Abstract
This article revisits the possibilities of the good international citizen (GIC) as a civilising agent in international society. It argues that an underdeveloped resource for thinking about state responsibilities as GIC is the idea of cosmopolitan extraterritoriality (ET) in relation to human rights. ET, the assertion of jurisdiction beyond territorial borders, has long been associated with statist and nationalist purposes; however, a significant cosmopolitan, and civilising, potential can be found within practices of ET in relation to human rights and certain aspects of criminal law such as in the practices of child sex tourism and trafficking. This form of ET allows states to restrain their own citizens abroad and potentially restrain their own foreign policies and practices by accepting limits on their freedom of action derived from respect for human rights and respect for the rule of law.
Introduction
The possibility that certain states may be considered ‘good international citizens’ is a minor but persistent thread among theorists of international society. A good international citizen (GIC) is a state that acknowledges it has national, international and humanitarian (or cosmopolitan) responsibilities that place limits on its pursuit of its narrow self-interest. This article identifies the value of self-restraint as a virtue of the GIC and advances the claim that such states can be ‘civilising’ agents in international relations. It identifies the theory and practice of extraterritoriality (ET) in relation to human rights as an unexplored resource for the GIC. ET, the exercise of legal jurisdiction beyond a state’s territorial borders, is a commonly accepted practice permitted under international law. While ET has long been associated with statist and nationalist purposes, the article argues that correctly formulated ET can be used to pursue more cosmopolitan goals such as the protection of human rights. More specifically, a significant cosmopolitan, and civilising, potential can be found within the law and practice of ET based on the widely accepted ‘active nationality’ principle. The article argues that this principle provides a template for how ET can be used to place internal, that is, domestic, legal-restraints and accountability upon states and their citizens in regard to human rights abroad. States wishing to be GICs should develop and adopt consistent practices of human rights ET based on the active nationality principle. The argument follows from Shapcott in exploring the idea that states can institutionalise and constitutionalising their negative duties to avoid violations of human rights extraterritorially. 1
The article begins by introducing the idea of the GIC as a civilising agent; it then discusses the idea of the GIC and its relationship with human rights, before outlining the varieties of ET and making the case for a limited cosmopolitan variant based on the active nationality principle. The article concludes with reflection upon the implications and possibilities of such a move for the idea of the GIC. It argues that such an approach is both consistent with current international law and practice, and therefore this application is a plausible non-utopian measure which can enhance cosmopolitan values in international society.
Civilising processes and the GIC
According to Andrew Linklater, growing webs of interdependence create increased capacities for interstate harm as well as awareness of the sources and impacts of those harms. In such conditions, states are more likely to know the impact of their activities upon outsiders and vice versa and to ask for restraint in relation to them. Linklater’s recent treatment of harm in world politics, foregrounds the role of ‘civilizing’ processes whereby social actors develop ‘standards of self-control and (learn) to tame violent and aggressive behaviour’ 2 under such conditions. A civilising process involves ‘shifts in the standards of self-restraint that people have imposed on themselves and on each other in the course of responding to new potentials for organising harm’. 3 Such processes are common to many societies and indicate that norms and conventions of self-restraint limiting the acceptable use of violence and harm in the pursuit of interests are needed as interaction increases. To be more or less civilised is to have greater or fewer such restraints. Civilisation in this sense intends to be non-evaluative; it is not a judgement of the moral worth of any particular society or culture but of its regulation by self-imposed and widely accepted standards of restraint. As Linklater notes, ‘all societies have civilising processes in the technical non-evaluative use of the concept’. 4 Such processes occur at an individual, societal and international level, that is, in relations between states. The evolution of the international society of states is evidence of such civilising processes and has involved the development of sometimes rudimentary and sometimes more ambitious conventions regarding state restraint. Most notably, the members of international society have sought to limit their recourse to violence, though not nearly to the same extent that domestic societies with successful monopolies of political violence have. The development of first pluralist, concerned with basic rules of coexistence, and then solidarist norms, concerned with common purposes beyond coexistence, provide further evidence of such ‘civilising’ processes in international society. 5 Furthermore, there is evidence, Linklater argues, of the development of cosmopolitan 6 harm conventions in international society. Arguably, one of the key indicators of this process is the spread of a global human rights culture and its incorporation via the universal declaration of human rights (UDHR) and the Genocide Convention into the post-war architecture of international society. The emergence of an extensive body of international human rights law since the adoption of the UDHR is arguably evidence of an increasingly ‘civilised’ international realm with more demanding standards of state conduct. These developments set ambitious standards of domestic self-restraint for states and a common goal of reducing states’ freedom of action in regard to domestic populations. The expansive raft of human rights doctrines and treaties that span international society today are evidence of the development of civilising tendencies in international society whereby states seek to regulate their own and each other’s behaviour by limiting the arbitrary power of the state to harm citizens as a sovereign privilege. Indeed Linklater argues the emergence of such ‘cosmopolitan’ conventions has arguably been the defining characteristic of contemporary international society which has placed greater emphasis than previous periods on reducing unjustifiable suffering. 7 Recent moves towards a more solidarist international society, in which states accept certain common purposes beyond coexistence, such as Responsibility to Protect (R2P), are arguably further evidence of this civilising process. 8
