States, Human Rights, and Distant Strangers

Front matter

Routledge Studies in Human Rights

STATES, HUMAN RIGHTS, AND DISTANT STRANGERS

THE NORMATIVE JUSTIFICATION OF EXTRATERRITORIAL OBLIGATIONS IN HUMAN RIGHTS LAW

Contents

Acknowledgments List of Abbreviations l Introduction

1.1

1.3

Index

315 322 349 350

Acknowledgments

This book was approved as a doctoral dissertation by the Faculty of Law of the University of Zurich in 2021. It formed part of a research project on “The Legal Philosophy of Extraterritorial Applications of Human Rights”, funded by the Swiss National Science Foundation (SNSF) and led by Prof. Matthias Mahlmann. Selected intermediate results of the thesis have been published in two articles.’ Prior to the publication of this book, the dissertation has been updated and shortened. Literature and legal developments have been taken into account until October 2022.

I am obliged to the SNSF for giving me the opportunity to focus on my research, and for enabling the open access publication of this book. At Routledge, I thank Andrew Taylor and his colleagues for their continuous support during the publication process, the series editors Mark Gibney, Thomas Gammeltoft-Hansen, and Bonny Ibhawoh for making this book possible, and the anonymous reviewers for their helpful feedback.

Over the course of the years, this book has tremendously benefitted from discussions and feedback. First of all, I am deeply indebted to Matthias Mahlmann, who has been a constant source of encouragement throughout the entire research and writing process. His comments were always to the point, his support has been more than generous, and his enthusiasm for the field of legal philosophy as well as his belief in its potential have been inspiring and have left a lasting influence on my academic and professional development. Thank you!

I am also grateful to Oliver Diggelmann for agreeing to serve as a second expert and for his helpful and highly pertinent comments. Moreover, I would like to thank Yuval Shany, Lutz Wingert, Tilmann Altwicker, Véronique Zanetti, and Jack Williams for taking the time to read and discuss parts of my work. In 2019, I had the opportunity to convene a conference on “Extraterritorial Human Rights Obligations in the Age of Reemerging Nationalism” at the University of Zurich, during which intermediate results of this dissertation were presented. I also discussed parts of it in workshops at two IVR World Congresses, at University colloquia, and over various coffees. I am obliged xii Acknowledgments to the participants of all these discussions for their invaluable feedback, from which I have benefitted a lot.

Yet, this book—and its author—have also benefitted from other kinds of support, without which it would not have come into existence. I would like to express my deep gratitude to my family: to my parents, my partner, and our two children. May my concern for the injustices addressed in this book— and my conviction that both theoretical and practical efforts matter in this regard—be of inspiration to you, in one way or another.

The sheer cynicism behind the phenomenon of states trying to avoid the reach of human rights by crossing borders or when acting abroad has not stopped to appall me. This book is motivated by the sincere conviction that both morality and law demand otherwise—and that sound research and good arguments are an important (even if far from the only) tool needed to counter these tendencies. I am aware of how privileged I was to be able to devote a substantial part of my time to this research. Likewise, I am aware of how limited my perspective on the applicability of human rights remains compared to those who have experienced what it means to have their dignity disrespected, sometimes on a daily basis. Thus, my contribution is modest, but I hope that it eventually has an impact in practice, too.

Note

1 Miiller, Angela, ‘Justifying Extraterritorial Human Rights Obligations: An Ethical Perspective’, in Gibney, Mark et al. (eds.), The Routledge Handbook on Extraterritorial Human Rights Obligations (Abingdon/New York: Routledge, 2022), 53-64; Müller, Angela, ‘Security Measures Abroad and Extraterritorial Human Rights Obligations’, in Fritsche, Ruwen et al. (eds.), Unsicherheiten des Rechts, Archiv für Rechts- und Sozialphilosophie—Beihefte, 162 (Stuttgart: Franz Steiner Verlag, 2020), 103-114.

Abbreviations

BV BVerfG BVerfGE CAT CCPR CESCR CEDAW cf.

CFR CJEU

Comm. No.

