Extraterritoriality: Universal human rights without universal obligations

In international human rights discourse, the concept of universalism has been key since the adoption of the UN Charter in 1945, and the labelling of the 1948 Declaration as the Universal Declaration of Human Rights (UDHR) signifies the importance of this concept. Added to this, the strong position of the nondiscrimination provisions in the Charter, the UDHR and all subsequent human rights treaties and declarations, is further evidence of the primacy of universal and non-discriminatory enjoyment of human rights. This was also confirmed by the International Court of Justice (ICJ) in its determination that the practice of apartheid was a flagrant violation of the purposes and principles of the UN Charter. Yet, in the development of human rights law and its implementation through national and international bodies, the concept of universalism has been rather one-sided: it concerns human rights enjoyment, but not human rights obligations. While all individuals everywhere are considered to have the same rights based on international law, the obligation-holders (normally states) do not have the same obligations with regard to individuals everywhere. According to common perceptions of human rights obligations, whether a state can in any way be held responsible for human rights violations depends not only on the state’s actions, but indeed where those actions took place, and/or the nationality of the victims of violations.