September 20, 2010
In early September, Timothy Endicott, dean of the faculty of law at Oxford University and a professor of legal philosophy, spoke to an overflow audience in Pound Hall on how judges in Europe and the United States have ruled on the territorial extent of human rights.
In addressing the question of whether human rights protection should extend beyond national territory and to non-citizens, he identified what he said were two false assumptions.
“You might think that because human rights are universal, therefore jurisdiction for the protection of human rights should be universal,” he said. That idea has been attractive to judges in European cases, he noted. But although he believes officials everywhere have an absolute duty not to violate human rights anywhere, “that doesn’t mean that any person has any right to any particular form of legal regime to enforce that.”
Looking to American jurisprudence, he addressed the idea that when the Constitution protects human rights, the jurisdiction of that protection ought to be restricted to the citizens in the territory of our state. Endicott rejects this idea, because “a responsible government has duties not only to its citizens, but to other persons,” he said.
After analyzing related decisions from the European and American courts, Endicott offered a proposal for extending basic human rights—such as the right not to be murdered, not to be tortured, not to be detained arbitrarily—in both systems, regardless of territory or nationality. But he added a caveat: “No one has a right to a form of protection of their human rights that will interfere with just and effective techniques for governance of a country.”
HLS Dean Martha Minow, who introduced Endicott, was among those who asked questions after his talk. She commended his argument for finding a path “that is respectful of the exigencies but at the same time protective of human rights.” But she asked for clarification on the prudential part of his proposal. Is it that “there is a right to habeas corpus, but out of prudence it can be restricted and not exercised in a particular setting?” she asked. “Or is it, in fact, that prudence is in the structure of the right?” Endicott replied that it was the latter. “I have a right not to be arbitrarily detained and, in fact, the right not to be detained on false grounds,” he said. “So my rights are not infringed if I am arrested on suspicion of an offense I didn’t commit, as long as there is going to be a process for responsibly deciding whether I did commit it.”
Endicott writes on jurisprudence and constitutional and administrative law. His recent articles include “Habeas Corpus and Guantanamo Bay” A View from Abroad” (2009) 54 American Journal of Jurisprudence 1-40.