Cosmopolitans argue that the emergence of a global or universal international society creating global webs of interdependence suggests the need for cosmopolitan as distinct from international, standards of civilisation that encapsulate universal principles of harm limitation. An open question in international relations is whether and to what extent individual states can be considered agents of such processes. The literature on the idea of a GIC, first articulated by Australian foreign minister Gareth Evans, and theorised by Andrew Linklater, identifies the ways in which states might be seen as such agents. 9 The GIC pursues the welfare of its own members, but also shares responsibility for the maintenance of the institutions of international order, and seeks to advance humanitarian values such as human rights. The GIC acts in Bull’s words as a ‘local agent of a world common good’. 10 According to Wheeler and Dunne, 11 in its most ambitious forms, ‘states that are good citizens have to place order before the pursuit of narrow commercial and political advantage, they are also required to forsake these advantages when they conflict with human rights’. 12 If promoting human rights is one of the foremost duties of a GIC, guided by solidarist values, individual states can therefore in limited ways indeed be identified as potential civilising agents in international society. Such GIC’s are civilising agents because they practice self-restraint and harm minimisation in their foreign relations.
However, self-restraint is only one element of good international citizenship; in most, but not all, cases the promotion of human rights is associated with either regulating the actions of other states, or a state’s relations to its own domestic population on its own territory. Thus, a large, if not the largest, part of international human rights action has been focussed on two things: how to get states to adhere to international human rights law domestically and how to police gross violations of human rights. In this view, a solidarist international society pursues its common goals through acting in a positive sense, such as humanitarian intervention. In the language of ethics, these are largely what is referred to as positive duties, duties to act, rather than negative duties of refraining from action and, in particular, from causing harm.
However, arguably, the biggest ethical problems in international politics are as much to do with the effects of state policies beyond their borders as they are with getting other states to comply with international human rights standards. 13 Less attention has been paid to the state’s (and international society’s) negative human rights duties, in particular, duties to avoid harming or violating human rights abroad. Therefore, one goal of a state that seeks to place human rights as central to its foreign policy should be to attend to the negative effects of its own policies and practices abroad in relation to the human rights of non-residents.
More specifically, it needs to address the negative duties GIC’s have to not violate the human rights of others, or profit from their violation, and how it is possible to incorporate these duties into practices. If as Wheeler and Dunne claim, ‘[S]acrificing the pursuit of narrow economic and political advantages in the cause of promoting international standards of human rights is the most important principle of good international citizenship’, the question raised is how can this be done and what mechanisms be employed to pursue this goal. 14 In other words, the GIC concept needs further exploration of the means to secure self-restraint in addition to restraint of others.
The argument below is that a cosmopolitan formulation of ET can be used to more systematically restrain states’ actions and hold them to higher standards of good international citizenship. The subsequent section expands on this claim and makes a preliminary case for limited human rights ET as a means for GICs to limit their own freedom of choice in the international realm. Liberal states are not without blemish in their track records regarding human rights abroad, whether it be directly or indirectly. As Wheeler and Dunne’s analysis of Blair’s ethical foreign policy demonstrates that even liberal states committed to human rights find it easy to sacrifice these goals when national advantage may be compromised. 15 The argument that follows is that ET provides a potential legal mechanism to prevent states sacrificing human rights on the altar of expediency.
ET and human rights
This section examines ET and advances a cosmopolitan formulation focussed on human rights that could be employed by GICs. In his discussion of human rights in international society, John Vincent identified four ways in which states ‘have sought to advance, within their own domains, the values of cosmopolitan society’. 16 Vincent was examining the presence of human rights as a measure of solidarism in the international order at his time. First, states such as the United States and France ‘founded precisely for the purpose of securing for their citizens the human rights that everyone ought to enjoy’ are committed to upholding rights domestically through constitutional means. 17 Second, states have had to decide upon the extent of domestic application of international human rights law in a legal context, that is, to what extent ‘municipal or international law should take precedence’, and third is an extraterritorial dimension covering the ‘domestic courts of one state upholding the international law of human rights when the offence against humanity was committed by a foreigner in his or her own state’. 18 By this, he is referring to the possibility of ET that was raised by the use of the Alien Torts Statute (ATS) in the United States to pursue human rights cases such as in the Filartega case, 19 and the fourth is the case of states acting unilaterally or multilaterally to police human rights abuses in other countries, the paradigm case being humanitarian intervention.
