The Democratic Function of Extraterritorial Human Rights Adjudication

In the absence of alternative modes of participation in global governance, human rights courts serve a significant democratic function vis-à-vis extraterritorial applicants and Member States of human rights treaties. Extraterritorial human rights adjudication serves three democratic functions: potential disempowerment of Member State actors that directly affect extraterritorial applicants; inclusion of extraterritorial applicants in the law-making process under human rights treaties that directly implicate extraterritorial lives; and identification of political and legal relationships that necessitate processes of good governance in an otherwise complex and opaque global environment. Territory should not be construed as the sole proxy of democratic legitimacy between a Member State’s action and an affected individual. Human rights adjudication enhances the democratic legitimacy of Member State decisions by ensuring participation of extraterritorial applicants in the democratic process insofar as the action affects them. This article examines preconceptions that extraterritoriality is illegitimate, considers the normative content of democratic accountability to contest that assumption, and ultimately argues that extraterritoriality enhances democratic accountability rather than undermines it.