Extraterritorial derogations from human rights treaties in armed conflict

This chapter examines one specific question: Are states allowed to derogate from human rights treaties for situations which take place outside their territories, especially in situations of armed conflict? Can, for instance, the United Kingdom derogate from the European Convention on Human Rights (ECHR) or the International Covenant on Civil and Political Rights (ICCPR) for events taking place in Afghanistan that involve its armed forces deployed there, to the extent that the ECHR and the ICCPR apply in Afghanistan? Contrary to the dicta in some decisions of the House of Lords and the UK Supreme Court, the chapter argues that extraterritorial derogations are not only permissible, but may even be necessary and desirable, as part of a price worth paying for the extensive and effective application of the treaties outside states’ boundaries. It also elaborates on the relationship between derogations and the various different manifestations of the lex specialis principle.