Extraterritoriale Staatenpflichten jenseits der Hoheitsgewalt: Ein neues Konzept für umfassende extraterritoriale Staatenpflichten

This article discusses the extraterritorial human rights obligations of states and proposes a new and unconventional approach to the extraterritorial human rights obligations of states beyond the concept of jurisdiction of the state. While the extraterritorial state obligations within the concept of state jurisdiction is indisputably recognised, the comprehensive extraterritorial state obligations beyond the jurisdiction of the states has hardly been discussed. This issue is a truly new one with many open questions. Therefore, this article aims to present a solution from a new perspective to the discussion. The article discusses the traditional concepts concerning the extraterritorial state obligations and demonstrates the weaknesses and the paradoxes which these concepts produce when they hold on to the traditional approaches and understanding, that is to understand the human rights obligations as a concept within the jurisdiction of the state and to discuss the extraterritorial obligations through the formulation of the human rights conventions. This article argues that the current concepts do not provide for a comprehensive solution for the extraterritorial human rights obligations in the time of transnational constellations. Against this background the article proposes a new concept for extraterritorial state obligations borrowing elements from systems-theory, especially from the work of Gunther Teubner. It argues that the main reason for the comprehensive and general extraterritorial state obligations – beyond the notion of state jurisdiction – results from the normative idea of human rights. Human rights have universal validity and bring obligations independent of the jurisdiction of the state. What is important is the fact that the states can violate human rights beyond their jurisdiction and can influence the violation of human rights by other actors. The article demonstrates that the extraterritorial obligations of states beyond the notion of the jurisdiction of the states finds its source in the international human rights law (e.g. UN Charter, UHDR, ICESCR and CRC) and has been acknowledged for instance by the jurisprudence of the ECHR and statements of the HRC. Finally, this article drafts the scope and content of the extraterritorial state obligations. It holds on the idea that states have an obligation to respect, protect and fulfill human rights not only within their territory, but also extraterritorially.