Vincent’s brief mention of ET as well as subsequent literature on the GIC largely overlooked the significant potential of this concept for the pursuit of cosmopolitan or solidarist goals. Vincent did not investigate the degree to which ET could be and was being used to restrain the acts of a state’s own citizens when abroad nor the possibility of it being applied to the human rights practices of states themselves. This section sets out the meaning and uses of ET before discussing its relationship with human rights practices and international human rights law.
ET is the principle that states can exercise legal jurisdiction abroad: ‘Jurisdiction is extraterritorial when asserted by a nation state over conduct occurring outside its borders’. 20 ET is largely an exercise in unilateral jurisdiction exercised by individual states and is an important but contested aspect of the current international legal order, and is thus an accepted practice within international society. 21 ET is permitted by international law and states cannot assert ET unilaterally, that is, outside of accepted international legal practice. 22 Most practices of ET refer to criminal law, anti-trust activity and, increasingly, national security, especially anti-terrorism and crimes against humanity. The core legal issue in ET is the nature of the jurisdiction being asserted. ET is an assertion of state jurisdiction beyond its territory, but it varies whether this is jurisdiction over territory or people, and whether it is over only its own people or those of other states. ET in practice usually includes claims to jurisdiction over certain groups of people, or over types of actions (but not over the territory in which these actions occur). Jurisdiction over people is covered by the nationality and universality principles. The nationality principle further distinguishes between the active, that a state has a right of ET in relation to the conduct of its nationals and harms they may commit abroad, and the passive which refers to actions or harms committed to nationals abroad: ‘The “active nationality” principle refers to the (criminal) jurisdiction a state may exercise in respect of its own nationals abroad, including not only natural persons but also companies, ships and aircraft that have its nationality’. 23
The nationality, or active personality, principle is already widely used by states to assert jurisdiction in several areas, especially criminal law. Many states assert jurisdiction over criminal matters where their nationals commit crimes abroad. The United Kingdom, India, France and Germany all uphold ET in relation to serious crimes such as homicide. Notably, all Indian criminal law applies to Indian nationals no matter where they reside or how minor the crime. 24 Some states assert jurisdiction over foreign earnings of non-resident nationals, such as the United States which taxes its expatriate citizens. 25
The universality principle covers actions of any person (national or other) who violate basic agreed principles of international law such as torture, slavery, genocide and crimes against humanity and is widely upheld, though not uncontested, in international law, especially in relation to piracy. This principle is generally only applied to crimes seen as violations of ‘universal’ standards or, as in the case of piracy in international waters, where there is no relevant jurisdiction.
In addition, states often claim ET in relation to actions committed abroad that might have an effect upon their security, vital interests or which violate their domestically enacted laws, (the effects and protective principles). 26 For example, at the time of writing, the US government is seeking to extradite Julian Assange from the United Kingdom to the United States for espionage; Assange is neither a US citizen nor was the alleged crime committed on US territory, the United States appears to be making an effects and protective principle claim for extraterritorial jurisdiction on the grounds that Assange’s actions both contravene US law and harmed (effected) the United States. Both the effects and protective principles are far less widely asserted and are highly contested rather than seen as universally valid expressions of ET. Effects-based claims have however become more common in relation to terrorism and Internet activity.
However, one risk accompanying the use of ET, from a cosmopolitan perspective, is that states are inclined to assert ET as a permissive claim, one that authorises actions against extraterritorials, rather than as a restraint upon their own actions. Indeed, a state may wish to claim ET jurisdiction over foreigners engaged in actions against said state on foreign territory, but be less willing to accept ET responsibilities for their treatment of those foreigners. For instance the United States may wish to assert an ET right to detain, arrest or even kill foreigners abroad it deems a security risk, while refusing to accept that its domestic law, especially its constitutional guarantees, can apply extraterritorially to restrain its own actions towards those foreigners. 27
Vincent overlooked the degree to which international society already allows for states to exercise a number of forms of ET that can apply to the fields of human rights; these include universal jurisdiction, war crimes and crimes against humanity (genocide) and torture. As noted, universal jurisdiction allows states to prosecute their own and other’s nationals for crimes committed extraterritorially regardless of the connection with the host country. This legal principle allows or requires a state to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim. 28 Furthermore, most states are party to the Geneva Conventions governing the treatment of combatants and non-combatants in wartime. These are landmark documents in part because, via a process of ratification, states agree to limit their conduct of war and to hold their own subjects accountable to law for their actions abroad. They are extraterritorial and cosmopolitan because states make themselves, and their agents (militaries), subject to law when engaged in military action, not necessarily, but often in another’s jurisdiction. Thus, states in acceding to these treaties are accepting ET responsibilities in relation to acts against individuals. International humanitarian law is therefore a form of cosmopolitan law, which has been internalised by states and adopted as national law to govern their own nationals abroad. What is important to note is that states exert ET in a number of ways some of which are conceivably cosmopolitan and many of which are not.