CPPCG

CRC CRPD

African Charter on Human and Peoples’ Rights [Banjul Charter]

American Convention on Human Rights [Pact of San Jose] American Declaration on the Rights and Duties of Man Artificial Intelligence

Angela Müller

Amendment

Arab Charter on Human Rights

Article

Bundesblatt [Federal Gazette of Switzerland ] Entscheidungen des Schweizerischen Bundesgerichts [Decisions of the Federal Court of Switzerland | Bundesverfassung der Schweizerischen Eidgenossenschaft [Federal Constitution of the Swiss Confederation ] Bundesverfassungsgericht [Federal Constitutional Court of Germany]

Entscheidungen des Bundesverfassungsgerichts [Decisions of the Federal Constitutional Court of Germany]

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Human Rights Committee

Committee on Economic, Social, and Cultural Rights Convention on the Elimination of All Forms of Discrimination against Women

confer [compare |

Charter of Fundamental Rights of the European Union Court of Justice of the European Union [formerly: Court of Justice of the European Communities]

Communication Number

Convention on the Prevention and Punishment of the Crime of Genocide

Convention on the Rights of the Child

Convention on the Rights of Persons with Disabilities xiv List of Abbreviations dec.

EC

EComHR ECtHR edn. ed./eds. e.g.

ESC

et al.

ETS fn.

GC GDPR GG

IACHR TACtHR Ibid.

ICCPR ICERD

ICESCR

ICJ

Le.

IHL IHRL IHRR

IR Realism no.

OAS OHCHR O.J.

OP OPAC-CRC para.

Prot. slip. op.

decision

European Communities

European Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights]

European Commission on Human Rights

European Court of Human Rights

edition

editor / editors

exempli gratia [for example]

European Social Charter

et alii / et aliae [and others]

European Treaty Series

European Union

folio [and the following page /paragraph/section |

folio [and the following pages/paragraphs /sections | footnote

Grand Chamber

General Data Protection Regulation

Grundgesetz ftir die Bundesrepublik Deutschland [Basic Law for the Federal Republic of Germany]

Inter-American Commission for Human Rights Inter-American Court of Human Rights

ibidem [in the same place]

International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination

International Covenant on Economic, Social and Cultural Rights

International Court of Justice

id est [that is]

International Humanitarian Law

International Human Rights Report

International Relations Realism

number

Organization of American States

Office of the UN High Commissioner for Human Rights Official Journal

Optional Protocol

Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict paragraph

Protocol

slip opinion ane ZA T

N Charter NTS

List of Abbreviations

Treaty on European Union

Treaty on the Functioning of the European Union Transnational Corporations

Turkish Republic of Northern Cyprus Universal Declaration on Human Rights United Kingdom

United Nations

Charter of the United Nations

United Nations Treaty Series

Universal Periodic Review

United States

Constitution of the United States

versus

Vienna Convention on the Law of Treaties Volume

XV l Introduction

1.1 The Territorial Conditionality of Human Rights

1.1.1 The Territorial Paradigm Behind Human Rights Law

The foundational idea behind the concept of human rights is to protect the essential aspects of what it means for a human being to live a life in dignity—and to do so through rights that are universally assigned to every individual qua being human.

In 1945, the world suffered a collective shock: The realization of what states and their agents are capable of doing to human beings had started to dawn on it. It led the global community to recognize that people can no longer solely rely on domestic legal protections of individuals’ dignity, which had traditionally enshrined fundamental rights on the constitutional level as rights of individuals vis-a-vis their state of citizenship. In addition, a complementary regime of safeguarding rights at the international level was required.

As a major step, this resulted in the adoption of the Universal Declaration of Human Rights (UDHR).! Up until today, it serves as one of the essential touchstones of human rights norms, having laid the groundwork for the subsequent progressive evolution of the international human rights regime, which translates these rights into corresponding obligations on the part of states. Over the course of the following decades, an expansive body of basic human rights has been enshrined in the form of legally binding norms of international law, many of which have achieved full or near-universal validity. In contrast to traditional public international law, which has always been between states, modern international human rights law (LHRL) recognized individuals as direct subjects of international legal norms. Thereby, states have subjected themselves to obligations that apply both to how they act toward one another as well as toward individual human beings.

After having witnessed two World Wars—and countless other conflicts and atrocities—, the intention behind IHRL was to overcome the narrowness of a citizens’ rights approach by expanding the reach of human rights norms to everyone residing on a state’s territory. The criterion for being protected shifted from citizenship to territorial residency, which brought with it a significant

DOI: 10.4324/9781003347095-1 This chapter has been made available under a CC-BY license.

expansion of the scope of individuals safeguarded against the abuse of state power.? This territorial approach was also mirrored in IHRL forming part of public international law, which in turn has largely been based on the principles ofthe Peace of Westphalia of 1648. IHRL has adopted among its central pillars the Westphalian principles of the division of the globe into territorial states, of exclusive and far-reaching territorial sovereignty, and of noninterference. This implied a state-centered and territorial paradigm for the application of human rights, too. In many cases, this expansion has also been adopted for the scope of constitutionally protected individual rights in domestic frameworks.

