Allocating Duties and Distributing Responsibilities in a Post-Territorial Human Rights Paradigm
Migration is one of the frontier areas for rethinking the way in which human rights obligations are typically allocated. Not only is migration externalised and privatised, it is also a consequence of structural global inequalities. So how does human rights law respond to human rights violations in which more than one state is involved, or when a state outsources migration control to another state (Turkey, Libya, Rwanda, Tunisia)? What if private actors are deployed? And how to deal with the structural drivers of migration, ranging from poverty to climate change? Complexity cannot be an excuse for lack of human rights accountability. Nor is there an unchecked mission creep: if human rights are indeed universal, there is no other option but to fill post-territorial gaps in human rights protection.
Allocating Human Rights Duties
In mainstream human rights law, the prevailing principle for the allocation of human rights duties remains territorial jurisdiction. Human rights obligations are allocated to those actors that have a territory (states), and more in particular to the state the territory of which an individual finds themselves on (territorial state). As I have explained most recently, the allocation concept used is that of jurisdiction. In human rights law, jurisdiction is mandatory rather than permissive: it defines when a state has human rights obligations, rather than whether it is allowed to act.
In the view of the European Court of Human Rights, extraterritorial jurisdiction is (still) wholly exceptional, and confined to exceptional circumstances or special features. Different models of extraterritorial jurisdiction have been used (spatial, personal, effect) by courts and monitoring bodies, of which the personal and effect model are more likely to be relevant for externalisation issues in the context of migration (for more details see Wissing and Desmet in this symposium).
Those narrowly constructed instances of extraterritoriality are not sufficient. Human rights obligations must be debordered. Scholarship on extraterritorial human rights obligations (hereafter ETO scholarship) in the area of migration has identified the proxy model and the effects model (p. 179) as promising pathways to better capture real power relations between states and people on the move (compare Angelet in this symposium). The proposal by scholars such as Gibney and Skogly, Pribytkova, Salomon and Skogly to work with an ability model is particularly relevant for addressing structural global inequalities as drivers of migration, including for climate migration, and to conceptualize collective burden-sharing. Mustaniemi’s distinction between extraterritorial jurisdiction-based obligations and international cooperation obligations builds on the distinction between proxy and effects models on the one hand, and the ability model on the other hand, and sheds light on the substantive obligations that ensue.
Extending human rights obligations beyond the territorial state does not mean that human rights accountability is fully shifted from the territorial state. The nature and scope of the obligations can vary for each state. In that sense, the obligations incumbent on states can be ‘divided and tailored’. Applied to migration, this would typically imply that foreign states would have extraterritorial jurisdiction for the rights ‘relevant to the situation of that individual’ (para. 137). In more exceptional cases, where structural global inequalities are at stake, jurisdiction would extend to all human rights.
In light of the privatisation of migration control, human rights law needs to go beyond states. This raises the question how to attribute human rights obligations to non-state actors. Obviously, jurisdiction is not a suitable concept, given its strong grounding in territoriality. Functional equivalents have been proposed such as sphere of influence or ‘participation in the international legal order with the intent to benefit from interactions underlying this participation’ (p. 259).
It is interesting and encouraging to see how the externalisation and privatisation of migration control has opened up the debate on causation-based jurisdiction models, and triggered creative scholarly thinking (e.g. Gombeer and Smis, Gammeltoft-Hansen) on the spatial scope of human rights obligations beyond territory and state. This innovative thinking may gain in importance given the increasingly remote involvement of states of destination in migration control.
Distributing Responsibilities for Violations
Accountability cannot be achieved by merely identifying duties and duty-holders; it also requires that responsibility can be established in case of violation of human rights obligations.
In mainstream human rights law, distribution of responsibility is a non-issue, since responsibility is attributed to the exclusive duty-bearer, which is the territorial state. Once human rights obligations are attributed to foreign states and non-state actors, questions of distribution of responsibility arise. The European Court of Human Rights has already accepted the idea of concurrent responsibility in multiple contexts, including those of military action abroad, cross-border abduction, migration and most recently climate change. In line with the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, the Court has held that ‘each State has its own share of responsibilities’ (para. 442), so that ‘each State can be held accountable for its share of the responsibility for the breach in question’ (para. 443). The downside of this position is that it seems to prefer independent over shared responsibility, which means that the focus is on each state’s own conduct and own international obligations only. On the other hand, the Strasbourg Court has stated clearly that a state cannot ‘evade its responsibility by pointing to the responsibility of other States, whether Contracting Parties to the Convention or not’ (para. 442); in other words, the taking of measures is ‘determined by the State’s own capabilities rather than by any specific action (or omission) of any other State’ (para. 442). Finally, the European Court has also rebutted the drop in the ocean argument, i.e. that what an individual state can do is rather minimal: if ‘reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm’, that is sufficient to engage the responsibility of a state (para. 444).
Post-territorial Human Rights Responsibility
In the literature, models for a post-territorial human rights responsibility regime have emerged. I have identified three building blocks for a human rights responsibility regime that speaks to a multiplicity and diversity of duty-bearers: shared responsibility; a continuum of differentiated responsibility; and liability for monetary compensation commensurate with the degree of responsibility. Erdem Türkelli has proposed polycentric governance of responsibility, drawing on legal and non-legal visions on attribution and distribution of responsibility. In this symposium, Wissing explores the Common but Differentiated Responsibility and Respective Capabilities principle’s potential for refugee protection and De Coninck suggests relational human rights responsibility. In general international law, Guiding Principles on Shared Responsibility in International Law have been proposed to address an indivisible injury caused by several states and/or international organizations, e.g. through cooperative actions to control migration. Those Guiding Principles move away from the dominant paradigm in public international law of independent responsibility and seek to develop the notion of shared responsibility. Shared responsibility may arise both from collective conduct, e.g. through engagement in migration deals or multinational military operations, or from independent conduct, e.g. by contributing to climate change (p. 24). The trigger for shared responsibility is contribution to an indivisible injury, i.e. for which contributions to the injury cannot be ‘distinguished from each other by using a factual test of causation’ (p. 24). That contribution can be individual, concurrent or cumulative. Cumulative contributions refers to the situation in which the conduct of multiple actors ‘together results in an injury that none could have caused on their own’ (p. 25) (Principle 2).
Clearly, a post-territorial human rights paradigm necessitates a rethinking of the responsibility regime, too. For proxy and effects-based jurisdiction models, independent responsibility may sometimes work, given the centrality of causation in both establishing jurisdiction and responsibility. In other instances, where the indivisible injury results from cumulative contributions, shared responsibility may be needed to properly address the violations. An ability model may necessitate the acknowledgement of shared responsibility all the more, since the attribution of obligations is not based on causation but on ability. When multiple actors are in a position to act but fail to do so, they could be said to hold shared responsibility.
A Post-territorial Human Rights Paradigm
In conclusion, the realities of migration control, in particular its externalisation and privatisation, challenge the state-centred and territorial nature of the current legal human rights regime. In a post-territorial human rights paradigm, the bases on which human rights obligations can be attributed are diverse and stretch beyond causation-based models. Similarly, responsibility for human rights violations goes beyond independent responsibility to include shared responsibility of state and non-state actors alike. Such a paradigm shift may be an uphill exercise but is not impossible: useful inspiration can be found in other legal regimes and in other disciplines.
The contributions of this Symposium are the result from a strategising workshop organised by the Migration Law Research Group in Ghent on 12 January 2024 in the context of the Scientific Research Network on Extraterritorial Human Rights Obligations in Practice (funded by the Research Foundation Flanders, grant number W002420N).