Thus, in practice, states exercise ET in order to regulate the behaviour of their own citizens, as well as the citizens and agents of other states. For commercial, security and humanitarian reasons, states are increasingly asserting ET rights of jurisdiction in both human rights–related and nonhuman rights–related causes as the ever intensifying ‘webs of interdependence’ accompanying globalisation, and the ‘war on terror’ has occasioned an increased use of and appeal to this doctrine. The active nationality principle especially when applied to criminal matters provides the template for a cosmopolitan human rights ET. In asserting a nationality jurisdiction, states are already seeking to render their citizens accountable for harms (crimes) they commit abroad to others by rendering them liable for prosecution at home. In this way, it is consistent with a cosmopolitan harm principle that focuses on negative duties to avoid and minimise harm. 29
Human rights and ET in international law: the gap
The previous sections suggested that while precedents exist for a ‘cosmopolitan’ ET, in practice, states have been less willing to systematically apply ET to human rights law to the same extent as criminal law, with the notable exceptions of cases involving torture and other agreed ‘universal’ crimes. This, it might be argued, may be in part because the success of international human rights law would render such practices obsolete or unnecessary.
However, while some human rights treaties have limited ET scope, for the most part, international human rights law is limited to national territorial jurisdiction of the signatory states and most is not extraterritorial in scope. 30 As a result, Skogly argues there is a ‘black hole’ when it comes to state’s responsibilities for respecting human rights beyond their borders, because states are expected to uphold their duties at home, but not necessarily to have duties to respect the human rights of other citizens in another’s jurisdiction. The vast majority of international human rights law refers to a states’ domestic responsibilities to uphold the rights of its own citizens and those within its territory. There is little or no equivalent law defining state responsibilities to not violate human rights extraterritorially and where these exist they are in relation to specific treaties and do not apply universally. As a result, Skogly notes, that under current international law, ‘while all individuals everywhere are considered to have the same rights based on international law, the obligation-holders (normally states) do not have the same obligations with regard to individuals everywhere’. 31 In other words, it seems possible that unless otherwise specifically stated in treaty law or domestic law, states’ human rights commitments stop at their borders. 32 It is thus often left to states themselves as to whether they should be accountable for actions abroad that may result in human rights violations. One result of this ‘is a perceived geographical limitation which may be interpreted as granting these states impunity in terms of human rights conduct outside their own territory, or the territory covered by the relevant treaty’. 33 Therefore, the ‘civilising’ effect of international human rights law does not equally restrain states in their international affairs as in their domestic actions.
At the same time, states of the first type mentioned by Vincent, those founded on constitutional rights, do not often refer to, or are at best ambiguous, about these rights applying extraterritorially. Thus, in the United States, there is a presumption against ET generally and specifically in relation to the habeas corpus and Fifth Amendment rights enshrined in the American Constitution. 34 This is where the black hole that Skogly refers to opens up, international human rights law does not sufficiently address ET matters and state’s domestic legal structures may prevent them from taking responsibility for extraterritorial human rights impacts of their actions. The problem with this omission in both the international and domestic sources of human rights obligations is that from a cosmopolitan position it seems to justify a situation in which ‘a state which is in full control of its own agents is dispensed from respecting the human rights of persons whose lives its agents affect, merely on account of their location’. 35 Thus, as a result, even GICs are not obliged to take human rights into consideration in their foreign policies.
At the same time, as this gap persists, many states are eager to increase their ET jurisdiction in commercial and security matters. This results from a desire to regulate the conduct of outsiders and to prevent harm to themselves; for instance, regulating the affairs of foreign markets where they may have negative impacts domestically as in US anti-trust law. In other words, states are more willing to use ET to restrain outsiders and less willing to use it to restrain themselves especially in relation to human rights. Yet foreign policy in terms of trade, commercial or military interests is one area where states can have a large impact in terms of human rights, or at the very least may be complicit in or benefit from complicity in human rights violations. For this reason, there is a need for so-called GICs to address their extraterritorial legal responsibilities for human rights. Human rights ET seeks to fill this gap by placing domestic limitation on the state’s capacity to act with impunity. States seeking to be GICs can apply ET restraints on the actions of citizens and the state itself in relation to human rights. In this way, ET provides a potential method for seeking to enforce standards of restraint via unilateral action.
