All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee
In: Forthcoming Journal of International Dispute Settlement
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In: Forthcoming Journal of International Dispute Settlement
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In: 28 European Journal of International Law (2017) 1241
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Working paper
In: 93 INT'L L. STUD. 102 (2017)
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In: Oxford Handbook on the Sources of International Law (Oxford: OUP; Samantha Besson and Jean D'Aspremont eds.) (Forthcoming)
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In: Hebrew University of Jerusalem Legal Research Paper No. 16-06
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Working paper
In: 49 Israel Law Review (2016) 391-408
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In: Yuval Shany, 'Stronger Together? Legitimacy and Effectiveness of International Courts as Mutually Reinforcing or Undermining Notions' in Legitimacy and International Courts (Nienke Grossman, Harlan Grant Cohen, Andreas Follesdal and Geir Ulfstein, eds., CUP and Pluricourts, 2016 Forthcoming)
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In: American journal of international law: AJIL, Band 108, Heft 1, S. 123-127
ISSN: 2161-7953
In: American journal of international law, Band 108, Heft 1, S. 123-126
ISSN: 0002-9300
In: The Brown Journal of World Affairs, Band 21, Heft 1
In: Proceedings of the annual meeting / American Society of International Law, Band 108, S. 113-114
ISSN: 2169-1118
In: Law & ethics of human rights, Band 7, Heft 1, S. 47-71
ISSN: 1938-2545
Abstract
International human rights law (IHRL) has struggled to define a standard for determining the extraterritorial applicability of its norms that would reconcile the ethos of universal entitlement, on the one hand, with the centrality of borders in delineating state powers and responsibilities under international law, on the other hand. The case law of the UN Human Rights Committee and the European Court of Human Rights (ECtHR) favors barring states from engaging in conduct outside their borders that would be impermissible if undertaken inside their borders. Still, attempts to demarcate the precise scope of extraterritorial application through allusion to degrees of control over individuals or areas, or by the nature of the obligation itself – have led to unsatisfactory, if not arbitrary results. This article opines a move to functionalism as the basis for extraterritorial applicability – requiring states to protect IHRL in situations they can do so. Under this approach, which takes universality seriously, borders lose much their normative significance. I suggest limiting the functional approach to extraterritorial applicability in accordance with two key notions: (1) the intensity of power relations – factual relations of power entailing direct, significant and foreseeable potential impact – should result in the application of IHRL obligations; or, alternatively, (2) special legal relations – relations of power that put the state in a unique legal position to afford IHRL protection would also justify the imposition of extraterritorial obligations.
In: The Law & Ethics of Human Rights. Volume 7, Issue 1, Pages 47–71, Forthcoming
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In: Hebrew University of Jerusalem Research Paper No. 02-13
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