Blogposts by Nienke van der Have

Nienke

Nienke van der Have

Nienke van der Have is a PhD candidate in the SHARES Project (since 2011). Topic: The Prevention of Gross Human Rights Violations under International Human Rights Law

20 December 2013

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

© Getty Images, BBC

© 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…)

14 June 2013

‘The Allocation of International Human Rights Duties (and Responsibilities) to Multiple Duty-bearers’, A Discussion of Samantha Besson’s SHARES Lecture

During a SHARES lecture on 6 June, Prof. Samantha Besson presented a recently published chapter on the allocation of international human rights duties and responsibilities for human rights in SHARES context. Building on the work of Henry Shue, among others, she offers a theory to bring our understanding of the supply side of human rights to the next level. Due to the complexity of this task, other human rights theorists have so far largely resorted to pragmatic and strategic reasoning instead of forwarding a morally coherent approach. Besson clarifies the steps to be taken as: (i) identification of human rights duties (ii) identification and justification of human rights duty-bearers; and (iii) allocation of human rights duties to human rights duty-bearers. (more…)

25 February 2013

The Maastricht Principles on Extraterritorial Obligations in the area of ESC rights – Comments to a Commentary

MaastrichtPrinciplesIMGThe extraterritorial applicability of human rights obligations is still a hotly debated topic. As most human rights treaties contain a jurisdiction clause which limits their effect to territories or people over which a state has some form of authority or control, the discussion tends to focus on the proper interpretation of the term jurisdiction. Courts and supervisory bodies confronted with interpreting the outer limits of jurisdiction clauses, for instance pertaining to situations of foreign occupation or arrests conducted by state agents abroad, have conceded that jurisdiction does not mean that a state’s human rights obligations end at its borders. The question that remains is when states are required to secure human rights for people outside their borders and to what extent.

Until recently, most of the discussion focused on instruments which by and large contain civil and political rights (CP rights). This can perhaps be explained by the simple fact that these instruments have explicit jurisdiction clauses and, quite importantly, also have international supervisory bodies competent to decide on (individual) complaints, thus creating a body of case-law on the subject. Therefore, a lacuna was filled when in 2011 a group of experts adopted the Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights. (more…)

12 September 2012

‘Extraterritorial Application of Human Rights Treaties and Shared Responsibility’, A Comment on Marko Milanovic’ SHARES Lecture

At his SHARES lecture at the ACIL on 6 September, Marko Milanovic discussed the relevance of his theory on the extraterritorial applicability of human rights treaties for questions of shared responsibility.

Milanovic’ 2011 book on the extraterritorial applicability of human rights treaties commences with a successful attempt at clarifying some of the misconceptions surrounding the term ‘jurisdiction’. (more…)

12 March 2012

The Responsibility to Protect: Why Libya but not Syria? – Panel Discussion and Book Launch

On the 8 March, the book “The Responsibility to Protect: From Principle to Practice” was launched at Spui25 in the center of Amsterdam. The launch could not have been more timely in light of the continuing reports of atrocities being committed in Syria and the discussions surrounding the inaction of the United Nations Security Council (UNSC). Appropriately so, the topic for discussion was: Why Libya but not Syria? The panel consisted of Prof. André Nollkaemper, Prof. Ko Colijn and Frank Majoor and was moderated by Juurd Eijsvoogel.

(more…)

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