Eight decades later, state actions continue to appall the global community— and many of them take place well beyond the offending state’s territory. While states that interfere and thereby infringe individuals’ rights abroad are by no means a new phenomenon, the significant globalization processes of the last decades have multiplied states’ means for such interferences, many of which do no longer require ‘boots on the ground’. For example, technological developments pose a multitude of novel challenges, as intrusions in the digital space—through cyberattacks, algorithmic decision-making, deepfakes generated by so-called Artificial Intelligence (AI), automated weapons, or the dissemination of content on online platforms—are hard to be pinned down to territory: Users, servers, and companies are spread across the globe, and so are the victims of human rights violations committed through digital infrastructures. Intelligence strategies like targeted killings by unmanned aerial vehicles, extraordinary renditions, or digital surveillance are increasingly performed on or with effects on other states’ territories. Technological means as well as transport systems and routes continuously perforate state borders and increase the transnational flow of individuals—and so do the manifold causes behind global migration. In the economic realm, global trade systems open up a variety of ways for states to affect ‘outsiders’.’ States also face novel challenges in protecting individuals from infringements of their human rights that result from climate change, and the same is true for nuclear threats, terrorism, or organized crime, many of which create cross-border networks of non-state actors. At the same time, neither are the strategies and means states opt for when they try to address these phenomena confined to their own territories, as sanction regimes, foreign investments, or intelligence strategies exemplify. In brief, the social, economic, and cultural world of individuals across the globe is more interconnected than ever before. At the political level, domestic and foreign affairs are no longer separate domains but mutually influence and depend on each other. In the legal domain, various processes of integration and emerging supranational or international structures begin to weaken the dichotomy between insiders and outsiders.*

These increasingly multilevel and transnational processes have exponentially increased diagonal relations, i.e., relations between states and extraterritorially located individuals.’ While we have observed for centuries that states can affect people abroad, today, the amount of individuals a state can have an impact on and the means by which it can do so have been multiplied. Against this background, it appears that a territorial paradigm for the applicability of legal human rights norms results in a protection vacuum by creating ‘legal black holes’: Expanding the scope of protection after the Second World War—from citizens to everyone on the territory—has had the effect that a state is, at least at first sight, not obligated to respect, protect, and fulfill human rights of those located outside their territories.° The fact that states can and do affect individuals abroad, and the countless ways in which they do, indicate that a territorial confinement of legal norms that aim at protecting human beings is at least partially insufficient. If the moral idea behind human rights obligations of states is the protection of human beings, should not the very same idea also guide human rights law? And then, should not transnational or diagonal relationships between states and individuals abroad also be regulated by these very norms? In other words, should human rights law apply extraterritorially, too?

This book will address these questions from a perspective of legal philosophy, exploring the normative foundations of extraterritorial obligations of states within human rights law—at the domestic, supranational, and international levels. It thus asks whether there are normative reasons for assuming that human rights norms shall require states to respect, protect, and fulfill rights when their conduct affects individuals abroad.

1.1.2 Contested Extraterritorial Applicability Today

The topicality and urgency of the question is not only underlined by today’s world, in which states’ ability to act beyond their territorial borders has increased exponentially. But also, on many levels of human rights law, extraterritorial obligations remain a contested concept, indicating the need for further research on the topic.

Fundamental rights are primarily enshrined in the framework of domestic legal orders, typically in the form of constitutional norms. While in some domestic systems, they generally constrain the exercise of public authority— thus, at least in principle, irrespective of where it manifests itself—other systems tend to confine the reach of fundamental rights to their territories. The rights guaranteed at supranational and international levels amount to subsidiary regimes of protection, which complement domestic ones. The fact that they are anchored at these legal levels could be taken precisely to reflect that human rights norms require guardianship that does not end at states’ borders—and thus that they must also be protected by other than domestic regimes. Yet, even here, the territorial paradigm still heavily influences how the applicability of these rights is interpreted.” First, though increasingly acknowledging an expanding scope of extraterritorial applicability, case law is still marked by ongoing difficulties in constructing principled and consistent approaches to the issue. Arguably, this partly arises from the state-centered pillars on which IHRL as part of international law rests. This appears unsatisfactory, especially in light of the serious human rights implications of contemporary global phenomena. The urgent need for adequate governance of essentially transnational issues, such as climate change or digital surveillance, necessitates coherent approaches to the question of human rights duties beyond borders.

