Human Rights Beyond Borders
Below are details of the project publications currently available. There are more to come. When they are available they will be posted here; if you would like to be sent a copy, please email email@example.com.
Ralph Wilde, ‘Let them drown’: Rescuing migrants at sea and the non-refoulement obligation as a case study of international law’s relationship to ‘crisis’, EJIL: Talk!, Part I, posted 25 February 2017; Part II, posted 27 February 2017 [4,138 words in total]
International law can be and is invoked in a dual way in relation to crisis: as part of the solution and as part of the problem. The following two posts explore this duality by considering the migration ‘crisis’ and the debates around one particular policy prescription relating to it: the ‘rescue’ of migrants at peril at sea performed by states acting extraterritorially, in the context of the operation of the non-refoulement obligation in human rights law.
‘When forced migrants decide to make perilous sea crossings: the causal role of international law,’ American Society of International Law, 166 Proceedings of the 110th Annual Meeting: Adapting to a Changing World (2017, American Society of International Law) 166-9 [4 pages/2000 words]
When the fate of migrants at sea is discussed, it is common for the implementation of international law to be invoked as a remedy. The present paper interrogates some of the assumptions about the value of international law that lie behind this. What is at stake in viewing international law as a solution to current challenges relating to migrants at sea? Is international law part of the solution, or part of the problem?
Also available as a video:
Ralph Wilde, ‘Dilemmas in promoting global economic justice through human rights law’ Chapter 5 in Nehal Bhuta (ed.), The Frontiers of Human Rights: Extraterritoriality and its Challenges, Collected Courses of the Academy of European Law (Oxford University Press, 18 February 2016, ISBN: 9780198769279), 127-175 [49 pages/25,000 words]
What is the value of ideas of international human rights in the struggle against global poverty and economic inequality? This question is not new, but recently a new aspect to it has emerged: what contribution might international human rights law make, on the basis of an ‘extraterritorial’ orientation, as far as state obligations are concerned? Such an enquiry has been foregrounded by a major international initiative by experts and activists: the 2011 ‘Maastricht Principles on the Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights’ (the ‘Principles’). The present chapter offers a critical evaluation of this enquiry, by considering a set of dilemmas or tensions that are implicated in the topic, and exploring how they play out in how the substantive contours of the law are understood, and more broadly illuminate the potential and the limitations of the law in this area. It does so by using the Principles, its Commentary, and what has been said about this topic by some of the signatories to the Principles, as a case study, given that the Principles and the Commentary aspire to be an authoritative and detailed codification of the law in this area and more broadly illustrate how many in the field of international public policy view the value of this normative framework.
It begins in section 2 by establishing the context for the present study, ‘extraterritorial’ human rights obligations, and the history of the treatment of issues of international economic justice in international law. It then explains the method adopted herein for evaluating the tensions and dilemmas involved in efforts seeking to use international human rights law to address such issues. The subsequent two sections identify and explore related sets of tensions: in section 3, the tensions between hope and reality, and in section 4, the tensions between a statist and a global focus. Attention then turns to the normative regime of international human rights law, as set out in the Principles and the Commentary, analysing the potential and limitations of this regime informed by an appreciation of the dilemmas and tensions identified earlier. This begins in section 5 with an explanation of the general contours of the legal framework, and the broader issues at stake when its merit is to be assessed. Subsequent sections then explore how this framework addresses two central issues implicated in the topic. In the first place, section 6, ‘power’, considers how the projection of power is framed extraterritorially so as to conceive particular triggers for applicability. In the second place, section 7, ‘cooperation’, considers how the idea of the economically advantaged being required to engage in resource and technology transfer to the economically less advantaged is approached.
Ralph Wilde ‘The extraterritorial application of international human rights law on civil and political rights’, Chapter 35 in Nigel Rodley and Scott Sheeran (eds), Routledge Handbook on Human Rights (Routledge, 2013), 635-61 [28 pages/15,000 words]
This chapter addresses two fundamental interrelated questions concerning the extraterritorial application of international human rights law on civil and political rights. In the first place, does this area of law apply extraterritorially and, if so, on what basis and in which circumstances? In the second place, what is the significance of some of the underlying political ideas at stake—for example, the claim that a ‘legal black hole’ is problematic, and needs to be remedied—for the meaning and scope of the law on applicability?
The focus is on civil and political rights only, not also on economic, social and cultural rights. The latter set of rights also raise important issues in the extraterritorial context, and States are bound by international legal rules covering both sets of rights. However, the law on the extraterritorial application of civil and political rights has important differences in terms of treaty provisions, enjoys a significant body of specific case law and other authoritative commentary, and implicates special policy questions worthy of discrete evaluation, notably as concerns the relationship between the individual and the state and the notion of a ‘legal black hole’.
Ralph Wilde ‘Human Rights Beyond Borders at the World Court: The Significance of the International Court of Justice’s Jurisprudence on the Extraterritorial Application of International Human Rights Law Treaties’ Chinese Journal of International Law (2013) 12(4) 639-677 [39 pages/17,000 words]
This article uses the case study of the question of whether human rights treaty law applies extraterritorially as a means of exploring the general theme of the value of the International Court of Justice’s involvement in human rights, when compared to such involvement by specialist human rights bodies. The Court’s express pronouncements on the issue, in the Wall Advisory Opinion, the DRC v. Uganda judgment, and the Provisional Measures Order in Georgia v. Russia, as well as an earlier more general statement in the Namibia Advisory Opinion, are compared to determinations on the issue by specialist courts and tribunals. The article begins by setting out the broader historical context of the ICJ’s involvement in human rights issues. It then analyses the different ways in which this involvement can be critically appraised, in the process making the case for the focus adopted herein, on a comparison between the role of the Court and that of specialist human rights tribunals on issues of meaning/interpretation rather than application/enforcement, and, within this, on comparative analysis concerned with the generalist/specialist distinction itself rather than the relative merits of positions taken on the substantive law. Such a focus is then deployed through a detailed critical evaluation of the Court’s statements in the decisions indicated. Finally, the article summarizes the significance of the Court’s determinations on the extraterritorial application of human rights law, and the broader relevance of these determinations for understanding the role of the ICJ in the field of human rights more generally.