Rehabilitating Territoriality in Human Rights
Indiana Univerity Maurer School of Law
October 19, 2010
Cardozo Law Review, Forthcoming
Southwestern Law School Working Paper No. 1025
For many years, territorial principles anchored an international system organized around nation-states. Recently, however, the human rights movement has sought to change the state-centric focus of international law and overcome the limitations of a system where the territorial state is the primary actor. The field of human rights has promoted a new legal orthodoxy that places the person at the center of the international legal system. Within this orthodoxy, non-state actors play a prominent role, unilateral domestic lawsuits are promoted, and territorial borders give way when necessary for humanitarian intervention. In contrast, territorial conceptions of international law are viewed as outdated and ill-equipped to deal with a globalized world. Prevailing wisdom in the human rights community, at least among academic scholars, now suggests that non-territorial models of governance are better in protecting and enforcing human rights.
This article challenges that wisdom. Globalization and territorial governance can be consistent in the field of human rights. The article advances two principle arguments. First, concepts of territorial sovereignty and the multilateralism upon which international law operates achieves an underappreciated balance between state and individual rights that often serves as a foundational prerequisite for human rights to flourish. The rejection of territoriality may undermine the hard fought gains the human rights movement has achieved. Second, in the long run, strong territorial states will remain critical to a world system that promotes human dignity. A disaggregated state, where globalized, American-style interest group politics controls, is unlikely to be favorable to human rights over time.
The article concludes that territorial approaches to global governance have greater promise than many assume to jump-starting greater respect for, and enforcement of, human rights. The human rights community would benefit from re-embracing traditional multilateral legal solutions as the primary way of achieving meaningful reform.
Number of Pages in PDF File: 46
Keywords: Human Rights, Territoriality, Extraterritoriality, Pluralism, Universalism, Globalization, Sovereignty, Humanitarian Intervention, Alien Tort Statute, Transnational, International, Multilateralism, Unilateralism, State-Centric, Fragmentation, Universal Jurisdiction, Nation State, Global Governance
JEL Classification: K00, K1, K10, K19, K33, K39, K49
Date posted: October 21, 2010