Rights Beyond Borders

Abstract

The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article seeks to fill that gap. Part I provides a typology of basic approaches to rights beyond borders, which I label country, compact, and conscience. Country-based reasoning takes a strictly territorial approach to regulating the government’s actions outside the national territory, even vis-à-vis citizens. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her status as one of the governed, regardless of territorial location. Conscience-based reasoning holds that a government should act the same way beyond its borders as it does within them.

Part II uses this framework to analyze the evolving jurisprudence of extraterritorial rights in three common law jurisdictions: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act. This comparative analysis reveals the continued tenacity of country-based reasoning, which privileges the role of territory in conceptualizing domestic rights, even in an age of “globalization.” In the end, the most generative source of more expansive readings of domestic rights provisions might not be any comprehensive theory about the extraterritorial reach of rights, but rather individual judges’ own sense of fundamental fairness and the perceived need for a minimum set of judicially enforceable legal constraints on the action of the political branches. To date, such judicially enforceable constraints continue to be provided by domestic, rather than international, rights guarantees.

Keywords: Extraterritoriality, Constitutional Rights, Canadian Charter, U.K. Human Rights Act, Boumediene, Bagram, Hape, Khadr, Al-Skeini, Al-Saadoon