INTERNATIONAL HUMAN RIGHTS LAW IN AN AGE OF DETERRITORIALIZATION

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International Human Rights Law in an Age of De-Territorialization



The current paradigm of international human rights law (IHRL) is predicated on the exercise of state power over the territory it controls. The research program challenges the accuracy and adequacy of this paradigm through the mapping and investigation of new spaces of exercise of power and influence over persons, both of which fall under a new de-territorialized normative paradigm. The latter is created by new technology, migration, economic globalization, religion, or, conversely, molded by global issues such as natural resource management, environmental concerns and public health. It proposes a radical shift in the theory of international human rights law, laying the ground for practical and feasible reforms in the existing IHRL framework, in order to enable its accommodation of the paradigm shift without reducing the scope of guaranteed protection.





International Human Rights Law in an Age of De-Territorialization

DIP Proposal – Prof. Anja Seibert-Fohr and Prof. Yuval Shany

I.General Outline

International human rights law (IHRL) – the body of norms and institutions developed post WWII for the purpose of ensuring that the exercise of State power does not infringe upon the basic needs and interests of individuals, and that State authority is conducive to enabling individuals a life with dignity – has been premised on a political model which reflected the 19th and 20th centuries’ State system, a system informed by the post-Westphalian State. According to this model, States have a relative monopoly over the exercise of governmental power in a certain territory, as well as over a certain population present therein.1 Under this prevailing historical narrative, State power presents the main threat to human rights; but States are also best positioned to guarantee human rights. As a result, IHRL regulates State power within the territories under their jurisdiction, imposing both negative and positive legal obligations on States (i.e. requiring acts and omissions to protect human rights).

The coupling of State power and control over territory as a constitutive element of modern statehood has previously been neither exclusive nor watertight, since States interact with one another and, on occasion, project their individual or collective authority (at times channeled through inter-governmental agencies or supranational institutions) outside their sovereign territory. Still, regulation of State power over clearly-delineated territorial spaces has remained the main building block of the international legal order, including the human rights system, despite its substantive universal claim for validity. Attempts to regulate the ever-growing activities of other players’ (don’t you think that would be a better term here?) wielding power and influence, including non-State armed groups, multi-national corporations and private individuals, are based on the Westphalian model by way of drawing analogies, at times, between the regulation of state actors and quasi-statal actors and, at other times, require States to regulate the conduct of non-state actors.2 Even these innovative approaches to the application of IHRL are premised on the territorial paradigm. For example, non-State entities, such as rebel groups, may possess obligations under IHRL with regard to individuals present in territories they control, States may be required to regulate the conduct of multi-national corporations headquartered in their territory and to suppress international crimes occurring in their territories (or any other territories under their control).3 Furthermore, in specific circumstances in which States exercise effective control over places and individuals located outside their territory (which mirrors the control they have inside their territory), they incur human rights’ obligations similar to those incurred within their own territory.4 All these examples of exceptional extra-territorial application of IHRL remain firmly in the grasp of the territorial paradigm, which, at best, manages to fill protective gaps on a case-by-case basis and, at worst, creates spatial gaps which IHRL is unable to reach.

The diminished adequacy of the territorial paradigm for shaping IHRL has increasingly become apparent, as lawmakers and adjudicators struggle to apply IHRL to spaces of interaction which are de-coupled from a specific State territory, and where the State is no longer the only, and in some contexts, not even the principal actor whose acts and omissions affect individual welfare. Current examples of the limits include cyber-attacks by foreign governments or private actors in an effort to influence foreign or national elections5, sovereign debt crises and the inevitable negative consequences for human welfare caused by the global financial crisis, a global financial system in which the main actors continue to wield unbridled power in moving capital streams and directing investment globally,6 and attempts by States to control migration streams before migrants arrive at their boundaries, as illustrated by push-back operations in the Mediterranean Sea or the March 2016 EU-Turkey Refugee Statement.7

Duncan Hollis has posited that a change of regulatory paradigm may be required when the existing paradigm is no longer accurate, complete and effective.8 Arguably, in the field of international human rights law, these criteria support a paradigm shift.

Three inter-related structural aspects of the interplay between international human rights law and the newly emerging spaces illustrate the required shift.

Firstly, the nature of interactive spaces entails that States routinely exercise power outside traditional State boundaries.9 The focus of the existing paradigm on the exercise of State power in a specific territory coupled with the traditional public-private divide which assigns responsibility over protection of IHRL exclusively to States, leads to an inaccurate and incomplete picture of power and influence actually exercised over individuals, which affects their basic needs and interests, and is necessary for enabling them a life of dignity.

