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7 L. & Ethics Hum. Rts. 47 (2013)
Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law

handle is hein.journals/lehr7 and id is 47 raw text is: 

doi 10.1515/lehr-2013-0004 - LEHR 2013; 7(1): 47-71

Yuval  Shany*

Taking Universality Seriously: A Functional

Approach to Extraterritoriality in

International Human Rights Law

Abstract: International human rights law  (IHRL) has struggled to define a
standard for determining  the extraterritorial applicability of its norms that
would  reconcile the ethos of universal entitlement, on the one hand, with
the centrality of borders in delineating state powers and responsibilities under
international law, on the other hand. The case law of the UN Human  Rights
Committee  and the European  Court of Human   Rights (ECtHR) favors barring
states from engaging in conduct outside their borders that would be imper-
missible if undertaken inside their borders. Still, attempts to demarcate the
precise scope of extraterritorial application through allusion to degrees of
control over individuals or areas, or by the nature of the obligation itself -
have led to unsatisfactory, if not arbitrary results. This article opines a move
to functionalism as the basis for extraterritorial applicability - requiring states
to protect IHRL in situations they can do so. Under this approach, which takes
universality seriously, borders lose much their normative significance. I sug-
gest limiting the functional approach to extraterritorial applicability in accor-
dance  with two  key notions: (1) the intensity of power relations - factual
relations of power  entailing direct, significant and foreseeable potential
impact - should result in the application of IHRL obligations; or, alternatively,
(2) special legal relations - relations of power that put the state in a unique
legal position to afford IHRL protection would also justify the imposition of
extraterritorial obligations.

Keywords:  human   rights, borders, universality, extraterritorial, state power,
international human rights law

*Corresponding author: Yuval Shany, Law Faculty, Hebrew University of Jerusalem, Jerusalem,
Israel, E-mail: yshany@mscc.huji.ac.il


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