Second, a number of key stakeholders still perceive human rights as territorially limited claims of residents vis-a-vis their domestic state. In particular, governments of states—the duty-bearers at stake here—regularly confirm their view that the applicability of international bills of rights is strictly limited to their territories: Respecting human rights or contributing to their enjoyment abroad are portrayed as laudable acts of charity but not perceived as stringent legal obligations. While some reject extraterritorial applicability in principle, most opposition surfaces when states are confronted with concrete situations or norms that shall be applied beyond borders.® The political climate across the globe appears to support this line of reasoning. Various commentators declare we have witnessed the end of the liberal international order, with its ideas of universal human rights and democracy: “The jungle grows back”? and “the era of values is over—the world watches the return of Realpolitik”.!° In this new age of multipolarity, the world might have arrived at a “sovereigntist turn”,!! in which “[a]spirations to bring harmony to the relationship between ethics and foreign policy have had their day, for now at least. Liberalism is in retreat both as a comprehensive doctrine and as a compass to guide the ship of states”? Accordingly, the question is posed: “Are we heading towards a post human rights world?”.!3

In a similar vein, political leaders all over the world combine nationalist ideologies with populist tactics. In doing so, they emphasize the distinction between insiders and outsiders: “Wise leaders always put the good of their own people and their own country first. The future does not belong to globalists. The future belongs to patriots”.!* The ideas of equality and justice are abandoned for a “welfare state chauvinism”, while global cooperation in general and international human rights norms in particular tend to be portrayed as undermining states’ capacity to promote the interests of their members, i.e., as illegitimate constraints on the pursuit of states’ national interests. 1°

In sum, the status of extraterritorial human rights obligations in human rights law has yet to be clarified—and they are far from being accepted by the primary duty-bearers, i.e., states. An analysis of these obligations cannot ignore these aspects of contemporary reality. It must engage with ideologies of political movements that continue to have or are gaining political power, and which oppose the idea of owing anything to those beyond borders. This is so especially in light of the fact that some of them form (part of) a government, and thus reflect the position of central duty-bearers at stake.

1.1.3 The Contribution of Scholarship

The debate on extraterritorial human rights obligations within legal scholarship is mainly focused on international norms, even though there exist parallel debates on specific domestic regimes, most prominently on that of the United

States (US), as well as a rapidly growing body of work on the issue in the supranational regime ofthe European Union (EU).

While the general discussion of duties to individuals abroad has a long history in legal thought,!° the contemporary debate on extraterritoriality in IHRL was mainly initiated in the late 1990s. In its beginnings, it was primarily inspired by particular cases and by becoming aware of the difficulties judicial or quasi-judicial bodies encountered when confronted with extraterritorial situations, especially in their attempts to develop principled approaches to the issue. Next to academic analyses, the work of human rights practitioners, United Nations (UN) bodies, and experts stimulated the rapid advancement of the discussions.

At that point, these discussions were mainly focused on the general question of whether human rights norms can be applied abroad. Thereby, the concept of jurisdiction was made into the pivot of the debate: Jurisdiction (implicitly or explicitly) figures as the main threshold of applicability in most human rights treaties, among which the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR),'® which have stood at the center of scholarly attention from the outset.!?

Today, a considerable part of work has moved beyond these questions on general legitimacy and the interpretation of jurisdiction, turning to the analysis of more technical aspects and of nuances of legal implementation.”° This has been accompanied by an increased interest into the extraterritorial applicability of economic, social, and cultural rights as well as on duties to protect and fulfill, supplementing the focus on civil and political rights and on the duty to respect, which remain central foci of the debate.?? In addition, a further prominent sub-strand has developed around the extraterritorial obligations of non-state actors, with a particular focus on Transnational Corporations (TNCs).?8

The impressive body of research developed over the last three decades has made the topic of extraterritorial obligations into one of the most prominent within legal scholarship on IHRL. Today, the nuanced, advanced, and diversified academic debate, which is often linked to human rights practice,”* importantly contributes to increasing consistency in jurisprudence.

