What Does the Jurisdictional Hurdle under International Human Rights Law Mean for the Relationship between ...

Human Rights & International Legal Discourse (HR&ILD)

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Année
2018
Volume
12
Numéro
1
Page
99
Langue
Anglais
Juridiction
Référence
K.L. YIP, “What Does the Jurisdictional Hurdle under International Human Rights Law Mean for the Relationship between International Human Rights Law and International Humanitarian Law?”, HRILD 2018, nr. 1, 99-119

Résumé

With increasing acceptance of the application of international human rights law (‘IHRL’) in armed conflicts and occupations, the early focus on ‘ jurisdiction’ as a potential limit to applying IHRL extra-territorially has shifted to the relationship between IHRL and international humanitarian law (‘IHL’), leaving the different conceptions of jurisdiction under-theorised and their intimate connection to the relationship between IHL and IHRL under-analysed. This article examines two competing conceptions of jurisdiction, based respectively on factual control and normative legitimacy, to examine what the jurisdictional hurdle under IHRL means for the relationship between IHRL and IHL. It uncovers the different visions of human rights underlying different conceptions of ‘ jurisdiction’ under IHRL and examines how they differently shape the relationship between IHRL and IHL. It argues that while control-based jurisdiction is theoretically under-developed, legitimacy-based jurisdiction constricts our vision of human rights and blinds us to the many non-sovereign actors holding structural power over lives in armed conflicts. It further argues that the proposal to partially abandon the jurisdictional threshold harbours a ‘bare life’ vision of human rights that diverts IHRL’s scrutiny away from structural power altogether, sovereign or otherwise. It then proposes a reconceptualisation of ‘ jurisdiction’ as structural power to reclaim the ambit of IHRL as demanding the transformation of institutions, sovereign or otherwise, so as to create the necessary structural conditions for the fuller enjoyment of human rights.