the circumstances of the concrete case – by referring, among others, to the exercise of control over a territory or individual (Al-Skeini and others v. the United Kingdom, para. 136), the exercise of public powers in another State with the latter’s acquiescence, consent, or invitation (ibid, para. 135), special features relating to procedural obligations to investigate a human rights violation (Hanan v. Germany, paras. 132-133), and the State’s active engagement in hostilities ‘in a context of chaos’ (Georgia v. Russia (II), paras. 137-138). The ECtHR’s practice, however, has been far from clear or consistent (as noted by Stoyanova and many others, notably here).

Stoyanova takes a step back from these approaches and invites the reader to consider the consequences (and the problems) that the adoption of certain jurisdictional models brings to the content of positive obligations. The analysis begins by recalling a basic precept of positive obligations under the ECHR; that their exact content cannot be determined in abstract, without reference to a political community and its interests. From that, the author maintains that ‘[p]ositive obligations are closely related to issues of democratic legitimacy, political equality, and territorial boundedness’ (p. 225). This democratic legitimacy, Stoyanova explains, ‘implies that the State does not act for its own sake but for the sake of pursuing some general goal of the community, and that it reflects all the interests and concerns of all those it represents’ (p. 8). A democratically legitimate act should thus be based on these concerns and interests of a given community.

This is where the problem arises when adopting jurisdictional models that allow for the emergence of a wide scope of extraterritorial positive obligations: the interests and values of which political community (that of the territorial State or of the State supposedly exercising extraterritorial jurisdiction) should shape the content of the positive obligation? How can the ECtHR adequately assess such interests and values and what the expected role of the State is in communities outside of Europe, with which the Court has little contact? Would that assessment even be considered legitimate vis-à-vis that community?

These inquiries may seem to have limited relevance when an obligation to save lives from an immediate risk of harm is at stake, but hold more so regarding issues such as: imposing regulatory standards on the actions of private actors that substantially depart from what the territorial State requires; investigating conduct that might in turn lead to greater surveillance and interference in private life; deciding whether to apply criminal or other kinds of sanctions for certain offenses; and the provision of certain public services by the European extraterritorial State related to the socio-economic well-being of the population in the territorial State.

Those affected by the extraterritorial obligations in these scenarios are not part of the democratic process of the European extraterritorial State, through which the ECtHR specifies the content of positive obligations. Stoyanova thus argues that jurisdictional models should take these issues into consideration and rejects a cause-and-effect threshold as defeating the very purpose of jurisdiction, which is to ‘reflect the political and legal relationship between the State and the affected individuals’ (p. 220).

There are, of course, risks about the assumption that the process for the identification of a community’s interests and values is truly democratic, both in the territorial and the extraterritorial State. Minority groups might not be ensured effective opportunities to make their voices heard or participate in social life more broadly, and instances of structural discrimination might not be easily identifiable. Within the European framework itself, scholars have criticised the ECtHR for applying too great a degree of deference to the assessment of domestic authorities at times, putting in danger the effectiveness of human rights protections (see here, here). Moreover, equating a political community with a national community may be playing into a fiction and obscuring the existence of common values and interests across borders defined by States.

Stoyanova expressly acknowledges these risks, nevertheless maintaining that ‘it is hard to expect that the imposition of human rights law obligations upon some States should be the solution to the democratic deficit in other States’ (p. 292). Universalist aspirations do not alter the fact that substantive standards in international human rights law are ‘set by against the backdrop of the specific political community’ (ibid). The argument then goes back to the question of legitimacy and the fact that it is impractical to require a State to have such well-developed channels of communication with populations in other States that may (or may not) be extraterritorially affected by its conduct.

Still, with the development of technologies and the way States have been increasingly monitoring and controlling data in different parts of the world, some degree of communication or ability to assess the interests of communities outside its territory does not seem unreasonable. It would also depart from the State-centred construction that a political community is encased within a State’s territorial boundaries (a suggestion made notably by Ryngaert). This is not to deny that practical difficulties still exist, especially considering that States do not have equal resources to perform this assessment extraterritorially. At the same time, though, this problem also exists at a purely territorial level, where the solution is left to the substantive content of positive obligations.

Concluding Remarks: Thinking About the Consequences of Our Framings

These considerations are not meant to provide an answer, but to highlight that the issue is more complex than simply deciding whether States should be able to get away with conduct that produces harmful extraterritorial effects (through narrower jurisdictional thresholds) or not (through broader jurisdictional thresholds). When positive obligations are involved, jurisdiction may entail the imposition of foreign standards on a community without considering its members’ values and interests or applying such general standards that the effectiveness of human rights protection is reduced. Ignoring these tensions would thus be to empty the content of positive obligations and their capacity to evolve in contexts of extraterritorial application.

Stoyanova’s book lays these hard questions bare and provides a deep and thoughtful analysis of them while exploring the ECtHR’s prolific case-law on the topic. As the debates on extraterritorial jurisdiction continue to evolve, this is a work that bears keeping in mind both as a reference to the Court’s practice and to the concerns and tensions that come with each choice of expanding or narrowing jurisdictional thresholds in the context of positive obligations. These choices are, as Stoyanova reminds us, a reflection of the kind of society we want.