Within the framework of moral, political, and legal philosophy, questions of global justice, the conflict between duties to compatriots and duties to strangers, or the status and value of the political community have long and extensively been discussed. In addition, there exists an abundance of foundational work on the theoretical underpinnings of human rights. However, attention has often focused on duties of individuals, on positive duties to provide, or exclusively on moral obligations without linking them to legal practice (with the more recent debate on the ‘Responsibility to Protect’ (R2P) forming a notable exception).”5

While these debates provide significant starting points, there exists at least a partial lacuna when it comes to the justificatory normative background of extraterritorially applying legal human rights obligations of states. The specific question of whether /aw should subject a state to human rights obligations vis-a-vis extraterritorially located individuals is rarely explicitly addressed from the perspective of legal and political philosophy.?° Lastly, the idea of a universalist conception of human rights, which has long been celebrated as a major achievement of the last century, is increasingly confronted with new and revived strands of academic critique, i.e., with skeptical and revisionist perspectives on its foundation, evolution, or implementation.” At times, this is coupled with an equally observable renewed emphasis on the need to categorically distinguish the domestic from the global sphere.

1.2 The Need for a Justificatory Theory of Extraterritorial Human Rights Obligations

The contemporary status of extraterritorial human rights obligations in political reality, legal practice, and academic debates points to several lacunae that motivate the focus and approach of this book. First, with regard to the scholarly debate in the legal field, the increasing move away from the discussion on the general justifiability, validity, and acceptance of extraterritorial obligations and toward more technical issues of scope and legal implementation is, to a certain extent, in tension with the fact that political and legal hurdles continue to exist: Neither have extraterritorial duties been generally accepted in political reality nor has the judiciary come up with consistent principles of applying them. Furthermore, this development is in tension with the issue of extraterritorial applicability being linked to foundational normative questions of pressing relevance in today’s world—such as the adequacy of a state-centered approach in human rights law in light of immensely powerful private actors, the role of state sovereignty, the status of the manifold emerging transnational relations, and the role of international law in regulating these issues.

Second, the academic debate has primarily evolved in the field of law. It is not satisfactorily accompanied by a corresponding discussion on the theoretical underpinnings of legal extraterritorial human rights obligations in the field of moral, political, and legal philosophy. Undeniably, there are valuable contributions (mostly by legal scholars) that do provide such theoretical reflection and attempt to better integrate various perspectives in an interor transdisciplinary way.?® Nonetheless, in toto, the philosophical debates on global justice and human rights theory have rarely taken up the specific question at issue, i.e., the normative justification of extraterritorial obligations in human rights law, in a comprehensive way—despite the fact that human rights are generally perceived as one of the main currencies of global justice.”?

Third, this gap in philosophical groundwork can be felt in jurisprudence. The continuing controversial status of judicial bodies’ approaches to extraterritorial applicability indicates that a firmer grounding of the normative principles behind it would valuably contribute to increasing coherence in case law.

Fourth, all of the above appears even more urgent in light of contemporary globalized reality, the variety of global challenges that transcend borders, and the countless ways states have to affect and threaten human rights abroad. And lastly, a glimpse ofthe political world testifies to this need for normative groundwork. There is concrete and continuing opposition on the part of some states, the most central duty-bearers, to expanding human rights law beyond borders, and the global political climate suggests that ideologies supporting this opposition will continue to have (and gain) influence. While this empirical observation says nothing about the normative legitimacy of extraterritorial human rights obligations, it illustrates the need for strengthening their justificatory background. One should avoid falling into the trap of cosmopolitan naivete by ignoring the existence and potential rise of such ideologies—and their de facto influence on the acceptance of obligations to distant strangers: “[A]t moments of great political crisis the theoretical approaches that underlie normative claims really matter”.°°

Against the background of these lacunae, this book’s aim is to address foundational normative principles behind extraterritorial human rights obligations— and to translate them to the legal level. It starts from the assumption that in light of the moral idea behind it, human rights law should also provide protection against extraterritorial violations—and that this can be justified. To do so, and in light of the theoretical and practical skepticism that continues to exist, an informed approach first requires to address counterarguments, i.e., identifying arguments that could underlie a ‘territorial view’,*! and respond to them. Based on a thorough critique of territorial views, the book will develop elements of a justificatory theory of extraterritorial human rights obligations by linking legal and philosophical perspectives. These justificatory foundations should have concrete consequences for the question of extraterritorial applicability in human rights law—and the last part of the book will shed light on what they could look like.

