Section I begins by setting out certain provisions added by the Lisbon Treaty requiring the European Union to promote human rights, democracy, and the rule of law in all its “relations with the wider world.” Section II then recounts a recent interpretation of these provisions, which understands them primarily as mandating compliance with international law, and thus largely denies extraterritorial human rights obligations to protect. While the fundamentals of this “compliance” reading are correct, Section III demonstrates that the notion of international law involved here entertains an expansive view of prescriptive jurisdiction, that is, a political institution’s authority to prescribe rules binding conduct. Indeed, despite precedent from the General Court claiming otherwise, the European Union regularly creates legal effects outside its borders, and has always done so. This is reflected both in the jurisprudence of the Court of Justice of the European Union (CJEU), as well as in EU legislation, particularly in areas such as competition, financial, and environmental regulation, all of which have profound implications for the human rights of distant strangers. Section IV argues, from a premise of human dignity as lying in autonomy, that human rights obligations arise only in relations of political authority, not mere factual power. By reference to Strasbourg case-law on extraterritorial human rights jurisdiction, it demonstrates that the creation of legal effects abroad is both necessary and sufficient to give rise to human rights obligations there, and rejects accounts of human rights jurisdiction based upon aspects of factual power, such as the “state control” and “capability” theories. If, as this paper argues, the European Union regularly governs persons overseas, this raises the specter of imperialism, which is touched upon in the conclusion.
The European Union's Human Rights Obligations Towards Distant Strangers,
Mich. J. Int'l L.
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