Milanovic: Extraterritorial Derogations from Human Rights Treaties in Armed Conflict

Marko Milanovic (Univ. of Nottingham - Law) has posted Extraterritorial Derogations from Human Rights Treaties in Armed Conflict (in Collected Courses of the Academy of European Law, Nehal Bhuta ed., forthcoming). Here's the abstract:

This article examines one specific question: whether states are allowed to derogate from human rights treaties for situations which take place outside their territories, especially in armed conflict. Can, for instance, the United Kingdom derogate from the European Convention on Human Rights (ECHR) or the International Covenant on Civil and Political Rights (ICCPR) for events that take place in Afghanistan and involve its armed forces deployed there, to the extent that the ECHR and the ICCPR apply in Afghanistan?

The wider the geographical scope of human rights treaties, the more relevant the question of extraterritorial derogations. Such derogations might start looking increasingly appealing to states, especially those who have initially miscalculated in arguing that the treaties do not apply at all, and avoided derogating in the fear that doing so would count as an admission that the treaties do apply. Derogations have the potential of bringing both clarity and flexibility to the applicable legal framework, especially in situations of armed conflict and with regard to possible interactions between human rights and international humanitarian law (IHL).

Contrary to the dicta in some of the decisions of the House of Lords and the UK Supreme Court, the article argues that extraterritorial derogations are not only permissible, but may even be necessary and desirable, as part of price worth paying for the treaties’ extensive and effective application outside states’ boundaries. It also elaborates on the relationship between derogations and the various different manifestations of the lex specialis principle.