Cosmopolitan ET
As Ireland-Piper has pointed out, there are numerous problems and risks involved in the assertion of ET. 36 This section seeks to address some of these by defining and circumscribing the nature of cosmopolitan ET. In its full scope, cosmopolitan ET applies to both legislation covering citizens and other private actors that is both private and public international law, and constitutional provisions such as rule of law, which apply to the state and its agents. 37 However, ET has a destabilising and dominating potential as much as a civilising one depending on how it is interpreted. This is because it covers both the attempt to regulate the activities of others and activities of oneself and one’s own, that is, ET can regulate foreigners or it can work to regulate the actions of the state and its citizens abroad. In addition, because of the expansive nature of the international human rights protocols, it is possible that human rights ET would exponentially increase the state’s positive duties. 38
For this reason, the scope of any cosmopolitan ET regarding human rights must be clearly demarcated so that it does not become a tool of domination or interference for nationalist or narrow statist purposes. Therefore, a precise delineation of the forms of plausible cosmopolitan ET is required. The following section outlines the specific form of ET most consistent with these concerns and how it differs from its alternatives.
First and most importantly, a cosmopolitan ET is not consistent with either ‘passive’ nationality or the ‘protective’ principle as they are currently understood. This is because both of these are motivated by a concern to limit harm done to nationals rather than harms done to others, they are ‘nationalist’ rather than cosmopolitan. 39 It follows that cosmopolitan ET should take the form of the active nationality principle. 40 As a basis for cosmopolitan ET, active nationality avoids the nationalist bias of effects and protective principles and has the undoubted advantage of reducing the complexities and uncertainties that ET inevitably creates. Most importantly, the active principle is the only form consistent with a concern to limit the harms done to outsiders, it is thus an exercise in state self-restraint. Thus, the first way in which the GIC can apply human rights is to assert jurisdiction over people as well as territory and then only over those people for whom the state can be said to be directly responsible, that is, residents, citizens and those based on its territory, when acting abroad.
Finally, active nationality also has the widest acceptance and strongest precedence of any ET jurisdiction. As Ryngaert notes, ‘a US Appeals Court has recently held that “[t]he nationality principle is among the most firmly established bases for jurisdiction recognized by international law”’.
41
Furthermore, there is already precedent for the use of the nationality principles to pursue human rights in private international law as in the case of the European Union (EU) where the domicile principle
implies that a corporation can be sued in its ‘home state’, even where it has committed tortious acts on another State’s territory, e.g. where a Western-based multinational corporation is alleged to be complicit in human rights violations committed in developed States.
42
All these factors support the use of active nationality as the basis for a cosmopolitan human rights–based approach to ET.
The cosmopolitan potential of the active nationality principle of ET lies in the possibility that it can be used to extend a state’s responsibility for its actions occurring beyond its territory, by extending the jurisdiction of its legal system to cover the activity of its own nationals, and the state itself, when operating or travelling abroad. The cosmopolitan ET being theorised here would consist of the assertion of jurisdiction over nationals abroad in the name of cosmopolitan values/principles, such as human rights which have been incorporated into national domestic law. 43 In particular, the argument is that by recognising extraterritorial jurisdiction in regard to human rights states act as cosmopolitan agents.
The paradigm case for the exercise of ET to regulate the activities of citizens, providing a model for any human rights ET is the legislation introduced in various countries to criminalise child sex tourism and human trafficking following Convention on the Rights of the Child (hereafter CRC) and its optional protocols on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography. Following the signing of the CRC and its optional protocols, signatory states such as Australia introduced domestic legislation (Child Sex Tourism Amendment Act, 1994) criminalising certain extraterritorial activities of nationals. 44 Such laws apply when people travel abroad with the express intention of committing harms to other people, in this case minors. In such cases, states aim to prevent the ‘export’ of harms by penalising their citizens for travelling abroad for illegal or harmful purposes. These laws render the action of nationals abroad subject to domestic legal punishment, extending the jurisdiction of the courts in relation to child sex tourism extraterritorially. 45
Regardless of the host country’s capacities, these laws recognise that it is a home country’s responsibility to restrict the activities of its citizens when they intend to do harm abroad. In this case, the Australian state is only saying if you do x abroad you will be punished for it at home, but it is not saying, you will not be punished for it abroad as well. Thus, it involves no exclusive claim over a foreign territory, only a claim that once a citizen leaves Australia, they can still be held accountable for certain Australian laws while abroad. It in no way violates the foreign state’s sovereignty or ability to prosecute its own laws, nor does it necessarily compete with national jurisdiction. The claim is merely that when you go abroad as an Australian, the law follows you. It is cosmopolitan in that it regulates harms abroad, harms to individuals, (not to states) especially to vulnerable individuals (sex workers/ children).
