20 December 2013

Jurisdiction and the Allocation of Obligations under Human Rights Law to Multiple States

© Getty Images, BBC

Much has been said and done in recent decades to explore and exploit extraterritorial applicability of human rights. Whether in court cases or scholarly works, the debate has usually revolved around the concept of “jurisdiction”, as used in human rights treaties to demarcate their applicability. Jurisdiction, first and foremost, functions as a threshold for applicability of human rights treaties. Many opinions have been heard on the criteria that should be met before a state has jurisdiction and whether jurisdiction should form a high or low threshold. Without wanting to dwell on this issue too much, suffice it to say that international legal discourse has moved towards an understanding of jurisdiction as based on factual control exercised by a state over people. As explained by the European Court of Human Rights (ECtHR) in the 2011 Al-Skeini case this factual control can either be exercised in the form of effective control over territory or in the form of authority and control over people. In this blog, I submit that an important function of jurisdiction that is yet to be further explored is its role in the allocation of human rights obligations. (more…)