Marko Milanovic, EXTRATERRITORIAL APPLICATION OF HUMAN RIGHTS TREATIES Oxford: Oxford University Press (www.oup.com), 2011. xxiii + 276 pp. ISBN 9780199696208. £70.

AuthorKjetil Mujezinović Larsen
Published date01 September 2012
DOI10.3366/elr.2012.0129
Pages462-464
Date01 September 2012
<p>It is quite rare that a judge describes the case law of his own court on a particular issue as being “bedevilled by an inability or an unwillingness to establish a coherent and axiomatic regime” or as being a “patchwork case-law at best”, but this is how Judge Bonello has described the case law of the European Court of Human Rights (ECtHR) on the issue of the convention's extraterritorial application (appl. no. 55721/07, <italic>Al-Skeini and others v. the United Kingdom</italic>, Grand Chamber judgment 7.7.2011, concurring opinion). And this is the context for Milanovic's excellent book: the case law on the extraterritorial application of human rights treaties is confusing and partly contradictory, and a coherent doctrine has been lacking. Milanovic certainly acknowledges this – for his own part, he describes the case law as “problematic, suffering from rampant casuistry and conceptual chaos” (4) – and he makes a most commendable effort to analyse (and tidy up) this chaos. One slight problem, in a sense, with the book is that it was completed shortly before the ECtHR made a commendable effort of its own to clear things up in <italic>Al-Skeini</italic>. The book would, presumably, have looked different if that judgment were included. As Milanovic observes in his preface, he had to stop somewhere, but readers of the book are well advised to read it with this chronology in mind.</p> <p>The book contains five main chapters and a short conclusion. In chapter 1, <italic>Introduction</italic>, Milanovic provides an overview of the “chaos”, and he takes necessary initial steps in clearing things up. He provides a useful definition of “extraterritoriality”, which is more narrow – and conceptually clearer, and therefore also recommendable – than that which is sometimes used. But the chapter's most important contribution is the categorisation (at 11–18) of different human rights treaties based on their provisions governing the territorial scope. Milanovic draws a distinction between treaties with jurisdiction clauses, treaties with provisions on territorial application, and treaties with no provisions on territorial application. One might, however, perhaps have wished for some further elaboration on the possible consequences of this categorisation for the extraterritorial effect of the treaties in each category.</p> <p>Chapter 2, <italic>From Compromise to Principle</italic>, is a fundamental part of Milanovic's project. The chapter provides a most valuable analysis of the term “jurisdiction”, on which all of the subsequent analysis rests...</p>

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