One distinguishing feature of these laws is that, unlike unilateral assertions of national law like India’s, they involve the extraterritorial application of national laws which themselves have been derived from international conventions. Such cases set a precedent and potential guide for unilateral exercise of human rights ET in relation to citizens and other agents (non-natural persons) such as corporations or non-governmental organisations (NGOs). Cosmopolitan ET can be formulated as the assertion of active national jurisdiction over the acts of citizens (and other actors) extraterritorially in relation to human rights in regards to prescription and (with qualifications) enforcement. Adopting human rights commitments extraterritorially requires accompanying legislation to determine appropriate sanctions and punishments of human rights violators along the model developed in the criminal law. This would require states to adopt specific human rights commitments via Bills of Rights, or ratifying the UDHR or human rights treaties and then acknowledge explicitly in the accompanying legislation that they apply extraterritorially. 46
Proceeding in this way would constitutionally limit a state’s capacities to violate human rights abroad. It would also make clear that citizens, residents and other agents such as corporations are also bound by human rights considerations in their international activities. This would also mean that all ET activities, including protective and effects-based ET would have to be consistent with the protection of human rights. A state seeking to exercise ET in enforcement for instance, such as abduction or targeted assassination, will be constrained by its recognition of extraterritorial human rights obligations.
Extraterritorial rule of law
ET laws as discussed here demonstrate the possibility of states regulating the actions of their citizens to minimise the harms they commit. ET can signal a recognition of responsibility, and good intent on behalf of the state in relation to its citizen’s actions. Such acts potentially contribute to international good will and indicate the further development of cosmopolitan harm conventions and more civilised conduct between states. However, the cases above apply only to citizens and not to acts of state in relation to outsiders. A comprehensive human rights ET would need also to address the state’s capacity to inflict, or be the beneficiary of, harm in the realm of human rights. Addressing this dimension requires two further steps, (a) incorporating an ET clause in relation to any domestic bills of rights and/or human rights legislation including those that extend from international human rights treaties and (b) extending rule of law extraterritorially. The centrality of rule of law provisions to human rights cannot be understated because any attempt by a state to uphold human rights legislation abroad including prosecuting citizens must itself be regulated by rule of law. As Curley and Ireland-Piper have both shown ET prosecutions in relation to child sex tourism risk failing to uphold due process. 47 States exercising ET jurisdiction without the restraint of rule of law will be more likely to violate the rights of those they deal with. 48 Human rights ET therefore requires the extraterritorial application of constitutional provision of the rule of law.
The relationship between rule of law and human rights is not uncontested; however, it is largely accepted that rule of law is a means for protecting rights of citizens as it ensures equality before the law and that due process is followed. The UDHR, for instance, asserts, ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law . . .’ and this has since been reaffirmed in subsequent human rights resolutions. 49 While the idea of the rule of law predates the idea of human rights, it is an essential part of rights protection as there can be no protection of rights for those without a legal standing. Rule of law extends legal standing to citizens. The effect of granting legal standing to non-residents is to apply the rule of law to states actions in regard to them.
As argued above, cosmopolitan ET serves two functions, to restrain and prevent the harms committed to outsiders by citizens and other agents, and the second, to restrain and prevent harms by the state and its agents. Cosmopolitan ET therefore requires that any ET activities of the state and its citizens also be subject to constitutional provisions regarding the rule of law. The necessity of this is most clearly illustrated in the case of the United States, which has its own Bill of Rights and constitutional amendments, independent of UDHR or other international legal human rights documents. The United States is often held up as the epitome of the republican state governed by a sound constitution preventing domestic tyranny and legitimately constraining the state’s freedom of action. The US constitution and the Bill of Rights cement individual rights in US law and require state restraint in relation to its citizens. A consistent theme in US constitutional interpretation and jurisprudence is whether the rights doctrines and liberties specified there apply extraterritorially, in particular, whether the state is required to respect the constitutional provision on fair trial and the extension of constitutional rights to those non-citizens beyond its borders. 50 In the case of the United States, there is a general presumption against ET on the grounds that it interferes with the separation of powers and the freedom of the executive to conduct foreign policy. US courts have been reluctant to place constraints upon the state in its executive function of carrying out foreign policy. As a result, much US foreign policy is largely carried out free from the restriction of rule of law such as due process and judicial oversight. As a result, the US state has largely been able to ignore due process and other human rights in regard to the war on terror and its associated activities, especially in relation to targeted assassination and extraordinary rendition. 51
Were US jurisprudence to change on the issue of constitutional ET then the executive branch would be more constrained in its ability to ignore the rights of extraterritorials. As a result, the US government would be forced to extend constitutional protection to outsiders it is intending to harm or whose activities it aims to regulate or control. For instance, the use of targeted assassination would conceivably be curtailed as it currently allows for extra -judicial killing of both US and non US citizens alike. Extending the rule of law would require such programmes to be constrained by due process.
Recognising the extraterritorial dimension of domestic human rights instruments and extending the rule of law would enable the judicial system to use human rights in assessing the permissibility of state acts in ways which they are currently not required to do. The effect of acknowledging such obligations could be profound and potentially imposes a significant limitation on the state’s freedom to act in foreign policy and a legal impediment on its capacity to put economic or national advantage ahead of human rights.