Secondly, the existing territorial paradigm fails to address the important influence of networks of actors on the life and well-being of individuals. Arguably, human welfare is increasingly dependent on complex processes of communication between multiplicities of actors – including non-State actors – interacting with one another on a constant basis across State territories. Such actors may include information technology companies (of the like of Google and Facebook) and other trans- and multinational business entities, such as major players of global finance, informal standard-setting networks (such as credit-rating agencies or scientific research networks), the media, major social groups or leaders (such as religious institutions and political movements), and even violent terrorist groups. The current paradigm adequately grasps neither these processes of interaction, nor the relationships between territorial exercise of State power and cross-boundary power and influence projected by foreign States and inter-governmental organizations.

Thirdly, the classic division of roles of States as guarantors of international human rights and of individuals as holders and benefactors of these rights, have become blurry in these spaces. Commentators have gone so far as to compare the multilateral order to that of a medieval system of polities pre-dating the modern nation State. Indeed, citizenship is no longer the sole means regulating the inter-national activities of individuals, nor are States always able to effectively use their territorially-bound powers to ensure respect for human rights in these new spaces. States appear predominantly as local guarantors or regulators of interactive spaces, particularly through their public laws, vis-à-vis those participants who are located in their respective state territories.10 However, there are spaces in which States play only a marginal role as an organizing power – be it due to systemic or technical deficiencies, a denial of the existence and impact of these spaces, or an inability to gain proper access thereto.11 In addition, some of these spaces provide for their own legal systems.12

In response to these challenges, this research project intends to introduce a new paradigm for international human rights law which warrants the comprehensive and effective application of international human rights law to all spaces of human life. This includes spaces such as cyber-space, global finance and trade, religion, migration, global health, and allocation and extraction of natural resources. The objective is to develop de-territorial and functional approaches which reconnect States with their international human rights law obligations outside of the classic territorial paradigm, and which further explore how and to what extent can non-State actors directly or indirectly acquire responsibilities under international human rights law. To achieve this, the project adopts a method of reverse-engineering IHRL and the functions it plays in the lives of individuals through use of social and political science approaches on de-territorialism.



1 Territoriality distinguishes the modern political order from the medieval person-oriented order.

2 See, for instance, U.N.H.R. Comm., General Comment 31, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004); Yaël Ronen, Human Rights Obligations of Territorial Non-State Actors, Cornell International Law Journal, Vol. 46 (2013), 21 – 50.

3 E.g. Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, U.N. Doc. A/HRC/17/31, Annex (21 Mar. 2011); Civil and Political Rights, Including the Question of Disappearances and Summary Executions, Report of Special Rapporteur, Philip Alston, U.N. Doc. E/CN.4/2006/53/Add.5, 27 March 2006, §§ 25 – 27.

4 For many, see Loizidou (Preliminary objections), 23 March 1995, Series A No. 310, 23—4, §§ 62-63; H. King, The Extraterritorial Human Rights Obligations of States (2009), 9 HRLR 533, 556

5 Eric Lipton/David E. Sanger/ Scott Shane, The Perfect Weapon: How Russian Cyberpower Invaded the U.S., The New York Times, 13 December 2016, at https://www.nytimes.com/2016/12/13/us/politics/russia-hack-election-dnc.html?_r=0 (last visited: 15 March 2017); Marc Scott/Milan Schreuer, Hackers Post Pro-Erdogan Messages in Attack on Twitter Accounts, The New York Times, 15 March 2017, at: https://www.nytimes.com/2017/03/15/world/europe/hacking-erdogan-twitter.html (last visited 15 March 2017).

6 Mary Dowell-Jones/ David Kinley, Minding the Gap: Global Finance and Human Rights, Ethics and International Affairs, 25 (2011), 183 – 210.

7 EU-Turkey Statement, 18 March 2016, European Council, Summary Press Release, at: http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/ (last visited: 15 March 2017).

8 Duncan Hollis, Rethinking the Boundaries of Law in Cyberspace: A Duty to Hack?, Cyberwar: Law And Ethics For Virtual Conflicts (Ohlin et al, eds., 2015) 129.

9 The classic division of spaces into locally-confined territorial zones has become but fiction in today’s globalized world. Manfred Prisching, Die Weltgesellschaft – Idee und Realität, in: Peter Koller (Hrsg.), Die globale Frage. Empirische Befunde und ethische Herausforderungen (2006), p. 49.

10 Cf. Daniel Erasmus-Khan, Territory and Boundaries, in Bardo Fassbender/Anne Peters (Eds.), The History of International Law (2012), p. 225 (226).

11 Susan Strange, The Retreat of the State. The Diffusion of Power in the World Economy (1996), 66ff; David Newman, Territory, Compartments and Borders: Avoiding the Trap of the Territorial Trap, 15 Geopolitics (2010), 773 (775).

12 Cf. Boaventura De Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation, 2002, 212 The sharia, for instances, establishes a legal framework for Muslims.


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Tags: rights, human, international, deterritorialization