By strengthening the normative grounds on which extraterritorial obligations rest and by taking an interdisciplinary perspective, the book aims to bridge the gaps between reality, scholarship, and case law. Ultimately, it hopes to provide normative prerequisites for developing principled approaches at the legal level, which will in turn help to endow judicial bodies with firmer argumentative instruments in addressing the issue. In times in which the means for and the occurrences of transnational rights violations have increased significantly, this objective is of timely importance.”

1.3 The Book’s Approach

1.3.1 Structure and Method

The book is divided into three main parts. After these introductory remarks, the first part focuses on the legal framework at constitutional, supranational, and international levels. It intends to provide a non-exhaustive overview of existing jurisprudential approaches to extraterritorial applicability by reference to particular legal systems: in Chapter 2, domestic law through a brief look at the Constitutions of Switzerland and Germany and a more detailed look at US constitutional law; in Chapter 3, the supranational framework of the EU; and in Chapter 4, international human rights norms as enshrined in their most central treaties—primarily the ECHR and the ICCPR—and in customary international law. Even though the focus lies on IHRL and within it, to a certain degree, on the field of civil and political rights, the outcome of the analysis aims to cover questions of human rights norms in general.

These examples will serve to illustrate both the variety of challenges arising in extraterritorial situations and the judicial difficulties in addressing them in a cogent manner. The three-level approach underlines the topicality of the extraterritoriality question, which prompts foundational questions at different legal levels and within various legal regimes.

This qualitative analysis of relevant cases serves as the point of departure for and importantly informs the subsequent ethical inquiry in the second part. Setting the scene in Chapter 6, it identifies six theoretical approaches within the tradition of statism that provide premises for normative arguments against expanding human rights obligations beyond borders. Via reconstructing these arguments, Chapter 7 develops a systematic and multifaceted critique of the territorial view. This then provides the basis for the next and core step in Chapter 8, the development of the book’s justificatory theory of extraterritorial human rights obligations. Subsequently, the intention of the third part is to transpose this theory to the level of legal practice, a project that hinges on the relation between morality and law as explicated in Chapter 9. In Chapter 10, it translates the justificatory theory developed into a coherent interpretation of jurisdiction as the main applicability threshold of IHRL—an interpretation that, however, also fits other levels of human rights law—and considers potential challenges of practicability when legally implementing these obligations. Chapter 11 summarizes and evaluates the implications of the findings for the bigger picture of human rights theory, global justice theory, and human rights law.

While the book aims to bridge the gap between various scholarly fields and takes an interdisciplinary perspective, and while it comprehensively analyzes the legal status quo, it is not an empirical study. It is directed at normative theory building and situated in the academic tradition of the philosophy of law, conducting legal and philosophical analyses by employing methods of conceptual, hermeneutic, and normative reasoning. This approach is motivated by the presumption that normative research in ethics and law must essentially and reciprocally inform each other: Neither shall the former overlook important aspects of how legal norms are created, implemented, and institutionalized nor does legal scholarship benefit from ignoring ethical reasoning that stands behind legal norms. Obviously, this presumption in turn hinges on the relation between morality and law—here, on their relation in the domain of human rights. It is most plausibly not the case that all outcomes of philosophical argumentation are immediately applicable to the legal sphere, but this book starts from the assumption that there are at least some legal domains in which a principled ethical background theory is crucial for developing, implementing, and interpreting legal norms**—and that human rights law is among those domains. A justificatory normative theory of human rights should ideally provide the guiding principle for conceptualizing, interpreting, and applying corresponding legal rights at national, supranational, regional, and global levels.*#

This implies neither that moral human rights are to be realized exclusively via legal implementation nor that all of them should directly be translated into legal counterparts. While all of them essentially involve a claim to some form of legal implementation, they certainly also generate duties that go beyond law and require other means, such as social recognition, political measures, active agitation, activism, and many more.® The claim here is simply that ethical considerations about the foundational idea behind it should also govern and inform human rights law and the way it is interpreted. This is mirrored not only in the fact that human rights norms are paradigmatically framed in abstract terms and essentially need to be concretized but also in many (domestic and international) legal texts, which explicitly regard human rights as moral rights that belong to every human being qua being human and that are recognized within legal documents but do not initially emanate from them.*°