Of course the first objection to the idea of applying rule of law extraterritorially is that foreign policy requires flexibility on behalf of government and that to legislate and constrain the state in this way is to provide unnecessary restrictions. Without a doubt human rights ET is a potentially large restriction on a state’s traditional freedom of action in foreign policy, but the core of the GIC concept is that it requires such self-imposed restrictions.
By way of illustration, it is useful to look briefly at the cases examined by Wheeler and Dunne, in their discussion of UK Labour Government’s foreign policy, through the lens of human rights ET. 52 They examine three cases: the first, British arms sales to Indonesia; the second, the United Kingdom’s relationship with China; and third, the North Atlantic Treaty Organization’s (NATO) intervention in Kosovo. The case of arms sales to Indonesia raises the possibility that UK-supplied arms could be used against civilians by a government with a very poor human rights record. The United Kingdom stood to gain commercially from this relationship, and so the question of selling arms to Indonesia placed the United Kingdom in a position where it had to choose directly between its own commercial benefit and the human rights of Indonesians. The second case was the United Kingdom’s diplomatic relationship with China in which the British avoided outright conflict over China’s human rights abuses in favour of a dialogue. The issue here is whether the United Kingdom was endorsing violations by continuing business as usual or whether it should have taken a more confrontational approach, with higher costs to itself in term of security and commerce and its interest in Hong Kong. The crucial difference between the two cases is that in the first, the issue was very specific, the sale of arms and their likely use against civilians, while in the second, the benefits to the United Kingdom were more general and harder to define and the relationship between those benefits and the specific human rights violations were not direct, but diffuse. The third case was over the ethicality and legality of the Kosovo intervention in the light of the absence of a UN Security Council resolution. 53
As Wheeler and Dunne’s discussion shows, it is often hard to assess the costs or benefits of particular policies and practices in terms of human rights. The differences in the cases of China and Indonesia point to the difference between clear relations of harm and connection, as in using British weapons against civilians, and not so direct, as in dealing with a government with a bad human rights record, but not perhaps being directly involved in, contributing to or benefitting from that practice. Trading with China and achieving commercial advantages by speaking softly on human rights issues is not necessarily the same as a practice of providing the material means for allowing violations of human rights to be undertaken, as in the Indonesia case.
In the case of Indonesia, it is clear the GIC should not profit from such transactions if they come at the expense of the human rights of citizens of other countries, as was likely to be the case. 54 In the example of China, it might be hard to prove that UK policy was directly implicated in human rights violations unless tied to specific practices. While it might be seen to be profiting in general from China’s policy it is different from whether British companies sell the means for human rights violations, such as weapons and so on.
Human rights ET cannot resolve all of the dilemmas associated with being a GIC but it can provide another incentive for states to respect human rights by placing a crucial domestic legal restraint upon state actions. As Shapcott argues, the weakness of the GIC concept is that it has no mechanisms in place to ensure good citizenship or restraint; thus, such policy is at the mercy of changing governments and personalities. 55 One of the main advantages of this approach is that it would require the state to defend controversial actions in court. ET provides a mechanism for ensuring, or at least legally requiring a state to fulfil its human rights duties abroad. The aim is not to provide unnecessary restrictions on states but to only make them and their citizens legally accountable. 56 For example, in the case of Indonesia, human rights ET would mean that the UK policy would be subject to judicial review and accountability, and not just the will of the government, thus in order to proceed the British government might have had to defend or prove in court that such sales did not contribute to violations of human rights in Indonesia.
The same would apply in cases such as the China example and might in this case not prohibit the trade going ahead. In other words, any argument either for or against a particular practice would require the same standards of proof and evidence on all parties. Thus, human rights ET might not restrict the state’s doing business with human rights violators unless a clear line of causation or complicity can be proven. Human rights ET is designed to address the specific acts of states and of their citizens, and to make them accountable legally for foreign activities that violate human rights; it is not intended, nor is it likely to work, if it is applied too generally where there are unclear lines of responsibility and harm. The point being that human rights ET as proposed here, with the advantage of a legal means of restraint, would not necessarily prevent the United Kingdom from pursuing its foreign policy agenda with China, or any human rights violating state in general. Human rights ET has the advantage of making states legally responsible and therefore having to defend policies in a court of law. Such cases would require specific chains of harm causation to be established and demonstrated in legal proceedings.
Pluralism, solidarism, GIC and regulating others
The previous section outlined a basic form that cosmopolitan ET could take and argued that such forms should be part of the responsibility of GIC concerned with human rights. This section discusses why and how this form of cosmopolitan ET relates to and avoids some of the problems associated with solidarist conceptions of good international citizenship.
While the solidarist view of international society emphasises human rights it has with some justification been seen as invoking the ‘dark side’ of civilising processes by enforcing a distinction between the civilised, Western, liberal human rights respecting states, and uncivilised, everybody else. It is easy to portray the goal of a solidarist international society as the spreading of a specific set of liberal values or Western standards of civilisation. As Vincent put it, when it comes to human rights the danger it seems is that ‘change . . . is the duty of foreigners: it is they who must get into step with us’. 57 In other words, liberal solidarism at times appears to not only advocate higher standards of self-restraint among members of international society but also invokes a civilising mission to convert others into good liberal states.
The dynamic that is most worrisome here is the implicit message that liberal states are sufficiently civilised and self-restraining, because they uphold human rights domestically. But one of the main charges against liberal solidarism is that this is hypocrisy because liberal states are complicit and active in imposing and exporting harmful practices upon the rest of the world. 58 Thus, they are not as ‘civilised’ as they would have the rest believe. The challenge to liberal solidarism, and to solidarism more generally, is how to avoid this hypocrisy. In other words, how to exercise higher levels of self-restraint in their dealings with other states and with non-liberal states.
The concept of the GIC has been largely associated with solidarism and liberalism–solidarism in particular. Linklater, however, argues that the GIC should not remain the province of solidarist accounts alone and that it is possible that a pluralist account can be developed. This requires more variety and differentiation in how such states conduct their policies and will vary according to context. In particular, he argues that
liberal democratic societies which aspire to be good international citizens must develop principles of foreign policy which are relevant to relations with very different types of state. Some will be actual or potential adversaries, some will be strongly committed to pluralist principles of international relations and therefore hostile to external interference in domestic affairs . . . and some will be attached to solidarist values . . .
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Consequently, Linklater identifies three different types of relations: those between solidarist states, between pluralist states, and between solidarist states and pluralist states or weaker states, each of which may require different practises of citizenship. In each of these contexts, the GIC will have to identify different ways of conducting good citizenship. In particular, this might raise the prospect that the more ambitious claims of solidarists regarding humanitarian intervention and human rights advancement might be unsuited to the second and third types, in which case solidarist ambitions may have to be reigned in.
The different contexts in which the GIC must act raises the question of how they can pursue their duties, and act as civilising agents by enacting and placing greater emphasis on self-restraint. In other words, attention to negative duties is a crucial corollary of their positive duties in different contexts of foreign policy because negative duties may be more achievable and appropriate in more pluralist settings where no agreement on solidarist goals is forthcoming. As Kamchibekova notes, ‘the ability for a state to fulfill . . . positive obligations is curtailed when it acts outside of its own territory, where it cannot adopt a full range of legislative, administrative, judicial and other measures to “secure” human rights’. 60 In such circumstances, states will need to look to other ways of advancing human rights, for instance, by turning to and regulating their own behaviour in relation to pluralist and other states. Specifically, both solidarist and pluralist states concerned with advancing human rights can prioritise self-restraint in terms of the harms they may commit to outsiders and can address the ways in which they may be directly harming, be complicit in or benefitting from the harms committed by others in term of human rights. The possibility of ET in relation to human rights promotes a path to good international citizenship that relies upon a largely negative conception of moral duty, duties to refrain, and to restrain, that is consistent with the basic moral premises of both pluralist and solidarist accounts. The form of cosmopolitan human rights ET proposed here has the advantage of focussing solidarist states on self-restraint, the cultivation of civilised selves, rather than the failings of others. In so doing, it avoids the assumptions arguably implicit in some liberal solidarism that it is only the non-liberal states that need civilising. On the other hand, it provides a mechanism where pluralist states concerned with maintaining the architecture of coexistence can act consistently with that principle by agreeing not to ‘intervene’ in the human rights of the citizens of other states. By practicing ET in relation to human rights, pluralist states retain a commitment to the sovereignty and independence of other states while seeking to regulate and restrict their own capacity to harm outsiders. Such a conception may be inconsistent with classical conception of pluralism but it is not out of line with the fundamental moral impulse to respect the rights of other states that is the heart of pluralism.
Conclusion
This article has argued that human rights ET is a legal mechanism to ensure restraint of states and their citizens in relation to the human rights of those beyond their own territories. The case has been made that ET is an accepted legal norm of international society that is consistent with both pluralist and solidarist understandings and if tied to human rights can work to support civilising tendencies in international society.
In their classic essay on Hedley Bull, Wheeler and Dunne posed two enduring questions: does solidarism remain a utopian hope in international society? and are there possibilities for new forms of solidarism that might prove non-utopian? 61 Although the context has changed since they wrote, and some may suggest these questions have been answered, the challenge they identify remains, how to pursue plausible non-utopian means for reforming international society and the practices of states along more cosmopolitan and human rights respecting lines. The argument above has been that a practice of cosmopolitan ET is a possible new form of state practice in defence of human rights that is potentially compatible with both solidarist and pluralist conceptions of international society and is plausible, non-utopian and indeed nascent in the society of states already.
Footnotes
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.
